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Jon Allison’s Monday Blog

Jon Allison

We Don’t Allow Hats.  You Got A Problem With That?
Last week the Supreme Court heard oral arguments in the case of Samantha Elauf and Abercrombie & Fitch.  Elauf was denied a job as a sales-floor employee because she wears a headscarf as a practicing Muslim.  Under Abercrombie’s “look policy” hats are forbidden.  The issue the Supreme Court must decide is whether Elauf had a duty to ask for a religious accommodation to Abercrombie’s policy allowing her to wear the headscarf or whether Abercrombie had a duty to offer one.
Abercrombie’s position is that it didn’t have to make an exception to its policy because Elauf didn’t tell Abercrombie she wore the headscarf for religious reasons, didn’t ask for a religious accommodation and Abercrombie’s handbook instructs managers not to ask candidates about their religion.
On the other hand, Elauf and other job candidates wouldn’t know Abercrombie policies and therefore wouldn’t know of any need to request an accommodation.  The reality is inferences about a person’s religion are often drawn by certain clothing items worn.  Abercrombie’s policy forbids hats not headscarves.  Its policy and others like it could easily be used to impermissibly deny employment when the real reason for the denial is the applicant’s religion.
Nearly all of the justices seemed to side with Elauf.  Justice Sotomayor suggested that the interviewer could have told Elauf of the no hat policy and asked if she had “a problem with that.”  This would have been an appropriate way to prompt Elauf to request an accommodation allowing her to wear the headscarf.  This case has received a lot of coverage. For more see the following articles from The Washington Post, CNN, Huffington Post.
Was I Not Hired Because Of My Age?
The vast majority of people who decide to talk to a lawyer about possible age discrimination have been terminated from a job or are experiencing problems in a job they currently hold.  What about looking into whether age discrimination may have been the reason a job applicant wasn’t hired?  Applicants should be paying attention to statements made and questions asked by the employer during the application process like “when do you plan to retire?” or “when did you graduate?”  Also, if a younger and less qualified applicant is chosen for hire over an older and more qualified applicant, age discrimination may be at work.  For more insights, see this article.
“Ban The Box” Adds Georgia
The policy known as “ban the box” refers to employment forms that ask about prior criminal convictions.  States and cities that have adopted the “ban the box” policy no longer require job applicants to disclose their criminal histories on these forms.  Supporters of the policy say it helps people with criminal records reintegrate into society.  Some states only apply the policy to those applying for state jobs whereas others apply it to the private sector as well.  This blog goes into further detail.

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Pedophobic Teacher Loses Disability Bias Case

John Concannon

Maria Waltherr-Willard was a successful foreign language teacher in the Mariemont City School District for many years.  In 1997, the district asked her to teach at the elementary school.  She submitted proof that she suffered from pedophobia, a fear of young children.  The district had an independent evaluation done which confirmed pedophobia and she remained in the high school position.
In 2009, the district moved its French classes on on-line instruction.  Upon this change there was no suitable position for Ms. Waltherr-Willard at the high school and she was moved to the middle school without initial objection.  Six months later she sought to return to the high school.  She was told that there were no suitable positions and she retired.
Ms. Waltherr-Willard then sued the district alleging violations of age discrimination in employment act of 1967 and the Americans with Disabilities Act of 1990.
Summary Judgment was granted in favor of the district on February 11, 2015 the U.S. Court of Appeals for the 6th circuit affirmed that decision.
The age discrimination claim failed because the teacher retained at the high school to teach Spanish was only two years younger and that is not substantial.
Ms. Waltherr-Willard’s pedophobia based disability claim was denied because although the ADA requires accommodation of an employee, creating a new position at the high school for her or displacing the existing Spanish Teacher was not required.  See attached case.

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Monday Blog

Jon Allison

Another Story Of Corporate Greed
Last week a jury in New Orleans found an Alabama-based ship repair company, Signal, guilty of labor trafficking, fraud, racketeering and discrimination and ordered it to pay 12 million dollars to five Indian men who agreed to come to the United States in 2005 to repair oil rigs and facilities after Hurricane Katrina.  Signal recruited approximately 500 workers from India to save on the cost of hiring US workers (approximately 8 million in savings).  It promised them a better life, including good jobs and permanent US residency for their families.  It did not live up to either promise and instead forced them to work under inhumane conditions.  When some of the men complained, the company attempted to have them deported.  Co-defendants, a New Orleans lawyer and an Indian recruiting company, were ordered to pay $915,000 each for their respective roles.  A number of related lawsuits are pending.  To find out more, see this article.

