Miami Employment Lawyer Blog

Last week we filed a lawsuit in Federal Court under the Equal Pay Act of 1963 on behalf of our client alleging that her former employer, the University of Miami, failed to pay her the same wages as they paid men performing the same or similar work with similar responsibility and requiring similar skill and effort. Attached is a copy of the Complaint.

The Complaint alleges that the Plaintiff worked for the Athletic Department of the University for over 15 years, was promoted in the year 2000 and again promoted to the position of Director of Football Relations in the year 2008. However, as Director of Football Relations, she was paid significantly less than other male employees in comparable positions with similar responsibility and requiring similar skill and effort. Under the Equal Pay Act, men and women in the same workplace must be given equal pay for equal work. While the jobs do not need to be identical, the law requires that if the content of the job is similar or substantially equal, then the remuneration must also be the same. This includes all remuneration, including salary, overtime pay, bonuses, vacations, benefits, etc. The law also provides that if there is unequal pay, an employer must raise the amount it pays to women rather than reduce the salary and/or benefits paid to men.

In the lawsuit, we are alleging that the Plaintiff was paid as much as $39,500 less than men doing the same or similar work with similar responsibility and requiring similar skill and effort. The positions have different titles, but under the law, titles are not determinative; what is important is job content. As stated above, if the content of the job is similar or substantially equal, and the jobs have similar responsibility and require similar skill, then the remuneration must be the same for both men and women.

Continue reading "Equal Pay Act Lawsuit Against University of Miami Alleges that Woman was not Paid the Same as Men for the Same Work" »

In previous postings, we reported that the Eleventh Circuit Court of Appeals (which covers Florida) held that "mere flirting" in the workplace is not actionable because it is part of workplace socializing. In that case, Corbitt v. Home Depot U.S.A., Inc., No. 08-12199 (11th Cir., 2009), two employees were subjected to comments, caressing, unwanted hugs, stroking of their hair, and touching of their thighs by their supervisor. The two employees were also subjected to sexually harassing telephone calls, invitations to go out for drinks, and comments about their appearances, such as being "cute" and the color of their hair and their private parts, as wells as suggestions that they would "like it" if they went out with their supervisor. On several occasions the supervisor would forcefully hug the employees in front of other employees and in company meetings. The conclusion in that case was that the conduct in question was just not pervasive enough to constitute sexual harassment. See Court Holds that "Mere Flirting" in the Workplace is Fine; Sexual Harassment Must be Pervasive in Order to be Illegal, Miami Employment Lawyer Blog, October 11, 2009.

Last week, the U.S. Equal Employment Opportunity Commission ("EEOC") filed a lawsuit in U.S. District Court for the Middle District of Florida against two Florida-based travel telemarketing firms on behalf of five female employees that were allegedly sexually harassed by their supervisors. In that case, U.S. EEOC v. Four Amigos Travel, Inc., et al., No. 8:11-CV-1163-T-26 MAP, the EEOC alleged that several male supervisors, including the general manager, conducted daily sales meetings in which there were sexually charged and sexually explicit discussions. The supervisors and managers also allegedly openly propositioned female employees for sex, inappropriately touched themselves, inappropriately touched the female employees, made other aggressive sexual advances towards them and used sexually derogatory terms. One of the supervisors is alleged to have shown a photo of his private parts to a female employee and bragged about it.

Although it is difficult to compare the conduct in the Four Amigos Travel case case with the Home Depot case, it appears that the EEOC is confident that the conduct in their recently filed case is sufficiently pervasive to constitute sexual harassment. The EEOC stated that the women were offended and intimidated by the harassment and were ridiculed for complaining about it. Nevertheless, we will watch this case closely and draw comparisons to the Home Depot decision as the case develops.

Continue reading "EEOC Florida Lawsuit Aims at Curbing Sexual Harassment" »

We filed a class action lawsuit in Federal Court in South Florida this week on behalf of our client alleging that the University of Miami discriminated against her because it denied her employment based on her credit report. The lawsuit was brought on behalf of our client and also on behalf of all other persons similarly situated that were denied employment by the University of Miami because of their credit reports. Attached is a copy of the Class Action Complaint - Appolon v. University of Miami.pdf.

