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ICYMI: Our Social Media Posts This Week – April 9-15, 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 4/9/17 we asked: Is it age discrimination if you don't know you're being discriminated against? The US Supreme Court will let us know. When he was age 49, Richard applied on-line for a sales manager job with giant R. J. Reynolds Tobacco Co in 2007; he got no response. He applied again in later years with the same result. He didn't know why. The "why" is that RJR used a contractor to review and screen applications for older applicants (the bases are in the post). He sued after a whistleblower outed RJR in 2010. RJR successfully argued to the federal trial and appellate courts that the ADEA doesn't apply to Richard because he didn't diligently pursue why he'd not received a response to his applications before the whistleblowing and that in cases of indirect bias, the ADEA protects only employees (and not applicants).

TAKEAWAY: Age discrimination still happens, and may happen more frequently as the working population includes more older workers; don't just write them off - they have good experience and it may well be illegal.

The post on Monday 4/10/17 noted a former trade center employee's seizure problems led to a $155,000 settlement. Unetia Perry was an events coordinator for the Columbus Convention & Trade Center; she asked for and was granted FMLA leave; after surgery, she began to have seizures. She asked for a limited work day, which the employer initially granted; what happened next is in the post. Suffice it to say the employer's math error resulted in an illegal termination. When she later reapplied for her job, she didn't even get an interview. She then filed a charge of discrimination under the ADA and FMLA and retaliation for (in)action based on the former. Trial was set for March 2017; in December 2016 the court was prepared to rule against the employer on the failure to accommodate claim (but in its favor on retaliation). In February 2017 the case settled.

TAKEAWAY: We've said it before and will again (even later in this blog!): don’t' just play ostrich, but know the steps to take under the FMLA and ADA and take those steps.

In the post on Tuesday 4/11/17 we noted that Congress has proposed adding parental bereavement leave to the FMLA (and asked what you think). The proposal would add "death of a child" as a covered event for which eligible persons are entitled to up to 12 weeks of unpaid leave.

TAKEAWAY: Events that significantly impact a person's ability to work are covered under the FMLA and provide much-needed leave; now the question is whether it is time to expand the list to cover the death of one's child.

The post on Wednesday 4/12/17 noted that Texas Roadhouse will pay $12M to settle the age discrimination lawsuit. Because apparently everything is bigger in Texas. Recall that this is the suit brought by the EEOC alleging that Texas Roadhouse failed to hire servers, hosts, and bartenders who were age 40 and older; the jury hung las year and it was set for a new trial next month. Items agreed to in addition to the monetary settlement are in the post.

TAKEAWAY: Don't discriminate – you will probably get caught and it will be costly in so many ways.

In the post on Thursday 4/13/17 we talked about employer recovery of fees and costs in discrimination cases – is there a trend starting? A new law in Ohio permits its Civil Rights Commission to award attorneys' fees and costs to employers found not to have discriminated against an employee. It is not required but permissible. And the employer may not be able to collect anyway. But this evens the playing field (some argue) and may lead to fewer suits brought on iffy bases.

TAKEAWAY: PA employers are not entitled to fee shifting at the PHRC, but it may be the next big thing. Of course, if you don’t discriminate or retaliate, you will have less to worry about from the start.

The post on Friday 4/14/17 told us about a lawsuit alleging Forever 21 discriminated with its English-only policy. The suit was filed by a California state agency on behalf of Spanish-speaking employees. The policy apparently banned languages other than English, even when not job related, when not on paid time, and when speaking to Spanish-speaking customers. The post also mentions the bases for the retaliation allegations (because the discrimination was apparently not enough for the employer). The case moves forward later this year.

TAKEAWAY: Make sure your policies have rational, legal, business-related reasons for being.

Finally, the post yesterday 4/15/17 cautioned: (don't) just say no to ADA and FMLA leave requests. The case at issue is from Utah, but the principals apply equally here in PA.  Wells Fargo was the employer (boy it's taking a beating these days!) The employee, who had epilepsy, asked for leave due to her medical condition. HR told her epilepsy was not a disability and she was ineligible for FMLA leave. She then asked her manager who responded the same but left open the possibility of leave in 3 months. After that, the employee quit. The court ruled against Wells Fargo on the ADA claim, saying its argument was faulty (see the post for the court's reasoning). The court also ruled against Wells Fargo on the FMLA interference claim; again its reasoning is in the post. Other claims asserted by the employee are noted in the post and really paint Wells Fargo in a bad light.

TAKEAWAY: Make sure you know the steps to follow under the ADA and FMLA and then follow them – in the proper order.

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