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ICYMI: Our Social Media Posts This Week – April 16-22, 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 4/16/17 we noted the third black Fox News employee joins the race discrimination suit, says Fox knew about abuse from Ailes and others. Monica, the manager for credit collectors, says that former comptroller Judy subjected her to racism and cruelty (including not wanting to be around black people, Monica not looking like the Aryan race, mocking her for being a breast cancer survivor, and more in the post) and pressured her not to report it. Even though Monica did report it, nothing was done (allegedly because Judy knew about the Ailes scandal, but Judy was fired in March – the basis is in the post). The suit Monica joined alleged "top-down racial harassment" including Judy often making racial comments about blacks, Chinese, Indians and Mexicans.

TAKEAWAY: employees should not suffer discrimination or harassment of any kind – they should report it. Likewise, employers should not practice discrimination or harassment of any kind and should immediately investigate any claims of such behaviors.

The post on Monday 4/17/17 noted the Trump administration warns against discrimination against Americans who hire foreigners. Really. The Administration warned those petitioning for work visas for foreigners not to discriminate against US workers, which would be a violation of US immigration law. This fits within the Administration's call to hire more US workers. More details are in the post

TAKEAWAY: If you just hire the most qualified person for the job, and can document why s/he is the most qualified – without getting into any protected characteristic - then there shouldn’t be an issue as to discrimination.

In the post on Tuesday 4/18/17 we were told the first federal appeals court rules anti-gay bias is barred under current law. Yes, discrimination based on sexual orientation was found to be sex discrimination in violation of Title VII. Perhaps this is the start of the next avalanche of rulings in this area – see the post for where other courts stand on this issue. The 7th Circuit's 8-3 majority found that discrimination on the basis of sexual orientation is discrimination based on one's perception of gender stereotypes which SCOTUS has found illegal under Title VII. The decision even referred to the 1967 case of Loving v. Virginia (the subject of a recent movie) which struck down bans on interracial marriage; the 7th Circuit merely changed the Loving facts a bit, noting "… If we were to change the sex of one partner in a lesbian relationship, the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex." More details are in the post. Note that the court specifically did not decide if the employer is a religious institution with a religious exemption from Title VII because that question was not before it.

TAKEAWAY: While this case is not binding here in PA, it does not harm to follow its teaching anyway – and, besides, sexual preference really has nothing to do with job performance, which is all an employer should worry about.

The post on Wednesday 4/19/17 said that granting leave may trigger a "regarded-as disabled" claim under the ADA and warned not to forget about that prong. As the article in the post notes, be careful! Here, Dwayne was diagnosed with anxiety; he could not work with elderly patients as that was a trigger. He was approved for intermittent leave under the ADA for anxiety outbreaks and fired after refusing an assignment to work with elderly patients. He sued. The post contains the outcome.

TAKEAWAY:  If you approve ADA leave, you are agreeing the person is disabled. If you later challenge that, you may instead be deemed to have approved the leave because you regarded the person as disabled even if s/he was not, therefore still triggering ADA protection.

In the post on Thursday 4/20/17 the question was: new hire wasn't qualified? Then disability is irrelevant. Remember the requirements for ADA protection: they include being able to perform the essential functions of the job (with or without reasonable accommodation). Here, William was hired and requested accommodation. In the meantime, the employer discovered he did not have the required certification and so terminated his employment. He sued. The federal appeals court's ruling is in the post.

TAKEAWAY: Regardless of the employee or applicant's (dis)ability, if s/he is not qualified, then you don't even reach the accommodation issue.

The post on Friday 4/21/17 told us that Dollar General lost a round in its race discrimination lawsuit. Remember that the EEOC filed suit against Dollar General over alleged discriminatory use of criminal background checks in hiring and firing decisions? Well, a recent court ruling said the EEOC did what it needed to before filing suit in 2013, so the case proceeds. The post details the court's analysis and background facts.

TAKEAWAY: Even if you outsource a step in the hiring or firing process, you are still liable for it being legal – so make sure it is.

Finally, in the post yesterday 4/22/17 we learned that Zale jewelers allegedly violated the ADA and will pay a $30,000 penalty. One of Zale's business names is Piercing Pagoda; apparently Rose managed one of its kiosks. Rose told Piercing Pagoda in 2013 that she needed an accommodation for her long-standing medical condition (discussed in the post). The employer's response is also in the post – but you know from the fact that it is the subject of this blog that it was not positive.

TAKEAWAY: When an eligible employee asks for an accommodation, don't refuse – instead start the reasonable accommodation process.

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