Showing 14 posts from May 2011.

Employee must show “Intolerable” Working Conditions to Establish Constructive Discharge

May 18, 2011 by Hinshaw & Culbertson LLP

A pregnant employee used nearly all of her annual paid time off during the first three months of the year, leading the employer to advise her that she could have no more absences. When the employee ignored the warning and began a medical leave on the very next workday, the employer told her that the absence “[wasn’t] going to work.” The employee took this as a termination and chose not to return to work. Instead, she sued the employer for constructive discharge under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, alleging that the employer had made attendance demands that were impossible for a pregnant woman and did so with the intention of making her quit. The U.S. Court of Appeals for the Eighth Circuit found that while the employee’s work conditions were “unpleasant and unprofessional,” they were not “intolerable,” as required to establish constructive discharge. Further, the employee had failed to establish that the employer intended to make her quit or should have foreseen that she would quit because of its demands. Employers should remember that an employee alleging constructive discharge will have to prove both that work conditions were “intolerable” and that the employer specifically intended to force the employee to quit or should have reasonably foreseen that the employee would quit.

Trierweiler v. Wells Fargo Bank, Case No. 10-1343 (8th Cir. Apr. 8, 2011)

Employee’s Failure to Report Renewed Harassment Fatal to Racial Harassment Claim

May 18, 2011 by Hinshaw & Culbertson LLP

A black employee claimed that two of his co-workers started taunting him with racial epithets soon after he was hired. In accordance with the company’s anti-harassment policy, the employee complained to the company owner. The company owner immediately berated the two co-workers and warned that further harassing incidents would result in immediate termination. One of the co-workers continued to use racial epithets. The employee then complained to another worker, but never reported the later incidents to the owner. The employee sued, alleging that the employer violated Title VII of the Civil Rights Act of 1964, as amended (Title VII), for failing to address his co-workers’ continued use of racial epithets. The employee argued that the employer was liable for two distinct failings: (1) inadequate discipline following the initial harassment; and (2) failure to address the later harassment—of which the employer had notice through the employee’s complaints to the other worker. The U.S. Court of Appeals for the First Circuit rejected the employee’s arguments and held that “when co-workers, rather than supervisors, are responsible for the creation and perpetuation of a hostile work environment . . . an employer can only be liable if the harassment is causally connected to some negligence on the employer’s part.” The court ruled that the employer’s response to the initial harassment was “swift and appropriate” and that the employee’s failure to report to the company owner, as ordered, was “fatal to his claim of employer liability.” Employers should adopt an anti-harassment policy that makes clear whom the employee must notify about harassing incidents. By ensuring a swift and initial response to harassment, and a clear directive as to whom employees must notify of current and further harassing incidents, employers will be able to defend against any subsequently filed lawsuit.

Wilson v. Moulison N. Corp., Case No. 10-1387 (1st Cir. Mar. 21, 2011)

Contractor’s Employees Deemed "Statutorily Protected Employees" and Permitted to Handbill Under new "Access Standard"

May 18, 2011 by Hinshaw & Culbertson LLP

A group of restaurant employees engaged in handbilling on casino premises as a part of an organizing campaign by Las Vegas unions. Although not employed by the casino itself, the employees worked on casino property and handbilled in front of restaurants operated by their employer on behalf of the casino. The casino asked the employees to cease their organizing efforts. The employees refused, prompting a visit from the police, who issued citations and removed the employees from the premises. The employees alleged unfair labor practices against the casino. The National Labor Relations Board (NLRB) determined that the casino had, in fact, violated the National Labor Relations Act (NLRA) by prohibiting the handbilling and that the restaurant employees were rightfully on the property as they worked regularly and exclusively on it. In reaching its decision, the NLRB developed an “access standard,” which strikes a balance between the rights of the contractor employees and the property owner’s rights. Under the “access standard,” the property owner may lawfully exclude handbilling on its property, but only where the property owner demonstrates that the activity significantly interferes with the use of the property or where exclusion is justified by a legitimate business reason. Here, the NLRB determined that the casino failed to make the requisite showing and thus violated NLRA Section 8(a)(1) when it prohibited the restaurant employees from handbilling on the premises. Employers should be mindful that the right to organize may extend to more than the employer’s own employees, and that the employer’s contractor’s employees may be “statutorily protected” in their organizing activities.

New York, New York Hotel and Casino, 356 NLRB No. 109 (NLRB Mar. 25, 2011)

EEOC Announces Final Bipartisan Regulations for the ADA Amendments Act

May 18, 2011 by Hinshaw & Culbertson LLP

Regulations Implement Congressional Intent to Simplify Definition of Disability

WASHINGTON — The U.S. Equal Employment Opportunity Commission’s (EEOC) final regulations to implement the ADA Amendments Act (ADAAA) are now available on the Federal Register website. Like the law they implement, the regulations are designed to simplify the determination of who has a “disability” and make it easier for people to establish that they are protected by the Americans with Disabilities Act (ADA)... (read more)

Search

Subscribe via Email

RSSSubscribe via RSS
TwitterFollow us on Twitter

Blog Editors

Blog Contributors

Archives