The Complaint alleges that Loudy Appolon interviewed for a position with the University of Miami, Miller School of Medicine in June 2009, and she was offered the position. Indeed, she had been working in the same field for a significant period of time and was qualified for the position. However, one day before she was to start her new job, the University informed her that she would not be hired because of her credit history.

We allege that such conduct is a violation of Title VII of the Civil Rights Act of 1964 because the rejection of qualified individuals due to their credit history is not an accurate reflection of how the employee will perform and it furthers the racial discrimination that is present in the credit reporting system.

Continue reading "University of Miami Accused of Discrimination Because It Screens Job Applicants Based on Their Credit Reports" »

The U.S. Equal Employment Opportunity Commission ("EEOC"), the federal agency charged with enforcing the federal anti-discrimination laws, filed a lawsuit in federal court last month against the Maxwell House Coffee Company alleging that the company discriminated against a female employee because it disciplined her more harshly than male employees. The complaint was filed in U.S. District Court for the Middle District of Florida and alleged that Francena Smith was subjected to unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964 when she was discharged for an incident that involved damage to coffee product. Specifically, the EEOC alleged that at least six male employees who were involved in similar incidents that damaged coffee product were not discharged, but were simply given minor discipline, such as verbal warnings. All of the male employees had comparable disciplinary records as Smith. In fact, the complaint alleges that on the day of the incident involving Smith, another male co-worker was also involved in an incident that damaged coffee product, but that male co-worker was just given a verbal warning. Smith, however, was discharged.

Disciplining female employees more harshly than male employees for the same or similar conduct constitutes sex discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"). Under Title VII, it is illegal for an employer to discriminate against an employee because of that person's sex. Therefore, if female employees are treated differently than male employees with respect to terms and conditions of employment, the employer may be in violation of Title VII. In the Smith case, the company had a policy of progressive discipline whereby an employee is first be given a verbal warning, followed by a written warning, suspension and then finally termination if the conduct is not corrected. The EEOC alleged that the company failed to follow this progressive discipline policy in Smith's case, particularly because she had had not been disciplined for over two years and should have been given a verbal warning rather than termination.

Treating employees differently because of other factors may also be illegal and a violation of federal law. For example, treating older employees differently than younger employees could be a violation of the Age Discrimination in Employment Act of 1967, and treating disabled employees differently than non-disabled employees could be a violation of the Americans with Disabilities Act of 1990.

Continue reading "EEOC Sues Florida Coffee Manufacturer for Sex Discrimination Because It Treated Female Employee More Harshly Than Male Employees" »

Many clients have come into our Miami office after being injured on the job and claiming that their employer does not want to put them back to work. The employee usually takes time off to care for the injury, but then is either terminated or not returned back to work. That may constitute unlawful retaliation under Section 440.205 of the Florida Statutes and, as the U.S. Equal Employment Opportunity ("EEOC") has recently stated, it may also constitute a violation of the Americans with Disabilities Act of 1990 ("ADA").

The EEOC has recently issued a guidance memorandum regarding the interplay between state worker's compensation laws and the ADA. One of the issues addressed by the EEOC is whether an employer must reassign an employee who is injured on the job and can no longer perform the essential functions of his or her job because the injury resulted in a disability under the ADA.

As an example, the EEOC cites the case where a maintenance worker fractures his or her legs in a workplace accident, takes six months' leave to recuperate, and returns to work with medical restrictions because his or her legs have become fragile due to the injury. The employee's physician states that the employee can return to work but cannot walk or stand for more than short periods of time. The EEOC states that in this case, the employer is required to provide a reasonable accommodation unless there is no accommodation that will lower the risk of harm. (e.g., there is a risk of substantial harm that cannot be eliminated or reduced with a reasonable accommodation).

However, if there is no reasonable accommodation that can be provided that will lower the risk of harm, then in that case the employer is required to reassign the employee unless it would pose an undue hardship on the employer (e.g., a significant difficulty or expense). The employer must reassign him/her to an equivalent vacant position for which s/he is qualified, absent undue hardship. If no equivalent vacant position (in terms of pay, status, etc.) exists, then the employee must be reassigned to a lower graded position for which s/he is qualified, absent undue hardship. Failure to follow these procedures may be a violation of the ADA.

