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ICYMI: Our Social Media Posts This Week – July 2-8, 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 7/2/17 we asked: Are WiFi allergies an impairment covered by the ADA? Perhaps, according to a federal court in the Midwest. George was a front desk clerk. He was discharged for sleeping on the job and other bases. He sued, alleging failure to accommodate and discrimination under the ADA. George's reasoning as to how he was disabled is in the post. In the suit, the court said the employee did not show he was disabled within the ADA, having not alleged a substantial limitation of a major life activity. The court also discussed whether or not electromagnetic hypersensitivity is a physical or psychological disorder (which makes a difference for ADA coverage) – its discussion is in the post.  

TAKEAWAY: As always, when you take adverse action against an employee, make sure it has a legal basis.

The post on Monday 7/3/17 told us an appeals court ruled against the EEOC in the Auto Zone discrimination case. Remember this was the case brought by the EEOC alleging discrimination against Kevin, a black sales manager who was transferred from a store with a largely Hispanic clientele, but without change in pay or responsibilities. The suit was brought under a part of the law not often used - but listed in the post. The EEOC lost at the trial court and appealed, losing again on appeal.

TAKEAWAY: Sometimes an action that appears adverse or based on a protected characteristic may not be so – and lack of proof will doom any suit brought on that basis.

In the post on Tuesday 7/4/17 we wished you a Happy Independence Day – and suggested you take a moment to breathe, think and enjoy.

TAKEAWAY: Legalities and employment law are important to a business, but so are recognizing important milestones for our country and the employees.

The post on Wednesday 7/5/17 told us the EEOC sued Applebee's for gender discrimination. The EEOC acted on behalf of a transgender hostess, Danielle, who was harassed by employees who made crude and disparaging remarks to her (including gawking, laughing and pointing to her genitalia  and more in the post) during her short (how short? Read the post) employment. Allegations are that the GM witnessed many of the incidents but did nothing – except what's in the post. But it got worse. Suit followed a failure to conciliate.

TAKEAWAY: Don't discriminate on the basis of gender – it has nothing to do with job performance.

In the post on Thursday 7/6//17 we talked about FMLA abuse: serving jail time, moonlighting, vacationing and more. One example in the post is am employee with a bad back who could not sit or stand for long periods. While she was on FMLA leave, she posted pictures of herself drinking and dancing at a bar. The employer fired her on the basis that if she could dance, she could work. Except that the suit she filed was not dismissed because the employer did not get a medical opinion or diagnosis. More examples - of what to do and not do - are in the post.

TAKEAWAY: Even if the reason for FMLA leave seems outrageous, it may be legal. Investigate before taking adverse action that may come back to bite you.

The post on Friday 7/7/17 asked: Was employee fired for Facebook photos or as retaliation for FMLA leave? Here, the employee took FMLA leave for shoulder surgery. Before his return to work, the treating physician said he'd need another 45 days of recovery. The employee said he'd return for light duty, but provided no medical release as required. Instead, he got 30 days of non-FMLA medical leave. So what did he do during those 30 days? Took several vacations (and posted pictures on Facebook of course). When he returned to work (with a medical release), he was suspended and then terminated. He sued for FMLA interference and retaliation. The trial court dismissed – the reasons are in the post. On appeal, the court let the retaliation claim go forward (on the basis in the post).

TAKEAWAY: Timing of adverse actions can be oh so important – make sure the time and basis are both right.

Finally, in the post yesterday 7/8/17 we noted racial nicknames and inconsistent rules enforcement support a discrimination claim (and that these are easy to avoid). Here, a black employee was called offensive nicknames (including Joe Dirt, Coolio, and others listed in the post) by supervisors and co-workers and was fired for smoking in barred areas (allegedly pursuant to the employer's progressive discipline system which worked on demerits). He sued for race discrimination, including uneven enforcement of policy. For that reason and others (in the post), the case proceeds to trial.

TAKEAWAY: If you base an adverse action on a rule violation, make sure the rule is evenly enforced or you may find yourself on the wrong side of a suit.

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