Sexist Practices In The Air
Qatar Airways, the world’s 10th largest air carrier, still maintains rules for its female flight attendants similar to the type of policies that were outlawed in the United States half a century ago.  According to the Washington Post, female flight attendants must be single to be hired and stay single for 5 years.  They have to ask permission to get married.  They can be terminated for being pregnant and must advise the airline if they become pregnant.  Other airlines around the world continue to engage in similar practices, including holding swimsuit competitions for female flight attendants.  This post goes in to more detail.

Hospitals Refusing To Acknowledge Injuries To Their Own Nurses
If you’ve tuned in to NPR this month you may have heard accounts of injured nurses and their employers’ responses to those injuries.  According to NPR, hospitals around the country are all too often refusing to acknowledge injuries to nurses caused by lifting and moving patients.  State laws require companies to pay workers’ compensation to support employees injured on the job while they’re missing work and their paychecks.  One example of that not happening is the case of Terry Cawthorn and Mission Hospital in Asheville, North Carolina.  Cawthorn was a nurse at Mission for more than 20 years when she hurt her back trying to move a patient.  Mission refused to help Cawthorn.  The hospital’s own medical staff determined she was hurt moving patients.  The hospital, however, took the position that she hurt her back lifting a dinner casserole out of her oven.  Mission hospital then terminated Cawthorn as a result of her injury saying that she was no longer fit to work.  The termination letter was delivered to her in her hospital bed 2 days after her surgery, thereby saving the money for postage.
Hospital To Nurses: Your Injuries Are Not Our Problem

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Monday Blog

Jon Allison

Kansas takes a big step backwards on LGBT rights
Kansas Governor Sam Brownback issued an executive order last week eliminating protections available to state employees discriminated against on the basis of sexual orientation or gender identity.  In doing so, he did away with a 2007 executive order issued by then Governor Kathleen Sibelius preventing discrimination, harassment and retaliation against such employees.  Governor Brownback makes this move years into his administration at a time when nationwide LGBT rights are expanding.  Follow this link for more information.

Don’t quit
A federal appeals court in Boston recently ruled against a former employee in a disability case for quitting during the “interactive process.”  Under the Americans with Disabilities Act, employees seeking accommodation of a disability are to engage with the employer in an “interactive process” which involves an informal dialogue between the employee and the employer where the two parties discuss the issues affecting the employee and potential reasonable accommodations that might address those issues.  It requires cooperation from both parties.  The employee in this case suffers from diabetes and was seeking accommodation relative to her work schedule.  The court found that, although the employer rejected the employee’s suggested accommodation, it offered to look at other alternatives.  Rather than continue with the dialogue, the employee quit.  For more details read this article.

Orting’s first African-American police officer claims racism
Earlier this month Orting, Washington’s first African-American police officer filed a complaint alleging race discrimination and retaliation against the police department.  According to the former officer, prior to joining the department he never thought about how race may impact his employment experience.  During his probationary period he was subjected to racial remarks by the Police Chief.  Then, after complaining to the Equal Employment Opportunity Commission, his car was vandalized with racial profanity and a threat that he would pay for suing the Chief.  Click here for more details on this situation.

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Monday Blog

Jon Allison

Food for Thought
Nearly 40% of sexual harassment claims filed with the Equal Employment Opportunity Commission come from the restaurant industry.  A majority of servers are female and because they rely on tips for most of their pay, they report being less willing to challenge harassment from male customers.  A number of states have raised the minimum wage paid to tipped workers making them less reliant on tips for their pay.  According to Restaurant Opportunities Centers United, in those states sexual harassment by customers, co-workers and managers is less prevalent.  For more details, read this article.

Only 64th worst
Three managers at the former Airbus Alliance LLC in Miami were ranked 64th on eBoss Watch’s list of America’s 100 worst bosses.  According to a whistleblowing Human Resources manager, the three racist managers told her that giving an African-American a job application would be a “waste of paper.”  Applications from African-Americans were thrown in the trash and the company hired no African-Americans over a four-year period.  When the human resources manager complained about the racist practices, she was fired.  Still, 63 bosses ranked higher on eBoss Watch’s list.  Get more information here.

How much evidence do you need to show discrimination?
Last week the U.S. Court of Appeals for the Fifth Circuit overturned a lower court’s decision and found direct evidence of race discrimination when a casino waitress in Louisiana wasn’t promoted to a managerial position.  The plaintiff in the case presented evidence from her former manager that the decision maker said he would not permit “a dark skinned black person” to handle money at the casino and said several times that the plaintiff was “too black to do various tasks at the casino.”  The lower court had earlier found this wasn’t enough evidence to show discrimination.

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