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ICYMI: Our Social Media Posts This Week -- Aug. 23 - 29, 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.

In the post on Sunday 8/23/15 we learned that the ADA direct threat defense just got a little easier for employers (if they have a reasonable belief, whether or not it’s proven out). When dealing with accommodation under the ADA, many people forget that the employee must be able to perform the essential functions of the job (with or without reasonable accommodation) without being a direct threat to him/herself or others. The post reminds us of the 4 factors that comprise the direct threat defense. In this recent case, the question was whether the employer had to prove the direct threat defense by a preponderance or merely have a reasonable belief as to the risk posed. The court decided on the latter.

TAKEAWAY: While the threat need not actually exist and may not be proven, if the employer reasonably believes that the employee poses a direct threat to him/herself or others, then that is sufficient under the ADA to meet the employer’s burden.

The post on Monday 8/24/15 was about Employment Law 101: Sex Discrimination. Who, what, why. The post answers some of these (and other) questions generally as to Title VII, but it is advisable that you consult with an employment law attorney to make sure you know your rights and obligations under all applicable federal, state and local laws. The post also provides a few examples of how this works in the real world. It also provides a few handy tips.

TAKEAWAY: Unless it is necessary to the job, gender should play no part in hiring, pay, discipline, promotion, or firing – just look at job performance.

In the post on Tuesday 8/25/15, we noted that Howard University will pay $35,000 to settle an EEOC disability discrimination lawsuit. The allegations were that Clarence, a diabetic with resulting kidney failure, applied and was interviewed for both protective services officer and supervisor positons. During the interview, in response to a question about shift preference, Clarence chose evening shift due to his dialysis needs. Clarence, who had much police experience, was not hired but at least 40 others were. When voluntary conciliation failed, the EEOC filed suit. This settlement resolves the matter.

TAKEAWAY: A disabled applicant or employee is not the end of the road, but just the beginning – being made of the disability invokes the employer’s obligation to engage in the interactive accommodation process (if an accommodation is being requested).

The post on Wednesday 8/26/15 reminded us why it’s legal to fire someone for being gay in 28 states. Yes, same-sex marriage is now legally recognized, but that is not the end of the battle for LGBTQ people. Most states (including Pennsylvania) still have no legal protection against employment discrimination on the basis of sexual orientation. Most states’ laws also don’t include sexual identity, but the EEOC has now ruled that discrimination on that basis IS sexual discrimination – we will see how that plays out through the courts. More statistics and information relative to employment discrimination against LGBTQ people is in the post.

TAKEAWAY: While it may not be illegal, that doesn’t mean it’s a good thing for your business to discriminate against LGBTQ people. If the person can do the job, let him or her do the job - regardless of sexual orientation.

The post on Thursday 8/27/15 talked about the hidden costs of home ownership - what else might be your lability under your Association’s governing documents. The post contains a list of 10 things to budget for as part of owning a home, but I’d like to focus on #8: homeowner/ condo associations and #10: grounds maintenance/upgrades. If your home is in a planned community, be it condominium or single-family, then you are bound by the Association’s Governing Documents (Declaration, Bylaws, and any Rules/Regulations that have been enacted). Those documents specify whose obligation it is (yours or the Association's) to repair or replace certain things, including doors, roofs, porches, sidewalks, lights, and the like, and to maintain (or not install) landscaping in a certain way. Make sure you know what you might be liable for in the future – and that when the day comes to make good on your obligation, you must do it in a way that comports with the Governing Documents. Likewise, make sure that whatever you plan to do with landscaping is allowable before you do it – it is not good to have to pay to do something and then pay again to undo it after the fact.

TAKEAWAY: Life in a planned community, with a condominium or homeowners’ association, can be great – but it also requires adherence to legal documents that contain obligations on the part of owners and the associations.

The post on Friday 8/28/15 told us about pay discrimination and that the best man for a job may be a woman. Employers must beware pay discrimination on the basis of gender as that can be more expensive than just paying the woman the same as the man from the start. The case in the post is but one example of how this works under the Equal Pay Act. Here, Kathy’s title was administrative services representative II, but she actually performed management duties for 8 years. In March 2011, the employer undertook a pay classification system based on industry pay grade data; Kathy’s job was listed as Grade 5 based on what the employer thought an administrative assistant normally does. Kathy got a raise, but not one that matched the Grade 7 classification of the duties she actually performed. 3 months later, the employer hired a younger male as the new fleet administrator at the recommended starting salary. Kathy had to train him; he took over much of what she’d been doing and she was told to focus on management and construction projects at field offices. In August 2011, a new facilities manager position was created; the employer initiated contact with a younger male to see if he was interested in the position. Kathy was fired in September 2011 due to alleged complaints about her performance (for which she had never been disciplined and for which her evaluation rated her as excellent). The immediate discharge was contrary to the employer’s policy. The male was indeed hired and negotiated a salary higher than the pay grade salary; his duties were basically those that Kathy had performed. No surprise, Kathy sued. The court analyzed what Kathy and the males did and found that she had performed much the same duties as did they. When the employer said the pay grade system was gender neutral, the court said that was true but insufficient as a defense since that did not explain the wage disparity given the work performed (that the employer knew she was performing). In the end, Kathy gets a trial on her claims under both Title VII and the ADEA.

TAKEAWAY: It’s best if the job title matches the job duties; the next step is to pay the person for the duties performed (and not take into account gender).

Finally, the post yesterday 8/29/15 told us that you should be prepared to justify a termination by citing business reasons unrelated to FMLA leave. This holds true for “regular” situations and those where someone was on FMLA leave.

TAKEAWAY: If there is a legitimate reason to terminate employment, without taking into consideration any FMLA leave, then do it – legally.

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