Eighth Circuit: Supervisor Physically Preventing Employee from Leaving Office does not Amount to sex Discrimination or Harassment

The employee, a female graphic designer, was working with her male supervisor when the two got into an argument. The supervisor began screaming and cursing at her, and when the employee attempted to leave, her supervisor put his hand on her multiple times and physically prevented her from leaving for some time before finally letting her go.  More ›

The ADAAA Strikes Again: Fourth Circuit Finds that Employee's Simple, Temporary Knee Injury was w Disability

In a first-of-its-kind decision at the federal appellate level, the Fourth Circuit last week decided whether a temporary, non-recurring impairment can be a disability under the ADA as amended by the 2008 ADA Amendments Act (ADAAA). Unsurprisingly, the court found that it could. More ›

Compliance: Making sense of the myriad tests for independent contractor v. employment status

The question of whether a worker is an employee or an independent contractor can have very important consequences, as the two categories receive very different treatment under the law.

To name only a few differences, there are no federal or state income tax withholding obligations for independent contractors; wage and hour laws do not apply to independent contractors; most anti-discrimination laws do not apply to independent contractors. And, of course, the employer mandate under the Affordable Care Act does not apply in the case of independent contractors. There is a lot riding on the question. More ›

Seventh Circuit: Employer had Knowledge of Employee's Narcolepsy at time of Termination

In a decision issued last week, the Seventh Circuit Court of Appeals once again drove home the point that an employer who ignores or takes action in spite of an employee’s apparent disability does so at its own peril. The case, Spurling v. C&M Fine Pack, Inc., No. 13-1708 (Jan. 13, 2014), involved an employee who – unbeknownst to her or the employer – suffered from narcolepsy. More ›

Fifth Circuit: Race Discrimination claim fails Because Bankruptcy Trustee is not “Employer”

An African-American woman was employed with the office of the Chapter 13 standing trustee for the Western District of Louisiana for 14 years. For the last several years, she served as the office manager. A new trustee came on board in 2008. She and the trustee did not get along, frequently getting into disagreements. Ultimately, after a peer review process, it was recommended that the employee be terminated. When she was replaced by a Caucasian woman, the employee claimed that the Caucasian woman was less qualified than she.

The employee filed suit against the trustee claiming that she was terminated due to her race in violation of the Louisiana Employment Discrimination Law. After various removal issues, the case ended up in federal district court, which granted summary judgment in favor of the trustee, finding that he was not an "employer" under state law. The employee appealed. The U.S. Court of Appeals for the 5th Circuit affirmed, finding that to qualify as an "employer" under the state statutes, the trustee would have to employ twenty or more employees for twenty or more weeks. The court rejected the employee's assertion that the trustee was part of the larger association of the Chapter 13 system (which employed over 125 employees in the state of Louisiana) because the employee provided no authority or evidence for this position.

For more information read Bell v. Thornburg, No. 13-30155 (5th Cir. December 30, 2013).

Employee’s Failure to Include Discrimination Lawsuit Against Employer in Bankruptcy Schedules Results in Dismissal of Action

An employee of the United States Army alleged that certain adverse employment actions by the Secretary of the Army resulted from discrimination. She filed for Chapter 7 bankruptcy protection, but failed to list the discrimination action as an asset on her bankruptcy schedules. Only when the employer moved to dismiss the action on the ground of judicial estoppel did the employee amend her bankruptcy schedules to add this potential asset. The district court found that judicial estoppel barred her action in that there was no evidence to suggest that her original failure to list the discrimination case as an asset was inadvertent or mistaken. Her case was accordingly dismissed.

The employee appealed, and the Ninth Circuit Court of Appeals affirmed, finding that, in light of the timing of the employee's amendment of her bankruptcy schedules and her choice not to file a declaration explaining her initial error, no reasonable fact-finder could conclude that the omission was inadvertent or mistaken. More ›

Employee Successfully Defeats Employer’s Summary Judgment on Quid Pro Quo Claim

In this case, the employee secured her position with the employer through the assistance of a friend's husband, and after she was hired, the man became her supervisor. After she was hired, she claimed he started to sexually harass her. Specifically, she claimed that he put his arms around her shoulders and kissed the side of her face; put his arm around her shoulders on another occasion; and that he asked her to remove a hair from his chin with tweezers and kissed her. On each occasion, she claimed she was uncomfortable and tried to refuse, but he repeatedly told her not to complain and that he could get her fired. The employee complained to her supervisor's supervisor, who said she would be in touch to discuss further, but no such communications took place. Thereafter, the supervisor and a manager expressed concern about the employee's job performance, appearance, and tardiness. The supervisor's supervisor directed them to terminate the employee's employment. More ›

Employee’s Dishonesty Outweighs Employee’s Complaints of Harassment in Termination/Retaliation Suit

A hospital employee was terminated for dishonesty and causing a workplace disruption. She had previously posted comments on her Facebook page alleging that her supervising physician inappropriately touched her and was paying employees for time they did not work. The accused physician saw the posts and notified hospital management. The employee was asked about the posts, and three times denied that she had authored the posts. The hospital investigated the allegations, including the allegations concerning the touchings by the supervisor, and during this time, the employee told her co-workers that she believed the physician had destroyed evidence of the extra pay he had given to the employees. Later, the employee admitted that she had, in fact, authored the Facebook posts and was terminated for dishonesty and causing a workplace disruption. More ›

Court Holds that Job-Related Evaluation Consistent with Business Necessity does not Violate ADA

In a case where the defendant construction company was represented by Hinshaw & Culbertson LLP, the U.S. District Court for the Northern District of Illinois recently ruled that the employer company did not violate the Americans with Disabilities Act (ADA) when it rescinded a conditional job offer to an employee who failed its job-related evaluation. The Court based its decision on the ADA regulations, which provide that an employer can defend against a discrimination claim by showing that standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability are job-related and consistent with business necessity. In the alternative, the ADA permits an employer to conduct post-offer examinations as long as it does so for all individuals entering the same job category.

In this case, the company implemented a policy requiring that all persons applying for field positions in Illinois successfully complete a functional capacity employment test. In June 2010, the company extended a conditional offer of employment to the plaintiff carpenter whom it previously laid off for economic reasons. The offer, however, was contingent upon successful completion of the evaluation, which ultimately revealed that the carpenter was unable to meet the company's minimum lifting requirements. The company then rescinded his conditional offer because the carpenter could not perform the essential functions of the job.

The Court ruled that the post-job offer exception to the ADA's medical test prohibition applied. Even if the evaluation was not required for each employee, it properly analyzed tasks that were representative of those performed by the carpenters and contributed to the company's efforts to maintain a safe workplace.

This decision serves as a reminder to employers that post-offer examinations must be applied to all individuals entering the same position or must be job-related and consistent with business necessity. If you would like more information read Chi. Reg'l Council of Carpenters v. Berglund Constr. Co., No. 12 C 3604 (N.D. Ill. Dec. 19, 2013).

Ninth Circuit: Police Officer’s Complaints Regarding Safety Matters are not Protected Speech

In this case, a police officer was removed from his position on the K-9 team after it was determined that he, as well as other officers on the team, had serious performance issues that posed a significant risk to team safety. The officer then brought suit against his employer and various other officers alleging that that he was deprived of his constitutional rights in that he was retaliated against for exercising his free speech rights under the First Amendment. Essentially, the officer claimed that he was terminated because he voiced various concerns about the K-9 team's ongoing safety problems and the accidental discharge of weapons. The matter was tried to a jury, who found unanimously that the officer was retaliated against. The employer moved for a judgment as a matter of law, which was denied. The employer appealed. More ›