Do You Know What Your Managers Are Saying to Job Applicants?

By Kathleen J. Jennings (kjj@wimlaw.com)

The EEOC announced this week that the owner-operator of a Georgia Dollar General store will pay $70,000 and provide other significant relief to settle a disability discrimination lawsuit filed by the EEOC. This claim arose out of comment that a supervisor made to an applicant for a job. According to the EEOC’s lawsuit, on or about Sept. 7, 2015, Terri Mosley applied for a sales associate position at a Portal, Ga., Dollar General store, where she was a frequent shopper. When Mosley appeared for an interview, the store manager refused to interview her, stating, “I didn’t know it was you,” and told Mosley that she could not work at Dollar General “with that arm.” Mosley’s left arm had been injured in an automobile accident two years earlier.

What did the manager do wrong? An employer cannot reject an applicant who has (or appears to have) a disability without making a determination as to whether the applicant can perform the essential duties of the job applied for, with or without reasonable accommodation. A hiring manager cannot simply rely on presumptions or stereotypes about what a disabled applicant can and cannot do.

The Americans With Disabilities Act (ADA) places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.

For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.

After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.

Pro Tip: All managers that participate in the hiring process should be trained as to what they can ask applicants and how to lawfully handle disabled applicants. Ideally, there should be a company Human Resources professional available to provide guidance or answer questions about specific situations.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

How To Undermine a Termination Decision With An Email

By Kathleen J. Jennings (kjj@wimlaw.com)

Today’s “email fail” comes to us from a group of physicians in Tennessee. (Babb v. Maryville Anesthesiologists , 6th Cir., No. 19-05148, 11/6/19). Paula Babb is a Certified Registered Nurse Anesthetist (“CRNA”) who had practiced anesthesiology for over a decade. In June 2015, Babb began working as a CRNA at Maryville Anesthesiologists, P.C. Babb also had a “degenerative retinal condition” that made it hard for her to read certain screens and medical records. She informed her bosses of her condition but assured them that it would not affect her ability to do her job. Her bosses were concerned. The head physician asked Babb if she had disability insurance.

Thereafter, Babb would ask other CRNAs and nurses for assistance in reading charts from time to time. Some of those folks reported these incidents back to the Babb’s bosses.

In January 2016, Babb was terminated due to two clinical errors that she was accused of making in October 2015 and January 2016. When communicating its termination decision to Babb, her employer focused exclusively on the clinical errors, and made no mention of Babb’s vision. So far, so good.

However, Babb never saw the termination coming because no one at the practice had criticized her anesthesiology techniques prior to her termination.

Even worse, after Babb was terminated, one of Babb’s fellow CRNAs sent out an email to all Maryville CRNAs that basically said that Babb was fired due her eyesight and “some other issues.” This email was written at the direction of one of the practice’s doctors (who later apparently tried to distance himself from it, unsuccessfully).

The District Court granted the employer’s motion for summary judgment, but the Sixth Circuit Court of Appeals reversed that decision. The Sixth Circuit found two particular fact disputes that precluded summary judgment.

First, there was a factual dispute as to the reasonableness of Maryville’s decision to base Babb’s termination on the two “clinical errors.” Babb had an expert witness who gave an opinion that Babb acted reasonably in the two incidents, which conflicted with the doctors’ assertion that Babb committed critical errors. It probably did not help matters that the doctors had not written Babb up for these or any other errors prior to terminating her.

Second, there was a factual dispute as to whether those clinical errors “actually motivated” Maryville to fire Babb. Here is where the Court pointed to the email sent just hours after Babb’s termination essentially stating that Maryville was firing Babb because of her impaired vision. Indeed, the Court stated that “If this kind of “smoking gun” evidence cannot get an employment discrimination plaintiff past summary judgment on the question of pretext, it is hard to imagine what could.”

The moral of this story? Never let an employee send out an email to your other employees discussing the reasons for a former employee’s termination. Moreover, managers and supervisors should not discuss the reasons for an employee’s termination with anyone who does not have an absolute need to know (such as your HR Manager).

