Discrimination and Harassment Law and Practice

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Some recent court rulings have referred to the “cat’s paw theory” of liability for discrimination. Employers should be aware of these recent decisions because:

  • Employers can be held liable under this theory, even if there is no evidence that the ultimate decision-maker acted in a discriminatory manner;
  • Supervisors who wrongly influence a termination decision can be personally liable in a race case under Section 1981; and
  • This is a terminated employee’s answer to the employer-friendly “honest belief” rule.

Continue Reading Cat’s Paw Theory: What Is It? Why Should I Care?

A Tennessee federal judge recently ruled that a termination notice referring to an employee’s “long-term disability” was direct evidence of discrimination and retaliation.  The Court granted the employee judgment as a matter of law under the ADA.

The employee, Coffman, had been off work on an extended medical leave.  She had exhausted her FMLA leave and remained off work due to restrictions.  Coffman refused a job offer of a sedentary job.  Notes from Coffman’s physician indicated that the refusal was unreasonable, but the employer did not obtain those notes until after it had fired Coffman.  At the time, the Company accepted her refusal of the sedentary job and kept her on leave. 
Continue Reading Termination Notice Referring to Disability Considered Direct Evidence of Discrimination

On April 25, the EEOC approved enforcement guidance on an employer’s use of criminal background checks in making hiring decisions. By a 4-1 vote, the EEOC clarified that a criminal background check is not unlawful.

BUT, the Commission explained its view that the use of criminal histories can be discriminatory in “impact” on minorities and will result in liability for employers if they cannot show “business necessity” for rejecting an applicant based on the applicant’s criminal past.Continue Reading EEOC Issues Guidance on Criminal Background Checks

The EEOC recently ruled that Title VII’s prohibition of discrimination “because of . . . sex” now includes protection for any transgender individual. With this ruling, the EEOC expressly overturns earlier EEOC decisions to the contrary dating back to 1984, 1994 and 1996. Employers should be aware that, according to the EEOC’s current interpretation, any transgender applicant or employee enjoys all of Title VII’s protections against discrimination or harassment.

The complainant had applied for a job with the ATF while a male and believed she was going to be hired given certain promises made in the application process. Later, when the ATF learned she was transitioning from male to female, she was told that funding for the job was no longer available; that information, she later learned, was not accurate.Continue Reading Transgender Status Now Protected Under Title VII

A Cautionary Reminder for Employers

A Texas Federal Court recently ruled that terminating an employee because she wanted to pump breast milk at work is not sex discrimination.  The Equal Employment Opportunity Commission sued on behalf of an individual employee who had mentioned her need to pump breast milk at work and soon thereafter was fired for job abandonment.  The employer claimed that the employee had not kept the employer informed during her leave or about her desire to return to work.  The employer explained that its decision to terminate the employee for job abandonment already had been made before the employee’s request.

The Washington Post reported on this ruling last week.
Continue Reading Texas Court Rules Against EEOC – “Lactation Discrimination” Is Not Unlawful Sex Discrimination But …

Employers struggle with conduct that appears ambiguous but is interpreted by the “victim” as unlawful.  The dilemma arises most often in a sexual harassment setting.  For example, a co-worker comments that another’s clothes make her “look good” or that he “really likes” her perfume.  Employers, and courts, struggle with the intent behind this conduct.  For example, a recent case involved racial harassment allegations based in part on bananas and banana peels littering the truck of an African-American co-worker. Daily Report Online wrote about this case on its website last week.

Would such anonymous conduct support a claim for a racially hostile environment?  In December 2010, in granting summary judgment to an employer, an Alabama Federal District Court said, “No.”
Continue Reading Employer Dilemma – How Should An Employer Respond to Ambiguous Workplace Conduct

Magnifying glassThe EEOC has renewed the debate recently on an employer’s use of background checks in hiring.  Nothing new right?  You know you cannot use arrest records but only convictions because in this country, all are innocent until proven guilty.  But the renewed debate is whether use of conviction records is unlawfully discriminating against minorities.

In evaluating use of conviction records, employers must balance their exposure for possible “adverse impact” discrimination claims and their exposure for negligent hiring or retention claims.  For more on this debate, The Wall Street Journal has a good post on its Law Blog.Continue Reading Why the Renewed Debate on Criminal Background Checks?

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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