The man alleges that he has a proven work history of being able to do service industry jobs but that the manager refused to consider him as a candidate because of what she perceived as a disability.
"Oh, at our store our syrups are up high, and I have to extend my whole body to pump it," the manager said to him. "You can't work here with one arm."
]]> The man is suing for wrongful failure to hire and discrimination under federal law. The man's lawyer also says that he is disturbed that no conversation took place as to whether the man required an accommodation or whether he could actually do the job because the manager simply refused to seriously consider him as an applicant due to his lack of a full arm."I got angry about it," the man said. "I mean, I've never been told I can't do anything. She said, verbatim, I 'can't work here with one arm.'"
The man is seeking punitive damages, loss of income, statutory penalties, and other damages. Starbucks says that its investigation revealed a different version of events than what the man claims happened and that it looks forward to responding to the man's lawsuit.
Source: ABC News, "California Man With Half an Arm Sues Starbucks, Alleging Discrimination," Lyneka Little, Feb. 14, 2012
]]>The woman worked for a credit collection agency when she became pregnant in 2008. On Feb. 17, 2009, the woman asked her boss to provide a private place for her to pump breast milk for her newborn child, who was born the previous December. She was told at that time that she was laid off. Two weeks later, a letter arrived in the mail, backdated to Feb. 16, 2009, notifying her of her termination. The company claimed that the woman had abandoned her job.
]]> The woman sued for sex discrimination under the Pregnancy Discrimination Act. However, the federal judge hearing the case ruled that, "She gave birth on December 11, 2008. After that day, she was no longer pregnant, and her pregnancy-related conditions had ended." The woman says that the ruling is unfair, and she and her attorney are discussing an appeal.The case arose before health care law changed in the country. Federal law requires employers to provide reasonable break time for nursing mothers to express breast milk during the first year of the child's life. The new law, which went into effect in March, 2010, is not included in the Pregnancy Discrimination Act.
The healthcare reform law also requires employers to provide a place for mothers to express milk and that place must be other than a bathroom. The separate law allows smaller companies, those that have fewer than 50 employees, to avoid the new mother provision if allowing work breaks for new mothers would create an undue hardship on the company.
Source: Reuters via Chicago Tribune, "Woman: court ruling on pumping breast milk unfair," Deborah Quinn Hensel, Feb. 10, 2012
]]>The commission heard testimony that difficulties persist in the area of pregnancy discrimination. Some testified that overlaps in federal workplace discrimination law can create gray areas. Some issues may fall within gray areas between the Pregnancy Discrimination Act, the Americans with Disabilities Act and the Family Medical Leave Act. One human resources executive who testified at the EEOC hearing told the panel that, "In our view, the current laws are a little confusing and in some cases contradictory."
]]> The HR executive who testified says that companies are left, at times, with uncertainty about how to deal with pregnancy related issues. One major issue, according to a witness, involves how a company should compare workplace treatment of a pregnant woman with the treatment of other employees.Workplace discrimination attorneys note that the various federal workplace discrimination laws are in place to protect workers from discriminatory practices. Certainly, a person who has felt the brunt of discrimination in the workplace is left with an unjust feeling in a nation founded on the rule of law.
If you have suffered workplace discrimination, it is important to consider discussing the situation with an experienced Ohio worker's rights and employment law attorney for an assessment of individual circumstances.
During the hearing, the commission heard explicit testimony of a recent case out of Texas, where a federal judge ruled against a mother who was fired for asking her employer to provide a place for her to pump breast milk during work breaks. The next post will discuss that case in more detail.
Source: Reuters, "Working pregnant women face rampant discrimination: agency," Ian Simpson, Feb. 15, 2012
]]>The Americans with Disabilities Act specifically prohibits employers from inquiring of job applicants and workers whether or not they have a disability. Employers are also not allowed to ask potential or current employees about the nature or severity of any potential disability that otherwise qualified applicants and workers may have under the workplace discrimination law.
]]> The East Coast company that publishes a health magazine recently settled the lawsuit, without trial. The settlement includes an award of damages for the worker who was allegedly harassed and later fired for having ADHD. The company also agreed to provide other relief, intended to discourage future discriminatory practices in the workplace.A director of the Equal Employment Opportunity Commission in the region that covers Ohio, among other states, says that the disability discrimination "case shows that employers continue to make employment decisions based on uninformed prejudices and irrational fears."
