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A Few Good Women

Jon Allison

Jon Allison’s Monday Blog
Last week for the first time women graduated from the Army’s Ranger School.  Two women graduated – Captain Kristen Griest, 26, a military police platoon leader, and 1st Lieutenant Shaye Haver, 25, an Apache attack helicopter pilot.  19 women entered the training.  94 men made it out of 380 that entered training.
Ranger School was opened to women for the first time this past April as the Army assesses integrating women into more positions in combat units.  It is one of the toughest tests the military has.  It requires performing a number of physically and mentally challenging tasks under difficult conditions with little food and sleep.  It takes a couple of months to complete Ranger School if all tests are passed on the first try.  Many take longer to complete the training.  Of the 96 in Griest’s and Haver’s class, 40 went “straight through” and the rest repeated portions of the course.  Last year 4,057 attempted the course and 1,609 graduated.
There are additional tests that those who made it through Ranger School still have to pass to join the 75th Ranger Regiment.  The 94 men who completed Ranger School can continue on.  The 2 women can’t because the Ranger Regiment remains male-only.  That may soon change.
In January of 2013 then-Defense Secretary Leon Panetta and Joint Chiefs Chairman General Martin Dempsey signed an order eliminating numerous limits on women’s service in the military and ordering a quarter-million jobs open regardless of gender.  The military was also ordered to engage in a review of requirements for combat jobs and make any arguments in support of keeping certain jobs closed to women by January of 2016.  Standards were not to be reduced.
The Navy and Air Force have few jobs closed to women.  The Army and Marine Corps still have numerous positions that remain closed to women which often involve fighting in small units on the front lines and doing physically grueling tasks.  The military is completing their reviews and will make any arguments to Defense Secretary Ash Carter in the coming months.
It appears that most if not all jobs that remain closed to women may open.  There remain deep divides over the wisdom of this.  Some believe if you can meet the established standards then you should be allowed to have the position.  Others believe despite that, there are still reasons to leave some jobs closed to women.
For more on this topic see . . .
The Washington Post Editorial Board: Let women serve in elite military units

Kathleen Parker: Military is putting women at unique risk

William Denn: Women in combat roles would strengthen the military

Dan Lamothe: These are the Army’s first female Ranger School graduates



Customer Tells Lowe’s “Don’t Send a Black Delivery Driver”

Jon Allison

 Monday Blog

Last week a Lowe’s Home Improvement delivery driver in Danville, Virginia was told he could not make a delivery because he is African-American and the customer did not want a black person on her property.

Marcus Bradley has been employed with Lowe’s for 11 years.  He and Alex Brooks, a long-time coworker who makes deliveries with Bradley, were in their truck on the way to make the delivery when their manager called and told them to come back.  Their manager told them that the customer had given specific instructions that she didn’t want a black employee making the delivery.  Both were shocked, but they turned the truck around and went back.  Brooks, who is white, refused to get back in the truck and make the delivery without Bradley.  Another white driver made the delivery.

Upon learning of the situation, Lowe’s terminated the manager involved and apologized to its employees.  Lowe’s also issued a statement saying “Under no circumstances should a discriminatory delivery request be honored as it is inconsistent with our diversity and inclusion core values and the request should have been refused.”  The homeowner who made the request said “I got a right to have whatever I want and that’s it,” and “I don’t feel bad about nothing.”

Even where a company has policies against discrimination, managers still make discriminatory employment decisions.  Follow this link to read more.

14-Year Employee Terminated After Background Check Reveals 1990 Misdemeanor

BMW is going to trial soon on the issue of whether it violated employment discrimination laws when it used criminal background checks at its Greer, South Carolina plant that had a disparate impact on African-Americans.  The background checks were completed in 2008.  After reviewing the background checks 88 employees lost their jobs.  70 were African-American and many had been employed for years.  One was terminated after 14 years of employment because her background check revealed a misdemeanor from 1990 with a fine of $137.

Additional information can be found here.



