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11th-Circuit-Court-of-AppealsEmployees who believe that they’ve been victims of age discrimination received a huge benefit from a late 2015 decision by the 11th Circuit Court of Appeals, involving a North Georgia worker who sued his prospective employer for violating the Age Discrimination in Employment Act. The judges who heard the man’s appeal issued a groundbreaking ruling, stating, for the first time in the 11th Circuit, that employment candidates alleging age discrimination can use disparate impact to prove that an employer discriminated against them. That new tool is again being called into question, however, since the 11th Circuit has agreed to review the case again, this time by all of the judges of the Circuit.

In most federal appeals, the case is heard on appeal by a “panel” of three appellate judges. For the losing side, the law allows an option to request that the case be reheard, and decided, by all of the judges for that appeals court. This is called a rehearing en banc. That’s what R.J. Reynolds Tobacco Co. sought and obtained in a recent age discrimination case in the 11th Circuit.

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Lucy-van-pelt-1-Dealing with an employee who may have psychological issues, such as possible suicidal thoughts, can be a tricky issue for an employer. The employer has an obligation to protect the well-being of its other employees, but it also needs to ensure that it does not discriminate against the employee who may have a recognized disability. A recent Sixth Circuit Court of Appeals decision in favor of an Ohio employer in an Americans With Disabilities Act case offers some helpful insight for Tennessee employers facing this situation.

Peggy Barnum worked for The Ohio State University Medical Center as a certified registered nurse anesthetist (CRNA). Her employment was without major incident for five years until major personal problems struck. In 2011, Barnum’s marriage ended in divorce, and her daughter was prosecuted for criminal violations. These issues bled over into her work, where the nurse allegedly opined, among other things, that “maybe I should put a gun to my head,” and “maybe I should do everybody a favor and not be around.” Barnum’s emotional problems were also affecting her work, where her level of focus was noted to be deficient.

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factory-assembly-lineA new ruling by the 11th Circuit Court of Appeals offers some encouragement for employers and useful knowledge for employees. The recent decision made it clear that, in disability discrimination cases, the obligation to engage in an interactive process requires each side to interact meaningfully with the other. In this case, a disabled employee’s failure to participate in the process in a good-faith manner ultimately doomed her Americans With Disabilities Act violation claim against her employer.

The employee in the case was Kimberly Agee, a worker in Mercedes Benz U.S. International, Inc.’s auto assembly plant in northern Alabama. After breast cancer surgery, Agee developed pain in her arm, and, as a result, her doctor placed her on a 15-pound lifting restriction. The employer moved Agee around to various jobs in the auto shop that accommodated her lifting restriction.

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Dollar_General_storeA recent 11th Circuit Court of Appeals case is helpful in instructing how far an employer must go in stating why it chose to terminate an employee on Family and Medical Leave Act leave. Even though the employer in the recent case only narrowed its reasons down to two mutually exclusive ones, its good-faith investigation established a reasonable basis for concluding that the employee committed one of the two misdeeds, and, since either was enough to warrant termination, the employer’s action did not violate the law.

The events that happened to Kimberly Thomas that triggered this case were, in some ways, not uncommon. Thomas, a manager at a Dollar General store in Alabama, was terminated in the wake of a robbery at her store. The robbery had yielded an investigation by Thomas’ superiors and questions regarding two store employees’ completion of a mandatory online class regarding robbery prevention. The employer concluded that Thomas either took the course exam for the employees or made the employees take the test “off the clock.” Either way, the employer reasoned that Thomas had violated company policy and ended her employment.

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television-camera-womanWhen an employee sues her employer for disability discrimination, there are several things she needs to prove in order to succeed. One of these things relates to the employer’s obligation regarding accommodations, and how far the employer must go to accommodate the employee. In a recent 11th Circuit Court of Appeals case touching upon this issue, the ruling went against the employee because the accommodations the employee presented were not things the law required the employer to do.

Michaelene Tetteh was an award-winning journalist for WAFF-TV Channel 48 in Huntsville, Alabama. Although she worked as a sports anchor, reporter, and photographer, her achievements went beyond sports — she picked up an Alabama Associated Press award in 2008 for a series she did regarding the fight against sex trafficking, for example. Unfortunately, her career took a detour a year later when, while filming the action at basketball game, she suffered a significant shoulder injury after a player crashed into her.

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Hospital-Corridor-Public-DomainA recent case from the 6th Circuit Court of Appeals offers an informative ruling on another variation of a similar theme for the court. The court previously addressed the issue of differing discipline as the basis for a discrimination case in the context of two employees involved in the same incident. In this newest case with the potential to impact Tennessee employers and employees, the issue was differing discipline in separate but similar instances. In this case, the court decided that a female employee should be allowed to pursue her sex discrimination case after showing that she was fired for making the same (or equally severe) mistake as other male coworkers who were not terminated for their offenses.