As this blog recently discussed, workplace discrimination complaints seem to be on the rise. Last year saw a record number of job bias complaints across the country. Cincinnati disability discrimination lawyers know that workplace discrimination should never be tolerated, but when the economy falls into distress as it has in recent years, discriminatory practices in the workplace can certainly amplify difficulties for Ohio residents to find and hold a job.
Source: EEOC, "Professional Media Corporation to Pay $58,000 To Settle EEOC Disability Bias Suit," Feb. 7, 2012
]]>The Department of Homeland Security Office of the Inspector General conducted a 21-month investigation of the service after a Congressman sent a letter to DHS in response to allegations that emerged at the Cincinnati and Orlando field offices of the environment. The results of the investigation are expected to be formally released Thursday.
]]> Several civil lawsuits were filed between 2007 and 2010 in Covington concerning the alleged discriminatory culture in the Air Marshal Service. Five of the lawsuits have already settled, but two remain pending in U.S. District Court for the Eastern District of Kentucky. Much of the information in court records remains under seal due to national security issues.During the 21-month investigation, federal investigators visited five offices, including the office in Erlanger. The federal investigation says that 55 percent of the air marshals who were interviewed felt that disciplinary actions within the service are inconsistently applied among workers. The investigation revealed that 53 percent of the air marshals believe that the disciplinary process in the service was used as a tool to commit workplace retaliation against workers.
An air marshal stationed in Florida at one point said that supervisors in that office created a Jeopardy-like game board that included racially offensive and derogatory language to segment African-Americans, Hispanics, women and gays in discriminatory classifications. The federal report reportedly says that there is no evidence that the game board resulted in any unfair treatment of workers.
Source: The Kentucky Enquirer, "Report: Air marshals feel discrimination," Jim Hannah, Feb. 7, 2012
]]>The proposed new rules would help military families in Ohio, as across the country, to care for family and service members who have been injured, or when military personnel are called to active duty. The proposed new rules would expand FMLA eligibility for military families. The new rules also address issues that may impact airline flight crews and their families under the Airline Flight Crew Technical Corrections Act.
]]> For military families, the proposed new FMLA rules would expand eligibility for qualifying exigency FMLA leave to cover military families who have a service member in the regular U.S. armed forces, not just families of members of the National Guard or reserves.Part of the new expanded provisions for military families relate to service members who are called into active duty. The proposed rules would make FMLA leave available for families of active duty military who have been recently deployed to apply for FMLA leave to take care of a number of issues, which may include dealing with child care, financial or legal issues.
The new rules expand FMLA eligibility to include veterans who have been discharged within the past five years. The current laws only cover military family members of personnel currently serving in the military.
In addition to the traditional 12 weeks of FMLA leave generally available under the Act, the new rules allow military families to seek up to 26 weeks of FMLA leave to care for returning veterans who became ill or were injured while in the line of duty in the military. The extended leave applies to conditions that are not diagnosed until after the veteran has left the military.
For flight crews, the new rules clarify the eligibility requirements with the unique work schedules that apply to airline flight crews. The proposal would allow flight crew members to meet the eligibility requirements upon a showing that the crew member has worked, or be paid, for at least 60 percent of a traditional 40-hour work week.
Source: Business Insurance, "Amendments to FMLA's military leave provisions proposed," Judy Greenwald, Feb. 1, 2012
]]>The workers claim that the personal emails that the federal government intercepted included drafts of whistleblower complaints that the workers were preparing related to medical devices that the doctors and scientists say were under review by the FDA.
The workers believed that some medical devices were being approved that posed risks to patients. The doctors and scientists say that they were bringing their concerns about the potentially ineffective medical devices to the attention of Congress.
]]> FDA computers expressly warn employees that they have "no reasonable expectation of privacy" when working on government computers. The FDA computers let workers know that the government may intercept data passing through the government's computer system.However, the workers say that the federal government violated the workers' civil right by intruding into the workers' personal accounts. The workers say in their lawsuit that the information seized from their personal accounts was lawful whistleblower activity.
The FDA reportedly monitored correspondence of the government employees and sought an investigation of the communications by the inspector general at the Health and Human Services Department. The FDA claimed that the communications were improper disclosures of confidential information.
