Thursday, April 23, 2015

Sixth Circuit Reverses Itself On Telecommuting Accommodation

In May of 2014, three judges from the Sixth Circuit Court of Appeals ruled that telecommuting could be a reasonable accommodation in the case before it. Well, the full panel of that Sixth Circuit has reconsidered the decision and tossed it aside.

The case was against Ford Motor Company. One of its employees, Jane Harris, suffered from irritable bowel syndrome. The impact of this syndrome was that coming into the office was very challenging for her. Ford had a telecommuting policy and had allowed Ms. Harris to telecommute one day a week in accordance with that policy. However, when Ms. Harris asked to telecommute the majority of the time as an accommodation of her disability, Ford refused her request. A lawsuit ensued after Ms. Harris was terminated for attendance and performance issues.

Initially, the Sixth Circuit had found it a question for the jury whether attendance was an essential function of Ms. Harris’ position. Disabled employees must be able to perform the essential functions of their positions, with or without accommodation. After reviewing the case, the full court concluded that Ford had proven regular and predictable onsite attendance was an essential function of Ms. Harris’ job and that working from home extensively was not a reasonable accommodation for her.

Wednesday, April 22, 2015

EEOC Rules Against U.S. Army In Transgender Case

Tamara Lusardi was a Software Quality Assurance Specialist for the U.S. Army. She underwent a transition from male to female while employed. During and after her transition, Ms. Lusardi was barred from using the women’s restroom and limited to using a single stall bathroom. When the single bathroom was being repaired for several days, she was chastised for using the women’s restroom instead. Ms. Lusardi was told that she made other women uncomfortable and could not use the bathroom without showing proof of having completed her final surgery. Her supervisors refused to acknowledge her new gender, instead still referring to her with the use of male pronouns. She was also mocked for her choice to transition.

The Army defended its choices. It argued that Ms. Lusardi had agreed to the use of the single use bathroom during her transition, that the other women would have felt uncomfortable sharing the bathroom before her final surgery and that Ms. Lusardi had not suffered any adverse employment action.

Ruling against the Army, the EEOC found problems with the Army’s defense. It found that Ms. Lusardi’s agreement to the single use bathroom early in her transition did not apply prospectively to when she was further in the process. The anxiety of her co-workers was not a justification for discrimination. Ultimately, the EEOC considered the Army’s harassment of Ms. Lusardi regarding the bathroom to be a form of adverse employment action. Ms. Lusardi was not treated equally. Once she began living and working completely in her new gender, she must be treated the same as any other employee of that gender. The Army must now conduct equal opportunity training in its facility as well as pay Ms. Lusardi compensatory damages. This case is another indicator of the expanding protections for transgender employees.

Tuesday, April 21, 2015

CBS Sued By Reporter For Sexual Harassment

Kenneth Lombardi, former reporter for CBS, has alleged that two managers sexually harassed him and that he was retaliated against after complaining.

Mr. Lombardi conducted celebrity interviews for CBS. During the course of his employment, he has asserted that a male senior producer assaulted him at a holiday party. The producer was purportedly “highly intoxicated” when he “slid his hand down [Mr. Lombardi’s] pants and grabbed [his] penis and testicles.” Apologizing the following day, the producer also wrote, “If you weren’t offended, then let’s do it again. LOL…” 

There are also allegations against the former “CBS Evening News” director. Mr. Lombardi alleged that the male director hit on him after drinking at a bar and challenged his sexuality. This director was also accused of texting Mr. Lombardi links to porn sites, rubbing his legs and kissing him.

The harassment was reported to HR but Mr. Lombardi alleged that he was not taken seriously and was met with retaliation. He claimed that one manager began tormenting him following his complaint, stating: You know you’ve really p----ed me off!” Mr. Lombardi asserted that he was forced to quit.

CBS has issued a statement denying all of the claims and expressed its intent to defend itself against the claims.

Thursday, April 16, 2015

NLRB Looks To Context For Employee’s Facebook Obscenities

Some of the employees at Pier Sixty in New York wanted union representation. Concerns had been vocalized about management treating employees “disrespectfully and in an undignified manner.” Employees were able to have an election and a union was certified as the employees’ collective bargaining representative.

However, two days before the election, one of the employees took to Facebook to rant about his supervisor. The employee used his phone to post the following message on Facebook: “Bob is such a NASTY MOTHER F***** don’t know how to talk to people!!!!!! F*** his mother and his entire f****** family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” The post was not public but was available to the employee’s Facebook friends, including some co-workers. Upon learning of the post, the company fired this employee for violation of its obscenity policy.

Pier Sixty lost before the administrative law judge and the NLRB. It was determined that the employee’s termination violated the National Labor Relations Act because his post was protected concerted activity. In ruling for the employee, the NLRB noted that obscene language was often tolerated at Pier Sixty and its anti-obscenity policy was enforced inconsistently. In addition, the post appeared to have no real impact on the work environment or customer relations. The fact that the environment at the time of the posting was during a heated union election also helped persuade the NLRB to rule for the employee.

Wednesday, April 15, 2015

White Professors Go After Alabama State for Race Discrimination

Alabama Sate University has been accused of being biased against white people. Two professors, Dr. Steven Chesbro and Dr. John Garland, have asserted that many complaints have been made to the university about racist hiring and selection processes but the school has not taken action.

Allegedly, a white faculty member spoke up about the inappropriate use of race in making selections during a search committee meeting and was removed as the head of the search committee. During one search committee meeting, it was asserted that the stated primary goal was the hire of someone both female and black. In other instances, purportedly only black applicants were considered for employment. The men further alleged that race played a factor in physical therapy admissions.

“Of the 47 black applicants who applied for admission to the doctoral program for physical therapy in 2013, 20 percent met the required GPA standard, but 57 percent of the candidates were admitted. In contrast, of 137 white applicants, 59 percent met the required GPA standard, but only 32 percent were admitted.”

There are also allegations of sexual orientation discrimination. The plaintiffs are in a same-sex relationship. They assert that nepotism rules apply only to same-sex couples and that they have been treated differently. Alabama State University has denied the allegations and has attributed the suit to “squabbles” between faculty members.