Atlanta Employment Lawyer Blog

Rejection Of Sexual Advances May Be Basis Of Claim For Retaliation

Fri, 11 May 2012 12:01:14 -0500

Federal employment laws prohibit many forms of discrimination, including religious, sex and race discrimination. Employers are also prohibited from retaliating against workers who complain about discrimination. A recent case looked at what actions could support a claim for retaliation under Title VII.

In Hilton v. Shin, a woman – Glynese Hilton - was fired after she sued for retaliation under Title VII. Her claims were based on allegations that she was subjected to sexual harassment by the president of the company she worked for. Hilton’s actions included repeatedly rejecting Yoon S. Shin’s sexually obnoxious advances.

Here, shortly after Hilton began working Shin allegedly started pressuring her for sex. He told her that he wanted to have lunch with her at her house, an invitation she declined, and approached her in the company garage to ask for a kiss and a hug. When he began touching her at work, she told him that he was making her uncomfortable.

According to Hilton, Shin sent her emails asking her to meet with him in his office on Valentine's Day. When she said no, he phoned her expressing anger and sent her an angry email. After that, Hilton said, Shin became “cold, distant, and uncommunicative,” and he gave her an annual performance review that she believed was “undeservedly unfavorable.” A few months later, Hilton was fired.

The lower court determined that Hilton could not maintain a claim for retaliation based on her “simply spurning” the sexual advances.

However, the District Court for the District of Maryland disagreed finding that “refusing” sexual advances may constitute “opposition to” harassment, and be enough to support an allegation of retaliation.

EEOC Limits Use Of Criminal Background Checks In Employment Decisions

Thu, 03 May 2012 11:06:07 -0500

The equal employment opportunity commission (EEOC) has just approved updated enforcement guidance concerning employment discrimination based on individuals’ arrest and conviction records. The EEOC reaffirmed that its illegal for employers to exclude people from employment based on arrest or convictions unless related to the particular job.

This means if you believe you have been denied a job opportunity as the result of a criminal history, you may be able to file an employment discrimination claim.

The EEOC determined that although Title VII of the 1964 Civil Rights Act doesn’t expressly bar criminal background checks, employers may violate Title VII if they intentionally discriminate among individuals with similar criminal backgrounds if their policies have a disproportionate impact on gender, national origin, race or any other protected category.

This decision could affect many workers – statistics reveal that more than 1 in 4 Americans – 65 million - have an arrest or conviction on their record. Further, nearly 90 percent of employers use background checks in hiring. Despite the ban on hiring applicants with criminal records, many companies still take criminal records into account when making employment decisions.

EEOC Rules Federal Laws Ban Transgender Discrimination

Thu, 26 Apr 2012 12:29:05 -0500

The Equal Employment Opportunity Commission has just ruled that federal employment discrimination law (Title VII) prohibits transgender discrimination. This means that employers may not take a person’s transgender status into account in making employment decisions, such a hiring, firing and promoting.

This decision follows the same reasoning applied to longstanding sex and gender discrimination laws that prohibit discrimination "because of" an employee's sex. If you believe your employer has taken adverse actions against you because of your sex, whether male, female or transgender, you may be able to file an employment discrimination action. It’s important to contact an experienced Georgia gender discrimination lawyer right away to discuss your options.

Although the new ruling isn’t binding on the courts, it will influence how the EEOC and state agencies enforce Title VII. In its ruling, the commission concluded, “Whether motivated by hostility, gender stereotypes or "to accommodate other people's prejudices or discomfort ... discrimination against a transgender individual because that person is transgender is, by definition, discrimination 'based on ...sex.'"

Citicorp Required To Pay Back Wages For Equal Pay Act Violations

Thu, 19 Apr 2012 12:52:00 -0500

A Florida woman has been awarded nearly $340,000 in back pay as the result of a pay discrimination lawsuit against Citicorp.

According to the lawsuit, when Heidi Wilson received a promotion to become manager of the Citicorp service center she did not receive a raise or bonus despite the fact that the male who was in the position before her made more than she did. Two years later she also failed to receive a raise or bonus. The final straw came when she was fired from her position and did not receive severance pay.

Wilson then filed an Equal Pay Act lawsuit Citicorp North America, alleging gender discrimination and that the company violated her rights by not paying her the same amount as her male counterparts. The Equal Pay Act requires that men and women be given equal pay for equal work.

