Recently in Employment Law News Category

A Connecticut employment termination case involving Facebook has been making national headlines.  Just yesterday it was reported that the case was settled. The case involved a female paramedic who posted on Facebook that her boss was a jerk.  That comment got her fired.  The employee held a unionized job - governed by the collective bargaining agreement between the union and the employer. 

While this case sets an important precedent for unionized workers, it has no legal effect on employees at will.  For employees at will, they must still be careful when posting comments about their employers online. If the employer does not like the online comments, the employer can use it as the basis for termination.

The number of pregnancy-discrimination claims brought to the U.S. Equal Employment Opportunity Commission has climbed nearly 31 percent since 2005, outpacing the almost 24 percent rise in all job-bias claims brought to the federal agency during that span, according to the EEOC.

Several factors account for the sharp rise in Pregnancy Discrimination Act claims. These include greater employee awareness of their rights, managers not always respectful of the wishes of expectant employees, and a failing economy that has made employers quicker to fire and employees more willing to sue. 

New York-based Fox News Network LLC, which owns and operates the Fox News Channel based in Washington, D.C., retaliated against news reporter Catherine Herridge after she complained to Fox that she was subjected to disparate pay and unequal employment opportunities because of her gender and age, according to a recently filed lawsuit.

According to the EEOC's complaint, during 2007 Herridge made several complaints to management officials at Fox News about employment practices that she believed were discriminatory. Fox conducted an investigation into Herridge's allegations beginning around December 2007, but notified Herridge that no evidence of age and sex discrimination had been found.  

In 2008, Fox News included language in Herridge's employment contract, which was set for renewal, that referenced Herridge's discrimination complaints and was intended to stop Herridge from making more of them in the future, the EEOC charged.  Herridge refused to sign the employment contract until the language was removed. Thereafter, Fox refused to negotiate further with Herridge, would not respond to counteroffers as to substantive issues in the proposed contract, and ceased speaking to her agent or to her about her contract.

As a result of Fox's refusal to proceed with a new employment contract absent the retaliatory language, Herridge became an "at-will" employee without any job protections, causing her considerable stress, the EEOC alleged.  It was only after Herridge filed a charge of discrimination with the EEOC, and an EEOC investigator conducted an on-site investigation, that Fox agreed to take out the retaliatory language and presented Herridge with a new contract with the retaliatory language removed, in June 2009 which she signed.

Retaliation against an employee for making a discrimination complaint violates Title VII of the Civil Rights Act of 1964, the Equal Pay Act and the Age Discrimination in Employment Act (ADEA). 

The job market is bad.  It is even worse for disabled workers.  The US government recently released a detailed study that showed in 2009 the average unemployment rate for disabled workers was 14.5%.  According to the Department of Labor, there are an estimated 27 million Americans 16 years or older with a disability.  As of July 2010, the unemployment rate for the disabled hit 16.4%.  In addition, the unemployment rate for the disabled was higher at every level of education.  For example, workers with disabilities that have a college degree are at a 8.3% unemployment rate whereas their non-disabled counterparts enjoy a rate of 4.5%.  There is no question that these statistics demonstrate that disability discrimination is alive and well in the labor market.  Prospective employers continue to view disabled workers as more costly and less productive and as a result are less inclined to hire these workers or to continue to employ them.  

A federal appeals court has rejected jet engine maker Pratt & Whitney's plan to move 1,000 jobs out of Connecticut.The 2nd U.S. Circuit Court of Appeals upheld a federal judge's ruling that said the subsidiary of United Technologies Corp. failed to make every reasonable effort to avoid shutting two engine repair plants in the state and failing to make every reasonable effort, the company breached the collective bargaining agreement. 

On June 22, 2010, the U.S. Department of Labor issued a clarification of definitions under Section 101(12) of the Family and Medical Leave Act (FMLA) designed to ensure all employees who care for children are eligible for parental rights to leave under the Act--even when the employee lacks a legal or biological relationship to the child. The change requires employers to provide FMLA leave to employees caring for children who were previously uncovered by the Act, particularly gay and lesbian parents and "non-traditional" parents who care for children but are not those children's legal stepparents or guardians.

Is an employee considered disabled under the ADA for a condition caused by medication?  Well, like most legal issues, there is no simple yes or no answer to that question. 

In Sulima v. Tobyhanna Army Depot et al., No. 08-4684 (3d Cir. Apr. 12, 2010), the Third Circuit addressed when an employee may bring suit under the Americans with Disabilities Act (ADA) based on conditions caused by medication. In the case, the plaintiff/employee needed more time than most employees for restroom breaks. He needed more time to use the bathroom because of weight loss medication.

The side effects from treatment and medication can constitute a disability under the three-prong test utilized by the Court in Sulima:

(1) the treatment is required "in the prudent judgment of the medical profession,"

(2) the treatment is not just an "attractive option," and

(3) that the treatment is not required solely in anticipation of an impairment resulting from the plaintiff's voluntary choices.

This test was first laid out by the Seventh Circuit in Christian v. St. Anthony Medical Center, Inc., 117 F.3d 1051 (7th Cir. 1997). It is now the test in the Third Circuit as well.

In this specific case, the court found that the plaintiff's medication was not "required in the prudent judgment of the medical profession" as evidenced by the fact that his doctor took him off the medication when learning of the side effects.

 

The Eighth Circuit joins other U.S. Courts of Appeals that have ruled on claims that an employer violated Title VII by imposing a sex-stereotyped stigma on a protected employee.  In the case of Lewis v. Heartland Inns of America, No. 08-3860 (8th Cir.2010), the defendant took away the plaintiff's front-desk clerk's daytime hours because she supposedly dressed like Ellen DeGeneres and lacked the "Midwestern girl look."  The district court granted summary judgment in favor of the defendant and the Eight Circuit Court of Appeals reversed the summary judgment and remanded for trial.

Previously, the Ninth, Seventh, and Sixth Circuits and (most recently) the Third Circuit (Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009)) have ruled on claims that an employer discriminated against (or tolerated harassment of) employees whose dress and behavior did not conform to a gender stereotype of feminity or masculinity.  All of these courts recognized such a claim under Title VII or parallel state laws. 

The EOOC has posted comments on the recent ADA amendments that went into effect on January 1, 2009.  The comments read as follows:

On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act" or "Act"). The Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.

The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

• directs EEOC to revise that portion of its regulations defining the term "substantially limits";
• expands the definition of "major life activities" by including two non-exhaustive lists:
• • the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
  • the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");
• states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;
• clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
• changes the definition of "regarded as" so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is "regarded as" disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor;
• provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation.

If anyone had any doubts as to how harmful mandatory and binding arbitration is in employment cases, just watch this video.  Not only does the arbitration deny the wronged employee's right to her day in court but it undermines the nation's employment laws designed to protect American workers.  The undermining occurs when the arbitration is done in private with the result sealed, thereby preventing the public from knowing what happened and removing the incentive for the employer to take corrective action.  Watch the video.