Wednesday, July 23, 2014

Yahoo Female Executive Accused of Sex Harassment

Maria Zhang, a female engineering executive at Yahoo, is being accused of sexually harassing a former female employee. In her lawsuit, Ms. Nan Shi has asserted that Ms. Zhang coerced her into “oral and digital sex,” by threatening to take everything away from her including “her job, stocks and future if she did not do what [Ms. Zhang] wanted.” When Ms. Shi refused Ms. Zhang’s advances, Ms. Shi alleges she was retaliated against through negative performance reviews, being removed from lead projects and promoting others to supervise her.

Ms. Shi claims that she complained but that Yahoo’s HR “refused to conduct a proper investigation” and then Ms. Shi was wrongfully terminated. Yahoo has stated “there is absolutely no basis or truth” to the allegations against Ms. Zhang. “Maria is an exemplary Yahoo executive” and Yahoo intends to fight to clear her name.

Ms. Zhang has countered sued for defamation. She has asserted that Ms. Shi has made up the story to try and save her job. According to Ms. Zhang, Ms. Shi had received negative performance evaluations from other managers and that she complained only when it became clear that her job was in jeopardy. Ms. Zhang claims that HR did investigate but could not find any substantiation of the allegations.

Tuesday, July 22, 2014

Yet Another Reminder to Be Careful What You Post

An ADA claim based primarily on a Facebook post is going forward in an Indiana federal court.

George Shoun was employed by Best Formed Plastics. His shoulder was injured twice while on the job and he filed suit. A few days later one of the company’s managers posted “Isn’t it amazing how Jimmy experienced a five way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.” The post was kept up for 76 days.

Mr. Shoun proceeded to file another lawsuit, now asserting that the Facebook post violated the confidentiality provisions of the ADA. The manager’s position in the company allowed her access to his medical files. Mr. Shoun asserted that the manager’s email was linked to her Facebook page. The company countered that his medical condition was not private, as it had already been disclosed in the litigation. Moreover, the company maintained that no injury had come to Mr. Shoun from the disclosure.

The federal court judge ruled against Best Formed Plastics. It found that the company had the medical information through confidential records. There was a question of fact as to whether Mr. Shoun had voluntarily disclosed his medical condition outside his employment related examinations prior to the lawsuit. The facts were sufficient to show a violation of confidentiality. Mr. Shoun claimed to have suffered emotional injury and that prospective employers refused to hire him because of the post. He had provided the necessary elements to proceed.

Thursday, July 17, 2014

Employee Not Entitled to Cherry Pick Accommodation

Joshua Bunn, a blind man, was an hourly employee at a Dairy Queen franchise in Indiana. Typically Dairy Queen required its employees to rotate through the various positions in the store such as preparing ice cream orders, grilling food, taking orders, and cleaning the dining room.

Upon his hire, Mr. Bunn was assigned to prepare ice cream treats, but his inability to read the ingredients or monitors displaying the orders made it too difficult. He was thus assigned to deliver food to the dine-in customers and maintain the dining area. Mr. Bunn was able to perform these job functions with minimum accommodation. Although other employees were not permitted to work exclusively in one area, Mr. Bunn was only assigned to these tasks. During his employment, Mr. Bunn was asked several times to stop using his cell phone during working hours. In one incident, he refused the night manager’s request that he put his cell phone away and shoved a trashcan toward her. He was suspended for 10 days. Thereafter, his hours decreased both from the suspension and the store’s reduced staffing needs. Mr. Bunn resigned and sued.

In his suit, Mr. Bunn claimed failure to accommodate among other things. The Seventh Circuit Court of Appeals agreed with the judgment issued by the lower court. Mr. Bunn was entitled to an accommodation that allowed him to “enjoy equal employment opportunities” and continue his full time employment. He had received that in the job assignment Dairy Queen had given him. Mr. Bunn may have desired a different accommodation and an interactive process regarding that accommodation but he was not entitled to that.

Wednesday, July 16, 2014

Grandchildren May Be Included in FMLA

The Seventh Circuit Court of Appeals recently upheld the right of a grandmother to care for her daughter and grandchildren during the daughter’s cancer treatment. The lack of return date was also upheld as not fatal to FMLA leave. See Gienapp v. Harbor Crest and Myra Chattic.

Suzan Gienapp worked for a residential nursing facility. She informed her employer that she needed FMLA leave to care for daughter who was undergoing cancer treatment. The daughter was over 18, married, and had children of her own. When Ms. Gienapp attempted to return to work before her 12 weeks were up, she was advised that she no longer had a job.