Your gender should not play a role in any aspect of your employment, including hiring, transfers, promotions, pay, disciplinary action, suspensions, and discharges.

If you believe you have been paid less at work because of your gender, or have been treated adversely because of your sex, your first step should be to contact an experienced Georgia equal pay act attorney.

In the Citicorp pay discrimination case, a Florida arbitrator determined that paying Wilson roughly half of what the men doing her job received violated the Equal Pay Act. Further, the court determined that evaluations conducted by Wilson’s supervisor and used as evidence for the lower pay rate were too subjective.

Pregnancy Discrimination On The Rise

Wed, 11 Apr 2012 14:24:57 -0500

News reports that pregnancy discrimination cases across the county are on the rise. According to a Washington Post article, nearly 6,000 women across the country have filed complaints with the Equal Employment Opportunity Commission (EEOC) alleging pregnancy discrimination at work.

If you believe you may have been discriminated against because of a pregnancy, it is important to consult with a knowledgeable Atlanta pregnancy discrimination lawyer immediately to protect your rights and determine your next step.

Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees, former employees and applicants on the basis of race, color, national origin, religion and sex. Congress has also passed some additional anti-discrimination laws to protect women in the workplace. The Pregnancy Discrimination Act prohibits discrimination on the basis of pregnancy, childbirth and related medical conditions. Although this doesn't mean that pregnant women are entitled to special treatment, it does mean that pregnant women must be treated equally to non-pregnant individuals.

Women from all types of work and all types of professional backgrounds have filed complaints alleging pregnancy discrimination including:

• An apartment complex owner firing a housekeeper after she disclosed she was pregnant
• A government contractor forcing two women to resign because they were pregnant. The women were later awarded back pay and damages.
• A law firm withdrew an employment offer to an attorney after finding out she was expecting.

According to the article, the number of the pregnancy discrimination complaints is up 23% from 2005.

USERRA Protects Military Personnel's Right To Reemployment

Sun, 01 Apr 2012 14:12:33 -0500

With many active uniformed officers returning to the United States and hoping to return to their previous employment, many military personnel wonder about their rights to reemployment when returning from serving in the military.

Fortunately, federal anti-discrimination law protects armed service members. Called the Uniformed Services Employment and Reemployment Rights Act (USERRA), USERRA provides that most military personnel must be returned to their jobs when returning from serving in the military, and it also prohibits discrimination based on an employee's military service.

The USERRA defines the term "Uniformed Services" broadly, and applies to members of the Army, Navy, Air Force, Marines, Coast Guard, and Public Health Service commissioned corps, as well as reservists in each of each of these branches. Whether a returning service member is entitled to protection depends on each case, but generally requires that the individual meet the following five circumstances:

1. That he was in a civilian job;
2. That he gave notice that he was leaving the job to performed uniformed service;
3. That the period of service was five years or less;
4. The service member did not receive a dishonorable discharge; and
5. The service member reported back for work in a timely fashion.

If you have questions concerning the USERRA or your rights to return to your previous employment it is important to discuss these with a knowledgeable Atlanta uniformed services reemployment lawyer.

Whether your job is covered by USERRA may be complex. However, an experienced reemployment lawyer can provide you critical guidance. Recent case has determined that the USERRA applies to state agencies. In United States v. Alabama Dep't of Mental Health & Mental Retardation, 11th Cir., No. 10-15976, 3/16/12), the11th Circuit Court of Appeals determined that an Alabama National Guard member, Roy Hamilton, who was deployed to Iraq, could sue an Alabama state mental health agency that had employed him. When Hamilton was honorably discharged in 2005, he sought reemployment with ADMH, but the agency failed to contact him. The ADMH objected, arguing that they were immune from the federal lawsuit. The court of appeals disagreement, explaining USERRA “gives the federal government—and not individuals—the right to sue states in federal court to enforce federal law.” Further, even though the U.S. government brings USERRA actions on behalf of private individuals, because the Federal Government has a significant interest in encouraging service in the armed service, these lawsuits are not considered “private actions masquerading in costume” that would violate state’s sovereign immunity.

