A school district has ceased having father-daughter dances and mother-son baseball games.  Apparently, they were deemed to conflict with Rhode Island statute prohibiting gender based discrimination.   See ABA Bar Journal report.  The school canceled the activities after one mother complained because her daughter does not have a father and could not attend the dance. 

The school explained that the federal statute known as Title IX has an exemption for such activities, but the state version of Title IX does not. 

A chapter of the ACLU said the two events promoted gender stereotypes, that daughters would prefer a formal dance while boys would prefer baseball games.  I get that.  Sure, but are there really that many girls who prefer baseball games, or that many boys who prefer a formal dance? 

 

My friend, Chris McKinney has written a helpful post about severance agreements.  He answers the question, Should I ask a lawyer to review a severance agreement before I sign it?  Yes, we all should have a lawyer review such an agreement.  Chris lists several good reasons, but he biggest reason is to ascertain whether you have a valid claim or not.  Even if you do not wish to file suit against your employer, you should still understand what bargaining leverage you might have.  Most people do not wish to file suit of any sort.  But, they should still understand what rights they may be releasing in a severance agreement.  Every severance agreement will contain some clause releasing claims against the company.  See Chris’ post. 

As Chris mentions, you would need a lawyer who specializes in employment law or small business issues. 

The Americans with Disabilities Amendment Act was passed during the Bush administration.  It became effective in September, 2009.  We are just now seeing cases that fall under the ADAAA.  One of the bigger changes wrought under the ADAAA concerns "regarded as" disabled claims.  Under the old ADA, in some appellate courts a claimant had to not only show he was perceived as disabled, but he would also have to show an actual disability.  In some circuits, a worker could be fired for appearing to be impaired – even if he was not.  Such was the law in the Fifth Circuit.  Other circuits did not require a showing of an actual disability.  

Now, the ADAAA has stated clearly that a person who is only "regarded as" disabled and who does not actually need an accommodation is not protected by the ADA.  Such a person is not entitled to an accommodation.  

The court recognized this change in Ryan v. Columbus Regional Healthcare System, Inc., 2012 WL 1230234 (E.D.N.C. 4/12/12).  In this case, the plaintiff only filed a "regarded as" claim.  She did not claim to suffer from an impairment for which she needed an accommodation.  She suffered a knee injury and had a knee replacement surgery.  She admitted the need for accommodation was transitory.  An impairment that is not permanent or close to permanent is not protected by the ADA.  So, Plaintiff Ryan’s claim was rejected by the court.  See decision.  

Under the old ADA, the courts engaged in extensive discussion regarding whether an employer truly "regarded" a worker as disabled.  The courts imposed a high burden to show that the employer perceived a particular worker as disabled.  In some cases, insults like "Del" (short for Deliverance) or "retarded" were found to not show that an employer regraded an employee as impaired mentally.  See Roberts v. Dimension Aviation, 319 F.Supp. 2d 985 (S.D. Az. 2004).  

But, now, courts looking at "regarded as" claims are not supposed to engage in extensive analysis whether an employee is impaired.  Instead, the courts are supposed to focus on whether the employer has provided a reasonable accommodation or has discriminated.  See Snyder v. Livingston, 2012 WL 1493863 (N.D. Ind. 4/27/12).  The old ADA required that to show "regarded as" claim, a worker had to show an impairment that substantially limited a major life activity.  But, now a plaintiff can proceed even if the impairment does not limit or is not perceived to limit a major life activity.  Id.  See Snyder decision. 

So, found the Indiana federal court, references to Ms. Snyder as being "emotionally unstable" and needing help were sufficient to show factual issue that the employer regarded Plaintiff Snyder as mentally  impaired.  Ms. Snyder did have a diagnosis of Attention Deficit Disorder and apparently suffered some form of depression. 

The U.S. Seventh Circuit Court of Appeals has reversed its own precedent.  It has held that the Americans with Disabilities Act may require reassignment accommodation involving transfer into a position, rather than just allowing the employee with a disability to apply for the position.  It is a rare case where reassignment would be the appropriate accommodation.  But, in the right circumstances, the Seventh Circuit has now found that reassignment is possible.  See EEOC v. United Airlines, Inc., No. 10-CV-01699, 2012 WL 3871503 (7th Cir. 9/7/2012).  See decision here.  The court finds that where a position is vacant, then reassignment is possible. 

The court reviewed the pivotal decision in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), in which the U.S. Supreme Court ruled that a seniority system will not necessarily trump the ADA’s requirement for an accommodation.  The Barnett decision was issued after the Seventh Circuit’s prior decision.  So, the EEOC v. United Airlines, Inc. court found that Barnett controlled. 

