Wednesday, March 4, 2015

Employee With Negative Track Record Loses Discrimination Case

Hancy Joseph, an African-American man, sued his former employer for race and national origin discrimination. He had been employed by Owens and Minor Distribution, Inc. (O & M) and was promoted to senior project analyst approximately a year after his hire. Once in that position, Mr. Joseph was required to regularly interact with clients. O & M had given him good performance evaluations for certain aspects of his performance but removed him from two or more clients because of interpersonal disputes.

The culminating situation occurred when Mr. Joseph was asked to leave a client meeting. He had been questioning the client’s request, which caused an argument between him and the O & M manager. Mr. Joseph refused to leave the premises when asked. The client apparently dismayed by the situation asked not to work with Mr. Joseph. Mr. Joseph complained that the manager had asked him to leave because of his race. O & M conducted an investigation into his allegations but could not find a racial motivation for the manager’s actions. Mr. Joseph remained on the job. However, problems continued to arise between him and the client, causing O & M to ultimately remove him from the project. The company then fired him for a history of problems with interpersonal interactions.

Mr. Joseph’s suit alleged that the company’s treatment of him was based on race and that he was terminated in retaliation for his race based complaints. The Second Circuit Court of Appeals upheld the lower court’s dismissal of Mr. Joseph’s case. O & M had presented legitimate non-discriminatory reasons for firing Mr. Joseph and had evidence to back it up. It had engaged in several attempts to help Mr. Joseph’s interpersonal skills as well as conducting an internal investigation. Other than his belief, Mr. Joseph had no evidence of racial animus.

Tuesday, March 3, 2015

Nurse’s Need for Cane Was Not A Reasonable Accommodation

Leokadia Bryk was a nurse for St. Joseph’s Hospital in Florida. Assigned to the hospital’s in-patient psychiatric unit, she was responsible for patients who might be a danger to themselves or others.

Ms. Bryk had hip replacement surgery during her employment, the result of which was that she needed to use a cane. She used it for two years when a new supervisor asked her to get clearance to continue using it. The hospital then informed Ms. Bryk that she could not continue to use her cane and it gave her one-month to transfer to another unit. Although she applied for other positions, she was not hired for other units and so the hospital terminated her employment.

The district court in Florida decided that Ms. Bryk’s need to use a cane was not a reasonable accommodation. Her gait dysfunction clearly qualified her as a disabled person within the meaning of the ADA. However, the cane was not a “reasonable accommodation” when she might need to perform “takedowns and emergency codes on patients” as an essential function of her position and the patients could use her cane as a weapon. Triable issues of fact did exist as to whether Ms. Bryk should have received two of the other positions she applied to as a reasonable accommodation.

Thursday, February 26, 2015

$15 Million Dollar Race Discrimination Verdict in Colorado

Six male warehouse workers accused Matheson Trucking of discriminating against them because they were black. The seventh plaintiff was a white male who claimed he was fired for challenging the discriminatory conduct.

All of the employees worked at a warehouse in Commerce City, Colorado. Apparently, the black employees were all placed on one side of the warehouse and the whites worked on the other. Supervisors and white employees called black employees racial epithets, used the N word in reference to black workers as well as calling them “lazy, stupid Africans.” One example given was when an employee yelled, “all blacks should be shot.” No white employees were disciplined for their discriminatory conduct even after complaints were made. The situation became worse after a new station manager came in who was even more “openly hostile toward black employees.” After the white plaintiff confronted his supervisors about the race based conduct, he was called “Bemba’s boy” and the “tribe’s assistant.” The plaintiffs were able to get internal documents reflecting the company’s intent to target black employees for dismissal. White employees allegedly then gained the positions.

The jury’s judgment was $318,000 for back pay for the employees who were fired, furloughed or had their hours cut because of race, $650,000 for emotional distress and approximately $13 million in punitive damages. The defendant has indicated its intent to appeal the judgment.

Wednesday, February 25, 2015

New Jersey: Good Anti-Harassment Policy is Good Defense to Sexual Harassment

Closing a decades old issue, the New Jersey Supreme Court has held that a written anti-harassment policy can be used as an affirmative defense to liability in a sexual harassment suit under state law.

The U.S. Supreme Court has previously held that an employer may avoid legal responsibility for sexual harassment where there is an adequate policy in place. New Jersey has now aligned itself with federal law on this issue. The New Jersey case concerned the Department of Corrections (“DOC”). The DOC had a comprehensive written anti-discrimination policy as well as required training on the policy for all employees. A female employee alleged that she had been harassed more than once by two different officers. The DOC initiated an investigation and could not find evidence to support her claims of harassment. Just two days after the DOC started to investigate and before it issued its findings, the female employee sued for sexual harassment.

Per the Court’s decision, an employer accused of having a hostile and sexually offensive working environment may use its policy to assert that: a) it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and b) that the employee “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer…” In using the affirmative defense, the employer must show that it implemented and enforced its policy. If the policy is found to be ineffective or not enforced, the affirmative defense is unlikely to be successful.

Tuesday, February 24, 2015

Starbucks Joins Trend To Allow Workers to Show Tattoos

Customers at Starbucks will now see their baristas sporting tattoos. Starbucks has eased its rules requiring employees to cover their ink when working a shift for the company. Employees with tattoos formerly had to wear long sleeves even in the height of summer to cover them up.

The change in policy comes following a petition by a Starbucks employee, which gathered over 25,000 signatures. In its statement regarding the change, Starbuck’s COO stated “We want to build a company where self-expression, empowerment and inclusion are nurtured.” Here is the policy: “Tattoos are allowed, but not on your face or throat. Treat tattoos as you treat speech-you can’t swear, make hateful comments or lewd jokes in the workplace; neither can your tattoos.” The company also expanded its allowance for ear piercings. However, Starbucks still maintains a prohibition on other piercings, bright (and unnaturally) colored hair, nail polish and rings with stones in them.

According to the NY Daily Record, many other companies have made similar tattoo decisions such as Peet’s Coffee and Tea, Walgreens, Target, Home Depot, IKEA, Trader Joe’s and Dunkin Donuts.