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ICYMI: Our Social Media Posts This Week – Mar. 20-26, 2016

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 3/20/16, we talked about a woman who claims to be the victim of reverse discrimination. Alicia, a white woman, claimed in a federal suit that she suffered discrimination and retaliation for being white and not Native American. She worked with the employer for about 6 years. In October 2014 she got a new boss. She alleges that in the first few weeks, he made several comments to her suggesting he thought she was of Native American descent. Alicia neither commented nor corrected him. Her children fell ill before Thanksgiving; when she returned to work after taking a few days to care for them, she commented about the employer being closed for the holiday. As part of the ensuing conversation (more details are in the post), it came up that Alicia was not Native American. Her boss’s behavior toward her changed after that, including making other racial comments to her – including that he wanted to hire only Native Americans. Alicia’s complaint also alleges that she took it up the chain of command and, in return, suffered suspension without pay and a discharge in January 2015 (when she was the facility’s deputy director).

TAKEAWAY: It’s not common, but reverse discrimination does happen. Keep your eyes peeled as this one progresses.

The post on Monday 3/21/16 was about Greyhound’s agreement to pay (at least) $375,000 to settle disability claims. That is to be divided $3000 to certain passengers with disabilities and $75,000 for a fine. The settlement came about after allegations by DOJ that Greyhound didn’t maintain required accessibility features on its fleet, failed to help disabled passengers board and exit buses, and failed to let wheelchair-bound customers make reservations on-line. There is an uncapped fund for affected passengers so the $300,000 figure might go a lot higher. Go to the post for more details.

TAKEAWAY: Once again David beats Goliath – all employers must comply with all applicable provisions of the ADA.   

In the post on Tuesday 3/22/16 we asked can you lose your home in a business lawsuit? The answer is, of course, “it depends”. On how your business is set up and whether or not you observe corporate formalities. If you operate as a corporation, LLC, LLP or LP, and observe corporate formalities, your home is probably not reachable by creditors. However, if you operate as a sole proprietorship, the home is probably reachable by creditors.

TAKEAWAY: This question – and the answer – is but one reason someone starting a business should meet with an attorney at the start: to protect assets against a downside.

The post on Wednesday 3/23/16 was about a dyslexic employee winning a discrimination case against Starbucks. Note: this happened in the UK but would probably play out the same here in the US. Starbucks allegedly wrongly accused Meseret, a dyslexic employee, of falsifying documents when she merely misread numbers she was recoding. The tribunal found that Starbucks failed to accommodate under the UK equivalent of the ADA. Details are in the post. A separate hearing will be held to determine the damages to be awarded.

TAKEAWAY: Employers must know of their obligations under the ADA and act so as to fulfill those obligations – else a heavy hammer might fall.

In the post on Thursday 3/24/16 we highlighted an applicant who couldn’t not raise an arm as protected by the ADA. Michael applied for a field engineer position; after an offer, he underwent a pre-employment physical. The employer learned he had unsuccessful surgery to repair a torn rotator cuff and couldn’t raise his right arm above his shoulder. Michael told the doctor that he had taken a prescription painkiller, retained the prescription, but no longer took the medication. The doctor cleared him to work if the employer put in place certain restrictions (listed in the post). The employer’s manager said the restrictions would prevent Michael from doing the job. After more back-and-forth between Michael and various of the employer’s departments, including Michael providing additional documentation, the company withdrew its offer of employment based on his inability to climb a ladder. Michael filed a charge with the EEOC; it found the company had failed to perform its obligations under the ADA and issued a right-to-sue letter; Michael sued. The trial court initially ruled in favor of the employer on the basis that the rotator cuff injury did not render Michael disabled under the ADA and that he was not qualified for the position. The appellate court reversed, in part because rescission of the job offer showed Michael “had a substantial impairment in the major life activity of lifting” or that the company believed he did. The case then was allowed to proceed.

TAKEAWAY: Employers must think through the possible repercussions of any adverse action taken against employees and applicants.

The post on Friday 3/25/16 was a finding by a federal court that the Philadelphia School District was not liable for discrimination against a fired janitor. Odell Wray, an African-American high-school janitor, sued the School District for racial discrimination after he was fired. He alleged that it all stemmed from his interracial relationship with a Caucasian teacher at the school. The allegations include that the principal told him “jungle fever” was not allowed at school (and other actions/comments noted in the post). The final incident occurred 11/28/11 when Wray went into the school with a female whom police knew to be a prostitute. When they left the building, Wray told the police he’d gone to get his debit card and let her use the bathroom. She, however, admitted to a sexual encounter inside the building (and that it was not a one-time occurrence). Wray disputed what she said. The next day the police told the principal what happened. There was then a long disciplinary process including hearings and he was fired in April 2013. He sued (you saw that coming, right?), alleging discrimination under the cat’s paw theory. The Judge found no proximate cause between any act motivated by discriminatory animus performed by the non-decision-maker principal and the discharge itself. Details of the analysis are interesting and in the post.

TAKEAWAY: An employer with a legitimate reason and basis for adverse action can indeed take that action (but it should be prepared to show the support if necessary).

Finally, in the post yesterday 3/26/16 we said, don’t cry over spilled milk: best practices for handling nursing employees. Yes this is about employees who are nursing and need to express milk in the workplace. They have both state and federal protection (depending on the state in which they work). In reverse, under Title VII (federal law), there can be no discrimination on the basis of pregnancy or its related medical conditions, one of which is lactation. The post gives some examples of EEOC enforcement guidance on this subject. The FLSA contains applicable provisions (as a result of the ACA!); they include that employers must provide reasonable break time for non-exempt employees to express milk as frequently as needed for one year after childbirth and others mentioned in the post. The FMLA also applies because lactation can result in medical disorders; see the post. In addition to those laws, state or local laws may apply.

TAKEAWAY: Employers must be aware of ALL laws that might apply under their given circumstances. Some other suggested actions are in the post.

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