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

The Supremes Are Back!

By Kathleen J. Jennings (kjj@wimlaw.com)

It’s the first Monday in October, and that means that the U.S. Supreme Court starts a new term. One of the major issues before the court involves the question of whether gay and transgender employees are protected from workplace discrimination by Title VII of the Civil Rights Act of 1964, as amended. In fact, three cases (two of them out of Georgia) will be argued before the Court on Tuesday of this week. Two of the cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, deal with the issue of whether sexual orientation is protected by Title VII, and the third case, R.G. & G.R. Harris Funeral Home v. EEOC, deals with the issue of whether gender identity is protected by Title VII.

Most observers predict that a majority of the current conservative majority Supreme Court will rule that sexual orientation and gender identity are not protected by Title VII. However, keep in mind that even if such discrimination is not prohibited by federal law, it may be prohibited by state law; 20 states and Washington, D.C. currently have laws in effect that ban employment discrimination based on sexual orientation and gender identity. Additionally, federal executive orders also ban federal agencies and contractors from discriminating against LGBT workers.

We’ll provide an update when the Supreme Court issues its decisions.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

EEO-1 Pay Data Due By September 30

By Kathleen J. Jennings (kjj@wimlaw.com)

If your company is required to file EEO-1 reports, then you need to be aware of the latest development in the litigation regarding the addition of pay data to the EEO-1: the federal judge in that case has ruled that EEO-1 pay data must be submitted by September 30, 2019. The federal judge further ruled that employers must turn over two years of pay data to the EEOC. Fiscal year 2018 data is due by Sept. 30, but the EEOC may choose the second year of data it will request from employers: either 2017 or 2019. If the EEOC selects 2017 data, it will be due by Sept. 30, along with the 2018 data. If the EEOC chooses to collect 2019 data, it will be due in Spring 2020. The judge ordered the EEOC to make a decision by May 3 and to inform employers about the 2018 data by April 29 on its website.

EEO-1’s can be filed electronically, but the EEOC’s electronic portal is not ready to accept the pay data in EEO-1’s. However, it was the EEOC that proposed the September 30 deadline, so presumably, it will be ready to accept the pay data by that date. EEOC has stated that it is planning to use an outside contractor to assist with the project.

Who must file an EEO-1? Generally, companies with 100 or more employees and federal contractors with 50 or more employees. These employers will be required to submit employee data, organized into categories of race, sex, ethnicity, and one of 10 job categories. That information is then sorted into one of 12 pay bands.

Employers who are required to file EEO-1s should be collecting the pay data now in preparation for the new filing deadline. There may be further delays or developments, but the best approach right now is to be prepared to meet the new deadline.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

US Supreme Court to Decide Whether Title VII Protects LGBT Employees

By Kathleen Jennings (kjj@wimlaw.com)

Today, the US Supreme Court agreed to consider three appeals court cases involving the issue of whether Title VII’s prohibition of discrimination on the basis of sex covers sexual orientation or gender identity. Currently, there is a split among the Circuits on this issue; the Seventh and Second Circuits have held that sexual orientation is protected by Title VII, and the Eleventh Circuit has held that it is not. In addition, the Sixth Circuit has held that Title VII protects a worker from discrimination on the basis of gender identity. Because of this split in the Circuits, it was only a matter of time until the US Supreme Court decided to take up this issue.

Title VII of the 1964 Civil Rights Act prohibits job discrimination because of “sex.” The narrow interpretation of Title VII does not expand the word “sex” to include sexual identity or transgender status. In 1989, the US Supreme Court held that discrimination on the basis of sex encompasses “sex stereotyping,” and prohibits discrimination against an employee on the basis of non-conformance to sex-based stereotypes. This interpretation has been utilized in some cases where LGBT have alleged that they were discriminated against because they did not conform to the stereotypes of their gender.

Others are urging the courts to adopt a more modern understanding of “sex” that encompasses job bias against a worker who is gay, lesbian, bisexual, or transgender.