Even A Dollar's Difference In Pay If Based On Gender May Constitute Sex Discrimination

Sun, 25 Mar 2012 14:43:55 -0500

Although it seems like a thing of the past, sex discrimination continues to occur in the workplace. Many different actions may constitute sex discrimination in the workplace, and Title VII prohibits discrimination "because of" an employee's sex. This means that your employer may not take an adverse action against you because of your sex. In other words, your sex cannot play a role in any aspect of your employment, including hiring, transfers, promotions, pay, disciplinary action, suspensions, and discharges. In addition to Title VII, a related law, the Equal Pay Act, requires that men and women be given equal pay for equal work.

If you have questions about sex discrimination, or believe that you have been subjected to sex discrimination at work, it is important to consult with an experienced Atlanta discrimination lawyer to answer your employment law questions and determine your next steps.

In a recent case, King v. Acosta Sales & Mktg. Inc., the 7th Circuit found that “striking” differences existed in pay between men and women at Acosta Sales and Marketing Inc. within the same job classification. Susan King claimed that men receive more in pay than women did who were in the same classification, working under the same conditions and doing the same work.

Despite the company’s assertions that “factors other than sex” such as education and experience could explain the differences in pay, the company failed to actually provide evidence to support these assertions.

Instances Of Harassment Not Raised At Administrative Level Allowed In Civil Sexual Harrassment Lawsuit

Fri, 16 Mar 2012 14:49:39 -0500

A recent case out of California determined that even though certain allegations were not raised during the administrative phase of a sexual harassment case, that those allegations could be raised as part of the civil sexual harassment lawsuit.

Sexual harassment is probably the most well known form of employment discrimination. What is not as well known is just what sexual harassment is. It is not a single instance of name calling, a request for a date, or a leering look. Rather, in order to prove sexual harassment, you must show that you have been subjected to unwelcome conduct that creates a hostile environment based on your sex that is sufficiently severe and pervasive to alter the terms and conditions of your employment. If you believe you may have been subjected to sexual harassment it is important to consult with a Georgia employment discrimination attorney right away.

In Medina v. Donahoe, a female postal worker, Carolina Medina, filed a sexual harassment complaint based on a hostile work environment at the United States postal service. Her complaint with the Equal Employment Opportunity Commission (EEOC) contained allegations of sexual innuendo and harassment. Medical records obtained as part of the EEOC investigation also contained references to sexual innuendos, gestures and comments.

After the EEOC initially determined no sexual discrimination existed, Medina filed a sexual harassment lawsuit in federal court containing several specific instances of harassing conduct, some of which occurred before and some of which happened after the filing time provided by law. To bring a federal action on a hostile work environment claim, a plaintiff must contact an EEO counselor within 45 days of the alleged discrimination

Allegations of sexual harassment included: a co-worker constantly asking her out despite her refusals, a supervisor slapping her behind, another co-worked taping a sign in her work area that stated “pre-menopausal women work here.” On another occasion, Medina claimed a co-worker pretended to masturbate in her presence and draw “cartoon characters” depicting her in various poses in sexual situations. She also testified that in 2004 she was molested and raped by an unnamed co-worker, but she did not report the incident. During the February 2008 a co-worker drove by her in a forklift in a threatening manner and stated, “I want you sexually” and mouthed the words “I want to F you.”

Demotion Without Job Description Considered Constructive Discharge

Thu, 08 Mar 2012 22:21:07 -0500

Title VII of the 1964 Civil Rights Act prohibits employers from discriminating against their employees “because of” their race or color. This means that an employer may not take your race or color into consideration when making employment decisions, and taking an “adverse action” because of your race may be a violation of federal employment discrimination laws.

An “adverse action” includes negative employment actions such as firing, not promoting and not hiring based on an individual’s race (or other prohibited consideration.) A recent case evaluated whether a demotion could be considered a constructive discharge entitling the employee to a jury award.

In Sanders v. Lee Cnty. Sch. Dist., a white woman, Sharon Sanders, who worked as a finance coordinator was demoted after black members became a school board majority. Evidence showed that after working for several years as a finance coordinator, and within 2 months after a new school board was appointed made up of a black majority, Sanders was demoted to “food services assistant.” Although Sanders never performed the job, a jury determined that sufficient evidence existed that defendants created “such an intolerable working environment that a reasonable person would have felt compelled to resign.”

