Just hearing the word, “lawsuit,” is enough to make employers cringe. As with most negative situations, employment litigation included, there are lessons that can be learned to prevent future problems.
Here were the top cases from 2017.
- Sexual Harassment
While the plethora of sexual harassment claims and stories of inappropriate conduct that you’re hearing about in the news, on social media, or in personal discussions may or may not become full-fledged lawsuits, the pervasiveness of the problem cements 2017 as tipping point.
- Have a committed and engaged leadership team.
- Demonstrate consistent accountability.
- Adopt strong and comprehensive harassment policies.
- Maintain trusted and accessible compliance procedures.
- Offer interactive sexual harassment training tailored to your organization.
This year there were 3 prominent cases related to sexual orientation discrimination in the workplace.
Hively v. Ivy Tech Community College
An openly lesbian associate professor at a community college was denied consideration for 6 full-time jobs that she applied for at the college and her part-time position wasn’t renewed. She claimed discrimination based on her sexual status. The U.S. Court of Appeals for the Seventh Circuit ruled in her favor and the case will likely be resolved by the U.S. Supreme Court.
Ellingsworth v. Hartford Fire Ins. Co.
A supervisor allegedly told an employee that she “dressed like a dyke” and had “lesbian tattoos.” The supervisor asked the employee to show her tattoos and had other employees weigh in on whether they thought the tattoos made her look like a lesbian. The employee, who was heterosexual, went on leave and eventually resigned. She alleged constructive discharge.
The U.S. District Court for the Eastern District of Pennsylvania upheld the case and found that gender stereotyping may violate Title VII of the Civil Rights Act of 1964.
Blatt v. Cabela’s Retail Inc.
After 6 months on the job, the plaintiff in this case, a transgender woman, alleged she was fired for gender dysphoria, a gender identity disorder. The plaintiff purports that gender dysphoria is a disability protected under the Americans With Disabilities Act (ADA) and caused her significant stress and substantially limited her activities. The U.S. Court of Appeals for the Third Circuit sided with the plaintiff.
- Title VII of the Civil Rights Act of 1964 may be extended to prohibit sexual orientation discrimination and gender stereotyping.
- In some of these cases, bullying went on for a year and no one did anything to stop it. Doing nothing is not a viable business decision and doesn’t hold up well in court.
- The highest U.S. court yet has ruled that the ADA may cover gender dysphoria or other conditions related to gender identity disorder, potentially expanding employment protections to some transgender individuals.
- Adhere to ADA requirements to accommodate disabling impairments, even if the condition isn’t currently spelled out explicitly.
- Providing training about sexual orientation harassment is a logical next step for employers. California employers with 25+ employees will be required to do this in 2018.
- Americans With Disabilities Act (ADA)
In Williams v. AT&T Mobility Services, a customer service representative with depression and anxiety who had asked for various accommodations, such as a flexible start time, was let go for poor attendance. The plaintiff filed an ADA claim.
The U.S. Court of Appeals for the Sixth Circuit ruled in favor of the employer stating that regular attendance was an essential job function. It also found that the plaintiff had not proposed reasonable accommodations.
Lesson Learned: If employers need employees to reliably and consistently be at work, say so in their job descriptions. An Attendance Guidelines policy helps too. In addition, show compassion and provide leeway for employees. Do not rush termination.
- Equal Pay Act
In Rizo v. Yovino, a math consultant alleged that she was paid less than her male counterparts in similar positions on the basis of her sex.
In this case, the accused employer couldn’t justify its salary determination process.
Lessons Learned: Relying on prior pay as a way to justify pay differences among employees is facing growing scrutiny. On average, a woman earns $0.79 cents for every dollar a man earns, and women’s median annual earnings are $10,800 less than men’s.
A seniority system, a merit system, a system that measures earnings by quality or quantity of production, or a differential based on any other factor besides sex are potentially stronger ways of justifying a pay disparity.
- Fair Labor Standards Act (FLSA)
Saleem v. Corporate Transportation Group ended up being dismissed by the U.S. Court of Appeals for the Second Circuit, but in it, plaintiffs claimed that they should have been classified as employees not independent contractors and were therefore entitled to overtime pay.
Lesson Learned: If your organization hires freelancers, contractors, etc., be careful not to set up an employment relationship. Certain states, such as New York, require employers to define independent contractor arrangements in writing and have individuals sign off on them.
When in doubt about what to do with a tricky work situation, don’t hesitate to get a second opinion from an expert. Through KPA’s HR solutions, you gain on-demand access to HR consultants who can answer your toughest questions. KPA also partners with FordHarrison, an award-winning global law firm, for additional legal interpretation and support.