Discrimination Case Revived

An Egyptian-born FBI supervisor, Bassem Youssef, filed a claim of discrimination after being passed over for several promotions. He claimed that after the September 11, 2001 attacks he was transferred to a job he was overqualified for due the circulation of false rumors. The alleged rumors were that Youssef had refused to carry out orders while he was stationed in Saudi Arabia because of his Muslim faith and that he had also worn Arabic head-gear. He claims that he was discriminated against due to these false rumors and thus filed suit. In 2008, a judge of the federal court ruled that Youssef’s failed to show that he had suffered a materially adverse action. Termination, demotion, or undesirable reassignment may constitute a materially adverse action depending on the circumstances. On appeal, the court revived Youseff’s discrimination claim and found that a reasonable juror could find that Youssef had suffered a materially adverse action due to the reduction in his job responsibilities. To read more click here.

Facebook: Post Your Status, Get Then Fired

A Texas state Court of Appeals affirmed the dismissal of Robert Sumien's wrongful termination and intrusion upon seclusion lawsuit against CareFlite. Sumien was one of two employees terminated for making offensive work-related comments on Facebook. The sole issue on appeal was whether CareFlite had intentionally intruded upon seclusion. The court stated that an unwarranted intrusion upon seclusion is proven by showing (1) an intentional intrusion, physical or otherwise, upon another’s solitude, seclusion, or private affairs or concerns which (2) would be highly offensive to a reasonable person. Sumien failed to prove that CareFlite had intruded into his private affairs by viewing the comments he had posted on Facebook. Each of Sumien’s arguments failed because he did not directly address the issue of intrusion. For instance, Sumien argued that he misunderstood the privacy settings on Facebook and thus was not aware that CareFlite would be able to view the comments. The argument was irrelevant because he could not prove that his misunderstanding meant that CareFlite had intentionally invaded his privacy. The court concluded that “Sumien [had] not produce[d] more than a scintilla of probative evidence raising a genuine issue of material fact regarding his intrusion upon seclusion claim.” To read more on the case click here.

Two Wrongs Don't Give Her the Right

Landing a new job may not always be what you expect especially when your new supervisor begins to force himself on you. Knowing that your supervisor has the ability to terminate your employment, what would you do? Christina Mativa, a former employee of Bald Head Island Management, Inc. (BHIM), learned that "silent suffering" is not the answer. Mativa's supervisor made sexually explicit comments, left pornographic pictures on her desk, and ultimately forced himself on her. Rather than reporting the incidents, Mativa stayed silent. Surprisingly, before Mativa complained to her employer, her supervisor tattled on himself. BHIM took immediate action and ultimately terminated his employment. After her supervisor's termination, Mativa filed suit against BHIM alleging sexual harassment, retaliation, and constructive discharge. In her complaint, she claims that co-workers as well as management treated her differently after she participated in the investigation. BHIM denied the allegations and in response pointed out that they had taken immediate action and spoken with employees to insure Mativa was not treated differently. The Fourth Circuit Court of Appeals affirmed the lower courts grant of summary judgment and dismissed the case against BHIM.

Mativa made two mistakes which killed her own case. First, she could not prove that her employer had taken a tangible employment action against her. She was not demoted, terminated, or reassigned, which the court views as tangible employment actions. Instead she claimed her promotion was a tangible employment action because she allegedly received it due to her "silent suffering". Second, she failed to report the alleged harassment. The court declined to accept Mativa's explanation for not immediately reporting the incidents. Employees should take note that in order for an employer to enforce company policy they must first be notified of violations. For more information about this case click here..

Employment Protection for Service Members

I want to remind everyone that members of the Uniformed Services (our military personnel) are protected from discrimination and retaliation based on their military service. Protection is provided by a federal statute (law) referred to as the Uniformed Services Employment and Reemployment Rights Act (USERRA).  To find out more about the protection provided, please visit the US Department of Labor's USERRA information sheet which you can find by clicking here.

Recent Victory For NC State Employee

North Carolina State Employees who have met the requirements for "career status" may only be discharged for just cause.  That does not stop State agencies from firing employees in circumstances where there is no just cause.  For a recent decision in favor of a State Employee fired without Just Cause click here.

Third Stop, Loco-Motive Termination

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) ordered Norfolk Southern Railway Co. to pay $802,168.70 in damages to three ex-employees. During three concurrent investigations, OSHA suspected Norfolk had been terminating employees for reporting workplace injuries. Three ex-employees alleged the same sequence of events: employee was injured while at work, reported the injury to a supervisor, and soon after lost their job. This type of employer conduct is prohibited under the whistleblower protection provisions of the Federal Railway Safety Act ("Act"). Generally the provisions protect employees from retaliation for reporting workplace injuries. It is important for employees to notify their employers of workplace injuries in order for an employer to prevent similar incidents. Norfolk denied the allegations stating the employees had falsified their injuries or were terminated for incompetence. However, OSHA determined that Norfolk had retaliated against the three ex-employees and ordered the company to pay damages for doing so. The Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels stated, “[t]o prevent more injuries, railroad workers must be able to report an injury without fear of retaliation. The Labor Department will continue to protect all employees, including those in the railroad industry, from retaliation for exercising these basic worker rights. Employers found in violation will be held accountable." To read more about the investigation click here.

