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BT Currents - Hot Topics in Employment Law
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04 Apr 2013 ADA Charge Verified by Counsel Is Insufficient; Plaintiff Failed to Exhaust Administrative Remedies

In Davenport v Asbury, Inc, the plaintiff, Lori Davenport, brought several claims against her former employer, including an alleged violation of the Americans with Disabilities Act, as amended (ADA). The U.S. District Court, Eastern District of Tennessee dismissed Ms. Davenport’s ADA claim, holding that she failed to exhaust her administrative remedies. The dismissal occurred as a result of a technicality wherein Ms. Davenport personally failed to verify the allegations set forth in her EEOC Charge of Discrimination, which must be filed prior to litigating any…

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03 Apr 2013 What Happens on Facebook Stays on Facebook…Or Else

A Magistrate Judge within the United States District Court for the District of New Jersey recently affirmed the significance of social media postings in litigation proceedings, finding deactivation of a plaintiff’s Facebook account to constitute spoliation of evidence and warrant the issuance of an adverse inference against him at trial. Specifically, in Gatto v. United Air Lines, Inc., found here, a plaintiff alleged to have suffered an injury while working at the airport claimed, among other things, that his injuries precluded him from working and…

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02 Apr 2013 Seventh Circuit Finds Menial Tasks, Isolation, and Allegations of Violence Provide Pipeline to Jury Trial

In reversing a district court’s grant of summary judgment on an employee’s hostile work environment claim under Title VII, the Court of Appeals for the Seventh Circuit found a female plumber to have alleged sufficient facts to make it to a jury trial. Specifically, in Hall v. City of Chicago, found here, the only female plumber working within a particular division for the City of Chicago, alleged, among other things, that she was forced to do menial tasks (e.g., sorting of the exact same documents…

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02 Apr 2013 U.S. Supreme Court to Consider Application of ADEA to State and Local Workers

The U.S. Supreme Court has agreed to hear an appeal from Illinois Attorney General Lisa Madigan on the issue of whether state and local government employees can bypass the Age Discrimination in Employment Act and sue for age discrimination under an equal protection theory. The case is Madigan v. Levin, Docket Number 12-872. Appellate courts are split on whether the ADEA is the exclusive route for state and local government employees to bring a claim for age discrimination, or whether an equal protection claim via…

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01 Apr 2013 Increasing Discrimination Obligations Coming from State and Municipal Levels

In this recent Metropreneur Columbus article, I talked about the long term trend for forms of discrimination to only increase.  Rarely since the passage of Title VII in 1964 has a cause of action for discrimination been taken away.  As discussed more in the article, current manifestations of this long term trend include laws at various levels to protect employees against discrimination on the basis of their sexual orientation or identity, or on the basis of their unemployed status. Many of these particular initiatives are on the…

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28 Mar 2013 Indiana Bill Would Restrict Local Government Entities from Setting Laws on Leave

The Indiana legislature recently passed a bill limiting a local government entity’s ability to regulate private employers within its territorial boundaries. Senate Bill No. 213, set to be signed into law by Governor Mike Pence, specifically restricts a county, city, town, or township from requiring that an employer provide employees any benefit, term of employment, working condition, or an attendance or leave policy that exceeds the requirements of federal or state law. For more information on what this bill would mean for employers, check out…

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22 Mar 2013 ADA Reasonable Accommodations and Wellness Programs

As a means of dealing with ever increasing healthcare premiums, many employers have chosen to implement wellness programs to improve the health of their workforce, thereby reducing claims. The EEOC has recently issued an interpretation letter stating that employers have an obligation to provide a reasonable accommodation for their employees who are participating in a health contingent wellness program. These types of wellness programs require an employee to meet certain standards related to a health factor (i.e. reducing blood pressure or losing weight, etc.) to achieve a…

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22 Mar 2013 Federal Court Enjoins the Application of the Contraceptive Mandate to Company Owned By the Founder of Domino’s Pizza

On March 14, 2013, U.S. District Court for the Eastern District of Michigan issued a preliminary injunction against the application of the contraceptive mandate under the Patient Protection and Affordable Care Act to a for-profit employer. District Court Judge Lawrence Zatkoff ruled that Domino’s Farm Corp., a for-profit property management company owned by Tom Monaghan, the founder of Domino’s Pizza, did not have to comply with the contraceptive mandate because it violated Monaghan’s religious beliefs. Judge Zatkoff wrote, “It is in the best interest of…

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18 Mar 2013 Employee Retaliation Claims: Will the Supreme Court Stem the Tide?

It was no surprise for practitioners and their clients alike to learn that, statistically, retaliation claims remain the largest number of claims brought before the EEOC (in 2012, almost 38,000 charges alleged retaliation—38.1% of all charges). Worse, retaliation claims are expensive to defend. This point is painfully highlighted in this week’s submissions with the U.S. Supreme Court. Last week, the U.S. Chamber of Commerce (along with the Retail Litigation Center) filed with the Supreme Court an amici curiae brief in a case in which retaliation…

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15 Mar 2013 Did They Just Say That? A Reminder That Off-The-Cuff Remarks Handcuff Employers in Employment Lawsuits

A recent race discrimination and retaliation case in Pennsylvania underscores the risks of off-the-cuff remarks by managers.  The case in the Middle District of Pennsylvania, Johnson v. Hershey Creamery Corp., No. 1:11-cv-00776 (M.D. Pa. Mar. 8, 2013), involved an African-American who worked as a seasonal employee for Hershey Creamery.  At the end of each season, the employee was laid off.  One year, two of his Caucasian co-workers were hired as full-time, regular employees.  When he asked why he was not hired, Hershey told him that…

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