Continue reading "EEOC Issues Guidance Regarding Work-Related Injuries and an Employer's Duty to Accommodate Employees under the American's with Disabilities Act" »

The Miami office of the U.S. Equal Employment Opportunity Commission (EEOC) reported last week that it settled a pregnancy discrimination lawsuit that it filed against Hilton Grand Vacations Company, LLC, an Orlando-based resort company. In that case, an employee who worked as a recruiter was persuaded to resign her job when she became pregnant. According to the complaint that was filed in court, the company had promised to re-hire her after delivering her child. However, Hilton failed to hire her and actually passed her over for several positions when she applied. The consent decree entered by the court requires Hilton to pay $25,000 in monetary damages and also requires the company to conduct training regarding pregnancy discrimination.

Under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, treating women who have complications with their pregnancy different than other employees with a medical condition is pregnancy discrimination. The law provides that pregnant women and women who come back from maternity leave after giving birth, must be given the same rights as any other employee who incurred a similar medical condition.

Continue reading "Pregnancy Discrimination Lawsuit Settled by Hilton" »

The Pregnancy Discrimination Act of 1978 (PDA) provides that it is illegal for an employer to discriminate against an employee on the basis of pregnancy. Despite the passage of this law more than 30 years ago, pregnancy discrimination is still a very real and common occurrence in the work place. In fact, many employers still think that pregnant women should not be working "for their own protection." Such comments not only show ignorance, but they demonstrate illegal discrimination. For example, just last week, the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Dreamz ATL, a large nightclub in Atlanta, Georgia, for terminating the employment of a waitress after learning that she was pregnant. The complaint alleges that the manger of the nightclub had taken the waitress off the work schedule when he found out that she was pregnant. When the waitress complained, he wrote her a text message stating "You are prego. You shouldn't be working."

An employer discriminates when it treats an employee or applicant for employment adversely because of pregnancy, childbirth or a medical condition related to pregnancy and childbirth. Under the provisions of the PDA, employers need not give pregnant women preferential treatment, but they must comply with the dictates of the law, which provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work." This means that pregnant women must be allowed to continue performing their work and must be treated like any other employee that may be affected by a similar medical condition.

Continue reading "Even Well-Intentioned Comments and Conduct May Constitute Pregnancy Discrimination" »

The U.S. Equal Employment Opportunity Commission (EEOC) reported last week that it settled a lawsuit that it had filed against a Sonic drive-in restaurant in Athens, Georgia. The EEOC filed suit in U.S. District Court for the Middle District of Georgia alleging that a female carhop was subjected to sexually charged comments, repeated sexual overtures and unwelcome touching from the store manager. The complaint alleged that as a result of the harassment, "the conditions of her employment were made so intolerable that she was forced to resign her position."

On April 15, 2010, after almost two years of litigation, the EEOC reported that the restaurant agreed to settle the lawsuit and sign a consent decree, agreeing to pay $70,000 and to implement equal opportunity training, reporting and postings at the work place.

Under Title VII of the Civil Rights Act of 1964 (Title VII), sexual harassment is a type of discrimination that is based on sex. Requests for sexual favors, unwelcome sexual advances, verbal comments and physical conduct of a sexual nature may all constitute sexual harassment. Under Title VII, in order to be actionable the harassment must be unwelcome and must unreasonably interfere with a person's work performance.

Continue reading "Sonic Drive-In Restaurant Settles Sexual Discrimination Lawsuit for $70,000" »

In a previous blog entry, we wrote that "Rejecting Job Applicants Because of Their Credit Report May Constitute Illegal Discrimination." We are happy to report that many state senators and legislators are now seeking to make the use of credit checks for job applicants illegal. See "States May Ban Credit Checks on Job Applicants" published in The Miami Herald on March 1, 2010. Indeed, in the midst of the recession that has gripped the nation (and the world for that matter), people are losing their jobs and the lack of available jobs naturally leads to them getting behind in paying their bills, which in turn makes their credit scores go down. Then, employers refuse to hire them because of their credit score. It becomes a vicious circle. However, the fact that a prospective employee has a poor credit report is simply not an indicator of whether the employee can do the job or whether he or she will perform well.

