Kentucky Injury Law Blog

When one hears the term “racial discrimination,” the image that most likely appears in one’s mind is a white person unfairly treating someone who is from a minority. But that is not always the case. Discrimination against those who are Caucasian can also occur, and Title VII of the Civil Rights Act protects them, just as it does those of other races. Part m of the section in question states “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice…” It does not exclude any race, whether a majority or minority.

A woman in Texas, who is white, is putting this part of Title VII to the test with a race discrimination lawsuit she filed against Texas Southern University (TSU). She is the Assistant Dean of Academic Support at TSU’s Thurgood Marshall School of Law. The former dean of the school hired her in 2007 and seemed pleased with her work, giving her positive reviews during his tenure. He was replaced by another man, who is African-American, in 2009. Ever since then, the woman claims that he has made her workplace unbearable in the hopes that she would quit. He has allegedly taken away her authority to manage employees, has withheld compensation from her, and reduced her duties.

One might think the current dean just has a different style of managing people and that the woman just needs to adjust. But according to the lawsuit, his other employees who are African-American have not lost any authority or pay since he began. As an example, the plaintiff said she is no longer allowed to have keys to the school, but the other minority employees do; and she was not allowed to interview a potential employee alone, while the other employees are allowed to select who they hire.

Continue reading "The Civil Rights Act of 1964 Protects People of All Races" »

It is no secret that more Americans are overweight than ever before. Whether it’s due to busier lives that lead to less healthy cooking and exercise, or the abundance of more unhealthy foods available, our waistlines are growing. Unfortunately, our tolerance for overweight people has not grown. One place that this is very evident is at work. People who are overweight often feel they are treated unfairly at work, and they appear to be right.

If a worker is discriminated against because of their size, are they protected by any of the federal or state discrimination laws? Not exactly. Several federal discrimination laws exist, but none of them specifically include obese or overweight workers. Only the state of Michigan and a few cities in the United States have any type of laws that prohibit discrimination based on weight or physical appearance. However, obese and overweight workers have taken legal action against employers who have discriminated against them and received monetary damages either through trial or settlement.

According to the Equal Employment Opportunity Commission (EEOC), a person who is morbidly obese can be considered disabled, which would make a morbidly obese employee protected under the Americans with Disabilities Act (ADA). People who suffer from other conditions because of their weight, such as diabetes or heart disease, may also be protected by the ADA if they are treated unfairly because of their conditions or are denied special accommodations that would allow them to perform certain types of work. Some discrimination lawsuits have been filed on behalf of employees who were allegedly discriminated against because their employer considered them disabled simply because of their weight. One such lawsuit claims that a woman’s employer thought she was unable to perform certain job duties because she was obese, when in fact she was able to do everything required of her for the position. The case is still pending.

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According to the Americans with Disabilities Act (ADA), companies are required to provide reasonable accommodations to disabled workers to enable them to do their jobs. Such accommodations cannot be so costly that they would cause a financial strain on the company, and they should not endanger another employee’s safety. In the case of a Pennsylvania man who was employed by Bank of America, his request for accommodation seemed neither costly nor dangerous.

The ex-employee is a husband and father of two who has a college degree and 13 years of banking experience. In 1992, he was seriously injured in a car accident and still has issues with his right arm and leg. In 2007, he began working for Merrill Lynch, which accommodated his disability by giving him a left-handed keyboard and allowing him a little extra time between phone calls to make his notes regarding his client interaction in the computer. When Bank of America bought Merrill Lynch in January 2010, he stayed on as an employee in their customer service department. His new supervisors did not allow him to take a couple extra minutes between calls to type, and his productivity lagged. As a result, he was removed from the most desirable shifts. His requests to be switched to another position that required less typing or to have a little time in between calls to complete his typing were denied.

He also began to be reprimanded for being a minute or two late returning from lunch when he had to walk from a distant lunch room when the closer lunch room was full. In September, 2010, Bank of America fired him allegedly for being late returning from lunch. He contacted the Equal Employment Opportunity Commission (EEOC) to determine whether or not he had a valid complaint. The EEOC agreed with him and he was given permission to sue Bank of America for disability discrimination.