Upholding the award, the appellate court noted, “We have previously recognized a plaintiff may support a constructive discharge claim with evidence that she was reassigned to a new position which ‘a reasonable person in [her] position would find demeaning and intolerable,' “Here, a reasonable jury could conclude the change in position from finance coordinator to food services assistant was a demotion with a diminution in title and significantly decreased responsibilities, and that a reasonable person in Sanders' position would find the assignment demeaning.”

Who Is A Supervisor? Supreme Court Seeks Guidance In Race Harrassment Case

Wed, 29 Feb 2012 22:18:12 -0500

A recent racial harassment case argued before the U.S. Supreme Court, Vance v. Ball State University, raises a significant question, “Who is a supervisor?” Determining whether a someone at work is a supervisor or not has serious consequences in terms of liability. In many instances, if a co-worker is also considered “a supervisor,” then an employer may be held “vicariously liable” for the actions of the supervisor and be required to pay compensation as a result of the harassing behavior.

Vance v. Ball involves the Title VII racial discrimination claim of Maetta Vance. Vance, a black catering assistant at Ball State University, alleged that her white co-workers and supervisors racially harassed her. Title VII prohibits employers from discriminating against their employees "because of" their race or color. That means that employers may not take your race or color, or your perceived race or color, into consideration in making employment decisions.

If you have been subjected to race or color discrimination, consulting with an Atlanta employment discrimination attorney is important to answer your race discrimination questions and determine your next steps. Where discrimination is found to have occurred, you may be entitled to compensation including front and back pay, emotional distress and other compensatory damages, punitive damages, and attorneys' fees.

When Am I Entitled To Take Leave Under The FMLA?

Fri, 24 Feb 2012 11:52:52 -0500

A recent case out of Michigan has determined that a man may proceed to trial on the question of whether he was entitled to leave under the Family and Medical Leave Act (FMLA) to help his sister to decide whether to take their mother off of life support.

The FMLA is a federal employment law that provides that eligible employees may take up to 12 weeks unpaid leave from their jobs each year under certain circumstances including caring for your own serious health condition, the birth or care of a newborn or adopted child and caring for family members who have a serious illness. It may be possible to bring a lawsuit if an employer interferes with your right to take leave or retaliates against you for taking leave. If you have questions concerning whether you are eligible to take leave, or believe your employer is taking negative actions against you for taking leave, it is important to consult with an experienced Georgia employment discrimination attorney to discuss your next steps and answer your family and medical leave questions.

In Romans v. Michigan Dep’t of Human Servs., a fire and safety officer, Jerry Romans, requested leave to make the decision whether to keep his mother on life support. Romans intended to go to the hospital immediately following his shift but was told he couldn’t leave because a co-worker called in sick. Although Romans found a volunteer to cover for him, he was not allowed to leave. In spite of the leave denial, Romans went to the hospital to help his sister make care-related decisions. At the hospital, Romans grew concerned about losing his job and immediately went back.

Female Police Officer Retaliation Award Upheld

Fri, 17 Feb 2012 12:13:12 -0500

A recent case upheld a $417,955 jury verdict award in a sex discrimination retaliation case. In Lore v. Syracuse, a female police officer - Therese Lore - filed a sex discrimination case claim after she had replaced in her position as a Public Information Officer with the City of Syracuse.

Federal law provides that a sex discrimination claim may be filed where you have been discriminated against “because of” your gender. This means your gender must not play a role in any employment action decision including hiring, firing, promotions, transfers, pay and disciplinary actions. Additionally, in order to protect those who have been discriminated against and to promote fairness in the work place, federal law also prohibits retaliation by employers against employees who file discrimination complaints. If you have questions concerning employment discrimination or gender discrimination, an experienced Georgia discrimination lawyer can help provide valuable answers and counsel you concerning your next steps.

Here, the police chief told Lore she was transferred because “women should be seen and not heard” and that she had too much influence. She was placed in a less desirable job. After filing a grievance she was assigned to a new post, but then continued to receive fewer assignments than other sergeants in the division, and received less overtime pay. Lore subsequently filed a discrimination complaint as well as a claim for retaliation.

Atlanta HIV Discrimination Case Moves Forward

Thu, 09 Feb 2012 11:32:12 -0500

Recently, the 11th Circuit Court of Appeals ruled that an Atlanta district court made three crucial errors when it rejected an HIV-positive claim of disability discrimination against the Atlanta police department.

