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ICYMI: Our Social Media Posts This Week – Sept. 20 - 26, 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 9/20/15 we noted that religious discrimination can include non-religion (atheism) too. The Wisconsin city in the news recognized this and banned discrimination on account of “nonreligion” too – very forward-thinking! Go to the post for more details on how they did it.

TAKEAWAY: Remember that religion is whatever the person believes, and believing in nothing (atheism) can be such a belief that entitles the holder to legal protection.

The post on Monday 9/21/15 asked if the Baltimore City FD will pay $60K to settle a disability discrimination case. A former firefighter alleged discrimination when, after suffering a seizure and being given prescription medication, he was not allowed to return to work. He filed a charge with the EEOC but it looks like the case will settle prior to suit being filed.

TAKEAWAY: Whether or not a case has merit, it is often better to settle it and avoid the (nuisance of) financial and human resources that will be invested to investigate and respond to any charges, to say nothing of the legal fees for the charge and any ensuing suit. Of course, the easiest out is to ensure no discrimination …

In the post on Tuesday 9/22/15, we talked about what HR needs to know about tracking employee time. No, not just time clocks. Time records. The questions asked and answered in the post are whether managers can alter time sheets (to correct them), whether exempt employees can be required to submit time sheets, and how to prevent employees from falsifying time records. All are important and impact on an employer’s obligations under the FLSA.

TAKEAWAY: Know the answers to these and other pay- and time-related questions; make sure there is no liability under the FLSA. Contact an employment law attorney if you have questions about compliance.

The post on Wednesday 9/23/15 was about don’t ask, don’t tell and the law on invisible disability disclosure. This started (ok, was further brought to light) by the recent plane crash caused by the pilot with a history of depression. Mental illness often goes untreated and even more often is invisible in the workplace. Employers can’t ask questions (except under certain circumstances) and employees are scared to talk about it for fear of repercussion (even though that would probably be illegal). The post gives some examples of how the issue can be addressed, including when the employee is a threat to him/herself or others in the workplace and when the disability is obvious.

TAKEAWAY: Even though mental illness can be a very real disability, unless an employer knows about it or has reason to suspect it, every employee must be treated the same and judged solely on performance.

The post on Thursday 9/24/15 was about an employer’s dawdling that revived an employee’s retaliation claim. Got your attention? In the case here, an employer said, in response to an employee’s retaliation suit, that it had decided to discharge prior to the employee’s filing of an EEOC charge. Great, right? Keep reading. Linzie started his job in 2007. In June 2010, he received a warning; later that month, he filed an EEOC charge alleging race discrimination and retaliation. In September 2010, he filed suit. More of the timeline is in the post, but the employer claims that it decided to terminate “on or about” 10/14/10, 9 days prior to learning that Linzie filed another EEOC charge and 10 days before actually terminating him. He filed another suit (of course) alleging retaliation for the first EEOC charge. The appellate court reversed the trial court and sent the matter to a jury, finding that the timing of the discharge was suspicious, especially when there was no documentation of a critical event and the employer’s “dawdling” after a meeting.

TAKEAWAY:  Don’t wait for a judge or jury to decide if the facts you allege are credible and support your legal position – make sure to have the supporting facts in place before an adverse action is taken.

On Friday 9/25/15, the post told us about a suit filed by a transgender Barnes & Noble employee who was denied female identity. This author thinks we will see more and more of this type of matter in the workplace as gender identity issues take the forefront and the legal world tries to catch up. So what happened here? Victoria, a transgender woman, claimed that her managers refused to allow her to present as female at work (by not recognizing her as female, prohibiting her from using women’s facilities, female pronouns or even discussing her transition with coworkers) and then fired her when she stopped complying. More details are in the post. It’s ironic that this suit happened when Barnes & Noble has been touting its “perfect score” on the Human Rights Campaign’s Corporate Equality Index for 7 years. Stay tuned to the news to see how this one progresses.

TAKEAWAY: Employers must remember that the EEOC has said that gender identity comes under the gender discrimination heading, such that it must be dealt with in the same manner, i.e., no different treatment unless the job requires it.

Finally, the post yesterday 9/26/15 was about an HR director who alleged race discrimination (and asked if she was right). The allegations were made by the HR director for the University of Oklahoma athletics department on the basis of race, gender and disability. The school denies the allegations. Details of the allegations are in the post, but include unequal employment conditions and a lower salary and benefits due to gender and race.

TAKEAWAY: Have you heard it before? To avoid legal complications, treat all similarly-situated employees the same, regardless of gender, race, or disability (or any other protected or other basis) and make job performance the only differentiating factor.

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