The discriminatory aspect of this issue is that studies show that minorities generally have worse credit reports than non-minorities. Therefore, when a company has a practice of rejecting applicants because of their credit reports, then that practice, which has a disparate impact on minorities, may be a violation of Title VII of the Civil Rights Act of 1964. Unless the policy of rejecting job applicants because of their credit report is related to the job and consistent with business necessity, the practice may constitute illegal discrimination.

Continue reading "States Try to Curb Credit Checks for Job Applicants as Illegal Discrimination" »

We recently settled a pregnancy discrimination claim that we filed on behalf of an employee that worked for a Miami-based financial institution. In that case, the employee performed her work well for several months, but as soon as she told her supervisor that she was pregnant, the company began treating her differently than other employees and her requests for time off to see her doctor were met with much less tolerance. She was ultimately fired, at which point we filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC). While we cannot give any more details, the case is typical of a pregnancy discrimination case.

A similar claim that was brought against the Kohler Company by the EEOC in Atlanta, Georgia was settled approximately two weeks for $175,000.00 and the company's commitment to conduct equal opportunity training. While the company denied liability, in that case the EEOC alleged that a showroom executive who had an excellent performance record was placed on probation after she informed management about her pregnancy and was ultimately fired prior to her delivery.

Under the Pregnancy Discrimination Act (PDA), discrimination on the basis of pregnancy is a form of sex discrimination. To prevail on a pregnancy claim, the employee must show that she was treated differently because of her pregnancy or a pregnancy-related condition. The PDA provides that an employer must treat a pregnant employee the same as they would treat any other similarly affected employee. The comparator employees would be employees that suffer any other temporary medical condition, such as having to undergo minor surgery.

However, while the PDA requires the employer to ignore the employee's pregnancy, the employer is not required to ignore absences from work unless the employer overlooks comparable absences of nonpregnant employees. Therefore, one of the most difficult challenges that arise with pregnancy claims is the belief that pregnant employees are entitled to take time off of work to go to medical appointments. This is not true. In this respect, the courts have held that excessive absences from work, even if caused by the pregnancy, could result in the justified termination of the pregnant employee's employment. Moreover, the PDA does not require employers to offer maternity leave or to take other steps to make it easier for pregnant women to work. As one court noted, "employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees." Troupe v. May Dept. Stores Co., 20 F.3d 734 (7th Cir. 1994). The important point is that the treatment must be the same. Therefore, a pregnant employee must be careful to schedule medical appointments during non-work hours and to limit absences from work, otherwise, her pregnancy claim could be in jeopardy.

Continue reading "Pregnancy Discrimination in the Workplace Occurs Frequently, But Excessive Absences Due to the Pregnancy Could Justify Discharge of the Employee" »

The Eleventh Circuit Court of Appeals (which covers Florida), recently held that "mere flirting" in the workplace is not actionable because it is part of workplace socializing. In that case, Corbitt v. Home Depot U.S.A., Inc., No. 08-12199 (11th Cir., 2009), two employees were subjected to comments, caressing, unwanted hugs, stroking of their hair, and touching of their thighs by their supervisor. The two employees were also subjected to sexually harassing telephone calls, invitations to go out for drinks, and comments about their appearances, such as being "cute" and the color of their hair and their private parts, as wells as suggestions that they would "like it" if they went out with their supervisor. On several occasions the supervisor would forcefully hug the employees in front of other employees and in company meetings.

The employees protested and requested that their supervisor stop because they were married and/or simply were not interested in him. Both employees made complaints to Home Depot's human resources department regarding their supervisor's advances, but the conduct and comments continued. Eventually one of the employees quit and the other was terminated for a violation of company policies. They both filed charges with the U.S. Equal Employment Opportunity Commission (EEOC) alleging sexual harassment. However, the EEOC terminated its investigation without a decision. The employees then brought suit in federal court.

