Tuesday, July 29, 2014

Ban on Sexual Orientation Discrimination Expanded to Federal Contractors

President Obama has signed an executive order that prohibits federal contractors from discriminating against employees on the basis of their sexual orientation and gender identity. The order also adds gender identity as a prohibited basis for discrimination to the sexual orientation protection already in place for federal employees.

Executive Order 11246 originally precluded federal contractors and federally assisted construction contractors and subcontractors doing over 10,000 in government business per year from discrimination on the basis of race, color, religion, sex or national origin. That protection has now been expanded to include gender identity and sexual orientation. The Executive Order requires covered government contractors to take affirmative steps to ensure that equal opportunity is provided in all aspects of employment. A specific religious exemption is not included but a previous exception for allowing religiously affiliated contractors to favor candidates of a particular religion remains in place.

The law will go into effect once the Secretary of Labor issues rules on implementing its provisions. The exact nature of affirmative action obligations are expected to be clear once the rules are issued. Federal law does not presently include a prohibition for discrimination based on sexual orientation for private employers although some states do prohibit such discrimination.

Thursday, July 24, 2014

EEOC Updates Position on Pregnancy Discrimination

The EEOC has issued new guidelines on pregnancy discrimination for the first time since 1983. These new guidelines are likely a response to the increased number of discrimination charges being filed with the agency.

Via these guidelines, employers are reminded that they cannot fire, refuse to hire, demote or take any adverse action if pregnancy, childbirth or a related medical condition is a “motivating factor.” Medical conditions identified include back pain, gestational diabetes, pre-eclampsia, complications that require bed rest and complications from delivery. Employers are also prohibited from discriminating against an employee who is planning to become pregnant. Lactation is protected as well by being classified as a “pregnancy related medical condition.” The guidelines further state that it would be a violation of federal law to deny opportunities to women (but not to men) because of their anticipated care-giving responsibilities for young children.

The guidelines reiterate that pregnancy is not a disability in and of itself but that pregnancy related impairments might qualify as a disability. The EEOC guidelines reflect a broader interpretation of what constitutes a disability in light of the expanded ADAAA. Per the EEOC, employers must make reasonable accommodations for disabilities such as light duty or modification of work schedules. Pregnant women must be treated the same as similarly situated non-pregnant employees who are similarly limited in their ability or inability to work. Please review the EEOC guidelines for specific information about pregnancy accommodation in the workplace.

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.