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ICYMI: Our Social Media Posts This Week – May 29 - June 4, 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 5/29/16 we noted that a GYN practice must face a pregnancy bias trial. Durcy was a medical records clerk for an OB/GYN practice. She alleged that she was treated differently because of pregnancy or childbirth – and she did it via direct evidence (as contrasted with the usual indirect-proof McDonnell-Douglas method). Durcy showed that she was fired 3 weeks after giving birth, but the employer’s policy was to allow for 6 weeks of post-delivery leave. The employer attempted to defend by saying her position was eliminated as part of a downsizing. The judge didn’t buy it: he said a prior downsizing was due to doctors leaving but there was no such action this time. Durcy also had other direct evidence which is in the post. The employer probably did itself in here and now must face trial (or settle).

TAKEAWAY: Employers must keep in mind that despite the prevalence of indirect proof in discrimination claims, it is still possible for a plaintiff to prove his/her claims directly – as happened here - if the employer gives the evidence.

The posts on Monday 5/30/16, here and here, were Memorial Day tributes to those who fought to achieve and preserve our freedoms.

TAKEAWAY: There are fights even now over what laws do and don’t allow us to do – but those battlefields are far different than the ones on which veterans fought (and continue to fight) for our freedoms. Please thank them all.

In the post on Tuesday 5/31/16 we read that Washington Crossing Inn did not fire the former banquet manager for age discrimination. On appeal, a federal court ruled that the former employee did not carry her burden of proving the employer violated the ADEA or PHRA. By way of background, Lisa was hired in May 2009 by the current employer who had purchased the Inn; she was to be in her same position, banquet manager. Apparently there were differences with new management, including Lisa not liking them telling her not to bring her dog to work. (More details are in the post. Later that year she was discharged, her position eliminated, and a “banquet coordinator” positon (with lower pay and no benefits) created. The new position was offered to one person who turned down the offer. A 22 year-old former subordinate of Lisa’s temporarily performed the responsibilities. In Spring 2010, the employer hired a banquet coordinator, paying benefits but a lesser salary than it had paid Lisa. Lisa filed a charge of age discrimination. The EEOC issued a right to sue notice, after which Lisa filed suit. The District Court granted summary judgment to the employer (based on its argument that the discharge was due to Lisa constantly locking horns with management) and Lisa appealed. The appeals court agreed that Lisa presented no evidence of age discrimination – just because the employee temporarily performing the duties was much younger than Lisa, the burden was not satisfied. See the post for more about the ruling.

TAKEAWAY: A large age discrepancy can evidence of age discrimination – but it also might not. Employers need to assure that there is a legitimate, nondiscriminatory reason for any adverse action before taking that step.

The post on Wednesday 6/1/16 was about a man claiming wrongful termination after surgery. Roger began his employment with Cam Superline in May 2002 and worked in the service parts department for over 12 years. He told the owner he needed 3 weeks off for hernia surgery. He further alleges that the employer did not classify his time off as FMLA leave such that when he called his supervisor to return after the surgery, she told him not to return. Roger filed suit in the Middle District of PA earlier this year. Stay tuned as the suit progresses.

TAKEAWAY: Employers can take adverse action against employees as long as there are no negative legal implications – such as failing to fulfill obligations under an applicable law.

The post on Thursday 6/2/16 talked about a car salesman suing his former employer over age discrimination allegations. Richard worked as a car salesman for about 10 years; he was age 69 at the time of discharge. His suit says that prior to discharge, he and a similarly-situated salesman both signed agreements to sell an average of 10 cars per month. However, after a work injury, Richard was off for 2-1/2 months. He says the discharge was based on his age. This case too is pending in court.

TAKEAWAY: It bears saying over and over – any adverse action (to be) taken by an employer should be based on a legitimate, non-discriminatory reason that has factual support.

The post on Friday 6/3/16 said that yes, managers and supervisors can be sued individually for FMLA violations. A federal court recently ruled that in some situations, employees can be individually liable for FMLA violation claims. In the subject suit, the employee sues for FMLA interference and retaliation, and associational discrimination under the ADA. The trial court dismissed the claims but the appellate court reversed. The factors it looked at are in the post, including whether the manager/supervisor had the power to hire and fire employees.

TAKEAWAY: Courts are broadening the definition of “employer” in finding liability for violation of various laws – everyone should know who might come within an expansive definition and act accordingly.

Finally, the post yesterday 6/4/16 noted that service-animal fraud throws the ADA to the dogs. A nation of animal lovers, the US is apparently subject to a craze of claims of needing various animals as an accommodation of a medical or health condition. It’s often easy to forget that the ADA permits service animals in private places, even those which prohibit pets. This applies to businesses too. What is happening is that non-disabled persons, aware of the low hurdles to bring in animals, are taking advantage of the situation. See the post for details and examples.

TAKEAWAY: The ADA permits service animals, but not all situations are covered by the questions allowed to be asked – pet-owners who do not have service animals are stepping through the wide crack and states cannot act to fill the crack. Business owners need to be aware of this part of the ADA so they don’t run afoul.

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