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ICYMI: Our Social Media Posts This Week – June 19-25, 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 6/19/16 we asked Sex discrimination is illegal, but what does that really mean? A very good question. The suit brought by the Department of Justice against the State of NC attempts to touch the iceberg by asserting that restricting trans individuals’ access to bathrooms in state buildings violates Title VII’s prohibition against sex discrimination. DOJ (and the EEOC) assert that includes gender identity. The post details a bit of the history of this language, including an anecdote about FDR (a reporter asked him “what about sex?” and he answered “Don’t get me started. I’m all for it.”) As they say, we’ve come a long way baby relative to the meaning of discrimination the basis of sex. The post analogizes trans employees to the employee in the Price Waterhouse v. Hopkins case on the basis that sex includes not only biology, but conformity with expectations about appearance, demeanor, and identity and explains how the EEOC moved from that to sexual orientation also being covered. So, for example, as the post notes, asking about married male employees “Who’s the butch and who is the bitch?” will be deemed by the EEOC to be a statutory violation. Other examples are in the post. Attorney General Loretta Lynch summed it up at the press conference after the suit was filed against NC: “This action is about a great deal more than just bathrooms.” She is so right.

TAKEAWAY: PA law may not explicitly bar discrimination on the basis of sexual orientation or gender identity, but the EEOC does and federal courts are starting to interpret Title VII that way. Just because it isn’t illegal (yet) doesn’t make it the right way for an employer to act – and may put you at risk for violation of federal law.

The post on Monday 6/20/16 mentioned that Lowe’s is to pay $6.8M to settle a disability discrimination suit (definitely not DIY)! The underlying suit was filed on a nationwide basis by the EEOC alleging that Lowe’s fired disabled employees and by failed to provide reasonable accommodations to them when their medical leaves of absence exceeded Lowe’s maximum leave policy limits. The allegations also included termination of employees regarded as disabled or with a record of disability and those associated with disabled persons. More details are in the post.  

TAKEAWAY: One would think these big national companies would be on the cutting edge of rights and protection for disabled persons – one might be wrong. In your corner of the nation, ensure that you treat disabled workers as the law requires.

In the post on Tuesday 6/21/16 we noted US Lawns was not liable as a joint employer under Title VII. The rulings are starting to trickle in on this topic. A federal suit was brought against US Lawns as franchisor and a franchisee as joint employers; the allegations included gender discrimination, harassment and retaliation in violation of Title VII. The suit included alleged remarks by a corporate manager such as the plaintiff “should be working on the detail crew because she is a woman.” More titillating details are in the post. So how did the issue of joint employer arise? The plaintiff said she got correspondence from the employer (the franchisee) on US Lawns’ letterhead (saying it was from the employer and the date from which she had been employed by US Lawns), had to wear a US Lawns uniform and drive a truck with the US Lawns logo. US Lawns argued it was not a joint employer because the control requirement was lacking (and that even if it was found, the franchisee-employer had insufficient employees to meet the Title VII threshold). The judge did not buy the plaintiff’s joint employer argument.

TAKEAWAY:  Suing under a joint employer theory gives employees another (and possibly a deeper) pocket for recovery, but suit alone does not make the entities joint employers. The prerequisites to find that relationship must still be met. Consult an employment law attorney to ensure your business can’t get caught up in being a joint employer.

The post on Wednesday 6/22/16 reminded us that PA wiretap laws still forbid use of smartphone apps to record conversations. The app store was open for business and the PA Supreme Court walked in, ruling on the use of smartphone apps in the context of illegal wiretapping. Current state law prohibits recording conversations without the consent of all participants; the lack of consent subjects the recorder to a felony charge. A 2014 case from the PA Supreme Court (listed in the post) found that one-sided recording of private conversations was not illegal if done by phone (at least in the criminal context). The Court recently reconsidered the telephone exception in light of smartphone technology and capability and found smartphone recording apps to be akin to concealed tape recorders and thus an illegal violation of the Wiretap Act. Details of the recent case are also in the post.

TAKEAWAY: It’s the law in PA – before recording a telephone conversation with a smartphone, get consent from all participants.

In the post on Thursday 6/23/16 we noted that if a disability accommodation is easy to grant – like an early lunch – just grant it. Yes, an employer could argue every single point when faced with a request for reasonable accommodation, starting with whether or not the person is disabled under applicable law. However, if it won’t set precedent in that case or other cases, and the accommodation requested is a simple one, it might be best for the employer to just grant the request. That way, the employer won’t have a long, ongoing interactive accommodation process (and possibility of future suit) on its hands, but will have a happy employee.

TAKEAWAY: Nike's slogan is (or used to be) “just do it”’; that can apply in the disability accommodation process too if it won’t set a bad precedent and will relieve the employer of potential future lawsuit liability.

The post on Friday 6/24/16 said FMLA leave is like a hot potato – handle with care of you might get burned. This harkens back to the recent federal court decision on individual liability for FMLA interference and retaliation (see this post and our prior post). What might have gotten lost in the shuffle – and the subject of this post – is reinstatement of the suit against the employer and how the end of FMLA leave should or should not be handled. IN general, the HR Director apparently made it difficult for the employee to return to work after FMLA leave, which in turn resulted in discharge for job abandonment (and subsequent suit). Details about this case, which is not unusual, are in the post, including the analysis of why the HR Director was also held to be individually liable as an employer.

TAKEAWAY: The several takeaways include employers playing nice with their disabled or ill employees, answering employees’ questions, and others in the post. Do you really want your HR person’s nastiness or failure to cooperate on display publicly in the context of a lawsuit?

Finally, the post yesterday 6/25/16 confirmed Never forever: an indefinite extension of light-duty is not required under the ADA. An ADA accommodation request might involve light duty; then the question becomes whether or not that light duty assignment becomes indefinite as an accommodation or has a finite time. IN the subject case, the employer’s policy was clear that there were no permanent light duty positions and limited light duty to 270 days within a 2-year period. After exhausting the light-duty time and a medical determination questioning whether the employee could ever return to full-duty status, the employer discharged her. She then sued for disability discrimination (and retaliation) under the ADA. Here the parties agreed she was disabled and required accommodation to perform the essential functions of her job; the question was whether the employer failed to provide a reasonable accommodation (indefinite light duty work or reassignment). Under the facts of the case (as in the post), the court ruled in favor of the employer, saying indefinite light-duty was not a reasonable accommodation.

TAKEAWAY: Remember that employers have a duty to provide A reasonable accommodation, not necessarily THE one requested by the employee. And any accommodation, whether requested or offered, must be reasonable.  

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