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ICYMI: Our Social Media Posts This Week – June 11-17, 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 6/11/17 we learned that a staffing agency was sued for age bias. Yep. Allegedly (in a suit filed by the EEOC) it did not refer an applicant to a customer due to age. When the agency learned his birthdate, it emailed him with what will certainly be the centerpiece at trial – see the post for the meat!

TAKEAWAY: Make work-related decisions based on job performance and nothing else – this will help ensure that you do not find your name before the word "defendant' on a lawsuit.

The post on Monday 6/12/17 was about a former bank officer who filed a sex and age discrimination lawsuit. Why? Because the bank employer hired a younger, less qualified male. Sheryl, age 49, also alleged retaliation when she was fired after having filed complaints with the EEOC and FDIC. Some of the facts supporting her allegations are in the post, including ranking higher on the software program used by the employer to screen and categorize candidates. She even pointed out a white lie error on the male's CV.

TAKEAWAY: Don't take adverse action against an employee if it's not job-related. And if an employee files a charge or complaint of discrimination or harassment against your company, don't retaliate – instead, investigate and make sure there is no truth to the complaint.

In the post on Tuesday 6/13/17 were listed 5 tips to avoid this summer's legal hazards. So what are they? First, plan ahead for vacation requests – including making sure they comply with your policy. Next, remind staff about any applicable dress code. Evenly enforce it. Make sure not to interfere with any clothing worn for religious reasons. Reasons 3-5 are in the post.

TAKEAWAY: Each season has its own unique "dangers" and you must be aware of them all so you know how to deal with them – which might call for the assistance of legal counsel.

The post on Wednesday 6/14/17 talked about a lesbian suing over alleged anti-gay job discrimination at a bank. Penelope Hudson worked at the bank for 15 years until her discharge. Her suit alleged harassment, disparate treatment, and hostile work environment due to being a gay woman. Her complaint includes some alleged incidents, including being told her appearance was "too butch". More are in the post. The employer allegedly even tied in her FMLA request to being gay. See the post on that one too.

TAKEAWAY: The most interesting thing is probably that the suit was filed in a state that, similar to PA, has no state law protecting people form discrimination on the basis of sexual orientation or transgender status, but the suit was based on alleged violations of a city ordinance and Title VII. This is one to watch!

In the post on Thursday 6/15/17 we asked: so you received a demand letter, now what? (And said let us help you). The good news is that a demand letter is (usually) a prelude to a lawsuit, it is not a suit. It gives you a chance to resolve the matter before suit – and before you end up spending a lot of time and money on what could (to you at least) be a small matter. So what do you do? Think before you respond. Decide what your objective is and how that plays into the purpose of the demand letter. Also think about geography – in the sense of where any lawsuit might be brought and how easy or difficult that would make it for you to defend, including state versus federal court, your state (or locality) or another, and the rules of procedure and state laws that might apply to or govern your case. The other things to consider are in the post.

TAKEAWAY: It's never pleasant to be sued – but it happens. It is possible to avoid suit at times, but the best thing you can do after receiving a demand letter is to prepare for suit. This should include bringing your attorney into the loop to make sure your legal interests are protected in any action you decide to take (or not take).

The post on Friday 6/16/17 noted that the refusal to hire a medical marijuana user violated state law – and that PA will be facing this dilemma shortly. The case in the post was decided under Rhode Island law, but is instructive as PA winds its way down the road of legalized medical marijuana. In the case, the plaintiff applied for an internship and disclosed her legal medical marijuana status (because she could not pass the employer's required pre-employment drug test). The employer's policy is in the post. She was not hired and sued. Aptly, the court's ruling started with a Beatles quote on getting high and ended in favor of the plaintiff, finding an implied private right of action and the ability to bring suit under a disability claim even though there is no legal protection for illegal drug use and marijuana is illegal under federal law. The ruling had a thorough analysis including how both state and federal law could be accommodated – see the post.

TAKEAWAY: PA has in place a medical marijuana law and is in process of handing out licenses for growers and distributors; once that happens, it will be available to those with licenses to obtain it. Those people might be your current or future employees, so now is the time to put in place (legal) policies relative to medical marijuana in your workplace.

Finally, in the post yesterday 6/17/17 we learned that evidence of similarly-situated employees of the same race doom a discrimination suit. Here, the plaintiff alleged he was scrutinized more than others due to race or color. However, some of the employer's evidence, including that a Caucasian employee was terminated for safety violations a month prior to plaintiff's discharge and more things in the post. Also, those not disciplined included employees of the same race and color as the plaintiff. The court found no evidence of discrimination.

TAKEAWAY: You can't always avoid suit, but you can defend one once it is filed. Make sure that all adverse actions have a legal basis, then bring out that support to defend the suit.

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