Physicians Allowed to Proceed with Discrimination Claims Against Health System, Despite Being Employed by Physician Service

A recent decision out of a federal court in Pennsylvania demonstrates that large corporate health systems who rely on the use of subsidiaries to limit liability for employee misconduct do so at their own peril. In Ginsburg v. Aria Health Physician Services, E.D. Pa., No. 2:12-cv-1140 (Aug. 31, 2012), the federal judge found that a health system qualified as an “employer” for purposes of state and federal discrimination laws —— even though the plaintiffs' direct employment relationship was with a subsidiary of the health system — because the health system exerted control over the plaintiffs through work rules and discipline. More ›

Sixth Circuit: Mine Operator not Required to Provide Temporary Reinstatement for Miner Pending Outcome of Individual Action

The Sixth Circuit Court of Appeals recently provided insight on a matter of first impression in North Fork Coal Corporation v. Federal Mine Safety and Health Review Commission. The issue considered was whether the Federal Mine Safety and Health Act of 1977 (the “Mine Act”), as amended, 30 U.S.C. §§ 801–965, mandates that an employee's temporary reinstatement continue after the Secretary of Labor (“Secretary”) determines that his complaint lacks merit. More ›

Eighth Circuit: Police Officer Trainee not Limited to Title VII for Bringing Discrimination Claim

In Hensley v. Sgt. Bill Brown et al., No. 11-2561, (8th Cir. July 25, 2012), a police-officer trainee claimed that while in the police academy, she was repeatedly subjected to sexually harassing comments, discriminatory actions, and physical assault by her male trainers. The trainers subsequently issued a memorandum which indicated that she would not be graduating from the academy. She then left the academy and was unable to become a police officer.   More ›

EEOC Issues Guidance on Employers’ use of Arrest and Conviction Records

When can an employer conduct a criminal background check on an applicant or existing employee?   More ›

EEOC: Discrimination Based on Gender Identity Violates Title VII

The EEOC issued its decision in Macy v. Holder  yesterday in which it held that an employer who discriminates against an applicant or an employee on the basis of gender identity violates Title VII's prohibitions against sex discrimination.  

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

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 ›

Employer’s "100% Healed" Policy Did Not Support "Regarded as" Disability Claim

A long-haul truck driver requested a transfer to a local driving route for personal reasons. Shortly after transferring, the driver discovered that the increased lifting requirements of the local position aggravated a preexisting back injury. Consequently, the driver requested a transfer back to a long-haul position. His request was denied based on the requirements of the collective bargaining agreement. As a result, the driver went on medical leave. The driver returned with restrictions from his treating physician that prevented him from performing the physical work required as part of the local route and stating that he could only work as a long-haul driver. The employer informed the driver that he could not return to work until he was released without restrictions. The driver sued the employer, alleging that the employer’s “100% healed” policy established that the employer regarded him as substantially limited in the major life activity of working in violation of the American’s with Disabilities Act (ADA). The U.S. Court of Appeals for the Seventh Circuit rejected this argument because the driver failed to establish that the employer believed that he was unable to work in a class of jobs or a broad range of jobs. Absent such a showing, the driver could not establish that the employer regarded him as disabled simply because it required him to establish that he was fully able to perform the specific requirements of the job he was performing for the employer. While implementing a “100% healed” policy may not serve as a per se violation of the ADA, employers must carefully apply such a policy to ensure that it does not trigger liability and should consult with counsel regarding any concerns.

Powers v. USF Holland, Inc., No. 10-2363 (7th Cir. Dec. 15, 2011)

Transsexual Employee Covered by 14th Amendment’s Equal Protection Clause

A public employee was terminated after she alerted her supervisors of her intent to transition from a man to a woman and come to work as a woman. The decision to terminate the employee was based on the employer’s perception of the employee as “a man dressed as a woman and made up as a woman” and on the “sheer fact of the transition.” The employee sued the employer, alleging claims of sex discrimination in violation of the Equal Protection Clause of the 14th Amendment. The U.S. Court of Appeals for the Eleventh Circuit held that discriminating against someone on the basis of his or her gender nonconformity constitutes sex-based discrimination under the Equal Protection Clause. In effect, discriminating against someone who fails to act according to socially prescribed gender roles constitutes actionable discrimination. Public employers should be aware that the Equal Protection Clause provides another legal basis for some employees, including individuals who otherwise may not be able to claim protected status under Title VII of the Civil Rights Act of 1964, as amended, to contest gender discrimination in the employment context. While this opinion is somewhat limited to public employers, all employers should also refrain from taking disciplinary action against individuals solely for not conforming with societal gender norms, as similar legal theories have been successfully litigated under Title VII.

Glenn v. Brumby, No. 10-14833 & No. 10-15015 (11th Cir. Dec. 6, 2011)

Ledbetter act only Affects Limitations Period for Claims Involving Actual Discrimination in Pay

In 2003 and 2004, a school district eliminated two employees’ custodial positions. The district offered the employees lower-paying janitorial jobs along with a promise to maintain their prior pay for two years. The employees accepted and continued to receive higher custodial wages until the pay cuts took effect in 2005 and 2006. When those pay cuts went into effect, the employees filed administrative charges alleging that the school district had violated the Age Discrimination in Employment Act (ADEA) by forcing them into lower-paying positions because of their age. The district court concluded that the charges were barred because they had not been filed within 300 days of the discriminatory decisions in 2003 and 2004, as required by the ADEA. The employees appealed based upon the Lilly Ledbetter Fair Pay Act of 2009 (Act). The Act changed how the limitations period is calculated for claims under the ADEA and Title VII of the Civil Rights Act of 1964, as amended, that involve “discrimination in compensation.” Under the Act, in applicable cases, each paycheck issued to an employee is treated as a new act of discrimination, and thus each paycheck resets the 300-day limitations period. The employees argued that their charges were filed within 300 days of their most recent paychecks, and therefore were timely under the Act. The U.S. Court of Appeals for the Tenth Circuit rejected this argument, holding that the Act was intended as a narrow adjustment that only applies to claims involving actual discrimination in rates of pay (i.e., unequal pay for equal work). In this case, the employees had alleged discrimination in their demotion, not that younger employees were paid more for equal work. Accordingly, the employees’ 2005 and 2006 paychecks were not fresh acts of discrimination under the Act, and their claims were time-barred. This decision is a positive development for employers and if followed by other federal courts will limit the Act to claims involving actual pay discrimination and will not allow employees to bring stale claims involving other forms of discrimination.

Almond v. Unified Sch. Dist. #501, No. 10-3315 (10th Cir. Nov. 29, 2011).

Separation Agreement Improperly Admitted to Prove Employer’s Liability

Many employers use separation agreements when severing the employment relationship with employees. These releases and/or offers to compromise are often protected by evidentiary rules which prohibit the admission of such documents when they are used to prove liability. More ›