RSS

Tag Archives: Human Resources

Fifth Circuit Rules Firing Breastfeeding Mom May be Discrimination

Gavel-Scales-of-Justice-American-flag-square

The U.S. Court of Appeals for the Fifth Circuit recently ruled that firing a woman because she is lactating or expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964.

The Equal Opportunity Commission (“EEOC”) filed suit on behalf of Donnicia Venters against her former employer Houston Funding II, LLC.  The suit was based on the Pregnancy Discrimination Act because Venters alleged that her employer fired because she needed to breast feed her child.  (For background see:  Did Judge Get this Right? – Breastfeeding is Not Pregnancy Related).    The district court or trial court entered summary judgment in favor of Houston Funding II and the EEOC filed an appeal.

On appeal, the Fifth Circuit considered, “whether discharging a female employee because she is lactating or expressing breast milk constitutes sex discrimination in violation of Title VII.”  Reversing the district court, the Fifth Circuit answered the question in the affirmative.

The Court found that lactation is a physiological condition distinct to women who have undergone pregnancy.  Therefore, under Title VII and the Pregnancy Discrimination Act, firing a woman because she is lactating or expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason.  As a result of the Fifth Circuit’s decision, Ms. Venters will be able to have her day in court.

If you have questions about employment discrimination or labor and employment law, give Rich Bradford a call at (813) 413-2402.

 

Tags: , , , , , , , , , ,

Employment Attorneys Share Election’s Potential Impact on Workplace Law

Stephanie R. Thomas, who writes the Proactive Employer Blog, has listed areas that may be affected as a result of the re-election of President Obama.  She noted that gender pay gap will continue to be a priority for the Obama administration.   She also pointed to the Equal Employment Opportunity Commission focusing on employment decisions that could have an adverse impact on certain groups.  See Obama’s Next Four Years: What it Means for HR and Employment Law for more details.

Daniel Schwartz at the Connecticut Employment Blog wrote a post entitled Four Potential  Employment Law Impacts of Obama’s Next Four Years. Some of his points are similar to Ms. Thomas’.  Among other things, he suggested that the Employment Nondiscrimination Act, which provides protection against discrimination based on sexual orientation, may become law within the next four years.  He also suggested that we should keep an eye on the National Labor Relations Board, which will continue to assert itself over the next four years.

Notably, both articles suggest a legal trend toward attitudes that would be more favorable toward employees.  Something tells me that Ms. Thomas and Mr. Schwartz’s assessments may be accurate.

 

Tags: , , ,

Sex Discrimination: EEOC and FedEx Settle Lawsuit

Laws against discrimination are designed to ensure that employment decisions are made without regard to an applicant or employee’s race, color, religion, national origin, sex, age, or disability.  An employee that falls in any of these groups is considered to be in a protected category.  InFlorida, employees may pursue remedies under state law (i.e., the Florida Civil Rights Act) or federal law (under Title VII of the Civil Rights Act, the Americans with Disabilities Act, or the Age Discrimination in Employment Act).

The Equal Employment Opportunity Commission filed a sex or gender discrimination lawsuit on behalf of three women who claimed that FedEx Freight Inc. hired a male employee over them.  According to their allegations, the company’s job posting indicated that a bachelor’s degree or related experience was required, as well as two years’ experience in human resources.  All three women met these requirements, while the male employee did not have a degree nor human resources experience.  FedEx agreed to settle this action for $115,000.

Questions regarding employment discrimination can be answered by contacting me, Rich Bradford, at (813) 413-2402.

Source: FedEx Freight to Pay $115,000 to Settle EEOC Sex Discrimination Suit

 

Tags: , , , , , , ,

Tampa Woman Considers Sexual Harassment and Retaliation Claims Against County Official

While this case may be bad for local government, it is worse for the politician. On Tuesday morning on the first page of the Tampa Bay Times, the paper reported “Porn Claims Get Her Fired.”  The sub headline reads “Hillsborough’s appraiser did send staffer porn, but he never discriminated against her, he says.”  Regardless of the outcome of this case, the ending for this politician will not be good.

