Thursday, September 29, 2016

Associational Discrimination Claim Goes Forward

Brian Gaughan, receptionist for Generations Health Care Network, was in relationship with his co-worker, Judy Aliferis. When Ms. Aliferis was diagnosed with breast cancer, Mr. Gaughan took her to her doctor’s appointments. He always filled out a request first, which was submitted to and approved by his supervisor. About six months into Ms. Aliferis’ treatment, new owners bought the company and a new manager was brought in. This new facilities manager wanted to fire Ms. Aliferis and about the same time he made that decision, the manager learned about the relationship with Mr. Gaughan.

On September 11, Ms. Aliferis had a doctor’s appointment. Mr. Gaughan filled out the usual request and received approval. Right before her appointment, Ms. Aliferis was fired. The facilities manager admitted to firing her because of her health and admitted seeing the couple leave for a doctor’s appointment. When no one was sitting at the receptionist’s desk, the facilities manager looked for but could not find a schedule change form. So, he fired Mr. Gaughan. Mr. Gaughan explained that his absence had been approved and offered to show him the form. The facilities manager would not allow him to go get it. Mr. Gaughan and Ms. Aliferis sued Generations Health Care.

The company sought to dismiss the associational discrimination claim. Mr. Gaughan contended that he had been fired because of his relationship with an employee who had breast cancer. For the federal trial court, the issue was whether Ms. Aliferis “disability” or cancer was the determining factor in the decision to fire Mr. Gaughan. In reviewing the totality of the circumstances, such as the same day firing of both employees, the manager’s refusal to investigate, Mr. Gaughan’s unblemished work history, and the manager’s admitted observations of the two employees leaving together, the court concluded that a jury could find that the company had engaged in associational discrimination.

Wednesday, September 28, 2016

No Case for Sex Texts

Karen Graves, a nurse, has claimed that the lead nurse sent her two text messages. Both texts were sexual in nature. In the first text, sent to Ms. Graves while she was on vacation, David Schum told her to "just have fun and wild sex." For the second text, Mr. Schum referred to Ms. Graves and her husband having "wild sex" and Mr. Schum told her that he thought about sex all the time but was "just not getting it." After she complained to her supervisor, Mr. Schum was reprimanded. He began to treat Ms. Graves rudely, throwing a medical chart at her, denying her some lunch breaks and assigning her the most difficult tasks.

The Sixth Circuit Court of Appeals concluded that the text messages did not rise to the level of sexual harassment. The content of the emails did not reflect an “anti-female animus” or suggest that Mr. Schum was seeking sexual relations with Ms. Graves. According to this court, his anger at her later stemmed from her complaints against him and not from her status as a woman. Even assuming the conduct towards her was gender based, it was not “severe or pervasive” to meet the standard of a hostile work environment for Title VII discrimination. No retaliation claim was asserted by Ms. Graves.

One of the justices dissented, asserting that the overtly sexual nature of the texts did not need to be motivated by an “anti-female animus.” This justice believed that a reasonable jury could find that Mr. Schum did in fact want to pursue a relationship with Ms. Graves and was using the texts about sex as a way to begin. According to this dissent, “Social context is key” and comments that are inappropriate or unprofessional when made by a man to another man “may cross the line into harassing behavior when said to a woman.”

Tuesday, September 27, 2016

Ban That Includes Dreadlocks Upheld

Catastrophe Management Services, a customer service support company, had a dress code. This dress code stated that, “all personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines. Hairstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.” When Chastity Jones was hired, she was told that she would have to cut off her dreadlocks before beginning employment. Ms. Jones refused; her offer of employment was rescinded.

The Equal Employment Opportunity Commission (“EEOC”) brought suit against Catastrophe on her behalf for race discrimination. Ms. Jones was African-American. In its complaint, the EEOC argued that this ban on dreadlocks, which are culturally associated with black people, operated as a proxy for race discrimination. It should be noted that the EEOC did not include an argument under a “disparate impact” theory, which would have allowed the court to determine whether the grooming policy had a disproportionate impact on black employees.

Based on the theory it had before it, the Eleventh Circuit Court of Appeals concluded that Catastrophe did not intentionally discriminate against Ms. Jones via its hair policy. In reaching this conclusion, the Court stated that racial discrimination protection is limited to characteristics that may not be changed. A “black hairstyle” was not an immutable characteristic and thus not entitled to Title VII protection. The court refused to interpret Title VII more expansively by “eliminating the biological conception of race and encompassing cultural characteristics associated with race.” The case was dismissed.

Thursday, September 22, 2016

Bullying Employee Not Saved by FMLA Leave

Timothy Shell was a documented bully during his employment at Tyson Foods. In 2010, he was written up for intimidating a subordinate employee. In 2011, he was investigated after he openly harassed another employee. In 2012, Mr. Shell was again disciplined, this time for threatening subordinate employees with regard to their use of overtime. Finally, in 2013, it was reported to Human Resources that Mr. Shell had: repeatedly cursed at work, was condescending, undermined another supervisor in front of subordinates, and was unprofessional toward his co-workers. Based on the findings, Tyson’s Human Resources fired Mr. Shell. In his termination letter, it stated that Mr. Shell was fired because of his inappropriate behavior and it referred to his numerous warnings.

