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teacherWhen you experience what you believe to be workplace discrimination, there may be many possible wrinkles that could affect your ability to pursue or win your case. Each case comes with its own unique nuances, which is why it is so important to have an experienced Tennessee discrimination attorney on your side who can take each of the unique elements of your case and help you address each of them to achieve a favorable result.

One important thing to keep in mind, which is a key area where skilled counsel can help you, is that sometimes the unique facts of your case may actually present you with opportunities that wouldn’t otherwise be available to you. One example of this was a case involving an eighth-grade language arts teacher named Joyce. In 2009, Joyce’s employer transferred her from one middle school to another. She had worked for the school district for 10 years at the time of her transfer.

Shortly after the transfer, problems flared. There was an incident in which Joyce allegedly used coarse language on a phone call with the bookkeeper at her old school. Then, there was an incident in which Joyce allegedly skipped an instructional meeting with the assistant principal at her new school. Allegedly, there were more missed meetings, along with belated submission of lesson plans and a “tense encounter involving a school security guard.” By 2010, the district terminated Joyce for insubordination.

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warehouseThere are many different ways in which an employer can commit illegal discrimination in the conduct of its business. One of the more recently enacted statutory prohibitions was passed into law with the Genetic Information Nondiscrimination Act of 2008. That law bars employers from, among other things, making hiring, firing, promotion, pay, or privileges decisions based upon an employee’s genetic information. One case brought in federal court here in Georgia under this new law made national headlines back in 2015. Today, that 2015 ruling and the legal steps that followed it more recently serve as clear reminders of the multi-faceted aspects of discrimination litigation and the importance of having knowledgeable and diligent Georgia discrimination attorneys on your side.

The 2015 case arose from the problem a North Georgia warehouse employer was having with one of its employees defecating in one of its warehouses. The employer thought it had a solution:  DNA testing. Two men who were tested but were excluded as suspects by the DNA results sued the employer. The cheek swab tests the men underwent violated GINA’s broad prohibition against employers’ requesting genetic information from their employees, the men argued.

The men were successful in holding the employer liable. The federal judge who heard their case issued a ruling awarding a summary judgment in favor of the employees on their GINA claim. The men initially received a combined award in excess of $2 million.

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customer supportAs employers, most businesses are concerned about treating employees in a manner that could give rise to a discrimination lawsuit. This includes how the employer handles the filling of open positions. However, what happens when an employee raises a claim of discrimination based upon not receiving a job that you, as an employer, did not even know that she was interested in? A recent 11th Circuit Court of Appeals ruling in a case that began here in Georgia explored that question, which is just one of many scenarios in which experienced Georgia racial discrimination attorneys can help you in a discrimination case.

The case involved Olivia, a customer service worker, and her employer, a chemical and scientific laboratory supplies company. Olivia sued her employer for racial discrimination under Title VII. The basis of that legal claim was the employer’s failure to promote her from her customer service job to a higher-ranking tele-sales position in the employer’s sales department. (The employer filled the tele-sales position with a white worker.)

What made this case somewhat more complicated was the fact that Olivia never actually applied for the tele-sales job. It is important to note that, in some situations, an employee can still have a potentially winnable case for impermissible discrimination in violation of Title VII even if she didn’t apply for the job in question. One of those scenarios occurs when the employer fills the position through an “informal process” in which it never formally announced the opening but instead used an informal process and subjective methods to fill the job.

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gavelWhen an employee launches a legal action against his employer that asserts that the employer engaged in illegal discriminatory or retaliatory conduct in the termination of the employee, each side will have important evidentiary showings they’ll need to make. The employer needs to prove that it had a legitimate reason for taking action. The employee must show that the employer’s stated reason was a ruse to hide an illegal motive. Whether you’re an employer or an employee in a discrimination or retaliation case, it helps to have knowledgeable Georgia discrimination attorneys working on your side.