In Roe v. Atlanta, Richard Roe sued the city for violation of the Americans with Disabilities Act (ADA) after he was rejected as a police officer candidate. The ADA prohibits disability discrimination in several ways, including banning discrimination against qualified individuals with a disability in the terms and conditions of employment such as hiring, firing and promoting.

Here the Appellate Court found that Roe could maintain his claim against the city for several reasons. First, the 11th Circuit court found that the lower court too quickly assumed that Roe would not be able to refute the city’s claim that he wasn’t hired because he would pose a direct threat to others. Discovery responses provided in the case showed that the department didn’t consider HIV to be a “medically disqualifying condition” and that the city didn’t have a policy against hiring people who tested HIV-positive. As a result, Roe was lulled into believing that he didn’t have to show his condition wasn’t serious. Additionally, the court didn’t look into whether the city violated the ADA by having Roe submit to a medical examination before extended him a conditional job offer. Because of these errors, the appellate court determined that Roe could move forward with his claim of discrimination against the police department.

This case is important because it shows that in some cases an employer’s own policy handbook or lack of a policy can support claims of discrimination.

Company Ordered To Pay Double Damages For Interfering With Worker's Right To Take Leave

Thu, 26 Jan 2012 10:36:01 -0500

Under several circumstances federal law requires that your employer allow you to take approved leave. These include taking leave to care for a new baby or a family member with a serious health condition. Additionally, if you have a serious health condition the Family and Medical Leave Act (FMLA) provides that employers must allow eligible employees to take up to 12 weeks unpaid leave.

Although some limitations exist before you may be eligible, once you meet the requirements for leave the FMLA protects you in certain ways, such as requiring an employer to restore you to your job at the same rate of pay and same benefits as before the leave.

In a recent case out of Ohio, the Sixth Circuit Court of Appeals determined that an employer had interfered with a worker’s leave and required the employer to pay double damages to a fired worker. In Thom v. American Standard, Inc. the 6th Circuit reviewed whether American Standard violated a molder’s rights when the company terminated the worker while he was on leave for shoulder surgery and before he was scheduled to return to work.

If you have questions concerning your right to take leave, or if you believe your employer interfered with your leave rights, it is important to consult with an experienced employment discrimination attorney in Atlanta to review your circumstance and determine your next steps.

Here, the company amended its FMLA policy but did not inform it’s employees of the changes. When the employee, Carl Thom, requested leave it did not let him know that the amount of leave requested would exceeed the amount of time allowed pursuant to the FMLA. Thom was then fired and the company used his excess leave as justification for his discharge.

Pre-Eligibility Requests For Leave May Give Rise To Claims Of Retaliation in Pereda v. Brookdale Senior Living Cmtys. Inc.

Fri, 20 Jan 2012 11:15:19 -0500

In the first case of its kind, the U.S. Court of Appeals for the 11th Circuit, which includes Georgia, Alabama and Florida, considered what actions are considered protected by the Family and Medical Leave Act. Specifically in Pereda v. Brookdale Senior Living Cmtys. Inc., the appellate court reviewed whether an employee who made a “pre-eligibility” request under the Family and Medical Leave Act is protected from retaliation. In order to be eligible for protection under the FMLA, an employee must work 1,250 hours within the previous 12 months and experience a triggering event, such as the birth of a child.

If you have questions concerning whether you may be eligible to take leave under the FMLA, it is a good idea to consult with a knowledgeable Atlanta employment discrimination attorney. An attorney skilled in practicing family and medical leave law can answer your FMLA questions and provide crucial guidance concerning your next steps.

Here, a female employee – Kathyrn Pereda - was not yet eligible for leave when she first brought it up, but would be eligible at the time she gave birth to her child. Based on the “advanced notice” requirements of the Act, Pereda notified her employer of her pregnancy and her wish to take leave after the birth of her child. After she informed her employer of her pregnancy, Pereda’s supervisors began to harass her. She was placed on a performance improvement plan with “unattainable goals” and was ultimately fired.

Pereda asserted she was retaliated against in violation of the FMLA. Her employer responded that because she was not eligible for FMLA leave when she made the request, her claim for retaliation was not valid. Although the lower court agreed, the 11th Circuit reversed, finding that a “pre-eligibility discussion of post-eligible FMLA is protected activity.”