The FDA request for an investigation apparently followed a complaint from one of the medical device manufacturers that proprietary business information about the product had been improperly leaked. HHS declined to pursue the investigation, finding no criminal conduct.
Two of the workers were eventually fired by the FDA, two workers say that their professional employment contracts were not renewed, and two of the scientists say that they were harassed in retaliation for their lawful activity. The two who claim being harassed say that they were also passed over for promotions.
Source: The Washington Post, "FDA staffers sue agency over surveillance of personal e-mail," Ellen Nakashima and Lisa Rein, Jan. 29, 2012
]]>Sadly, many unemployed workers face unnecessary discrimination when they are applying for new jobs. Some employers specifically prohibit unemployed people from applying for job openings.
]]> Although this practice is certainly unfair, it is not illegal. However, this may soon change.A bill has been recently introduced in the Ohio House of Representatives that would make it illegal for employers to advertise job openings as not being available to unemployed applicants. Ohio employers who do not adhere to the law would become subject to a state-sponsored civil rights investigation that could lead to hefty fines.
On a federal level, Ohio senator Sherrod Brown is working with President Obama to pass a similar employment discrimination law, which this blog discussed in August.
Ohio Unemployment Still a Major Problem
The bill's passage cannot come soon enough. According to recent data from the Ohio Department of Job and Family Services, the state's unemployment rate was 8.1 percent in December 2011, the most recent month for which data is available.
Although Ohio's unemployment rate has dropped since the start of the economic crisis, a staggering 469,000 people are still out of work but actively looking for a job. This doesn't include the people who are out of work but who have become so discouraged that they have given up on looking for new employment.
Hopefully, the state's economy will recover soon. In the meantime, qualified employees should not go overlooked by employers simply because they have had the misfortune of being laid off.
Source: Newsmax, "Ohio Employers Might Have to Consider Unemployed," Sandy Fitzgerald, Jan. 25, 2012.
]]>The black worker says that the employer only offered front of house duties to workers the employer says are not "fat, black and ugly" according to the racial discrimination lawsuit.
]]> The man bringing the claim worked at one of the company's locations from 2009 to 2011. He says in his discrimination lawsuit that he was repeated assigned to work in the backrooms when the restaurant owner was present, or when the manager thought the restaurant owner may show up at the store.The man claims that African American employees and other specified workers were to be systematically kept in positions that would not have any contact with customers.
A different former worker at the same location, which is outside of Ohio, filed suit against the same company last November. The initial workplace discrimination suit is a retaliation case. The plaintiff says that he worked at the restaurant as an assistant and general manager between 2007 and 2011. The retaliatory discharge lawsuit alleges that the former worker was fired after complaining about racial discrimination at the restaurant.
A spokesman for the company operating the individual restaurant in the lawsuit denies that any discriminatory practices occurred at the restaurant. A spokeswoman for Panera Bread says the company holds franchisees to high standards, has a zero tolerance for discrimination and says Panera is taking the recent matters seriously.
Source: ABC News, "Panera Franchisee Served With Second Racial Bias Suit," Susanna Kim, Jan. 13, 2012
]]>The EEOC says that the most significant increase in employment discrimination complaints came in the area of religious discrimination. The agency says religious discrimination complaints rose by 9.5 percent last year, followed closely by a 5 percent jump in allegations of national origin discrimination.
]]> Many people who watch job bias issues closely say that the struggling economy is not the only issue underlying the increase in job bias complaints. Industry watchers say that increases in complaints in the areas of religious and nation origin discrimination highlight the growing diversity in the nation's workforce.The EEOC says that charges of racial bias, gender discrimination and retaliation claims continue to lead complaints in terms of raw numbers. However, racial discrimination complaints fell by 1 percent last year. Sex discrimination claims dropped 2 percent, while complaints of sexual harassment fell 3 percent in 2011.
With the aging population in America, it is not surprising that issues of disability discrimination and age bias complaints each saw slight increases. The EEOC says complaints of age discrimination rose last year by 1 percent, while disability discrimination complaints rose 2 percent.