One case in which this legitimate-reason-versus-pretext-for-discrimination battle took place was a lawsuit filed by Duane, the general manager at an Acura auto dealership in Savannah. In the fall of 2012, eight years into his employment, the manager discovered his unborn child had a serious bone disease. The manager missed a week in October and indicated that he’d have to take additional leave in the future, but he did not identify specific dates.

Shortly after returning to work, the manager became involved in a disagreement with a charitable organization volunteer about the organization’s failure to consult him about a charity event held at the dealership. In the discussion, the manager cursed and said “demeaning and embarrassing things.” The employer ordered Duane to apologize to the volunteer, and he did. Four days later, though, the employer terminated Duane.

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doctorWhether you are an employer or an employee, if you are involved in a Georgia pregnancy discrimination action, it pays to know what the law requires of you to succeed. As an employer, you’ll likely need to be able to give the court a valid, legitimate, and non-discriminatory reason for the action you took. As an employee, you’ll need to establish that the reason the employer cited was actually a pretext for discrimination. In one ruling recently upheld by the 11th Circuit Court of Appeals, the employer won because the employee couldn’t prove that the employer’s assertions of substandard performance were merely pretextual.

The employee, Kirby, was a licensed practical nurse who worked at several long-term rehab facilities. In doing her work, she crossed paths with a doctor who inquired about the nurse’s interest in working for his medical practice. The position, called a “nurse liaison,” was a new one the practice was still developing.

The nurse accepted and began working for the practice in July 2014. Things unfortunately did not go as planned for the nurse or the doctors. The doctors designed the nurse liaison position to visit with various hospitals and other facilities, and to drum up new business for the practice. The nurse, however, scheduled no appointments with any facilities other than those directed by the doctors, put together no promotional events, and brought in zero new business for the practice. At two meetings, both scheduled at the behest of the doctors, things were not successful. The nurse allegedly was late, brought incorrect refreshments, dressed inappropriately, and behaved in a manner that “put off” one potential client.

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stack of dollarsEmployers may sometimes be faced with the need to get creative when their preferred methods for compensating workers don’t necessarily mesh neatly with statutory requirements. For example, balancing an interest in compensating sales workers solely on commission may sometimes present challenges when it comes to remaining compliant with the Fair Labor Standards Act and minimum wage requirements. A case recently decided by the Sixth Circuit Court of Appeals is very informative for Tennessee employers and employees in clarifying which policies will, and which won’t, trigger a FLSA violation problem. If you have questions about this area of the law, our Tennessee FLSA lawyers are ready to advise you.

The case involved a major national chain of appliance and electronics stores. The employer had a policy that said that its retail and sales employees received compensation solely on commissions they earned. Of course, that policy didn’t absolve the employer from paying those workers in accordance with minimum wage law. Therefore, the employer crafted a plan for satisfying the minimum wage requirement:  each sales employee, regardless of commissions earned, got a minimum of $290 per week. If that worker’s commissions for that week were less than $290, the employee received what was called a “draw” and worked on somewhat like what many people might see as an advance. The draw made up the difference between the worker’s commission and $290, but, as soon as the worker had a week in which he earned more than $290, the amount of the draw was deducted from that future week’s pay.

In other words, as an example, if John Doe earned $150 in commission in the first week of September, he received a paycheck for $290, representing $150 plus a $140 draw. If John then earned $500 in the second week of September, his paycheck was $360, representing the $500 minus the $140 draw he got the week before.

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gavelWhile the most common version of workplace sexual harassment that most people visualize may be a male harassing a subordinate female, that is not the only form of sexual harassment that Title VII recognizes as actionable. Sexual harassment can be male-on-female, female-on-male, or same-sex. Additionally, the employees’ sexual orientation is not necessarily the key issue, either. In other words, a male can sexually harass another male worker, even if one or both men are heterosexual. All that the law requires in this regard is that the harassment is “based on sex.” An experienced Tennessee sexual harassment attorney can help you determine how to present your case.

One recent example of male-on-male harassment was the case of David, a shift manager at a steel plant. John was a process coordinator at the plant. John had trained David and assigned David’s duties, but both technically reported to Mark, the area manager. David started having problems shortly after he and John began working together. John allegedly asked about David’s sex life, grabbed David’s posterior and commented on its firmness, and also grabbed his genitals at least twice.

