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ICYMI: Our Social Media Posts This Week – July 30 - Aug. 5, 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 7/30/17 it noted the judge allowed a $250,000 verdict to stand in the EEOC's case against Costco. So what happened? The EEOC filed suit on behalf of an employee for sexual harassment by a Costco customer. At trial, the jury awarded $250,000 in damages but no punitives (for the reasons in the post). Costco asked for judgment under the federal rules of procedure; the EEOC asked for back pay and injunctive relief. Both motions were denied and the verdict was upheld – the judge's reasoning is interesting and set forth in the post.

TAKEAWAY: Be careful of the reason you assert for your (in)action – especially if there is evidence that directly contradicts your reason. Make sure your case is legally defensible.

The post on Monday 7/31/17 noted applicant sues Shell, alleging age discrimination, retaliation. Reminder re the breadth of Title VII. This is the second suit filed against Shell in recent history. The first was filed by Crockett Oaks III for allegedly firing him after he objected to hiring preferences based on age and gender (after Oaks and a committee selected Michael Oliveri, a 53-year-old, for a position, executives said no; what they also said is in the post). That case settled. This second suit was brought by Oliveri, the person who had been offered and accepted the position before the offer was revoked. More of the sordid details are in the post.  

TAKEAWAY: Don't hire based on a protected characteristic – unless it is a job necessity. And certainly don't put your discriminatory reasons in writing!

In the post on Tuesday 8/1/17 was a reminder: EEOC initiative targets age discrimination. In this, the 50th anniversary year of the ADEA, there is more emphasis than ever on battling discrimination based on age. The EEOC has filed many suits alleging age discrimination – including the one in the post. It has also settled some cases – one is detailed in the post.

TAKEAWAY: DO NOTmake employment decisions based on age. DO NOTmake age-related comments either. Period.

The post on Wednesday 8/2/17 said Sticks & Stones: when texts and emails will hurt you. You have heard a million times that you should document, document document. Well that's true, but what you document is as important as actually doing it. Documenting something illegal can backfire. The case highlighted in the post is a perfect example. Jennifer Martin was a recent hire for a staffing company. After getting pregnant, she asked about delivery planning since the FMLA did not apply. She sued for pregnancy discrimination after employment ended. The parties' allegations contradict each other as to how and why her employment ended (see the post), but one email from the employer (in the post) prevented summary judgment in its favor, so now the matter moves toward trial.  

TAKEAWAY: Train your managers. Make sure you and they don't hit "send" before reading the content of the email or text and ensuring it, and the action it contemplates, is legal.

The post on Thursday 8/3/17 was about the color of your shoes and at-will employment. You know that the at-will employment doctrine is alive and strong in PA. What you (should) also know is that it does not provide a complete defense in the face of illegal (in)action. So think carefully when terminating an at-will employee. Make sure the reason - and there always is one on the employer's side or why else would you be ending the relationship? – is legally valid. The example in the post is tongue in cheek, but makes the point – taken to the extreme, at-will employment can still result in suit being filed against you.

TAKEAWAY: While at-will means no reason is required for discharge, the employer should make sure that the basis for discharge is legally valid and supported by good facts.

The post on Friday 8/4/17 said that stinks – EEOC sues for employee denied relief from workplace smells. In mid-July the EEOC filed suit alleging violation of the ADA based on the employer's refusal to allow an employee with a sensitivity to workplace smells to telecommute. She has asked 3 times to work from home to avoid smells in the workplace and how they affected her medical condition. The employer's response is in the post.

TAKEAWAY: Yes fragrance sensitivity is real; don't just laugh it off. It may be the result of a medical condition that is a disability under the ADA and requires engaging in the interactive accommodation process.

Finally, in the post yesterday 8/5/17 we turned on the tv for Phoebe Buffay and the ‘Friends’ guide to sexual harassment. OK, stop playing the theme song in your head and read on. In the post, we look at the episode where Rachel is involved with Paulo who got a massage from Phoebe. What Paolo does during the massage is in the post. Of course, Phoebe debates whether to tell Rachel about what happened. Here's how this relates to rthe law: if Phoebe was so upset that she wanted to sue her employer for sexual harassment, would she have a claim? As noted in the post, courts have found employers liable for the conduct of third parties like vendors or customers. But the lessons of Friends don't stop there: the post asks what if Phoebe had been having attendance problems and was fired shortly after the Paolo incident due to those attendance issues? Would she then have a claim for retaliation too? (This happened – see the post.) You need to be careful in the real world – it's not all just sitting around, drinking coffee and whipped cream.

TAKEAWAY: Be concerned about harassment and discrimination from more than your employees – the actions of others who come into contact with your employees could also subject you to liability.

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