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ICYMI: Our Social Media Posts This Week -- Feb. 1 - 7, 2015

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

On Sunday 2/1/15 the post asked if you are familiar with associational discrimination. What is it? you ask. It is adverse action taken against an employee based on who s/he associates with and not something the employee does. In this case, the employee cared for his father, which occasionally made him late to work. He was classified as an exempt employee and thus not subject to the tardiness policy; despite that, he was written up for being late. Also, his request for flex-time was denied. The last straw for the employer, Hartford Insurance, was when the employee arrived 26 minutes late but during his lunch hour; the employer considered that late and fired him. He sued for associational discrimination under the ADA due to the known disability of his father. The elements of associational discrimination are in the post. What was the employer’s downfall? Evidence that the employee’s work suffered as a result of the tardiness, discipline for subpar performance, and attempts to accommodate.

TAKEAWAY: Evaluate an employee based on his/her performance and nothing else (and, if necessary, engage in the interactive accommodation process to help the employee perform the essential functions of the job).

The post on Monday 2/2/15 was a reminder about the “regarded as” prong under the ADA and forcing an accommodation on someone when it is not requested.

TAKEAWAY: Short and sweet: if an employee doesn’t ask for an accommodation, don’t offer one.

In the post on Tuesday 2/3/15, we asked if you really know what your condo or homeowner association documents say. Those are legal documents that bind owners whether or not they like what the documents say.  Sometimes they are very strict about something that might prove important to you as an owner living in that community.   

TAKEAWAY: Just as with any legal document, make sure you understand your rights and obligations before signing (or, in this case, agreeing to purchase the home).

The post on Wednesday 2/4/15 was about why your business needs a social media policy for your handbook. Hopefully your initial response to the previous sentence is not “what is social media?” What are a few of the reasons listed as to why you should have a policy? Loyalty (to your business), SocMedia impact (on the public and potential customers/clients), and guidance (as to what employees can and cannot do). Others reasons are in the post.

TAKEAWAY: The use of social media can be beneficial to your business, but only if properly used and monitored by you, hence the need to have and uniformly enforce a policy.

The post on Thursday 2/5/15 was about the impact of an employee reporting sexual harassment after her own misconduct. The employee alleged that her supervisor sexually harassed her for years and that despite reporting the harassment to the store manager, nothing changed. Years later, she was suspended by the regional manager pending investigation into allegations of fake contracts. Two days after the suspension, she reported the harassment to the regional manager. After the investigation concluded, she was fired based on involvement in the fake contracts. She sued under a hostile work environment theory. The parties gave conflicting factual accounts of the harassment, her requests that it stop, and what she did to report it, such that the court denied the employer’s request to dismiss the harassment suit. However, the court did dismiss her retaliation claim since she did not report the harassment prior to being suspended pending investigation.

TAKEAWAY:  The court’s actions were based on the facts of the case, but teach that if an employer has good records, it might be able to defend itself against some or all allegations in a suit by a (former) employee.

In the post Friday 2/6/15, we asked if the cat’s paw got in your way. If you are asking “What?, keep reading. The cat’s paw theory espoused by the Supreme Court in 2011 says that if a supervisor does something motivated by discriminatory animus that is intended to cause an adverse employment action and is a proximate cause of the ultimate action carried out by someone else who has no evident discriminatory intent), the employer is liable to the employee. That case was brought under USERRA but the theory is continually being used relative to other claims. A few are listed in the post.

TAKEAWAY: Even if the ultimate decision is made by someone with no discriminatory intent, if that decision is influenced by someone who DOES have discriminatory intent, the employer might be liable for harm caused to the employee.

Finally, in the post yesterday 2/7/15, we talked about Saks Fifth Avenue, which extolls its LGBT policy, being sued for transgender discrimination. The employee filed suit in Texas, alleging a hostile work environment. While transitioning from male to female, the employee alleges she was forced to use the men’s restroom, being subjected to continued use of male pronouns by coworkers, and being fired. The EEOC found cause; she filed suit in federal court. However, Saks has asked the court to dismiss the suit, asserting that Title VII does not protect trans identity. This runs contrary to the EEOC’s holding 2 years ago that transgender workers are protected and the recent announcement by Attorney General Holder that federal prosecutors will take the position that Title VII protection includes gender identity discrimination. What makes the case more interesting is that contrary to Saks’ stance in the suit, it touts its high score on a human rights index, which includes gender identity protection.

TAKEAWAY: More and more states and local municipalities are enacting laws to protect workers on the basis of sexual orientation or gender identification; unless either has a true bearing on the job, don’t wait for the law, just look at whether the employee performs the job or not.

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