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Showing 11 posts in Adverse Employment Action.

ADA “Direct Threat” Defense Just Got a Little Easier

The rights and protections afforded to those with disabilities by the Americans with Disabilities Act (“ADA”) are not without limitations. Accommodations for disabled employees must be reasonable, and the employee must still be able to perform essential job functions with an accommodation. Additionally, the employee’s disability cannot pose a risk to her- or himself or others in the course of job functions if that risk cannot be eliminated or reduced by a reasonable accommodation. This is known as the “direct threat” defense – adverse employment or hiring actions taken against an employee or applicant were done so to mitigate a direct threat to the safety of the employee or others. More >

Pregnancy Discrimination Claims after Young v. UPS

It was a difficult delivery, but the Supreme Court in Young v. UPS[1] gave birth to a new test in determining whether an employer has violated the Pregnancy Discrimination Act (“PDA”)[2].

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Anxiety over Reasonable Accommodation under the ADA for Social Anxiety Disorder

Employers might be just a bit more anxious after learning that the Equal Employment Opportunities Commission (“EEOC”) defined the “ability to interact with others” as a major life activity, bringing social anxiety disorder into the scope of protection afforded by the Americans with Disabilities Act (“ADA”). The Fourth Circuit, in the case of Jacobs v. N.C. Administrative Office of the Courts,[1] recently agreed with the EEOC that social anxiety disorder may be a disability for ADA purposes. For practical purposes, however, the important takeaway in this case is that reasonable accommodation requests should never be taken lightly and all decisions that adversely affect employees should come with ample documentation. More >

E-Cigarettes and Workplace Smoking Policies: To Ban or Not to Ban, that is the Question

Posted In Adverse Employment Action, Americans with Disabilities Act, Employment Law

Woman Smoking With Electronic CigaretteSmoking in the workplace is slowly becoming an antiquated notion. Federal and state laws ban smoking in some places, and an increasing patchwork of local ordinances decreases the availability of indoor and even outdoor smoking in some circumstances. Complicating matters, as it usually does, is the rise of new technology that straddles the line between permissible and impermissible conduct – the e-cigarette. The question employers now have to struggle with is whether these devices, which purport to alleviate the harmful effects of smoke on both the user and those inhaling second-hand, should fall under broad workplace bans on smoking.

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“Too Black”: Waitress’s Claim of Color Bias Raises Novel Title VII Claim

Title VII of the 1964 Civil Rights Act prevents discrimination in employment decisions based upon an employee’s race, color, religion, sex, or national origin. Bias claims based on a claimant’s skin color are nearly unanimously predicated upon bias against ‘race’ rather than ‘color.’ Circumstances can arise, as the Fifth Circuit found, where ‘color,’ rather than ‘race,’ is a discrete type of alleged discrimination. In a novel holding, the U.S. Court of Appeals for the Fifth Circuit ruled in Etienne v. Spanish Lake Truck & Casino Plaza, LLC that a separate claim of ‘color’ can provide the necessary foundation for a claim of discrimination based on ‘race.’

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US Supreme Court Will Review Important Case Affecting Pregnant Workers

The U.S. Supreme Court has just agreed to review Young v. UPS, a decision that will determine whether and to what extent an employer must provide pregnant employees with work accommodations, such as light duty, that are given to other workers with disabilities.

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Detecting FMLA Abuse

Dealing with employees who abuse FMLA can be difficult. Letting abuse run rampant, however, can impact business productivity and put a damper on company morale (as present employees often have to pick up the slack of someone on leave). Employers who detect abuse must proceed with caution because it is very easy to run afoul of regulations.

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Curbing FMLA Abuse

The Family Medical Leave Act (“FMLA”) permits eligible employees to take up to 12 work weeks of leave during a 12-month period if a serious health condition makes the employee unable to perform the functions of his or her position. When an employer suspects that an employee is abusing the FMLA leave, employers may feel caught in a classic Catch-22. They can ignore the abuse and operate with a reduced workforce, or subject themselves to an interference or defamation suit if they decide to challenge or confront the employee about the questionable leave.

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“Sex-Plus” Discrimination Equals Possible Liability, Part II

On Monday, we discussed the Shazor v. Prof’l Transit Mgmt., Ltd. case. The Sixth Circuit held that an African American woman had triable race and sex discrimination claims under Title VII even though she was replaced with a Hispanic female. In other words, in a “sex-plus” case such as Shazor’s, an employer is not permitted to undermine a black female’s prima facie case by showing that “white women and African American men received the same treatment” as the plaintiff. More >

“Sex-Plus” Discrimination Equals Possible Liability

The Sixth Circuit recently addressed whether a “sex-plus” claim of discrimination can be made under Title VII of the 1964 Civil Rights Act. "Sex plus" refers to policies or practices by which an employer classifies employees on the basis of sex plus another characteristic, such as race or age. The case, Shazor v. Prof’l Transit Mgmt., Ltd., 2014 BL 42520, 6th Cir., No. 13-3253, 2/19/14, reinforces the concept that employers must consider employees’ protected traits as an “intersectional” whole, rather than separate, individual aspects. More >

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