Carolynn Filippone worked in the office of the Hillsborough County Property Appraiser, holding a couple of positions before eventually rising to the level of director of human resources.  She worked for the current Property Appraiser Rob Turner.  Approximately, two years ago she filed a Charge of Discrimination against Turner’s office with the Equal Employment Opportunity Commission (“EEOC”) based on allegations of sexual harassment.  Specifically, Filippone alleged that Turner had sent her pornographic photos through the emails.  She also alleged that Turner had sent him a text that attached a photo of his genitals.  Think allegations against made by former FSU cowgirl against Brett Farve or former New York Congressman Anthony Weiner.

Readers should understand that this is not a slam dunk case for Ms. Filippone.  In the legal field we like to make reference to tests or prongs.  The first prong in a harassment case is that the alleged harasser engaged in “unwelcome” conduct.  Although Turner denies the texting allegations, he does not deny that he sent her the porn.  He defends himself by saying that she was a willing participant.  There is no dispute that Turner and Filippone for a certain period were engaged in romantic relationship.  He says it lasted about a year and a half.  She says it lasted for years.  Somewhere along the way, it broke off, yet he thought it was okay to send her porn.

Again, Ms. Filippone opened a file with the EEOC approximately two years ago.  The EEOC closed the file in April indicating “The EEOC is unable to conclude that the information obtained establishes violations of the statutes.”  At this point, Turner believed he won the case and on Monday, he fired Ms. Filippone.  In other words, he went from exercising poor judgment, with his use of the emails, to failing to consult wise counsel regarding the employment of Ms. Filippone.  Also, a story that was unknown to the public has become front page news for the last three days.

The dismissal of the EEOC case started a 90-day clock for Ms. Filippone.  She has until sometime in July to decide whether she wants to drop her case against Turner’s office or move forward with a lawsuit in state of federal court.  She is also represented by an excellent Tampa attorney, Steve Wenzel, who is guiding her through her decision.  By firing Ms. Filipponne, Turner unwittingly gave her a reason to move forward with a lawsuit.  To make matters worse, Ms. Filippone can add allegations of retaliation on top of her harassment claims.  I have not done a scientific study, but I always felt that a retaliation claim is always easier to prove than a discrimination or harassment claim.

In less than 30 seconds, these are the lessons for employers from the Turner case: 1) do not date your employees (think Glenn Close and Fatal Attraction); 2) do not send your employees porn; and 3) do not fire your employees when they are in the middle of deciding on whether they should sue you.  In other words, if you are an employer or manager, you need to be able to exercise good judgment and common sense.

Even if Turner’s office prevails in this case, irreparable damage has been done to him and any legacy he was hoping to achieve.  The Property Appraiser position is an elected office, which Turner held for 16 years.  This is an election year and although Turner vowed to seek reelection, the likelihood of an unknown defeating him has increased dramatically.

If you have questions about sexual harassment, feel free to call me, Rich Bradford at (813) 413-2402.

 