The employer argued several things. First, the daughter did not qualify as such under FMLA. The Circuit court rejected this argument. An adult over 18 still qualifies if she was incapable of self-care due to a mental or physical disability. Second, the employer argued that some of the time off was for Ms. Gienapp to attend to her grandchildren. The Court found the issue was “whether a combination of assistance to one’s daughter, plus care of the grandchildren that could take a load off the daughter’s mind and feel, counts as ‘care’ under FMLA.” The answer was “yes,” according to the Court. “FMLA does not treat care of grandchildren as disqualifying, if the employee also cares for an eligible relative such as a daughter.” Lastly, the employer argued the lack of return date forfeited her FMLA right. Again, the Court ruled against the employer because the daughter’s status was “changeable” and unforeseeable.”

Tuesday, July 15, 2014

California Supreme Court Says Undocumented Worker May Sue Employer

Vicente Salas worked for Sierra Chemical Co., a swimming pool chemical manufacturer. In order to get the job, he gave the company a false Social Security number and a resident alien card. He also falsified the federal INS form with the same information. At the time of his hire, Sierra Chemical had no idea about his misrepresentations. Mr. Salas worked for Sierra Chemical on a seasonal basis for several years. The same documentation was provided each year.

During the periods of his employment, Mr. Salas experienced two work related injuries and filed workers’ compensation claims for them. He returned to work on modified duty until he was laid off again. Although he obtained work elsewhere, Mr. Salas was offered employment again with Sierra subject to a physician’s release. Mr. Salas made no further contact.  He sued for disability discrimination under California’s disability discrimination law.

During the course of litigation, it came to light that Mr. Salas was an illegal immigrant not authorized to work in the U.S. Sierra sought to dismiss the case in light of the fact that it would never have hired him had it known his true immigration status. The California Supreme Court refused to uphold dismissal of the case. This after-acquired evidence of his immigration status did not bar Mr. Salas’ claim, instead it would limit his damages after the period of the employer’s discovery. California discrimination laws are expressly available to all employees regardless of immigration status.

Thursday, July 10, 2014

Dating App Tinder Hit with Sexism Charge

Whitney Wolfe, a former executive at the popular dating start-up Tinder, has filed a lawsuit against the company, along with its majority owner, IAC/InterActiveCorp, on sexual harassment and discrimination claims. The lawsuit, filed in state court in Los Angeles, says that Tinder’s chief executive and chief marketing officer subjected Ms. Wolfe to “a barrage of horrendously sexist, racist and otherwise inappropriate comments, emails and text messages.” Ms. Wolfe’s suit also said that complaints about the harassment to high-level executives at IAC were ignored and that she was forced to resign as a result. Wolfe also claims that Tinder took away her title because having a female co-founder would make the company "seem like a joke." She also said she was called a "whore" at a party.

IAC rejected Wolfe's claims of harassment and discrimination, but said it had suspended Justin Mateen, co-founder and chief marketing officer, after an internal investigation confirmed that Mateen sent private messages containing inappropriate content to Ms. Wolfe.

Wednesday, July 9, 2014

Goldman Sachs Accused of “Boys Club” Culture

According to the Manhattan federal court case originally filed in 2010 by H.Christina Chen-Oster, Lisa Parisi and Shanna Orlich, two former female employees of Goldman Sachs who have worked for the famed New York-based bank "report a 'boy's club' atmosphere where binge drinking is common" and "work events are held at strip clubs.”

On Monday, June 30th, they filed a new motion seeking court certification as a class-action case that includes evidence from other women who worked as vice-presidents or associates in Goldman Sachs investment or securities units as far back as 2002. "Similarly situated female vice presidents have earned 21% less than male vice presidents," the former employees argued in the new legal filing. "Female associates have earned 8% less than male associates, and approximately 23% fewer female vice presidents have been promoted to managing director relative to their male counterparts."

In one example cited, Katalin Tischhauser, an executive director in the bank's London office from June 2000 through March 2005, said she left Goldman Sachs because she was repeatedly passed over for promotions and "I felt that I would not be able to continue to advance my career at the firm as a woman." She recounted a New Orleans conference on convertible bonds around 2001 where she said male Goldman Sachs colleagues "immediately suggested that we take clients to a strip club. Because this was client-focused entertainment, it would have been awkward for me to decline to attend," Tischhauser said in her legal declaration. "I later told this story to other Goldman Sachs colleagues and no one was at all surprised."