Articles Posted in Employment Discrimination

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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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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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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.”

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mother and babyIn an important new ruling on the issue of discrimination against breastfeeding employees, the 11th Circuit Court of Appeals upheld a jury’s decision that a police department’s refusal to provide a breastfeeding officer with a satisfactory ballistic vest amounted to a violation of the Pregnancy Discrimination Act, and in the process, it upheld a $161,000 damages award for the employee. Discrimination against breastfeeding employees is an emerging and evolving area of the law, and, if you think you have an issue related to breastfeeding discrimination, you should promptly reach out to a knowledgeable Georgia pregnancy discrimination lawyer.

The plaintiff in the case, Stephanie, was a patrol officer who eventually rose to the position of police investigator. Early in 2012, while working within her department’s narcotics task force, she became pregnant. From August to November 2012, she took 12 weeks of FMLA leave at around the time of her baby’s birth.

Eight days after returning to work, the city reassigned her from narcotics to the patrol division. The city alleged that the change was a result of Stephanie’s failure to communicate with confidential informants; Stephanie asserted that it was a result of her new supervisor’s bias against her due to her use of FMLA leave.

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judge's gavelA potentially significant case that began here in Georgia is working its way through the federal court system. The case involved an employee who was fired after she twice experienced certain pre-menopause menstruation-related incidents while at work. A ruling from the 11th Circuit Court of Appeals could clarify whether these types of discrimination cases require proof that the employer treated the plaintiff less favorably than other employees outside that gender group who had generally analogous health issues, or whether proof of an employer’s adverse action against an employee for an issue related to her menstruation necessarily amounts to direct discrimination based on sex. If you find yourself in a similar situation, an experienced Georgia sex discrimination attorney can help you assess your rights under the anti-discrimination laws.

The plaintiff in the case, Alicia, was a 911 dispatcher working for an institute that helped people with disabilities. Eventually, after several years on the job, the dispatcher faced a problem that most women will encounter:  menopause was closing in. For this dispatcher, her pre-menopausal condition meant that her cyclical menstrual flows became irregular and unpredictable, in terms of both timing and volume.

The dispatcher notified her employer and kept feminine hygiene products with her while at work, but infrequent major surprises still happened. The first time, in August 2015, she leaked through her clothes and onto an office chair. The employer imposed discipline against her and also issued an ominous warning:  another occurrence would result in termination. The dispatcher allegedly redoubled her efforts to prevent problems, but, eight months later, she had another accident, which soiled an area of office carpeting. The dispatcher cleaned the carpet herself, but the employer carried through on its previous warning and fired her.

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Medical SchoolAbraham Lincoln reputedly said that “he who represents himself has a fool for a client.” The central thrust of this statement is that cases in which a party represents herself almost always end poorly for that person. This is especially true for non-lawyers who represent themselves. The law, especially employment law, is full of specifics, details, and requirements that even an intelligent and knowledgeable non-lawyer couldn’t reasonably be expected to know. That’s why it is almost always the right move to retain experienced Georgia employment counsel to represent you in your discrimination case.

A cautionary example of this point was the case of Wen, a professor at the medical school of a major private university in Florida. Wen’s time at the med school did not go as she had planned. She started with a tenure-track position in 2007 but, by 2011, having been deemed by the faculty to be making insufficient progress toward tenure, switched to a research track. That didn’t help, so the faculty voted in October 2011 not to renew Wen, and her employment terminated in October 2012.

The professor sued the school, arguing that it was liable for racial discrimination and retaliation. Ultimately, she lost on all of her claims. In many ways, her case was beset by procedural problems, which offer a lesson about the problems that can befall a plaintiff who attempts to represent herself. (The docket in Wen’s case showed she initially had an attorney in the District Court, but, by the time that court ruled in 2015, she was self-represented.)

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Police SergeantFor employers, one of the challenges with which they must deal is creating and following a process for making new hire and promotion decisions. The need to appear impartial and fair may lead an employer to create a metric that is standardized and objective. The key, though, is that, once an employer creates such a system, it becomes important to follow that system or, if deviating from those results, to document a clear reason why. If your employer doesn’t do this, these facts may actually work to strengthen your Georgia employment discrimination case, according to a recent 11th Circuit Court of Appeals ruling.

In the case recently decided by the 11th Circuit, a white sheriff’s deputy was pursuing a promotion to sergeant within the Broward County, Florida Sheriff’s Office. In 2012, the deputy took the sergeant’s exam, a tool for assessing promotion candidates that included “a multiple-choice test, a structural interview, and an oral presentation.”

Although the department made 30 promotions, and the deputy finished 20th on the exam, he did not receive a promotion. He had the second-highest exam score among those not promoted. By contrast, the 47th- and 50th-highest scoring candidates did receive promotions to sergeant. Both of those candidates were African-American.

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work time clockAs an employer, there are many human resources-related tasks with which you must concern yourself. Some of these might seem like less significant items, but even these “small” details can have great importance in certain situations. One example is maintaining updated, detailed, and complete job descriptions. While this might seem like a relatively minor thing, it was the key to success for one Ohio employer in a disability discrimination case one of its employees launched recently.

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