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file1581270826885The Eleventh Circuit recently provided insight as to how federal courts analyze disability discrimination law claims when it held that firing a truck driver because he was diagnosed with alcoholism is not a violation of the Americans with Disabilities Act (ADA).

Title I of the ADA grants certain protections to disabled individuals who are qualified to perform a job’s basic functions from discrimination in employment.

Alcoholism is a disability under the ADA, but the question of whether or not an alcoholic can seek the ADA’s protection doesn’t end there: employers are not always obligated to retain workers who suffer from a condition that is recognized as a disability under the ADA.

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file000495587744Do you think that the Fourth Circuit got it wrong when it decided against an employee who was called a “porch monkey” more than once by a coworker and was fired from her job shortly after she complained?   You are certainly not alone.  Ms. Boyer-Liberto’s complaints about the racists did not give rise to a claim for a hostile work environment or employment discrimination according to the Fourth Circuit, but you may see the Fourth Circuit change or limit that opinion.

The Fourth Circuit on Tuesday, July 1, granted en banc hearing to Boyer-Liberto v. Fontainebleau Corp., marking a potential shift in the way the Fourth Circuit analyzes employment discrimination claims. What this means is that both sides will reargue the case, but this time they will do so in front of all eligible judges of the Court of Appeals for the Fourth Circuit.  Many appellate courts sit in parts or divisions of three or more judges from among a larger number on the full court.  The Fourth Circuit is no exception.  That’s why only three judges (Chief Judge Traxler and Judges Neimeyer and Shed)  heard and decided the original case.  When a court sits en banc it is possible that it will reach a different decision from the original 3-member panel. It is common for parties to ask for a rehearing en banc after an appellate court renders a decision; however, they are rarely granted.  When a court does grant a rehearing en banc, it means that one of the following situations are in play:

  1. A material (potentially outcome changing) fact or legal issue was overlooked in the decision;
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On Friday, we discussed the recent discrimination case at arising from employment at a hotel bar between Reya Boyer-Liberto and her former employer, the Fontainebleau Corporation. We move on today to what we can learn from this case of racial language used in the service industry.

What the Case Teaches Us:

In dropping Liberto’s case, the Fourth Circuit was essentially saying that, even assuming everything that Liberto alleged was true, the conduct she faced did not amount to a hostile work environment while she had been employed by Berger.

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openphotonet_129_2966_IMG_(1024_x_768)Have you ever wondered how bad your working conditions have to become your work is a “hostile work environment?”  A recent case may help you decide whether you’re in a position to take legal action.

Reya Boyer-Liberto, an African-American woman, sued the Fontainebleu Corporation and her boss Leonard Berger for racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.  Liberto alleged that her former employer discriminated against her by allowing a hostile work environment to persist at the hotel where she worked because a coworker yelled at her and called her a “porch monkey” twice within a two-day period.

Despite recognizing the racial slurs as unacceptable, the Fourth Circuit held that Liberto’s coworker’s conduct was too isolated to constitute a hostile work environment, reasoning that a two-day period of racial comments, relating to one altercation, was not sufficiently “severe” or “pervasive” to change a term or condition of her employment or create an abusive workplace atmosphere.

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file0001838914447You’ve likely heard by now the story of freshman Louisiana Congressman Vance McAllister (R-La.) kissing one of his staffers.  Now, Rep. Jackie Speier (D-Calif.) is trying to make it so that Representatives and their staffs have to undergo mandatory sexual harassment training.

Unlike the rest of the federal government and many private companies, there is no specific requirement in place that requires U.S. Representatives and their staffs to receive sexual harassment training.  And unlike many of your own workplaces, there aren’t posters and signs in break areas reminding workers of regulations and how to report unwanted conduct.  Many offices don’t even discuss sexual harassment policies at all.  The Senate has training courses for new employees, but several different policies can apply.  The House has no training schedule, but has handbooks.

Frustrated by the seemingly haphazard way these regulations have been put in place in Congress, Rep. Speier said “This is the House of Representatives, not a frat house.”  She continued, “it is time for all of us to get trained – elected officials and their staffs – to recognize what sexual harassment is, and how to prevent it, and what to do if it happens.”  Other lawmakers have expressed concern about these kinds of problems in the past.

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file000704919536In 2013, Lihuan Wang, then a student at Syracuse University and an unpaid intern for Phoenix Sattelite Television, sued Phoenix because her supervisor took her to lunch and to a hotel room where he kissed her by force and grabbed her buttocks.  She resisted and, later, Phoenix wouldn’t hire her.  U.S. District Court Judge Kevin Castel dismissed Ms. Wang’s lawsuit because she was not Phoenix’s “employee” and, thus, the New York City Human Rights Law didn’t apply to her.

