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ICYMI: Our Social Media Posts This Week -- Mar. 15 - 21, 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 3/15/15 we posted about a Denver jury that awarded nearly $15 million in a race discrimination case. Yep, million. The allegations in the suit were that a trucking company segregated workers by race, calling people “stupid Africans” and then punishing those who complained. The verdict included $13 million in punitive damages along with back pay and $650,000 for emotional distress. And as if that's not enough of a slap, the employer also has to pay the employees’ legal fees and costs. Those who brought the suit were 10 black employees - many from Mali - and one white whistleblower. The employer has said it plans to appeal.

TAKEAWAY: Train your employees – all of them, not just the managers – not to discriminate or you may pay dearly for their comments and actions.

The post on Monday 3/16/15 gave a good analysis of a defense available to employers. What defense? One that basically lets an employer off the hook if (1) it exercised reasonable care to prevent and promptly correct harassing behavior and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. This is part of my class when I teach employment discrimination law to law students. The case that was attached to the post provides a good analysis of how it works in real life.

TAKEAWAY: If your business has a policy against discrimination or harassment, enforces it, AND an employee does not take advantage of that policy, you may not have liability.

In the post on Tuesday 3/17/15, we talked about the protection LGBT employees (don’t) have in the workplace. While many states now recognize same-sex marriage, they don’t prohibit discharge solely on the basis of sexual orientation.

TAKEAWAY: While making employment decisions on the basis of sexual orientation may not be illegal, it is not necessarily the best thing for business.

The post on Wednesday 3/18/15 highlighted a suit brought by the EEOC against Darden Restaurants, Inc., alleging age discrimination. Olive Garden, Longhorn Steakhouse, Yard House, Bahama Breeze, The Capital Grille, Eddie V’s Prime Seafood chain – all Darden group holdings. The suit alleges that older applicants who were not offered positions were told many things, including that they were “too experienced,” the employer wanted “fresh employees” and even that the employer “wasn’t looking for old white guys.” Darden denies the allegations so we will have to wait and see how this plays out.

TAKEAWAY: Don’t judge a book by its cover; just look at whether or not the person can do the job.

In the post on Thursday 3/19/15 we talked about another EEOC suit, this time against a car dealership involving discrimination against an employee with MS. Here, an offer of partnership lured the employee to the employer; after he was diagnosed with MS, that job evaporated and more.

TAKEAWAY: Discrimination on the basis of disability is illegal – again, judge the employee or applicant solely on the basis of ability to perform the job.

The post on Friday 3/20/15 asked about the ADA and when a diagnosis of alcoholism “wears off”. According to this recent court opinion, the answer is perhaps never, and that can have huge implications for employees and employers.  

TAKEAWAY: Look at the tips in the post: know the nature of alcoholism, get your attorney to weigh in, and write a detailed job description.

Finally, the post yesterday 3/21/15 talked about invoking the FMLA if/when the employee can’t do the job. This statute can be a powerful one if used correctly. The post here talks about a pregnant employee who becomes temporarily disabled and needs accommodation. But if she still cannot perform the essential functions of the job, you can put her on FMLA leave (if it applies). When the FMLA leave is up, if she still cannot perform the essential functions with accommodation, then you can terminate her employment.

TAKEAWAY: Remember that while pregnancy is not a disability, it may lead to one or more conditions that must be accommodated under the ADA; however, if the ADA doesn’t offer protection, use the FMLA and then you might be able to legally terminate the employee’s employment.

References (3)

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