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ICYMI: Our Social Media Posts This Week – Mar. 19-25, 2017

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 3/19/17 was about workplace discrimination and gun rights: the confluence of 2 hot button issues in PA. We suggested you stay tuned. Proposed legislation was introduced to our state legislature to amend the PHRA to bar workplace discrimination based on 'lawful ownership, use, possession, transportation and storage of a firearm" by adding a protected classification for "exercise of self-defense rights". Read the post for more details. Keep eyes and ears open on this.

TAKEAWAY: Currently employees can dictate whether or not guns are allowed on premises and other actions related to or arising out of gun possession in the workplace– that may not always be the case if this legislation passes.

The post on Monday 3/20/17 (the first day of Spring!) reminded us that paid leave can be an adverse action – watch out! Huh? Not being able to work and move ahead in a career can be harmful. In this case from PA, Kevin left his FBI job to work for former AG Kathleen Kane. She soon accused him of spying on her for the FBI. Then other accusations followed (see the post for details). He went out on approved FMLA leave and then, when he requested additional leave, that too was approved. However, when he wanted to return to work, he was put on paid leave. He eventually sued. The post contains the outcome of the suit (hint: it has a twist …).

TAKEAWAY: Paid administrative leave can indeed be considered an adverse employment action so use it carefully. (Also see the tip at the end of the post re FMLA leave.)

In the post on Tuesday 3/21/17 we found out that despite the new Administration, the EEOC maintains its position that Title VII prohibits gender identity discrimination. Aimee, a transgender woman, told her funeral home employer of her gender identity and intent to transition. She was terminated (despite adhering to the dress code). She filed an EEOC charge and it finally sued on her behalf (the several bases are in the post). The trial court denied the funeral home's motion to dismiss, finding a cause for sex-stereotyping (but not gender identify discrimination). It later granted summary judgment to the employer based in part on RFRA. The EEOC appealed the case to the federal Circuit Court, asserting that Title VII includes general identity discrimination and RFRA is not a defense.

TAKEAWAY: The issue is pending (and winding its way to the Supreme Court) but as of now, the official Administration position is that gender identity discrimination violates Title VII – so on that basis alone don't do it.

The post on Wednesday 3/22/17 told us that SCOTUS punts, saving transgender rights for another day. The bathroom case, as it is often referred to. The federal appellate court had ruled in favor of the student and the case was appealed to (and accepted by) the Supreme Court. However, since the ruling was at least in part based on guidance from the DOJ and DOE that has since been withdrawn under the new Administration, the Supreme Court sent the case back for another look in light of the withdrawn guidance (more procedural details are in the post).

TAKEAWAY: While this is a Title IX case, it will give a probable hint at interpretation of whether gender identity or sexual orientation discrimination is permitted under Title VII; until the matter is finally decided, just don't discriminate against LGBTQ individuals.

The post on Thursday 3/23/17 was about sex teasing, lurid questions and dirty jokes: women fast-food workers targeted. Statistics are clear that a large percentage of women in the fast-food industry are the target of these types of behavior. And that it leads to extreme stress and other issues. Did women know this was illegal discrimination? See the post.

TAKEAWAY: Don't treat someone differently based on a protected characteristic – unless their job performance mandates it, and then have a valid reason for your action.

The post on Friday 3/24/17 talked of a $21,500 settlement in a disability discrimination case – remember the 'regarded as" prong. A medical services provider allegedly fired an employee based on her medical condition. Avid worked there as an outreach-enrollment coordinator. She had undergone a post-offer, pre-employment physical. Despite the doctor advising a medical hold, she began to work. Later she was fired based on the doctor's recommendation. Was there proof of a disability that prevented her from performing the essential functions of her job, with or without accommodation? Nope. See the post for more details.

TAKEAWAY: Don't take adverse action against someone based on what you think is a medical condition that will affect the ability to perform the job's essential functions; wait until (alerted or) asked about an accommodation.

Finally, the post yesterday 3/25/17 asked: Does the NFL combine violate the ADA?   I bet you never thought about it in those terms, right? Now you will never think about it in any other way. So the combine is when the best college football players eligible for the NFL draft try out: actual workouts, medical testing, interviews, and psych testing. Any problems can affect if and when the player is selected, thus hitting the pocketbook. So is this in reality an ADA violation since it is a pre-offer IME and adverse action based on a potential disability? Perhaps. But the post has the NFL's (defensive) reason for the purpose of the medical testing

TAKEAWAY: Was the ADA intended to apply to pro football? It doesn't matter if a court of final decision decides that it does, so be careful in other areas you think might not be touched by the ADA.

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