Only the 8th circuit still holds that reassignment can never constitute a possible accommodation under the ADA.   But, the 8th Circuit relied on the old 7th Circuit decision, now overruled.  Indeed, the EEOC v. United Airlines, Inc. court criticized the 8th Circuit for not considering the Barnett decision. 

Workplace Prof Blog has penned a nice article on what to avoid in your Facebook page if you are job-hunting.  He addresses the concerns of a young law student, but the advice applies to anyone who is or may soon be looking for a job.  

First, offers the Law Professor, do not post anything you would not care to see on page one of your hometown nespaper.  Second, decide if you want your FB page to be primarily social or professional. That decision will color everything you post. 

As the Prof notes, most people blend the social with the professional.  But, if it were me and I was a young college grad or professional school graduate, I would focus on the professional.  Is is really worth the professional risk to post some "iffy" pics?  See Workplace Prof Blog for more information.  As I have mentioned to some folks on my own FB page, Facebook is like a large cocktail party – you never know who may be listening, so be careful about what you say. 

I just do not get it.  I keep seeing and hearing stories about veterans who are not being hired.  One woman spent a year in Iraq guarding high profile prisoners.  She joined the National Guard at the age of 36 years old.  Soon, she went on her first tour in Iraq.  She was laid off from her bank job and could not find a new job.  So, she volunteered for a second tour in Iraq.  Norma Mojica has demonstrated the sort of character and motivation that would satisfy any employer.  Yet, she remains unemployed today.  See CBS News report.  Unlike some veterans, she had a civilian job and has civilian job skills.  The unemployment rate for veterans has consistently remained several points higher than for non-veterans. 

I have to wonder if the average civilian employer realizes the high level of responsibility the Norma Mojicas have as Non-Commissioned Officers in a war zone.  They are responsible for  the lives of their soldiers and the well-being of countless soldiers with whom they work.  

I had a soldier who worked for me when I was in Iraq.  Sunny Tang processed requests for payment on reconstruction projects.  He paid on tens of millions of dollars in a 12 month time period.  He took care of the soldiers coming in from the distant FOB’s (Forward Operating Base) knowing they had to get back on the road before nightfall.   Because of his abilities with computers, he became the de facto IT person for some 30 computers.  He did all this in a war zone with the daily pressure of lives always on the line in every decision and every payment request.  

I knew an officer who went home, knowing that his wife wanted a divorce.  He happened to see his wife’s new boyfriend reading a bed-time story to the officer’s children.  He got into an altercation or two – all during his two week break.  That officer came back to the war with a lot on his mind.  Yet, he had to perform.  If he did not, lives or limbs could be lost.  

Sgt. Tang should not have even been with us.  He thought he had processed out.  His term of enlistment ended in 2002.  Unknown to Sgt. Tang, his unit failed to process him out as they should have.  He was carried, apparently, as "excused absent" for 12 months.  When the Iraq war kicked off in 2003, his new commander called Tang at home and told him to report asap or be arrested.  Sgt. Tang reported as he was at the time, barefoot and shirtless.  He was on active duty from that day forward. 

One would expect Sgt. Tang to be bitter.  But, if he was, he never showed it.  He was a rock for 10 months.  In his 11th month, his girlfriend was seeing someone else.  He learned about it and hit a bad patch.  But, within a week, he has back at work and was a rock of a soldier, once again.  

These are the sort of personnel issues every NCO deals with, everyday.  The NCO’s are on the front line in dealing with complicated personnel issues.  Is there any doubt that Sgt. Tang would appear at work everyday?  Is there any doubt that he would come to work even when he felt bad?  Is there any doubt that Sgt. Tang would solve problems at work, not just present problems to his civilian boss?  I am simply amazed that some employer has not snapped up a civilian and NCO like Norma Mojica.  

A San Antonio warrant officer was killed in a helicopter crash in Logar Province, Afghanistan.  CW2 Thalia S. Ramirez and another soldier from the Rio Grande Valley were piloting a OH-58D Kiowa Warrior helicopter, a scout helicopter when they crashed.  CW2 Ramirez was assigned to the 82d Airborne Division.  There are indications the helicopter may have been shot down. Both soldiers were near the end of their deployments.

CW2 Ramirez was originally from Nairobi, Kenya.  She was on her second deployment.  She joined as a water purification specialist in 2003.  In 2008, she became a pilot.  She leaves behind her husband, Jesse Belbeck.  See San Antonio Express News report. 

Its a common practice at most places of employment to keep "confidential" any investigation.  I think requiring confidentiality has as much to do with managing employee morale as it does any particular legal requirement.  But, if the employer enforces its request for confidentiality, it may run afoul of the National Labor Relations Act.  The NLRA expressly protects employees who discuss "terms and conditions" of work.  This protection applies to union members and non-union members alike.  So, if the investigation of a sex harassment complaint is discussed by employees, they would probably be protected.

