Tuesday, March 31, 2015

Map of States that Explicitly Ban Discrimination in Employment of LGBT Community

In light of all the events taking place in Indiana regarding their Religious Freedom Restoration Act law passing, people might be interested to know which states have laws that protect the LGBT community in their employment as no such law exist at the federal level due to the Employment Nondiscrimination Act (ENDA) constantly being stalled and shelved.

As most people may be aware, Wisconsin, under the Wisconsin Fair Employment Act (WFEA), does provide protection, but only for "sexual orientation," not gender identity.

4th Circuit Holds Social Anxiety May Be Disability Under the ADA

As most employment lawyers are aware, the Equal Employment Opportunity Commission (EEOC), as the administrative agency entrusted as experts in enforcing the nation's anti-discrimination laws, often issues writings like compliance letters, enforcement guides, etc where they often take positions on how to apply the law in certain situations.  Toward that end the 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”).  Recently the Court of Appeals for the Fourth Circuit agreed in Jacobs v. N.C. Admin. Office of the Courts, No. 13-2212 (4th Cir. Mar. 12, 2015).

The plaintiff, Christina Jacobs, had been promoted to be one of 30 deputy clerks where she was assigned to assist customers at the front counter, a job assigned usually to the most junior deputy clerks. While in this assignment, she began to experience extreme stress and panic attacks stemming from her previously-diagnosed social anxiety disorder.  Logically, Jacobs then went to her supervisor about her health issues, along with her social anxiety disorder.  The supervisor suggested Jacobs seek treatment and then informed her own supervisor about the issue.  Jacobs did seek treatment, but then sent an email to her three supervisors that once again disclosed her disability and asked for an accommodation. The employer never acted on the accommodation request and then terminated Jacobs three weeks later for allegedly poor performance and filed a charge with the EEOC claiming the firing was in retaliation for the accommodation request.  The lower district court granted summary judgment on all counts alleged.

In addition to the employer losing their argument that social anxiety disorder isn't a disability under the ADA, the employer also could have easily accommodated Jacobs given she was one of 30 deputy clerks with the same title and job description, where only 4-5 of those clerks were assigned to front desk work.  The other 25-26 clerks performed work that did not require interaction with the public as the front desk position was one more of seniority than it was of skill.  Thus, the likelihood of the employer showing undue hardship was weak.  

The employer also failed miserable in showing their legitimate nondiscriminatory reason for terminating Jacobs because they had next to no documentation of her alleged poor performance.  The witnesses for the AOC testified that Jacobs had performance issues and was a poor employee long before she received assignment to the front counter, but the AOC had no documentation to back any of it up.  However, it appears those witnesses were rather unpersuasive.

Tuesday, March 24, 2015

EEOC Settles ADA Case Against Employer Who Did Not Offer Medical Leave to Probationary Employees

The Equal Employment Opportunity Commission (EEOC) has announced it has settled a disability discrimination lawsuit against a Pennsylvania pipe-fitting manufacturer, Exeflow USA, Inc., for $65,000 when they failed to provide medical leave to a U.S. Marine Corps veteran, Adam Brant, when he experienced seizures caused by service-related disabilities.  EZEFLOW USA denied the request because Brant was still a probationary employee.

EZEFLOW USA did, however, offer up to 26 weeks of paid leave to non-probationary employees.  Probationary employees are not eligible for leave under the Family and Medical Leave Act (FMLA), but the EEOC has long held that the Americans with Disabilities Act (ADA) covers probationary employees, who are entitled to accommodations under the ADA.

This case again highlights the importance for employers to review requests for medical leave on an individualized basis and not apply universal rules and policies to all requests.  This interactive process is crucial for determining whether the employee's absence will affect the company's operations.  Although here the requested leave was of a specific duration, if no time frame is given, employers should explain to the employee how his absence would impinge on their business. Employers should then request a reasonable estimate of when the employee will be able to resume his essential job functions — with or without an accommodation — to enable them to better assess whether leave can be provided as a reasonable accommodation, or would impose an undue hardship on the employer. Unfortunately, there is no bright line rule outlining the length of leave employers must grant as an ADA accommodation. Instead, the ADA requires this individualized interactive process for each employee requesting leave.

The case was EEOC v. EZEFLOW USA, Inc., Civil Action No 02:14-cv-527

Former Twitter Enginner Files Sex Discrimination Suit

A former female engineer, Tina Huang, for popular social media website, Twitter, has filed a proposed class action lawsuit alleging that Twitter’s promotion process unfairly favors men.  Huang alleges, among other things, that Twitter has no formal promotion process and relies on a "shoulder tap" custom, which explains why few women are in higher-level positions with the company.

This lawsuit is just one of a few made by former female employees at these popular websites as Time magazine reports:

The lawsuit against Twitter follows similar claims made against Facebook last week by Chia Hong, who accused Facebook of wrongful termination in 2013 after allegedly being harassed based on her gender, race and Taiwanese nationality. Facebook has denied Hong’s accusations.

Hong’s lawyers are also involved in a similar case against venture capital firm Kleiner Perkins, which former employee and current interim Reddit CEO Ellen Pao sued for gender discrimination. A judge upheld Pao’s claims on Saturday, saying “There is sufficient evidence from which a reasonable juror could conclude that Kleiner Perkins engaged in intentional gender discrimination.”