Eeoc_logo2Thanks to Richard Cohen and his Employment Discrimination Report blog and the Washington Post for focusing attention on the recent report by the U.S. Equal Employment Opportunity Commission (EEOC) about the rapid increase in retaliation claims in the workplace. For years, employment discrimination complaints (i.e., claims by employees that they were discriminated against on the basis of one or more protected factors like race, gender, national origin, age, etc.) were at the top of the EEOC charts as far as number of claims filed. However, as noted back in January 2013, since 2010 there have been more retaliation claims filed with the EEOC than any type of discrimination claim.

The big increase involves claims filed by eligible employees (those who work for employers with at least 15 employees and most public employers) that they were demoted, fired, transferred, denied a raise or a promotion or similar complaints in retaliation for having complained about race, gender, age or other types of discrimination – sometimes even where the alleged discrimination involved someone else. According to the EEOC, a record 38,539 retaliation charges were filed in fiscal year 2013.

The statistics for Florida are similar. In 2013, a total of 3,095 retaliation claims were filed, representing about 41% of the complaints filed with Florida offices of the EEOC. This compares to 2,533 race discrimination complaints, representing 33% of all charges filed.

What accounts for the increase?


Continue Reading Employee Retaliation Claims Continue to Rise

self driving car by  Steve Jurvetson flickrHere’s a novel question for you: What do so-called “autonomous” cars have in common with class action federal employment discrimination lawsuits?

As an admitted car guy, I am often taken to drawing parallels between the automotive world and the legal profession (and just about everything else in life). So when I recently came across a lawsuit filed by the EEOC, my mind wandered from the courtroom to the road. Let me explain.

First, as you may know, an autonomous car is a car that literally drives itself — a “self-driving” car. If you’ve been reading too many car magazines like me, you’ve probably read about ongoing research and development efforts by various car manufacturers to develop a truly self-driving, pilot-less vehicle. Many automotive experts predict that in a relatively short period of time — say 10 years from now, perhaps sooner — such vehicles will be commonplace on roads in the U.S. and elsewhere.

EEOC v. Bass Pro Outdoor World


Continue Reading Self-Driving Lawsuits?

This month, the EEOC issued its controversial Enforcement Guidance: Pregnancy Discrimination and Related Issues. Of course, we all knew that pregnancy discrimination was unlawful, but did you know that according to the EEOC Guidance:

  • Many short term pregnancy related conditions are considered disabilities under the ADAAA, and thereby implicating a duty to reasonably

ergo chair via Kare Products FlickrConsider this scenario:

Carmen Parada worked for Banco Industrial de Venezuela in New York as a credit analyst, a largely sedentary job that involved organizing credit letter applications, ensuring that certain documents complied with various standards, and issuing credit letters. In 2007, she fell on the sidewalk and suffered a spinal injury in her lower back. As a result, the employee was directed by her doctor to avoid “prolonged sitting” and to stand after 10 or 15 minutes of sitting. She borrowed a colleague’s ergonomic office chair temporarily, and was able to sit using that chair without the need for standing breaks. The employee asked her employer (a bank) multiple times for a permanent ergonomic chair as a “reasonable accommodation” under the Americans with Disabilities Act of 1990 (ADA). However, she never received the chair and was ultimately terminated.

Which of the following statements is correct?

A. The bank may deny the employee’s request for the ergonomic chair as a reasonable accommodation under ADA, since she is not precluded from sitting at all times.

B. The bank must grant the employee’s request for breaks to allow her to stand after 10-15 minutes of sitting as a reasonable accommodation under ADA but is not required to provide the chair at the employer’s expense.

C. The bank must grant the employee’s request to either stand periodically or use an ergonomic chair, but not both, and the employee has to pay for her own chair.

D. The bank must grant the employee’s request and provide the chair at the employer’s expense, if the employee can show that she is a qualified individual with a disability and the chair will allow her to perform the essential functions of her job.


Continue Reading Employment Law IQ: Reasonable Accommodation, Termination and the ADA

chemical allergyConsider this scenario. Cathy works for Clean As a Whistle, Inc. as a janitor. Cathy recently developed a sensitivity to all cleaning chemicals. Initially, Cathy brought in a doctor’s note limiting her to two hours of chemical exposure per eight hour work day. Clean As a Whistle agreed to limit her exposure to two hours. When that limitation failed to abate Cathy’s symptoms, her doctor modified the restriction to “no exposure to cleaning solutions.”

Clean As a Whistle tried to find a solution for Cathy, but ultimately determined there was no way to accommodate her because the chemicals were airborne so merely working in the building resulted in exposure, and providing a respirator was too expensive. After she was terminated, Cathy sued.

Did Clean As a Whistle violate the ADA?