Keep in mind that while we wait for the Supreme Court’s decision on this issue of federal law, which should be issued by this summer, several states and localities have enacted their own laws that protect LGBT workers from discrimination. Companies need to keep up with all of the laws in the states where they do business.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

You Might Be a Redneck If—You Believe You Were Retaliated Against for Complaining About Being Called a Redneck

By Kathleen J. Jennings (kjj@wimlaw.com)

Those of a us of a certain age remember comedian Jeff Foxworthy’s routine about “You Might Be A Redneck If….” Now a case out of Georgia cautions us that if an employee complains that another employee has called him a redneck/hillbilly, the employer may need to take that complaint seriously. [Bland v. Sam’s East, Inc. , M.D. Ga., No. 4:17-CV-190 (CDL), 1/9/19 ].

Joshua Bland, a white tire technician employed by Sam’s Club, sued his employer claiming, among other things, that he was terminated for complaining to his supervisor that another employee, Edgar Cornell Robinson, who is African-American, called him a “dumb redneck/hillbilly” during a very heated argument at work but was not disciplined for doing so.

When Bland and Robinson were scheduled to work together a couple of days after their argument, Bland was not happy and spoke with their supervisor. Bland argued that he felt Robinson should have been disciplined for calling him a redneck/hillbilly because Bland would have been fired immediately if he had used the “N word” during his confrontation with Robinson. (Whether those two different statements are, in fact, equivalent, is an argument for another day). The employer claimed that during this conversation, Bland acted aggressively toward his supervisor and was rude and disrespectful, and Bland was terminated the next day. Bland claims otherwise; he alleged that he was calm and respectful. This set up a dispute of material facts that caused the judge to deny summary judgment to the employer.

A jury will now decide whether Bland was terminated for his aggressive behavior toward his supervisor or because he complained about what he perceived as race-based favoritism toward Robinson.

The takeaway: When an employee makes a complaint of discrimination or harassment, he or she is protected from retaliation regardless of whether the complaint itself has any merit. So here, Bland just had to show that had a good faith, reasonable belief that he was complaining about discrimination when he complained that Robinson was not disciplined for calling him a “dumb redneck/hillbilly,” and Bland was then protected from retaliation because he made that complaint. Therefore, an employer has to be extra cautious when taking any disciplinary action that is close in time to a complaint.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Some Things Are Better Left Unsaid, At Least In An Email

By Kathleen J. Jennings (kjj@wimlaw.com)

A case out of Pennsylvania deals with an issue that keeps HR professionals up at night: emails giving direction to a supervisor with regard to handling the discipline of a long-time employee. In these emails, the HR manager advised the employee’s supervisor supervisor to follow every step of the company’s progressive discipline policy, even though company policy did not require him to do so. The HR manager also said that because the employee in question had been working for the company for more than 20 years and was in the “over 40 protected class,” all steps should be taken to avoid the risk of “a situation where this [could] potentially drag out longer with complications.”

The employee, who was eventually terminated, filed a lawsuit for age and disability discrimination. In that lawsuit, the employee’s attorney argued that the HR manager’s email was direct evidence of age-related bias. [In a discrimination case, direct evidence of discrimination is extremely harmful to the employer because it essentially shifts the burden of proof.]

The Court rejected that argument, instead finding that the emails showed that the employer was trying to avoid creating grounds for a potential age discrimination claim by the employee by skipping a step in its progressive discipline program. The Court also found that the employee could not prove that she was terminated because of her age or disability. Rather, she was terminated due to documented problems with her job performance.

The takeaway: There is a big evidentiary gap between acknowledging that an employee is over the age of 40 and proving that such knowledge equals discriminatory motive. Nevertheless, some things are better left out of an email or written communication (that is not covered by attorney-client privilege), and saying that “Employee is in a protected class and might sue us if we are not careful” is probably one of them. Although the Judge did not find the email in question to be direct evidence of discrimination, the employer had to expend resources fighting that argument. Sensitive matters such as possible legal action by an employee should be confined to written communications with counsel.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.