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ICYMI: Our Social Media Posts This Week – Jul. 31 - Aug. 6, 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 7/31/16 we talked about what a prior Fox News discrimination suit shows about Roger Ailes and proving retaliation. In 2008 he sent out a memo reminiscing about times without “petty whining.” Another employee brought suit against Fox back then. She’s complained to Ailes that she wasn’t getting opportunities due to age and gender; he said he’d hire a manager to implement company HR policy. Later she got some things she wanted, but not all and so complained again about discrimination. The next day, the memo came out. Its contents are in the post. The prior case went out on summary judgment in favor of Fox, but is instructive in the current Gretchen Carlson case. The post details the differences.

TAKEAWAY: Prior bad acts can sometimes be used to support discrimination claims – so make sure your company has no prior bad acts.

The post on Monday 8/1/16 was about a farm paying $205,000 to settle an EEOC race and national origin discrimination suit. The suit was filed in August 2014 alleging the employer subjected American and African-American workers to different terms and conditions of employment base don national origin or race. The differences included segregation in buses, work crews, and more detailed in the post. It also alleged the company terminated qualified American or African-American employees in favor of foreign-born workers. The settlement involves 119 workers.

TAKEAWAY: Companies must learn that discrimination is not allowed and they will be made to pay – here it was a six-figure payment plus more.

In the post on Tuesday 8/2/16 we learned a casino settled an age discrimination suit. Spending a lot of chips. $250,000 to be exact. Why were the employees fired? Because they weren’t “young or pretty enough.” The plaintiff women were slot machine attendants at a casino that had just been sold. The new owners/management changed the women’s jobs and fired them. Want more? Apparently managers took pictures of employees and used them to screen out older, less attractive employees.  

TAKEAWAY: Make sure adverse action is legal – and when it’s not, know that the footprints left will be followed.

The post on Wednesday 8/3/16 talked about exactly how NOT to handle FMLA leave. The case in the post shows what NOT to do. Debra was assistant director of the 911 system. She always had good evals and no discipline. When she found out her parents, who lived in another state, needed assistance, she told the employer. A few days later, she was fired, allegedly for poor performance (since she was in the middle of a project at work). Is it any wonder she sued for FMLA interference?!? The employer’s arguments (in the post) were knocked down one by one. Now it calculates damages.

TAKEAWAY: Before you take adverse action against an employee who is requesting or on FMLA leave, make sure what you propose is legal – otherwise you too will pay handsomely.

In the post on Thursday 8/4/16 we learned how the employer’s good notes made it clear why the employee quit. In real estate it’s location location location; in the workplace it’s often document document document. That’s what the employer here did and it won the day! Jan resigned a few days after her supervisor and friend left the company after negotiating a severance package. The friend told Jan about his plans and why he was leaving. Jan then went to HR and complained of mistreatment, requesting a severance package. HR refused. Jan then quit anyway, on principle. But then she sued for constructive discharge, alleging an increased workload and hostile work environment were the reasons. The judge analyzed her claims along with the employer’s written documents and dismissed the case.

TAKEAWAY: Despite the length of time it took to get to trial, the employer maintained documents on meetings and the resignation; that evidence saved the day.

The post on Friday 8/5/16 was about the EEOC settling the first sexual orientation discrimination suit. For $202,500, not peanuts. The suit alleged that a lesbian employee was harassed based on sexual orientation and was fired after complaining about it. The settlement pays $182,200 to the employee and the remainder to an organization working for equality in the workplace. More details are in the post.

TAKEAWAY: Whether or not Title VII encompasses sexual orientation under sex discrimination is the Wild West right now – different circuits are deciding different ways, setting this up for a SCOTUS showdown.

Finally, the post yesterday 8/6/16 told us Norfolk Southern will pay almost $500,000 to settle allegations of race discrimination. Of course another settlement means another case had to be filed to start with … More than 2000 African-Americans will share in the back pay and interest (and 7 non-selected applicants will get jobs).

TAKEAWAY: Race should never be a basis for an employment-related decision. Period.

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