Tags: , , , , ,

Did Judge Get this Right? – Breastfeeding is Not Pregnancy Related

            In EEOC v. Houston Funding II, LTD, a Texas court considered whether an employer discriminated against a woman who asked to pump breast milk during breaks at work.  Ruling in favor of the employer, the district court concluded that the employee’s claims did not rise to the level of discrimination.
            Donnicia Venters worked for Houston Funding for approximately two years.  She took a leave of absence to give birth and a few days after delivery told the company VP that she was uncertain as to when she would return.  After this conversation, while Venters maintained contact with her coworkers, she did not make further contact with the VP.  About a month and a half later, the VP held a meeting with several employees and they discussed Venters’ return date.  Concluding that Venters did not intend to return, Houston Funding decided to terminate her employment.
            A few days later, Venters doctor released her to return to work.  When Venters reached the VP, she told him that she was ready to return and asked if she could use a back room during breaks to pump milk for her baby.  The VP told Venters that she had been fired because the company believed that she abandoned her job.
            The Equal Employment Opportunity Commission filed a lawsuit on Venters’ behalf claiming that the company discriminated against her in connection with her pregnancy.  The pregnancy discrimination allegations focused on Venters’ need to pump breast milk at work.
            The Texas judge entered summary judgment in favor of Houston Funding.  Summary judgment is a procedure that allows a judge to enter judgment in favor of one party without trial if the court concludes that the evidence to proceed to trial is lacking.  In reaching its conclusion, the court noted that the Pregnancy Discrimination Act did not cover Venters’ claims.  The court reasoned that lactation is not pregnancy, childbirth, or a related medical condition.  That is right…the court concluded lactation is not“a related medical condition” [to pregnancy].  The court further noted that after Venters gave birth, her pregnancy related conditions ended.
            This case generated some publicity over the last week, with no less than 275 newspaper articles or commentaries. While I admit to not reading all of the articles, I think it would be difficult to find an opinion piece in which the writer agreed with the judge.  It is worth noting, that about 3-4 other courts reached the same result when the issue was presented.
            Also, there has been a change in the law that protects some women who need to pump milk while at work.  In 2008, Congress amended the Fair Labor Standards Act to require employers to provide time for women to pump for up to 12 months following the birth of the child.  This new law, however, applies only to non-exempt employees and there are exceptions.
Additionally, I recommend the following articles/blogs for further thoughts on this subject:   Judge:Legally, breastfeeding not related to pregnancy by the Suzanne Lucas and Lactation Is Not Caused By Pregnancy or Childbirth, Says Judge by Donna Ballman.
Do you think the Texas Judge made the right decision?
 
 

Tags: , , , , ,

Does Bipolar Employee Have Claim For Disability Discrimination

Michael Muzyka worked for Regions Bank as a “Personal Banker.”  During his employment at Regions, Muzyka received performance bonuses.  Muzyka also was diagnosed with bipolar disorder.  His condition caused him to be confused, made it difficult for him to concentrate and experienced difficulty sleeping.

Muzyka’s psychologist provided a list of accommodations to help alleviate the stress associated with Muzyka’s position.  These accommodations included flexibility with deadlines, reducing his workload, and recognizing that despite his normal high levels of performance he could have periods of “average performance.”  Regions rejected Muzyka’s requests for accommodations.

During his tenure at Regions, Muzyka had different supervisors.  Muzyka’s last supervisor indicated that he had performance problems and placed Muzyka on a performance improvement plan.  Regions then terminated Muzyka’s employment.

Muzyka brought a lawsuit against Regions under the Americans with Disabilities Act (“ADA”) and the Florida Civil Rights Act (“FCRA”).  TheADAis a civil rights law that, among other things, protects employees from discrimination based on their disability.  To prove his case, Muzyka had to show (1) that he is disabled; (2) that he was a qualified individual with a disability; and (3) he was subjected to unlawful discrimination because of his disability.

Regions sought to have the Court dispose of the case by filing a motion for summary judgment.  In many civil cases, especially employment cases, summary judgment is critical. When an employer moves for summary judgment, it is telling the judge that on the plaintiff’s best day, his evidence is insufficient to present to the jury.  If the employer wins on summary judgment, the case is over and there will be no trial.  If the employee is able to prevail on summary judgment, he/she gains leverage over the employer.  At this point, the employee’s attorney is in a position to demand a nice settlement for his client.

In this case, Regions claimed that Muzyka was not qualified for the position because of poor performance.  Judge Virginia Covington noted that Muzyka presented evidence that he met his goals and received bonus payments.  Therefore, she denied Regions motion for summary judgment concluding that there were “genuine issue of material fact concerning whether Muzyka was able to perform the essential functions of his job.”

It looks like Regions will have to open up the check book right about now.  Muzyka was terminated a little bit more than two years ago, so he will be looking at that amount in back pay.  Depending on his ability to obtain employment elsewhere, Regions could also be responsible for front pay.   Additionally, theADAand FCRA provides monetary damages for emotional pain and suffering.  Muzyka suffered from a mental condition that no doubt was exacerbated by his treatment by his supervisor.   Regions probably would not want to try this case because on top of all that, Muzyka was fired in December, right before the holidays.  Unless all your “i’s’” are dotted and “t’s” crossed, you would not want to fire someone before the holidays.  As a side note, Regions fired Muzyka after he complained to the Equal Employment Opportunity Commission, giving him a meritorious retaliation claim.

 

Tags: , , , ,