Regarding the sexual harassment claims, the trial court granted summary judgment in favor of Home Depot stating that the conduct was simply not pervasive enough to constitute actionable sexual harassment or to create a hostile work environment. The employees appealed the decision to the Eleventh Circuit Court of Appeals. The Court first stated that in order for the conduct to be actionable, the comments and conduct needed to be of a sexual nature. The Court then stated that not all of the statements or conduct complained of were of a sexual nature. For example, the Court stated that comments regarding the appearance of the plaintiffs, that their clothing was appealing, that their hair was beautiful, and that the supervisor liked their eyes were inappropriate workplace comments, but not actionable under Title VII of the Civil Rights Act of 1964 because they were not "based on sex." Yet, oddly enough, the Court stated that these were mere "flirtatious comments." Regarding the touchings and other physical conduct, the Court found that there were only four touchings that were sexual in nature. They that the supervisor put his arm around one of the employees was not conduct of a "sexual nature." Based on this analysis, the Court eliminated many of the alleged comments and touchings and then concluded that the remaining comments and touchings were insufficient to make out a case of sexual harassment because they were just not frequent enough.

The Court's decision is alarming because it fails to view the alleged conduct in its appropriate context and in its entirety, as the law requires. The Court simply eliminated some of the conduct that it considered not sexual in nature, as if it never happened. Then held that the isolated conduct did not constitute sexual harassment. In this regard, Judge Fawsett, of the Middle District of Florida, siting by designation, issued a 10-page dissent stating that the conduct alleged by the plaintiffs goes far beyond "ordinary socializing in the workplace," particularly if viewed in context and under the totality of the circumstances as the law requires. As an example, the Court had held that the supervisor's putting his arm around one of the employees was not sexual in nature. However, Judge Fawsett astutely noted that the Court's conclusion failed to indicate that at the same time that the supervisor had his arm around the employee, he had also put his hand on the employee's thigh under the table where they were seated. Judge Fawsett noted that "[s]elect comments, pulled from their context and deemed facially inoffensive by the majority, demonstrate an impermissible sex bias when viewed in context." Judge Fawsett would have allowed the jury to determine based on the totality of the circumstances whether or not the conduct and comments constituted sexual harassment.

This case shines a light on how cases of sexual harassment need to be addressed. In particular, one of the failings of the plaintiffs may have been their not addressing the conduct and the comments of the alleged harasser in their entirety. They should have shown how all of the comments and conduct had sexual undertones, since it appears that they they did. Indeed, many employees of the company started referring to one of the plaintiff's as "Lenny's bitch." How else could that have been interpreted?

Continue reading "Court Holds that "Mere Flirting" in the Workplace is Fine; Sexual Harassment Must be Pervasive in Order to be Illegal" »

Many clients that have come into our offices in Miami ask whether or not sexually-charged conversations among co-workers constitute sexual harassment even if that conversation is not directed at them. Unfortunately, the use of sexually provocative language and sexual "boasting" in the workplace is all too commonplace. Many employees feel disgusted by such conduct and comments, but are unaware if they can do anything about them, particularly if the comments are not directed at them. Recently, the Fifth District Court of Appeals in Florida clarified this issue and held that sexually offensive language need not be targeted at someone in order to create a hostile work environment. See Blizzard v. Appliance Direct, Inc., Case No. 5D08-4070 (Fla. 5th DCA 2009).

In that case, the evidence showed that a male co-worker constantly talked about his penis, which included graphic descriptions of its size, and constantly bragged about his sexual prowess, history, successes and aspirations. He would make lewd comments about female workers and customers, and whinny like a horse when an attractive woman would come into the store. The comments were not directed at any employee, but one female employee was so disgusted with the constant barrage of comments that she filed a lawsuit claiming that his comments created a hostile work environment.

At trial, the lower court refused to allow the evidence to go to the jury, and Directed a Verdict for the employer. The trial court reasoned that even though there may have been lewd and vulgar comments of a sexually explicit nature, the comments were not directed at the female employee that had filed the lawsuit. They were just generalized comments in the workplace and, although lewd and vulgar, they did not create a hostile work environment because the female employee was not the target of those comments.

However, the Court of Appeals disagreed and specifically held that the plaintiff could have been subjected to sexual harassment by the comments despite not having been a target of the comments. They reasoned that she overheard and was exposed to the comments and vulgarities. That was sufficient under the law for the jury to consider whether or not a hostile work environment was created.