A.  Yes, because Clean As a Whistle did not engage in the interactive process.

B.  No, because Cathy did not have a disability.

C.  Yes, because Clean As a Whistle should have provided a respirator.

D.  No, because Cathy was not “qualified” to do her job based on the doctor’s restriction.


Continue Reading Employment Law IQ: Disability, Termination, and the ADA

employee terminationConsider the following hypothetical:

Scenario: Amy is a receptionist for Judgment Day Church. The Church fires Amy after it learns that she had an elective abortion. The termination notice states that Amy is being terminated for violating a pledge she signed at the time she was hired stating she would not engage in immoral conduct that is contrary to Church teachings.

Which of the following statements is correct?

A.  Amy may have a claim against the Church for invasion of her Constitutional right to privacy.

B.  Amy may have a claim against the Church for pregnancy discrimination.

C.  Amy does not have a claim against the Church for discrimination because Church employees are exempt from discrimination claims under the Ministerial Exception created by the Free Exercise Clause of the First Amendment.

D.  Amy does not have a claim against the Church because the alleged misconduct occurred outside regular working hours.


Continue Reading Employment Law IQ: Can a Church Employee be Fired for Having an Abortion?

man construction worker tired sweating silhouetteContinuing in our series to test your employment law IQ, this week we will focus on FMLA requests often received in HR offices.

Scenario: Henry Fixit worked as a maintenance man for Sleep Inn for almost 20 years. Sleep Inn has 105 employees. As part of Fixit’s regular duties, he was constantly climbing ladders, lifting heavy equipment, and performing other physical labor. Fixit recently suffered a non work-related injury that required surgery. He requested FMLA leave, which Sleep Inn approved. After two months, Fixit gave Sleep Inn’s HR Director a doctor’s note, stating that Fixit was able to return to work, but with certain lifting and bending instructions. When Sleep Inn refused to create a light duty position for Fixit, Fixit sued for FMLA interference.

Which of the following statements is correct?

A.  Sleep Inn interfered with Fixit’s FMLA entitlement when it refused to offer him a light duty position.

B.  Sleep Inn is not liable for FMLA interference, but it would be liable under workers’ compensation laws for its failure to create a light duty position.

C.  Sleep Inn is not required to create a light duty position for Fixit.

D.  None of the above.


Continue Reading Employment Law IQ: FMLA Interference – What Would You Do?

Happy 2014! Can you believe it is another new year? Time flies!employee termination

We will be finishing up our Employment Law IQ series in the next few weeks. Today’s question involves the sticky overlap of the ADA and FMLA, two laws that can be difficult even for seasoned HR professionals to navigate.

Scenario. Lucy Lawless works as an associate attorney at Dewey, Sue & Howe, the biggest law firm in Southwest Florida. Lawless, a lifetime smoker, was recently diagnosed with lung cancer. Dewey, Sue & Howe, which calculates FMLA leave on a calendar basis, grants Lawless 12 weeks of leave under the FMLA. Lawless is unable to return to work after 12 weeks, so Dewey, Sue & Howe grants Lawless an additional six months leave. At the end of six months, Dewey, Sue & Howe granted Lawless an additional period of leave, up to the anniversary date of her first request for leave. On the anniversary date, Lawless requests additional leave, but does not provide Dewey, Sue & Howe with any doctor’s note or certification to verify her request. Dewey, Sue & Howe terminates her.

Which of the following statements is correct?

A.  Dewey, Sue & Howe violated the ADA by failing to grant Lawless additional leave.

B.  Dewey, Sue & Howe violated the FMLA by failing to grant Lawless additional leave.

C.  Dewey, Sue & Howe violated both the ADA and FMLA by failing to grant Lawless additional leave.

D.  None of the above.


Continue Reading Employment Law IQ: FMLA Extension or Termination – What Would You Do?

surprised young woman holding white empty paper isolated on whiteContinuing our Employment Law IQ series, today we focus on Anxious Annie. Anxious Annie works as a receptionist for P U Waste Disposal. She is a decent employee, but seems to have trouble coming to work on time, and often calls in “sick” on Mondays and Fridays. When Annie is written up for absenteeism, Annie tells her supervisor she needs a leave of absence to deal with panic attacks. Annie’s supervisor reports the request to P U’s HR Director, but laughs it off and says the request “smells funny.” P U has more than 15 employees.

Which of the following statements is correct?

A.  Because Annie’s disability is not obvious, P U is entitled to receive “reasonable documentation” about the disability and its functional limitations.

B.  Because Annie’s disability is not obvious, P U can ask to see Annie’s medical records.

C.  Because Annie’s disability is not obvious, P U can ask about the nature of the disability and its functional limitations.

D.  Both A and C are correct.


Continue Reading Employment Law IQ: Absenteeism and Questionable Leave Requests