HR professionals regularly implement employee discipline and are adept at navigating the waters of reasonable accommodations for disabled employees. Mingling those two issues, however, can sometimes pull an employer in opposite directions when it’s responding to, for example, a chronically tardy employee suffering debilitating side effects from medication or an employee whose rude or even threatening behavior is due to a psychiatric disability. Adding to this conundrum is the differing and evolving judicial and administrative guidance.
by Jane Pfeifle
An employer made an incorrect assumption about a disabled applicant. When a court disagreed with the assumption, the employer paid the applicant more than $50,000. Lynn, Jackson, Shultz & Lebrun, P.C., the firm of article author Jane Wipf Pfeifle, was involved in this case. All facts are taken solely from the court’s decision.
The Equal Pay Act of 1963 (EPA) prohibits sex-based discrimination in pay and benefits. Employers shouldn’t pay different wages to employees of the opposite sex for substantially equal work. “Substantially equal” work doesn’t mean identical work. It means substantially equal in terms of required skills, effort, and responsibilities.
An employer can defeat an EPA claim of discriminatory compensation if it shows the difference in wages was on account of seniority, merit, quantity or quality of work, or any factor other than sex. Such was the case for FNGP, an auto parts manufacturer.
A great deal of attention has been focused on the U.S. Senate’s recent passage of the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination in the workplace based on sexual orientation and gender identity. The House of Representatives has yet to take up the bill, but there’s much speculation that supporters have the votes necessary to secure passage. Often, supporters can be heard using the phrase “fundamentally transform,” made popular by President Barack Obama, to describe the impact of ENDA in the workplace. But, in reality, the legislation may merely be an example of lawmakers catching up with the citizens they represent.
Behind the curve
Philosophers argue endlessly about “Truth” with a capital “T,” but most people will likely never comprehend that kind of “truth.” Rather, we all view and interpret the world and our experiences through a complex set of lenses that we spend a lifetime creating, both consciously and subconsciously. As Oscar Wilde summed up, “The optimist sees the donut, the pessimist sees the hole.” When it comes to discrimination claims, the law tries to account for differences in perception. Read on to see how employers can find a measure of protection in their honestly held perceptions.
‘But I think I’m an excellent employee!’
Do an employer’s criticisms of a transgender employee’s unruly hair, disheveled clothing, poor writing and speaking skills, and negative client interactions support a discrimination claim based on her failure to conform to a gender stereotype? The U.S. District Court for the District of Colorado recently said no to that question. However, the employee’s termination following a heart attack raised sufficient issues of fact to allow her disability discrimination claim to proceed.
Employee receives mixed performance reviews
In a recent decision, the U.S. District Court for the District of Maryland affirmed the notion that discrimination on the basis of race and discrimination based on national origin are distinct legal claims. Moreover, because 42 USC § 1981 only prohibits discrimination based on race, a claim alleging national origin discrimination under the Act has little chance of success. Let’s take a closer look at this interesting decision.
The U.S. 1st Circuit Court of Appeals recently upheld a jury verdict in favor of an Egyptian-American Muslim employee of the Boy Scouts of America (BSA) who claimed the BSA denied him career advancement opportunities based on his national origin and religion. The court upheld the verdict because the employer failed to show the evidence was “overwhelmingly inconsistent” with the jury’s decision.
Kamal Aly, an Egyptian-American Muslim, began working as a district executive for the BSA’s Mohegan Council in August 2001. During his first two years with the BSA, he completed two professional development trainings and received positive annual performance reviews. read more…