The Blizzard case is significant because last year the Eleventh Circuit Court of Appeals decided a similar case and held that a hostile work environment claim does not require the plaintiff herself to be targeted. See Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139 (11th Cir., 2008). However, that decision was vacated in May 2009 when the Court ordered a re-hearing en banc (by the entire Court) of its decision. The Blizzard case helps to clarify the law in this circuit regarding what constitutes a hostile work environment.

Continue reading "Florida Court Holds that Sexually-Based Vulgarities and Comments May Constitute Sexual Harassment Even if not Directed at Any Specific Employee" »

I have seen a disturbing trend in the South Florida job market. Many clients have come into my office in Miami stating that they have been rejected for a job based on information in their credit report. Indeed, the practice of disqualifying a job applicant because of his or her negative credit history is becoming increasingly widespread. A recent study by the Society of Human Resource Management found that almost half of employers nowadays use credit checks as a screening measure for new employee hiring. In addition, a study by the University of Florida also found that almost half of all retail employers now use credit checks as a job screening tool.

This practice, however, may constitute unlawful discrimination. Specifically, Title VII of the Civil Rights Act of 1964 prohibits hiring practices that disadvantage minorities, even if the practice is facially neutral, unless the company can prove that the practices are related to measuring a person's capability to do a job. The Supreme Court of the United States stated long ago in Griggs v. Duke Power Company, 401 U.S. 424 (1974) that a facially neutral hiring practice that has a disproportionate impact on minorities is illegal unless it is job related for the position in question and consistent with business necessity. In addition, recently, the U.S. Equal Employment Opportunity Commission's (EEOC) assistant legal counsel noted that rejecting job applicants based on financial criteria such as a poor credit rating may have a disproportionate impact on minority groups.

With respect to credit checks, the evidence is overwhelming that minority groups have a worse credit score than non-minorities. In fact, in a study by the Federal Home Loan Mortgage Corporation (Freddie Mac), it was found that both African Americans and Hispanics have statistically significantly lower credit scores that their White counterparts. Furthermore, even the Federal Reserve found in 1991 that African American borrowers obtain loans far less often and on worse terms than non-minorities, concluding that there is widespread and institutionalized discrimination in the nation's banking system. Also, an article in the University of Miami Law Review in 2005 found that African Americans make up a disproportionate percentage of debtors in bankruptcy, which further affects a person's credit score. Therefore, it is unquestionable that minorities have on the average lower credit scores than non-minorities. As such, the use of credit checks in hiring practices will have a disproportionate impact on minorities and may constitute unlawful discrimination.

Because of these reasons, Courts are beginning to apply Title VII concepts to these types of employer practices. In fact, as early as 1974, a U.S. District Court in Illinois found that a police department could only use financial information in their background checks if using the information did not have an adverse impact on minorities or if it is job related and consistent with business necessity. See United States v. City of Chicago, 385 F. Supp. 543 (N.D. Ill. 1974). Recently, in 2004, an EEOC charge was filed against the Johnson & Johnson Company alleging that an employee was denied a position because of a credit check. That case resulted in a settlement that changed the way that the company uses credit checks in their hiring practices. Even the EEOC in a 2006 Directive for its Compliance Manual stated that the practice of screening job applicants based on credit history would be subject to challenge under the discrimination laws.

Despite this alarming trend, there may be some relief coming in the future. An example is the bill introduced on August 10, 2009 by Wisconsin State Representative Kim Hixon that seeks to prohibit the use of credit checks as a job screening tool by employers. According to Rep. Hixon, Assembly Bill 367 will stop employers from using poor credit history as a deciding factor for employment.

Continue reading "Rejecting Job Applicants Because of Their Credit Report May Constitute Illegal Discrimination" »

We recently litigated a hostile work environment claim raised by a female employee against her South Florida employer. One of the principal issues in the lawsuit was not whether the employee had been subjected to a hostile work environment, but whether or not she had taken advantage of the anti-harassment procedures implemented by her employer. In the case, the employee filed a lawsuit against her employer under Title VII of the Civil Rights Act of 1964 alleging that she had been subjected to racial and sexual harassment, which created a hostile work environment.

