Fourth Circuit Applies Sovereign Immunity to Shield State Hospital Supervisors from Suit

Some employers are immune from liability by virtue of their status as a state-run operation. Employees have become more creative in attempting to obtain recovery from their employers in such situations by naming individual employees as defendants. In this case, however, that strategy failed to prove successful for the employee-plaintiff. More ›

Employee Witness Entitled to Same Protections against Retaliation as Complaining Employee

In this case, the Eighth Circuit Court of Appeals holds that not only is an employee who complains about inappropriate conduct in the workplace protected from retaliation, but the same protections extend to those employees who participate in an investigation into the alleged conduct. More ›

Employers Eyeing First GINA Cases for Further Guidance

The Genetic Information Nondiscrimination Act of 2008 (GINA) makes it illegal to discriminate against employees or applicants based on genetic information. Title II of GINA prohibits the use of genetic information in making employment decision, restricts employers and other entities from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information. Over the course of the past few years, the EEOC has filed two cases against employers, alleging violation of this particular Act.  More ›

Massachusetts’ Anti-Discrimination Laws Prohibit Associational Discrimination

In a recent employment discrimination decision, the Massachusetts Supreme Judicial Court held that the Massachusetts discrimination statute, M. G. L. c. 151B, encompasses a claim for "associational discrimination."

"The term 'associational discrimination' refers to a claim that a plaintiff, although not a member of a protected class himself or herself, is the victim of discriminatory animus directed toward a third person who is a member of the protected class and with whom the plaintiff associates."  More ›

EEOC Alleges Employer Violated GINA by Requesting Family Medical Histories

On May 16, 2013, Equal Employment Opportunity Commission filed an action against a nursing home and rehabilitation facility, claiming violations of the Genetic Information Nondiscrimination Act of 2008 (GINA), the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act of 1964. The EEOC claims that, among other things, the employer required applicants and employees to provide genetic information in response to questions about family and medical history, and that the employer lacked the requisite workplace postings specifying workers’ rights under the Act. Specifically, the EEOC contends that prospective and current employees were required to undergo medical examinations in order to be deemed fit to work, and during those examinations, the employees were asked for family medical histories which were then used to make adverse employment decisions to their detriment.   More ›

Employee’s Need for time off for Medical Reasons does not Protect her from Termination

The Seventh Circuit Court of appeals recently affirmed summary judgment for the employer on an employee's ADA and FMLA claims. In this case, the employee was terminated after she was absent many times due to symptoms (and the ultimate diagnosis) of multiple sclerosis. She was unable to adhere to the company's attendance guidelines, was not eligible for leave, and could not perform the essential functions of her job (e.g., attendance) even with reasonable accommodation.  More ›

Seventh Circuit: Physician’s State-Court suit Challenging Denial of Privileges Precluded Subsequent Federal Discrimination Claim

The Seventh Circuit Court of Appeals has reminded one Illinois physician that he only gets one bite at the apple when it comes to federal discrimination claims— and the case presents a unique and potentially powerful new defense for employers of physicians and other regulated professionals. The case, Dookeran v. County of Cook, No. 11-3197 (7th Cir. May 3, 2013), arose when the defendant hospital denied the plaintiff physician’s reappointment following his two-year review, during which he acknowledged for the first time that he had been reprimanded by his former employer for creating a hostile work environment. The physician subsequently filed suit in Illinois state court requesting judicial review of the hospital’s decision under a writ of common-law certiorari and, at the same time but in a separate EEOC action, he lodged charges of race and national origin discrimination. The Illinois courts upheld the decision to deny his privileges in the certiorari suit. Shortly after that state court proceeding had concluded, however, the physician received an EEOC right-to-sue letter and filed a second lawsuit against the hospital in federal court.  More ›

Additional Reason for Failure to Promote is not Indicative of Pretext for Discrimination

A member of the Air Force was denied four promotions to Battalion Chief and Assistant Chief of Administration during a four-year period and sued his employer fire department alleging that these decisions violated the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). While there was sufficient evidence that the employee’s military service was a motivating factor in the promotion decisions, the employee’s claims were denied. As a rule, liability will not occur under USERRA if the employer would not have promoted a service member absent the individual’s membership in the military.To this point, the fire department’s decision-maker testified that the employee was trustworthy, made good decisions, exercised good judgment, and could work with others. The employee argued that this additional reason, first offered at litigation, was unbelievable. It was different than the reason offered at the time of the decisions, his skill level was lower than that of the employees selected for promotion. More ›

EEOC Findings not Dispositive in Employee’s Discrimination Suit

Just because the EEOC finds that an employee was subjected to a retaliatory termination does not mean an automatic win in the courts. The plaintiff-employee in this case learned that the hard way. More ›

Being on time to work may be Essential Function of Position

A city case manager had schizophrenia but was taking medication on a calibrated schedule. The employer had a flex-time policy which allowed employees to arrive at work anytime within a one hour window in the morning. If an employee was late, the supervisor had to approve or disprove the tardiness. The employee often could not get to work within that window of time due to his medication, and for roughly ten years, the employer excused such tardiness and allowed him to arrive later. Subsequently, however, the supervisor ceased approving the late arrivals. The employee repeatedly requested that he be permitted to arrive later so that he would not be disciplined for tardiness, but his supervisor would not allow it. His doctor recommended that his medication schedule not be altered at that time, which made it difficult for him to arrive earlier. The supervisor then recommended disciplinary action against the employee for his long history of tardiness, and at a grievance hearing, the City recommended his termination. The union representative argued that the employee’s mitigating circumstances (the disability) should be considered. The employee then made formal requests for accommodation to arrive at work later, and a higher-level supervisor denied the request without talking to the employee. He was then suspended for 30 days without pay as a sanction for his tardiness.  More ›