Source: AP via USA Today, "Job bias claims in U.S. at record level," Jan. 24, 2012
]]>The FMLA issue involved a claim brought against a state employer that had fired a worker for trying to take 10 days of FMLA leave. The man's doctor had ordered the worker to take two-weeks of bed rest to deal with hypertension and diabetes-related medical issues. When the employee sought FMLA leave to accomplish the bed rest, he was fired.
]]> He filed suit against the state employer under the FMLA seeking damages. The trial court threw the case out, despite the employer's admission that the termination violated the FMLA. The federal judge ruled, and an appellate court agreed, that state employees cannot sue state employers for money damages.In 2003, the U.S. Supreme Court ruled that state workers could sue under the FMLA for money damages if they are denied FMLA leave requested to take care of an ill family member. The current issue before the high court is whether an employee can sue for damages after being denied FMLA leave for a personal medical issue.
Twenty seven states have weighed in on the current case. The states say that the only remedy workers should have for FMLA violations related to a worker's personal medical issue is to sue to get his or her job back. The states argue that workers should not be able to sue state governments for monetary damages under the FMLA.
Attorneys for the fired worker argued to the court that if money damages are not available, there is no incentive for state employers to follow the law. That is, the threat of money damages serves as the teeth in the law, which gives workers protection.
The Family and Medical Leave Act was created in 1993 to give workers the right to take up to 12 weeks of leave to care for a new baby or an ill family member. The law also allows workers to take FMLA leave to deal with serious medical issue of their own, much like the worker in the current Supreme Court case.
The states acknowledge that the FMLA applies to state workers, but the issue before the high court is what remedy should be available for aggrieved state employees. The outcome of the court's decision, expected later this year, is an important employee rights issue for roughly 5 million workers across the country, including employees in Ohio, who work for state agencies.
Source: Associated Press, "Supreme Court wrestles with medical leave case," Jessica Gresko, Jan. 11, 2012
]]>Four years before her illness, the woman was promoted from a status as a "temporary" teacher to a "called" teacher and made her a minister through a vote of the church's congregation. The woman taught religion classes and occasionally led chapel services in her position with the institution.
]]> A trial court judge threw out her disability discrimination lawsuit under the "ministerial exception," which is a legal concept arising from the separation of church and state. The United States Court of Appeals for the 6th Circuit, which includes federal cases in Ohio, reversed the lower court ruling. The appellate decision found the ministerial exception did not apply, because the elementary school teacher primarily taught secular subject matter.Chief Justice John Roberts says the Sixth Circuit ruling was wrong. Roberts says the teacher was an ordained minister. Roberts writes in the recent decision that the appellate court placed too much weight on the fact that the woman only spent 45 minutes a day on religious duties. He writes, "The issue before us ... is not one that can be resolved by a stopwatch." But the Chief Justice refused to define what employees of a religious institution should be considered religious employees.
"We are reluctant ... to adopt a rigid formula for deciding when an employee qualifies as a minister," he writes in the majority opinion of the court. "It is enough for us to conclude, in this, our first case involving the ministerial exception, that the exception covers [the plaintiff teacher], given all the circumstances of her employment."
Justice Samuel Alito wrote his own concurring opinion. Alito writes that the ministerial exception should only apply to a worker "who leads a religious organization, conducts worship services or important religious ceremonies or rituals or serves as a messenger or teacher of its faith."
But Alito reasons that the ministerial exception should not apply to all workers of the country's religious institutions. He writes that, "while a purely secular teacher would not qualify for the 'ministerial exception,' the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones."
Justice Clarence Thomas wrote separately in a concurring opinion, essentially ruling that courts should stay out of the matter. Thomas says courts should defer to the church on the subject of who "qualifies as a minister."
Source: AP via Washington Post, "Supreme Court keeps church job-bias disputes out of court, but leaves unanswered questions," Jan. 11, 2012
]]>This blog discussed the workplace discrimination case after the high court heard oral argument last October. The court issued its ruling this week on the "ministerial exception" to employment discrimination laws.
Lower courts across the country previously returned conflicting rulings over whether the "ministerial exception" to employment discrimination laws should be recognized. The high court ruled that the First Amendment immunizes churches and their affiliated operations from antidiscrimination laws when the issue involves religious employees. But the ruling left many issues unresolved.
