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ICYMI: Our Social Media Posts This Week – Aug. 13 - 19, 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 8/13/17 we talked about new harassment checklists from the EEOC – get them. And then use them. They include a chart on risk factors for workplace harassment, a checklist for leadership use in assessing workplace culture, and 3 others (listed and linked in the post). They do not replace the advice of legal counsel, but they are a good start.

TAKEAWAY: Materials to help you are available from the agency charged with enforcement – why wouldn't you get them, read them, and use them?!?!

The post on Monday 8/14/17 noted the Atlanta Hawks sued for alleged racism, discrimination. A former employee, Security Operations Manager Samuel Hayes, has sued for alleged discrimination against black celebrities and employment contract termination. It all results from what he says were racially discriminatory security protocols that were not uniformly enforced. He says extra security was put in place at certain venues (see the post for details) and celebrity clients got more or less security privileges based on skin color. Examples are in the post.  Hayes alleges that after he complained about this, he was discharged. The Hawks deny all allegations.

TAKEAWAY: Even if there is no discrimination or differential treatment on the basis of a protected characteristic, a suit alleging same can take valuable human recourses and cost real money – just make sure everything is legally supported and there should be fewer suits.

In the post on Tuesday 8/15/17 was about fear of avoidance: can we terminate employee who has mental illness? We suggested you know the law (and let us help you). And do you know the law (and the answer)? It is: it depends. On whether your locality has an ordinance dealing with this situation (which is unlikely in PA). On whether state law deals with this type of situation (which it probably won't based on the facts). On whether federal law applies – and that's where you get caught. As detailed in the post, the ADA has provisions based on the safety and security of the person and other workers.

TAKEAWAY: Know what you can – or should - and cannot do if an employee poses a safety or security threat to him/herself or to others – contact legal counsel if necessary to ensure all rights are protected and obligations fulfilled.

The post on Wednesday 8/16/17 noted Amy's Country Candles accused of firing woman who claimed sexual harassment by owner's son. Ugh. Just ugh. The suit was filed by the EEOC based on the discharge of a female employee a mere 4 days after she reported sexual harassment by the company owner's son. Allegations include that in May 2015, an assistant store manager got a call from a co-worker, the owner's son, which contained sexual language (see the post for more details). She complained to the owner right after and over the next 3 days. On Day 4 she was fired by text message from the owner. The employer's defense is noted in the post but did not hold up before the EEOC.

TAKEAWAY: Even if an adverse action is legal, it may appear not to be so, thus resulting in the filing of administrative charges or suit against which you will have to defend. Just don't get into that situation in the first place.

In the post on Thursday 8/17/17 asked: What am I doing wrong? Common FMLA mistake: assuming adult child is not a covered family member. Yes the FMLA also covers adult children (those 18 or older) incapable of caring for themselves due to physical or mental disability (as defined by the ADA). The post reviews 2 federal court opinions dealing with this provision. In the first, the court found the child's situation to fit squarely within the FMLA provision, whereas in the second it did not. Read the post to see the differences and nuances.

TAKEAWAY: When confronted by an employee asking for FMLA leave to care for an adult child, don't immediately deny the request – see if it is covered by the law and then fulfill whatever your obligations might be.

The post on Friday 8/18/17 noted the interactive accommodation process requires good faith – from both sides. The post gives a good example of how this might play out. Derrick worked for the City of Austin as a laborer and field supervisor. After a vehicle accident he could not do physical labor. An extended leave followed, after which the City offered him an Admin Assistant position. The post details what the City did to help him succeed in the position. The post also details what Derrick did (not do) to acclimate to the new position. At some point, the termination process started since he could not perform the required duties. After termination, he sued for failure to accommodate. He lost on appeal for the reasons set out in the post.

TAKEAWAY: If accommodation is requested, offer a reasonable one and, if the employee doesn’t give it a good-faith try, go ahead and discharge.

Finally, in the post yesterday 8/19/17 we saw a court vacated summary judgment in an ADEA failure to hire case, finding a triable issue of pretext. Pay attention to this decision from the federal court governing PA. So what happened? 5 seasonal crew members worked for the Delaware River & Bay Authority's ferry, applied for full-time positions, were interviewed, but none was hired. The interviews are ranked and then the hiring decision is made. Deviation from the rankings is allowed for good reason. More on the process is in the post. The plaintiffs sued for age discrimination and retaliation (since they complained about the discrimination). In court, the plaintiffs satisfied their initial burden, so the court looked at the proffered legitimate nondiscriminatory reason that centered on the hiring process to determine if that was mere pretext for some of the positions (with its decision in the post). The court also looked at the other failure to hire claims, found the employer satisfied its burden, but that the employees offered evidence of pretext sufficient to overcome summary judgment. The Court's reasoning is in the post.

TAKEAWAY: If you have a policy or process, apply it evenly. Uneven application or enforcement may come back to bite you, hard.

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