There wasn’t a whole lot of major news in employment law this month, but there were a lot of weird lawsuits. Yay?
A circuit appeals court ruled that EEOC lawsuits can’t be defended against by claiming that the EEOC failed to conciliate before the suit. This ruling adds to the current division of opinion regarding whether or not a lack of conciliation is a suitable defense.
Of course, taking a case to trial is no guarantee of an outcome in either party’s favor. In one case, an employee successfully sued his former employer for ADA (Americans with Disabilities Act) violations when they fired him before he could donate a kidney to his sister. The company might have thought they had the ruling in the bag because the sister, rather than the employee, had the disability, but according to the court, the ADA is subject to “associational claims.”
On the other hand, an employee might have thought she had her case in the bag when she sued her employer after a manager berated her for 45 minutes about her bipolar disorder. But the court disagreed, reasoning that one incident, no matter how awful, didn’t constitute a pervasive environment of discrimination. See? You never can tell.
A Mississippi police officer also probably thought she had her case in the bag when she sued after being fired for posting critical remarks about her Chief of Police on Facebook. After all, many courts have ruled that such posts are protected by the First Amendment and aren’t outweighed by the employer’s interest in maintaining an effective workplace. However, the court in question ruled that police organizations have a much greater need for effective working relationships than other businesses, and that that need outweighed the officer’s free-speech concerns.
One area in which the courts are pretty consistent, though, is in relation to pregnancy bias. Whether it’s Weight Watchers refusing to hire a pregnant applicant because she’d be over her “goal weight” or forcing an employee experiencing a difficult pregnancy to take FMLA leave (after denying her reasonable-accommodation request, but before firing her for asking for an FMLA extension after her premature infant died), the courts have been pretty steadily on-message: don’t mess with pregnant folks. And especially, don’t try to crunch data to figure out which of your female employees are likely to become pregnant folks, especially if you have a track record of demoting or firing pregnant folks.
As the holiday season unfolds, it’s always helpful to remember that religious-bias laws don’t just protect religious employees in the workplace; they also protect employees who don’t want to join their employers’ religion but are being forced to submit to its practices. In this case, it’s the employees of a Florida company who were pressured by their bosses to attend Scientology courses, read Scientology books and study the religion every day. When two of those employees failed to be sufficiently Scientological even after undergoing some odd religious demands, they were terminated. This should go without saying, but: don’t do that.
Interestingly, so many of these discrimination cases involve the employee in question being fired after complaining about their working environment. As anyone who regularly reads employment-law blogs can tell you: don’t fire the complaining employee. Defending a lawsuit against a hostile environment or another employee’s bad actions is one thing, but trying to defend firing the person(s) who brought these thing(s) to their employer’s attention? Much, much harder.
Here’s an especially egregious case of firing the complaining employee, even though she was totally in the right: a woman hired to work in a leasing office experienced bizarre behavior from her co-workers including hovering near her, sitting on a file cabinet behind her while “visibly aroused” and wearing shorts and, strangest of all, co-workers repeatedly sniffing her. All in the space of four days, because after she complained about this weirdness at a staff meeting (having complained to her supervisor who brushed aside her complaint), she was fired. If your employees are sniffing new hires and deliberately crowding their personal space, the new hires aren’t the problem.
But lest you think only women have to withstand awful behavior from the opposite sex, we assure you: men can sue for sexual harassment too. And we are totally on the side of the guy who sued after being sexually harassed by his female supervisor who sent him some truly obscene text messages. We aren’t even going to quote any of them; you can read them at the link.
Hmmm. We were hoping to close out the roundup with less of a bummer about our fellow humans. But hey, it’s a new year! There’s hope, right? 🙂