Ms. Wang isn’t the first unpaid intern to have to deal with harassment at her internship.  According to Newsweek, one intern was taken out to a bar by her supervisor to discuss career options, but instead he made advances toward her and put his hand on her thigh.  Another was subjected to racial slurs while at work.  Interns – talented young people who are selected for their enthusiasm, their work ethic, and their willingness to work for literally no pay – often feel like they are powerless to stop this kind of harassment.  The most important way interns are usually “compensated” for their time is through a positive reference and/or contacts in the industry where they’re looking for find a job.  Interns feel like complaining could damage or jeopardize those references and contacts, especially when the interns are given no redress by the court system.  But, in New York City at least, this is about to change.

New York City Mayor Bill de Blasio signed a bill into law on Tuesday, April 15, 2014 that provides NYC interns with protections from sexual harassment and discrimination in the workplace.  As the mayor said before signing the bill, “this legislation will clarify that interns, paid or unpaid, are guaranteed the full protections guaranteed to employees under the human rights law.”  Interns in New York will no longer be akin to fair game for harassment and exploitation as far as discrimination and harassment are concerned.

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IMG_0939A United States District Court Judge in the District of Columbia issued a recent opinion that could radically change the discrimination protections afforded to members of the LGBT community, but perhaps not in the way that you would expect.

In a complaint filed in the federal district court in D.C., Peter TerVeer alleged that he was targeted and harassed by his supervisor, a particularly religious man, after Mr. TerVeer’s supervisor discovered he is gay.  The supervisor allegedly harassed Mr. TerVeer in numerous ways, including:

  • Engaging in “religious lectures” in virtually every work-related conversation – to the point that it became clear Mr. TerVeer sought to impose his conservative religious beliefs on Mr. TerVeer.
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06d80The process of being separated from your company is often a surprising, confusing, and emotionally trying.  You walk into a routine meeting with a supervisor only to find that a Human Resources representative is also present.  Your supervisor hands over a lengthy document containing complex legalese that may not make sense, along with a packet of information about something called COBRA.  Despite loyalty and years of hard work, the company has decided to “downsize” or “go in a different direction,” and the employee is asked to review and sign the severance agreement.

The document is frequently called a severance agreement, but sometimes it’s known as a separation or termination agreement, or even the verbose “separation agreement general release and covenant not to sue.”

But what do these things actually mean?   A severance agreement is an agreement in which you settle any potential future claims you have against the company up front.  In other words, a severance agreement is like a sales contract.  You, as the employee being separated, are being offered certain things – usually money, a positive reference, and sometimes confidentiality regarding your separation.  In exchange, the the company asks you to “sell” them a series of releases from future legal action and promises about how you’re going to behave going forward.  This doesn’t necessarily mean that they believe you may have a claim against them; rather, they wish to stave off the expense of litigation of any claims you may bring while feeling singled out and possibly even discriminated against by being separated.

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Football EquipmentThis is the beginning of a series on the implications of today’s National Labor Relations Board (“NLRB”) decision that Northwestern’s football players, “are employees of the school and therefore entitled to hold an election to decide whether to unionize,” according to The Chicago Tribune.

We’re going to start by focusing on the definition of employee.

The first question is what the NLRB means by “employee.” Well, the National Labor Relations Act defines employee with a long paragraph that starts out pretty broadly with, “The term ’employee’ shall include any employee… unless this subchapter explicitly states otherwise…”  29 U.S.C. 152(3).  The definition goes on to carve out exceptions for agricultural workers, individuals covered by the Railway Labor Act, and some other exceptions.

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StoplightHave you been treated unfairly by your employer but feel like your claim is too small for anyone to care?  Based on a recent case in Millville, New Jersey, it may be time to think again.

People are sometimes reticent to approach a lawyer even when they know they’ve been treated unfairly.  They see their claim as relatively small, especially when compared with the resources of their employer, and decide that the case isn’t worth their time or effort.  This isn’t always true, and if you think you’re being treated unfairly, then we urge you to contact one of our attorneys to set up a consultation.  Let’s look at a specific example of how a case like yours might be worth pursuing.

On November 7, 2011, a police captain ordered Patrolman Edmund Ansara to void an otherwise valid traffic ticket that he had written.  The person to whom the ticket had been written was connected to a local politician or police leadership.  Patrolman Ansara followed orders and voided the ticket.  Lieutenant Edward Zadroga refused to sign off on the void form and reported a ticket-fixing problem to the county prosecutor’s office.  After the complaint, Patrolman Ansara gave testimony to the prosecutor’s office regarding the allegedly fixed ticket.

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