The employee, Karon Jackson, worked as a mental health technician (MHT) at Detroit Receiving Hospital’s Mental Health Crisis Center. MHTs were responsible for assisting registered nurses with the patient discharge process by collecting paperwork and the patient’s personal effects. At the process’s conclusion, MHTs were also charged with physically transporting the patient out of the center. Workers were required to check the patient’s wristband to make certain that the correct patient was getting discharged.

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atl_tuttle_bldgAn important new decision handed down last month by the 11th Circuit Court of Appeals stands to be a “game changer” for some employment discrimination cases that will be decided by federal courts in Georgia. The appeals court’s rejection of the old methodology for deciding if an employer had violated the law now means that employees could potentially have an easier time getting past the summary judgment phase of a case, making it to trial, and winning. Under the new rule, in cases in which the employer had both legal and illegal motivations for acting, all the employee must show to succeed is that the employer took an adverse employment action and that the employee’s membership in a protected class was a motivating factor in the action.

The case that led to this ruling was Quigg v. Thomas County School District. The employee, Linda Quigg, was the superintendent of public schools in Thomas County, Georgia, from 2007-11. After the local school board voted 5-2 not to renew her contract in 2011, Quigg launched a legal action, asserting that she was the victim of sex discrimination and retaliation. Quigg offered evidence that, during her tenure, some board members made statements that indicated an anti-female gender bias. Additionally, however, the board had evidence that some members legitimately disapproved of Quigg’s on-the-job performance, and some of Quigg’s evaluations indicated legitimate performance-based concerns.

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twiddling_thumbsWhen an employee sues his employer in a sexual harassment case, there are several key pieces that go into that case. The court will look at the harasser’s conduct, as well as the employer’s response. For an employee to win against his employer, he must not only have been harassed, but also his employer’s response must have been improper. In a recent Tennessee case, the Sixth Circuit Court of Appeals upheld a $300,000 jury verdict in favor of an employee. In that case, it was not so much an improper action taken by the employer but an improper inaction that doomed its case.

The employee who sued, Jeffry Smith, worked at Norcross, Ga.-based Rock-Tenn Services, Inc.’s facility in Murfreesboro. Smith suffered multiple acts of harassment from a co-worker, Jim Leonard. Leonard slapped Smith on the rear one day, grabbed Smith’s rear very hard a few days later, and, some time later, came up behind Smith, grabbed his hips, and began basically engaging in a simulated humping session. The cumulative effect of Leonard’s conduct was so severe that Smith began suffering anxiety problems and had to take a leave of absence from work.

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Worm farmingWorkers at a business that housed, raised, and sold worms for fishing bait lost another round in their case seeking compensation for unpaid overtime. The Sixth Circuit Court of Appeals agreed with a Chattanooga-based federal district judge that the agriculture exception to the Fair Labor Standards Act’s overtime pay requirement applied to the worm farm. The worm farm, the Sixth Circuit decided, reasonably resembled an ordinary agricultural operation in almost every relevant way. The only major difference was the unfamiliar item that the farm was farming.

The business under scrutiny in this case was one run by Bruno Durant, a French immigrant who relocated to Georgia to grow and raise worms that he then sold for use as fishing bait. After a decade in Georgia, Durant moved his operation to rural Tennessee. The business consisted of importing baby worms from Europe before housing and feeding them on his property in Tennessee. Once the worms reached maturity and grew to a sufficient size to be fit for sale as bait (roughly double their size during their time on Durant’s farm), the farm sold them to retailers.

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2011_Pro_Bowl_In_Hawaii_crewIn recent months, one of the emerging issues within employment law has centered on whether groups of workers are employees or independent contractors. Recent cases from Georgia have focused on whether exotic dancers are independent contractors or employees of the clubs where they dance, with the dancers achieving a favorable ruling in at least one instance. A group of freelance stagehands obtained a less successful outcome recently, with the 11th Circuit Court of Appeals deciding that they were not employees of a referral service.

The referral agency, Crew One Productions, Inc., provided workers for live events in Atlanta and surrounding areas. The stagehands referred by Crew One worked a variety of events, ranging from concerts and sporting events to plays, trade shows, and graduations. Crew One would contract with the event planner for a number of stagehands and a specific hourly rate of pay. Crew One, which maintained a database of stagehands willing to consider taking assignments from the agency, would contact members of its database and obtain a number of available workers matching the number the event planner needed.

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