In fact, the National Labor Relations Board ruled a few weeks ago that an Arizona hospital violated the NLRA when it asked an employee not to discuss an investigation of alleged misconduct.  See San Antonio Express News report.  The commentators in the article may be over-reacting.  These commentators argue that this decision will make it difficult for employers to conduct work place investigations.  It is not likely that the victims of a harasser will discuss the investigation with the harasser himself.  It is even less likely that a victim’s complaints will make its way back to the harasser via workroom gossip. 

The "fight club" at Corpus Christi State School has resulted in a settlement.  I wrote about the "fight club" scandal at CCSS here, here and here.  The Texas state school systems house the developmentally disabled, also known as mentally retarded citizens.  The terms of the settlement were not disclosed.  See Corpus Christi Caller-Times report.  The settlement proceeds will be divided between five clients of the state school system and their guardians. 

The lawsuit included allegations that state school leaders provided inadequate supervision, staffing and security for the residents.  Four state school employees have been convicted for their roles in arranging the fights between residents.  Trial for a fifth staff person is pending.  Some of the fights were filmed by the staff, which video has now served as evidence in the criminal trials.  Sometime soon, we need to start funding state schools at a more robust level, so the system can hire and train better staff. 

Title VII of the Civil Rights Act of 1964 prohibits discrimination.  Evidence of discrimination typically includes direct evidence of discriminatiuon (e.g. use of the n- word) or circumstantial proof.  Circumstantial proof can include proof that the employer lied or mis-lead regarding its reason for termination.  Does the mere act of lying equal proof of discrimination?

For some years, courts of appeals, especially the Fifth Circuit in New Orleans applied a "pretext plus" standard.  These courts required something more than evidence of pretext.  They required some additional evidence that the employer was motivated by improper motive.  But, the United States Supreme Court overruled the Fifth Circuit and other courts who adhere to "pretext plus" in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. (2000).  

In the Reeves decision, the Supreme Court held that mere evidence of pretext will suffice as evidence upon which the jury can infer discrimination.  See Reeves decision here.  The court found that the falsity of the employer’s explanation alone can support a finding that the employer is attempting  to cover up a discriminatory purpose.  Plaintiff Reeves had shown, said the Supreme Court, that he had maintained complete records of his attendance – even though he had been fired for allegedly failing to keep accurate attendance records. 

In Swenson v. Schwan’s Consumer Brands North America, No. SA-10-CA-00602 (W.D. Tex. 4/24/12), a San Antonio federal court court was presented with such evidence of the falsity of the employer’s explanation.   Yet, the court applied a "pretext plus" analysis and faulted the employee for not also providing evidence that the employer was motivated by discrimination.  The court should have ruled that evidence indicating the employer’s explanation was false requires that a jury determine the key factual issues.  So, the district court granted summary judgment. 

The Swenson court correctly found that the issue is not whether the employer is correct in perceiving the employee is in violation of a rule.  The key issue is whether the employer truly believes the reason is true.  Schwan’s claimed that they fired Swenson because one of his employee violated the vacation policy.  Mr. Swenson responded that the alleged policy was not a true policy, that the payroll department would implement any such policy and they did not dispute the vacation pay.  The  Plaintiff also presented evidence that the employer’s explanation for Swenson’s termination had changed several times.  This should have been enough evidence to show sufficient question regarding whether the employer’s explanation was false.  The judge should have allowed the jury to determine the truth of the matter. 

But, instead, the court disregarded this evidence and found that the employer sincerely believed the employee violated the policy.  The court required the employee to put on evidence that the employer did not truly believe its explanation.  A changing explanation ought to satisfy that sort of burden.  But, more fundamentally,  once the employee shows an explanation is false or is possibly false, then a jury should decide the truth.  Summary judgment is not appropriate when factual issues exist.  In requiring something more than mere pretext, the court is applying the discredited "pretext plus" analysis. 

The employer was accused of making several age related remarks about Mr. Swenson.  Comments referred to the Plaintiff as "my disabled dad" or requesting a "senior citizen’s menu" for the 48 year old worker.  But, the court also applied the largely discredited "stray remarks" doctrine – which requires the ageist remark to be made by the decision-maker close in time to the termination.  

The plaintiff also provided evidence that the employer did not follow its own disciplinary policies and that younger workers were treated better than the plaintiff in similar situations.  The court disregarded this evidence, essentially finding that those facts alone did not require a denial of summary judgment. 

So, even though Plaintiff Swenson provided ample evidence to justify denial of summary judgment, the court found against him.  And, jury trials become more and more rare.