Ohio’s Message To Plaintiff’s Employment Attorneys: Don’t Help Low Wage Workers

Jon Allison

Having just finished up a jury trial where the plaintiff won a wrongful termination claim and was awarded lost wages and compensatory damages, the timing seems right to discuss attorney fees under Ohio law in employment cases.  Under Ohio law, attorneys who take on cases where an employee was wrongfully terminated must first prove the discrimination, harassment and/or retaliation.  If they are successful in doing so, in order to have a chance at being paid for their work without taking some percentage of the employee’s award of lost wages and compensatory damages, they must prove separately and by a higher standard of proof that the employer not only discriminated, harassed and/or retaliated, but that it did so maliciously and should be made to pay a punitive damages award.  Only after the attorney proves that punitive damages are appropriate, is there an opportunity to be paid for the legal work under Ohio law, but there is still no guarantee.

The problem with this scheme is that it operates as a huge disincentive to take on cases for minimum wage or other low wage workers.  An attorney could win trial after trial for minimum wage workers and not be able to pay the bills to keep the law firm going.  Low wage workers are the ones who are most vulnerable to wrongful conduct on the part of their employers.  Most plaintiff’s employment attorneys want to devote time to help these low wage workers.  Ohio says don’t.


Inside Job

Jon Allison

Monday Blog
Last week a group of four former store detectives filed a class-action lawsuit against CVS alleging that it directed them to racially profile African-American and Hispanic customers and then retaliated against the detectives when they complained that the practice was discriminatory.  The plaintiffs say that two loss-prevention supervisors for the Manhattan and Queens store locations on a regular basis told the detectives to profile African-American and Hispanic customers because they were the ones who were always the thieves.  After complaining to superiors, the plaintiffs say they were subjected to false criticism of their performance.  Three of the plaintiffs were then terminated earlier this year while one was terminated before that.  One of the attorneys for the plaintiffs said that, while there have been profiling cases filed by customers, “this is the first time a group of employees has banded together to provide an inside account and expose the blatant racial profiling policy at one of the largest retailers in the world.”
Find more information here.

The Expectation That Dads Prioritize Work
Josh Levs was the fatherhood reporter for CNN in the summer of 2013 when his wife gave birth prematurely while suffering from a severe pregnancy complication.  Months prior to the premature birth of his daughter he had requested 10 weeks of paid leave.  At the time CNN offered 10 weeks of paid leave under CNN’s leave policies.  He found out that the 10 weeks of leave only applied to men in cases of adoption or a surrogate birth.  He asked if CNN would change the policy.  He was told no 11 days after the premature birth of his daughter.  Instead, when his family needed him most, he got 2 weeks of leave which was at that point used up.  He filed an EEOC complaint which is not yet resolved.  CNN has, however, changed its policy.  Read this article for more details.


Blog Update: Supreme Court Issues Decision On Religious Accomodation

Jon Allison

On Monday the Supreme Court issued its decision in the Samantha Elauf/Abercrombie & Fitch case ruling in favor of Elauf.  The Court held “Title VII forbids adverse employment decisions made with a forbidden motive, whether this motive derives from actual knowledge, a well-founded suspicion or merely a hunch.”  Abercrombie denied Elauf employment because she wore a headscarf to her interview that Abercrombie says conflicted with its dress code.  But Abercrombie did not tell Elauf of the dress code during the interview so Elauf did not know to request a religious accommodation allowing her to wear it.  Abercrombie then argued that Elauf never brought it up, so Abercrombie should be off the hook.  The Supreme Court found that Abercrombie at least suspected that Elauf wore the headscarf for religious reasons and it could have easily offered her the accommodation of allowing her to wear it.  This case makes it clear that employers can’t just put their head in the sand when it appears an applicant may request a religious accommodation.

This is an update on Jon’s original blog post from March 2, 2015 titled We Don’t Allow Hats. You Got A Problem With That? .  Click on the title to read the original post.