Mr. Shell challenged these grounds for his termination in a lawsuit against Tyson Foods. He alleged that he had been terminated because he had taken a FMLA leave just a few weeks before his termination. A federal district court dismissed his lawsuit in its entirety, finding that Mr. Shell was unable to show that his termination had anything to with his FMLA leave. He had also asserted an age discrimination claim based on some comments made by a new manager. However, the extensively documented problems in his employment showed that Tyson had a legitimate reason for terminating him. He had continued to be abusive after receiving several warnings. There was no evidence that the investigation into him was done to support a discriminatory aim. Mr. Shell failed to produce any evidence that the persons responsible for firing did not actually believe that he had engaged in the misconduct.

Ultimately, the close timing of the FMLA leave to his firing (one month) could only make out the bare minimum of a FMLA retaliation claim. He had not been able to establish that the true reasons for his termination were merely a pretext for discrimination.

Wednesday, September 21, 2016

Exhibit 1: Age Discrimination Example of Apple Engineer And Genius Bar Job

JK Scheinberg worked as an engineer at Apple for 21 years. He has been widely credited for persuading Steve Jobs to switch Macs off of PowerPC to Intel. He retired in 2008. He was bored. Mr. Scheinberg decided to get a part-time job and he applied to work at Apple’s Genius Bar. The Genius Bar is a service offered to Apple users who either need repairs or some help on using their products. Mr. Scheinberg, with his more than 20 years of software experience as an engineer at Apple, would certainly seem to be well qualified for the position. However, most Genius Bar employees are young.

Mr. Scheinberg went on a group interview for the position. Interviewers noted that he was much older than the other candidates. Three of the interviewers told Mr. Scheinberg that they would be in touch. He never heard back from them. Many tech reporters have suggested that this failure to hire Mr. Scheinberg was a glaring example of age discrimination. Business Insider wrote, “It is unlikely that anyone is more qualified to work at an Apple store than Scheinberg.” Gizmodo wrote “Apple customers would’ve have been lucky to have Scheinberg as their tech support.”

After the article ran in New York Times, Mr. Scheinberg tweeted, “Wonder if Apple will finally give me a callback on that genius bar interview. #ageism.”

Tuesday, September 20, 2016

Claustrophobic Settles ADA Claim

A stylist working for SmartStyle hair salon suffered from claustrophobia. Nora Jacquez let her employer know that she could not work at a hair station that was in a confined space between other stations. Initially, she was assigned to an open station where she was able to work without feeling claustrophobic. However, when Ms. Jacquez was moved to a station between other stylists, she began suffering from anxiety attacks. Her requests to move back to the open station were denied. Ms. Jacquez’ anxiety became so bad that she had to go to the emergency room for treatment. She needed two months off of work for medical treatment. When the company failed to help her fill out the medical leave paperwork as agreed, she was fired.

The Equal Employment Opportunity Commission filed suit on Ms. Jacquez’ behalf, alleging that she was discriminated against in violation of the Americans with Disabilities Act. Claustrophobia has been defined as an anxiety disorder that can result in panic attacks. According to the EEOC, “Claustrophobia is a serious matter. When we discovered management refused to give this employee some space, our investigation closed in on what amounted to intolerance by management.”

A settlement in the monetary amount of $60,000 was reached. In addition, SmartStyle’s parent company, the Regis Corporation has entered into a two-year consent decree. Regis owns hair salons throughout the U.S. The decree requires annual ADA training for the district leader, all salon managers, and hair stylists at Regis salons in Midland, Odessa, and Big Spring, Texas.

Thursday, September 15, 2016

Spotlight on Gender Bias in Law Firms

Chadbourne & Parke, a Washington D.C. law firm, is being accused of gender bias and sued for $100 million by Kerrie Campbell. Ms. Campbell has claimed that she came to the firm in 2014 with extensive experience but was paid much less than male partners at her level and shut out of leadership positions. She has claimed that the firm’s management committee was made up of five men. It is alleged that these men arbitrarily awarded more points to men than women, which translated into higher compensation for male partners. Ms. Campbell has claimed that 11 of the firm’s 18 female partners were given significantly fewer points than the male partners. She claimed to be one of the firm’s leading earners and yet received a smaller paycheck with no annual bonus. Thus, she was in the bottom 1/3 for partner pay.

Ms. Campbell claimed to have complained to both the managing partner and the management committee. She asked for a substantial point increase. Her revenue was referred to as a “fluke” and thereafter she has claimed that her litigation support diminished. She was told recently that her practice no longer fit within the firm’s goals. As such she was given an employment end date and received reduced associate level pay with no benefits.

Surveys of female partners by the National Association of Women Lawyers show that they typically earn 80% of what male partners earn. Women hold just 18% of large law firm partnerships. Similar suits have recently been brought against Sedgwick, a law firm in San Francisco and Mintz Levin Cohn Ferris Glovsky and Popeo in Boston. For its part, Chadbourne & Park have denied the lawsuit’s allegations, claiming that Ms. Campbell’s suit “is riddled with falsehoods.”