Discrimination Law

Damages for Failure to Hire Even After Felony Drug Arrest?

Posted on February 10, 2016

The Situation: You decide not to hire a job applicant based upon a determination that he is medically unqualified for the job. He then files a charge with the EEOC, claiming that you have discriminated against him based on his actual and perceived disability. About six months later, the applicant is arrested and charged with possession and intent to distribute a controlled substance. Does this arrest (which would have likely prompted his termination had he been an employee) at least limit the damages available to him even if he could succeed on his claim?…

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Can Medical Marijuana User be Fired for Positive Drug Test?

Posted on February 3, 2016

The Situation: As part of your post-hiring process, you make new employees undergo a drug test. One such employee tests positive for marijuana—but explains that he is using marijuana medicinally at the recommendation of his doctor. Your policy states that you will terminate any new employee who does not provide a clean drug screen. Can you terminate him?…

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Drop and Give Me Thirty (Or Fourteen If You’re a Woman)—Is This Discrimination?

Posted on January 27, 2016

The Situation: Physical fitness is a necessary component for certain jobs in your organization and so you develop a physical fitness assessment for prospective employees. Based on a thorough analysis of gender norms and abilities, you determine specific standards—which are different for men and women. A male is unable to complete one of the tasks and claims the differing standards constitute discrimination. Could he have a claim under Title VII?…

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Transgender Employee Fired for Clear Policy Violation—Is Employer Still At Risk For Title VII Claim?

Posted on January 20, 2016

The Situation: An employee informs you that she is going through a gender transition and then a few months later you catch her sleeping on the clock. After you terminate her (just like you have terminated others who engaged in similar conduct), she claims that you discriminated against her based upon her sex in violation of Title VII when you terminated her based on her transgender status. Are you protected from this type of claim based on the clear policy violation supporting the termination?…

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Applicants with more than five years of experience need not apply. Could this be a problem?

Posted on December 9, 2015

The Situation: You have a job vacancy—and it is one that you think best suits an applicant without a ton of experience. In an effort to narrow the field to just those candidates who fit the bill in terms of experience, you post the vacancy online and include as one of the qualifications that the applicant should have no more than a specified number of years of experience. Could this lead to a claim of age discrimination?…

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Assumptions About Applicant’s Medical Condition Can Lead to ADA Claim

Posted on November 30, 2015

The Situation: After receiving a job offer, an applicant reveals that he takes medication for anxiety and high blood pressure.   In light of the type of the position he would hold, you have some concerns that his medical condition could affect his ability to do his job and so you end up rescinding the job offer. Could your perception about his medical condition get you in trouble?…

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Pregnant Employee? Reassignment of Duties Could Land You in Hot Water

Posted on November 18, 2015

The Situation: A female employee whose job involves some potentially dangerous activities announces she is pregnant. Thinking you are doing her and her unborn child a favor, you reassign some of her more unsafe duties to other employees. Could you end up facing a discrimination claim?…

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Move to Smaller Office Could Support Discrimination Claim

Posted on October 16, 2015

In order to make a claim under Section 1981, an employee must be able to show that he or she suffered an adverse employment action—but there can be some dispute as to what constitutes an adverse employment action. In a recent case, a district court in New York found that a school district’s relocation of a school counselor to a different (and less desirable) office space could constitute a materially adverse action and support a claim for discrimination. Postell v. Rochester City School District, et al., Case No. 11-CV-6550L (W.D.N .Y. Oct. 8, 2015).…

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Differing Discipline for Facebook Comments May be Discrimination

Posted on October 2, 2015

In today’s digital culture, employers are well advised to have social media policies which hopefully prevent employees from posting things that reflect poorly on the employer. But the question of how to apply some of these policies is unfamiliar territory. For example, how do you determine what kinds of comments warrant discipline? And how do you make sure you are imposing the same discipline for the same type of behavior? A TV station in Louisiana recently faced this very issue. A former reporter claimed that he was discriminated against when he was fired because of a comment he made on Facebook. He argued that other employees (of a different race and gender) were not fired even though they too had made some inappropriate comments. The district court recently denied the employer’s motion for summary judgment as to the discrimination claim, finding that the employee had presented enough evidence to go to trial on his race and gender discrimination claims. Redford v. KTBS, LLC, et al., Case No. 5:13cv3156 (September 28, 2015).…

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Even Age Difference of Eight Years Can Support ADEA Claim if Other Factors Present

Posted on September 25, 2015

As all employers are aware, employment decisions such as hiring, firing and promoting should not be made on the basis of an individual’s age. And one of the key components of a claim based on the denial of a promotion is that the individual who was promoted was substantially younger. So does this mean that if candidates are close enough in age, employers are safe from an age discrimination claim? Perhaps not.  Last month, the Ninth Circuit found that even a difference of eight years could be enough to support an ADEA claim where there was other evidence of age discrimination. France v. Johnson, No. 13-15534 (7th Cir. 2015).…

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