Showing 7 posts from March 2012.

Supervisor’s Negative Comments Regarding Green Card Process did not Establish Animus Based on National Origin

March 26, 2012 by Hinshaw & Culbertson LLP

The U.S. Court of Appeals for the Eighth Circuit has reaffirmed that an employee may not use a supervisor's negative comments regarding immigration status as evidence of national origin discrimination. In the case, Guimaraes v. SuperValu, Inc., a Brazilian supermarket employee working in the U.S. on an H-1B non-immigrant worker visa alleged that her supervisor had facilitated her termination because of her nationality. The employer, who had sponsored the employee's pending petition for legal permanent residency (i.e., her "Green Card"), argued that the employee was not terminated for any discriminatory reason, but rather for poor work performance. In response, the employee offered just one piece of evidence: her supervisor's statement that she wanted to have the Brazilian employee fired "and stop [her] Green Card process."    More ›

Female Manager may Proceed with pay Disparity-Gender Discrimination Claim

March 15, 2012 by Linda K. Horras

The concept of equal pay for equal work seems simple to understand and apply. If Jan and Joe have similar education, skills, and experience, and perform similar work, it is reasonable to assume that their pay is also the same. Unfortunately, this is not always the case, even though the Equal Pay Act has been on the books for nearly 50 years. The Seventh Circuit recently dealt with this issue in King v. Acosta Sales & Marketing, Inc.. (11-3617, Mar. 13, 2012). Plaintiff, a sales manager, performed the same duties and responsibilities as her male peers and was highly successful—in fact, more successful than many of them, yet, her salary, both when she started and when she ended her job, was substantially lower than that of her male co-workers. The numbers were shocking disproportional, with the highest paid male sales managers often earning two to three times more than she made. More ›

Seventh Circuit Affirms Summary Judgment for Employer in Reverse-Race Discrimination Case

March 15, 2012 by Ambrose V. McCall

In Good v. University of Chicago Medical Center, No. 1102679 (7th Cir. 3/12/2012), Plaintiff Good appealed the summary judgment entered by a district court that tossed her claim of reverse-race discrimination. Plaintiff previously worked as a lead technologist in the medical center's radiology department. While admitting there were issues with her job performance, she asserted that her white race was the reason she was terminated rather than demoted as occurred with employees of other races. Because defendants had obtained summary judgment, the Seventh Circuit construed all facts and drew all inferences in favor of Plaintiff. The medical center used a four step corrective and progressive action policy, under which an employee who failed a performance improvement plan, ["PIP"], could be terminated. The policy manual, however, also stated that it was the policy of the employer "to demote [an] individual" who "cannot perform...her assigned job responsibilities" as a result of "her skills [] not [being] matched to the requirements of the job" or because the employee "lack[s]...motivation to perform up to standards." But unlike other employees, managers who worked in the radiology department were held to a higher standard based on their additional responsibilities. Though managerial employees could be terminated at any time, some managers were demoted rather than subjected to the harsher regime of corrective treatments which included PIPs, new probationary periods, or discharge. More ›

Another California Court Strikes down yet Another Arbitration Agreement

March 13, 2012 by David Ian Dalby

The employee sued his former employer alleging several claims under the California Fair Employment and Housing Act (“FEHA”). The employer filed a petition to compel arbitration based upon an agreement to submit employment-related claims to final binding arbitration as provided in  signed employment application, employment agreement and acknowledgment of receipt of the employee handbook. The trial court refused to compel arbitration because the arbitration agreement stated that the arbitration would occur pursuant to the applicable rules of the American Arbitration Association (“AAA”) in the state where employee was employed or was last employed. The trial court found that the employee was not provided with a copy of the controlling AAA rules, and was not advised how he could find or review them and provisions failed to identify which set of rules promulgated by AAA would apply. Significantly, the arbitration agreement further stated that the arbitrator shall be entitled to award reasonable attorney's fees and costs to the prevailing party. The Court of Appeal affirmed the trial court's refusal to compel arbitration holding the agreement did not pass the applicable test for unconscionability, because the AAA rules were not provided with the arbitration agreement and a prevailing party attorney's fees provision exposed the employee to a greater risk of being liable to the employer for attorney's fees than he would have been had he pursued his FEHA claims in court. Generally, FEHA claims only allow a prevailing employee to recover attorneys fees. Employers must be cognizant that only a well- drafted arbitration provision in an employment agreement be enforced in California. Arbitration provisions that are incomplete, appear to impair valuable employee rights and/or create a risk of loss to the employee are likely to fail.

EEOC Clarifies Its Position Regarding Employers’ High School Diploma Requirements

March 7, 2012 by Hinshaw & Culbertson LLP

On November 17, 2011, the EEOC issued an informal opinion letter discussing potential violations of the Americans with Disabilities Act (ADA) as a result of an employer’s requirement that applicants hold a high school diploma. Specifically, the EEOC opined that if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability, the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The EEOC further stated that even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevented him from obtaining a high school diploma can perform the essential functions of the job with or without a reasonable accommodation. More ›

California Court Finds Employment Arbitration Provision Unconscionable

March 5, 2012 by Hinshaw & Culbertson LLP

Employment arbitration agreements are generally enforceable in California. However, great care is required in both the drafting and the implementation. For example, California's First District Court of Appeal (San Francisco) recently underscored this through the unconscionablity doctrine in Ajamian v. Cantor CO2e, No. A13125 (Cal.Ct. App. Feb. 16, 2012). The Court affirmed denial of an employer's petition to compel arbitration under a provision in an employment contract. More ›

Tenth Circuit Agrees with Employer: EEOC Subpoena Too Overbroad

March 1, 2012 by Hinshaw & Culbertson LLP

Two separate individuals filed discrimination charges pursuant to the Americans with Disabilities Act (“ADA”) with the Equal Employment Opportunity Commission (“EEOC”) against an employer alleging discrimination based on a perceived disability after they were not hired following a conditional offer of employment and a medical screening procedure. More ›

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