]]> The court held that due to the First Amendment protection of freedom of religion, churches are better suited than U.S. courts to determine whether religious employees should be hired or fired. The court's ruling, however, did not explicitly define what a religious employee constitutes, leaving issues of job bias at religious institutions and schools open for future cases.For instance, the ruling does not expressly define whether a professor at any of the nation's religious affiliated colleges or universities who does not teach any courses in religion is affected by this week's ruling.
A law professor from Notre Dame Law School says the ruling apparently may affect some teachers at the nation's religion-affiliated schools, while other teachers may escape the reach of this week's decision and be able to sue under state and federal anti-discrimination laws. He says, "There are going to be some employee relationships involving religious institutions that are not religious at all, and those are not going to be covered."
Future cases may hinge on whether or not a court of law considers an employee as being involved in the religious mission of the institution. In the next post, this blog will discuss in more detail the court's ruling, including what some of the Justices wrote in deciding the issue.
Source: AP via Washington Post, "Supreme Court keeps church job-bias disputes out of court, but leaves unanswered questions," Jan. 11, 2012
]]>The lawsuit was filed on behalf of more than 300 African Americans who were denied jobs under the background check policy used by the Pepsi Bottling Group, which is now a subsidiary of Pepsi Beverages. The former policy denied job offers for applicants who had previous arrests on their record, even if the applicant was never convicted of any offense.
]]> The policy also denied permanent jobs for applicants who had conviction for minor offenses. The race bias lawsuit had alleged that the policy had a disproportionate adverse effect on African American job applicants. The workplace discrimination lawsuit settled for a seven figure sum earlier this week.The issue related to the Pepsi lawsuit first surfaced in 2006. Over a period of time, more than 300 job applicants nationwide were identified who were improperly affected by the former pre-employment background check policy. During the course of investigating the issue, the cola manufacturing company modified its pre-employment policies.
The issue has generally been on the radar for years. The Equal Employment Opportunity Commission issued guidance on the use of criminal arrest and conviction records during the 1980s. The EEOC considered the issue roughly three years ago and held public meeting on the topic last summer.
The EEOC says employers must look at several factors to lawfully use background checks in pre-employment situations. Businesses must consider the nature and gravity of a prior offense, the time that has passed since a conviction was entered or the sentence was completed and also consider the nature of the job the applicant is seeking with the company.
For instance a prior drunk driving conviction may not be relevant if the person is applying for a job that will never involve driving, but a theft conviction may be relevant for a potential bank employee.
The recent race discrimination suit against Pepsi does not only involve a cash settlement. While the settlement agreement includes provisions on future compliance and training issues, the agreement also may help the job applicants who were adversely affected in getting a job with the cola company. Pepsi says applicants who were wrongfully denied jobs under the former policy who want to work for Pepsi and submit an application will be offered jobs for which they qualify.
Source: EEOC, "Pepsi to Pay $3.13 Million and Made Major Policy Changes to Resolve EEOC Finding of Nationwide Hiring Discrimination Against African Americans," Jan. 11, 2012
]]>Meanwhile the federal Americans with Disabilities Act and Ohio law protects disabled workers who are capable of performing the essential functions of their jobs, or prospective jobs, from disability discrimination. Disability discrimination laws require employers to provide physically or mentally disabled workers with reasonable accommodations to assist the workers in performing their job duties.
Now, an Ohio law professor is suggesting that pregnancy discrimination laws may not do enough to protect women in the workplace and argues that the federal government should expand the ADA, as amended, to include pregnancy as a disability deserving the protections of reasonable accommodations in the workplace.
]]> The Dayton, Ohio law professors says her research shows that courts have not done enough to protect many childbirth-related medical issues that women deal with. She says courts view such pregnancy-related issues as shortness of breath, issues arising from prolonged standing or sitting, among other difficulties women experience while pregnant as "part and parcel of a normal pregnancy." She says her research show that U.S. courts have been reluctant to require employers to accommodate the pregnancy-related issues.The Ohio-based law professor presented her findings this week at the American Association of Law Schools annual meeting. She reportedly referenced a number of cases, including the plight of a retail worker who lost her job for drinking water at work, in violation of the store's policy.
She says that including pregnancy-related issues under the umbrella of the ADA would obligate employers to consider the reasonable accommodation protection of the federal workplace disability discrimination law.
Source: The Globe and Mail, "Should pregnancy be considered a disability?," Dave McGinn, Jan. 6, 2012
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