Specifically, in the complaint, the employee claimed that she had been the subject of sexually and racially harassing remarks during her employment. The employer, however, contended that it was unaware of the hostile work environment because the employee never made any complaints to management or to the Human Resources Department about the sexually and racially harassing remarks. The employer had previously published an Employee Handbook that contained specific procedures that needed to be followed in the event that any employee was faced with harassment or a hostile work environment. The Employee Handbook provided that anyone who felt that they were the subject of discrimination or harassment must report the incidents to management or to the Human Resources Department.

Under the law, an employer can effectively defend a hostile work environment claim by showing that (1) it exercised reasonable care to prevent and correct promptly any harassing behavior, and (2) the employee unreasonably failed to take advantage of the corrective opportunities provided by the employer. This legal doctrine was first announced by the U.S. Supreme Court in the cases of Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Under the doctrine, if an employer shows that it promulgated and disseminated a procedure to be used by employees in the event that they are subjected to harassment, and the plaintiff failed to use the anti-harassment procedure, then the employer will not be held vicariously liable even if a hostile work environment was found to have existed. This would apply only if the employee did not suffer an adverse employment action, i.e., was demoted or discharged.

In the case that we litigated, the facts showed that the employee had not followed any of the procedures outlined in the Employee Handbook. She did not raise any hostile work environment complaints with any management employee or the Human Resources Department. There were no reports of sexual or racial harassment. The employer had no opportunity to investigation and resolve any of the claims. The inference was that abusive events claimed by the employee may not have occurred. The case turned on this fact. Therefore, to the extent that an employer promulgates and disseminates an Employee Manual that contains EEO procedures, employees must avail themselves of these procedures. However, if after availing themselves of the procedures, the company fails to take corrective action, the employer may nevertheless be held liable for a hostile work environment.

Continue reading "Employees who feel that they are being Subjected to a Hostile Work Environment Must Take Advantage of the EEO Procedures Implemented by Employer" »

We filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) recently against a hospital in the Miami area for failure to accommodate a known disability of one of its medical interns. In that case, the medical intern was deaf and required the assistance of a sign language interpreter in order to communicate. The hospital refused the accommodation and flatly stated that they did not have a policy that would provide sign language interpreters for employees. However, after we filed the charge they agreed to settle for an amount sufficient to compensate the employee.

A similar lawsuit was filed this week by the EEOC against national retailer Target Stores, Inc. for unlawfully denying a reasonable accommodation to an employee with multiple disability-based impairments and substantially. The complaint also alleged that they reduced his hours because of his medical conditions. Specifically, the worker could not effectively communicate without the assistance of a job coach because of his cerebral palsy and limited intellectual functioning.

According to the complaint, Target would fail to notify the employee's job coach and parents of in-person meetings involving work issues and job performance. The disabled employee had repeatedly requested that his job coach and parents be notified about these types of meetings so that they could assist him. According to the complaint, Target had hired the employee knowing that the employee had a disability and knowing that he needed a reasonable accommodation. As such, the complaint alleged, Target discriminated against the employee for failure to provide this notification.

The complaint alleged that the company's conduct violated Title I of the Americans With Disabilities Act of 1990 (ADA) and Title I of the Civil Rights Act of 1991. The EEOC's Regional Attorney stated that "Target's failure to provide a reasonable accommodation denied him equal benefits and privileges of employment. Despite his disabilities, the employee in this case was qualified and motivated to work, but Target denied him an equal opportunity to succeed in the workplace."

Under the ADA, an employer must provide a "reasonable accommodation" to an employee with a known disability, but not if it will create an "undue hardship" on the employer's business. This means that the employer must change the requirements of the job so that the employee with a disability can perform the job. However, if such changes cause significant difficulty or expenses to the employer, taking into account the employer's size, financial situation and its operations, then that would be an undue hardship.

Also, an employer does not have to lower quality standards or decrease production standards in making a reasonable accommodation. Personal use items, such as glasses or hearing aids need not be provided by the employer.

Continue reading "Florida Employers Must Provide a Reasonable Accommodation to a Known Disability" »