After the genital-grabbing incident, David complained to human resources. They offered him a transfer to a different area of the plant, which he accepted. They also demoted John and forced him to take a leadership class. The harassment stopped at that point. Nevertheless, a few months later, David resigned his position.

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firedFor employers, complicated issues can arise from deciding to terminate an employee who is out on leave. Depending on the circumstances, executing this termination may leave the employer open to a Family and Medical Leave Act lawsuit. In the case of one city worker in Michigan, the employer went ahead with firing the employer while she was out on leave due to surgery, but the employee’s FMLA lawsuit still fell short. The Sixth Circuit Court of Appeals’ ruling, which covers Tennessee as well as Michigan, makes it clear that an FMLA plaintiff must not only connect the termination and the FMLA leave in terms of timing but also provide a clear causation linkage. Whether you are in the role of employer or employee, these types of circumstances are clear examples of the need to retain skilled Tennessee FMLA counsel to ensure that your interests are protected.

In the case originating in Michigan, Margaret was a city manager for a local government. She had to undergo surgery and took an absence to deal with her medical needs. While she was out, the city council voted to terminate the woman’s employment, allegedly for causing political strife in the community.

The fired manager sued, alleging that the termination was a violation of the FMLA. The courts, however, ruled in favor of the employer, with the trial court granting summary judgment and the Sixth Circuit upholding that outcome.

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telecommutingAs an employer, sometimes a key to defending successfully against a disability discrimination claim is having thorough proof that you engaged a disabled employee clearly and consistently throughout the entire process regarding accommodations as well as essential job functions. Experienced Georgia disability discrimination attorneys can help you determine what your rights and obligations are. In a recent case of a city worker in Florida, the employer won because the employee sought an accommodation allowing telecommuting, and the employer was able to establish that regular, full-time, and in-office work attendance was an essential function of the employee’s job.

The case involved a woman named Janet who worked as a purchasing agent for the City of Tallahassee. That job entailed interacting with outside vendors, some of whom would show up unannounced. Her job also included selecting and training vendors, which took place in the employer’s office site.

Three years into her employment, Janet’s doctors diagnosed her with fibromyalgia. Janet sought, and the city granted, numerous steps to accommodate her condition. She received a special parking space, along with an exemption from certain aspects of the employer’s dress code. Furthermore, the city allowed Janet to work a special schedule, which meant working four nine-hour days and one four-hour day.

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AR15The boundary lines separating what is not actionable versus what is impermissible employment discrimination have continued to shift and evolve. Regarding a strongly pro-employee ruling a California court entered in 2016 interpreting that state’s employment discrimination statute, one author wrote that the new opinion was a warning to employers:  don’t be a jerk. (The author used a word similar to jerk, but a little stronger.) In Tennessee, however, it is important to understand that the law is different here, and the mere fact, by itself, that a supervisory employee acts like a jerk or a bully or is generally extremely difficult may not necessarily be a winning case for the supervisor’s subordinate employee. An experienced Tennessee hostile work environment lawyer can help you, whether you’re an employer or employee, analyze your case and plot a smart path for you in these and other potential hostile work environment situations.

A recent decision handed down by the Sixth Circuit Court of Appeals highlights how this type of scenario can play out. The case centered on the conduct of a county prosecutor in rural southern Ohio. The prosecutor, allegedly motivated by a seminar he attended, decided he needed to take action to improve the level of professionalism within his office. Some of the measures he took were ones many workplaces utilize, such as the establishment of a dress code and the usage of a time-clock.

Other alleged behaviors and decisions were more…unique. Allegedly, the prosecutor entered a work area and loudly popped a large piece of bubble-wrap with the specific intention of startling and frightening the female employees. There was also the day the prosecutor allegedly appeared in the doorway of an office area holding an AR-15 rifle and called out, “Don’t worry. I’m not that mad.”