OSHA is an agency within the Department of Labor. The agency was created to set and enforce workplace safety regulations. For more information about OSHA visit its website by clicking here.

Two Million Problems but a Lawsuit Ain't Won

The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) recently issued a press release regarding a $2 million settlement in a case involving systematic discrimination. Blador Electric Co. is a manufacturer of industrial motors and generators and currently holds a number of federal contracts worth more than $18 million. OFCCP conducted an investigation and concluded that one of the company’s facilities had been implementing an applicant screening process which had a disparate impact on women and minorities. OFCCP investigators revealed that approximately 795 qualified women, African Americans, and individuals of Asian and Hispanic descent had been denied equal employment opportunities when applying for production positions. The company’s applicant screening process denied them the opportunity to reach the interview stage. The company's applicant screening process is a violation of Executive Order 11246, which prohibits federal contractors, who do over $10,000 of work for the Government in one year, from employment discrimination on the basis of race, color, religion, sex, and national origin. In order to close the case, Baldor Electric Co. agreed to pay $2 million in back wages and interest to the women and minorities affected by the company’s systematic discrimination. In addition, the company must also make at least 50 job offers to individuals within the class of applicants affected by the discrimination.

The OFCCP enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974. These laws require contractors and subcontractors, who do business with the federal government, to adhere to fair standards of employment which prohibits discrimination on the basis of sex, race, color, religion, national origin, disability or status as a protected veteran. You can read an article on the case by clicking here.

Lactation Intolerant Employers Beware!

After giving birth, a mother who wants to breastfeed may be concerned about expressing milk at work. It may come as a surprise, but the recent health care reform may provide a nursing mother the best of both worlds. The controversial Patient Protection and Affordable Care Act (PPACA), also known as Obamacare, took effect on March 23, 2010. Within its vast text, a provision, amending Section 7 of the Fair Labor Standards Act (FLSA), granted nursing mothers protection against lactation discrimination in the workplace. Codified in 29 U.S.C. §207(r), employers are now required to make accommodations for nursing mothers. The federal mandate requires employers to allow nursing mothers to take unpaid break times to express milk as needed. In addition, an employer must provide a private location, other than a bathroom, for the nursing mother. However, like every law, there are various limitations. An employer is only required to provide the above accommodations for one year following the birth of a child. The provision only applies to employees who are covered under FLSA overtime pay. Some employers may be exempt if they have less than 50 employees and can show undue hardship. For more information in regards to coverage under the nursing mothers provision you can review the Fact Sheet issued by the Wage and Hour Division of the Department of Labor which is accessible by clicking here.

 

The FLSA now requires employers to accommodate nursing mothers, but the question that remains is how the court will provide a remedy for non-compliance or discrimination. For for an in depth look at what the provision fails to prove click here.

Employer in the Deep End

The Equal Employment Opportunity Commission (EEOC) filed an age discrimination lawsuit against Nassau County of Long Island New York on behalf of Jay Lieberfarb. Lieberfard, a seventy-one year old lifeguard with fifty years of experience, was suspended and later terminated for failing a swim test. However, Nassau County did not suspend or terminate younger lifeguards who had failed the same swim test. The younger lifeguards were allowed to continue working despite their failure to pass the swim test. The EEOC claimed Nassau County had discriminated against Lieberfarb on the basis of age in violation of the Age Discrimination in Employment Act (ADEA). Nassau County agreed to pay $65,000 in backpay in order to put an end to the lawsuit. Nassau County is also required to revise their non-discrimination policies pursuant to a consent decree. For more information on this age discrimination lawsuit look at the article on CBC News by clicking here.


The EEOC is a government agency which enforces Federal laws enacted to protect employees from discrimination in the workplace. The Age Discrimination in Employment Act (ADEA) protects the rights of employees subjected to employment discrimination on the basis of age. For more information on age discrimination click here.

The Wrong Type of Multitasking

Whether it is nine o’clock at night or three o’clock during the day, somewhere in the world the lights are out and someone is sleeping. Just as one person may be sleeping, another person in another place is up working. While multitasking is often praised in the workplace, an employee who chooses to do so by sleeping on the clock won’t be given the same acclaim. A former employee of Avon Products, Inc. was terminated after being recorded sleeping in the break room and later missing a meeting to discuss the misconduct. John Bryne was a model employee for four years before complaints were logged with management. The change in performance was unusual but such misconduct was not tolerated and led to his termination. Bryne was later diagnosed with depression and after a few months was rehabilitated. He came back to claim his job but was denied reemployment. He filed a complaint under the ADA and FMLA. The Court analyzed both claims and denied reinstatement due to the employer’s just reason for termination, misconduct. You can find the Court's opinion by clicking here.

 

The Americans with Disabilities Act of 1990 (ADA), protects employees against discrimination based on disability. However, not all disabilities are covered under the ADA and a person whom feels they have a claim must first fall within the protected class to bring a claim for relief. In addition, the Family and Medical Leave Act (FMLA), enforces the rights of employees, who are covered by their employer, to take unpaid leave for medical reasons without being subjected to retaliation by their employer. For more information about the ADA check out the EEOC Website and for the FMLA visit the US DOL Website.