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When one hears the word “Hawaii,” images of an idyllic place come to mind – beautiful beaches, lush landscapes, coconut trees and luaus attended by people in brightly colored shirts and leis. Most people don’t think about the everyday occurrences like home maintenance, grocery shopping and going to work. But people who live there deal with the same situations that we do here in Kentucky, including workplace issues like discrimination.

In a recent case, a 54-year-old woman was fired from her job with a home health care company in 2008. She was an office coordinator at one of their facilities and was considered a good employee by the facility’s manager. The owner of the company told the manager that the plaintiff “looks old…sounds old on the telephone,” and looks “like a bag of bones.” Per the owner’s order, the manager fired the employee, then she told her about the owner’s comments after the termination. The wrongfully terminated employee contacted the Equal Employment Opportunity Commission (EEOC) and filed a complaint. The EEOC agreed that age discrimination had occurred and filed a lawsuit against the company and its owner.

A U.S. District Judge in Honolulu also agreed that the company and the owner were guilty of age discrimination and awarded the fired employee over $193,000. In addition to the award, the company also has to take several steps to ensure age discrimination does not occur there again. Training must be provided to the employees on how to file a claim if they feel they have been discriminated against, and supervisors and managers will be trained on how to handle a situation if an employee says they have experienced discrimination. The company is required to post a notice regarding this judgment and must retain an outside equal opportunity specialist to help with the above requirements.

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As with all new technology, social networking sites are creating legal questions in all sorts of subjects, including employment law. One question being asked is whether or not a potential or current employer can ask an employee for their social media login and password information.

Employers take the stance that this information is valuable to them in getting a feeling for an employee’s character and may alert them to any unsavory or illegal activity an employee may be involved in. While this seems logical, there are many reasons why employers should not be given personal passwords to social networking sites.

First, login information to any site other than ones used for work purposes is personal and no one should be required to share it with anyone for any reason. Even though we are supposed to keep different passwords for all of our online accounts for security reasons, many of us still use the same or similar passwords for multiple accounts. So giving out a password to a Facebook account may also provide a prospective employer access to other online accounts such as a bank account.

Second, much of the information contained on someone’s Facebook page or other social media website could provide information to potential employers that they are not allowed to request. Ethnicity, age, marital status, religion, and medical conditions are all topics that are not to be discussed during an interview or requested on a job application because use of this information during hiring could be discriminatory. These are the very same topics that Facebook users share with their friends and family on a daily basis.

Continue reading "New Bill Introduced to Prohibit Kentucky Employers from Requesting Social Networking Passwords" »

Workplace discrimination based on sexual orientation is not covered under Title VII of the Civil Rights Act of 1964, which protects workers from discrimination based on other factors such as race, religion and gender. However, certain Kentucky employees may be protected from sexual orientation discrimination by local ordinances and an executive order.

A few Kentucky areas, including Louisville, Jefferson County, and Covington have passed local ordinances that prohibit anyone from being discriminated against because of their sexual orientation. These ordinances cover discrimination in the workplace as well as housing and public accommodations. The only statewide protection was tested and upheld recently in Louisville, Kentucky.

In 2008, the Governor of Kentucky, Steve Beshear, signed an executive order that prohibits all state agencies from discriminating against current or potential employees because of their sexual orientation. Without this order, Governor Beshear stated “a gay person could be fired simply for being gay. A person should be hired or dismissed on the basis of whether they can do the job. Experience, qualifications, talent and performance are what matter."

This executive order was put to the test when a Kentucky Cabinet for Health and Family Services employee claimed he was terminated in 2009 because he was gay. According to the lawsuit, numerous cabinet employees were abusing email and internet use, but this worker was singled out because of his sexual orientation. The worker’s lawyer showed that he had sent emails that included gay slang, which was the cause for his termination. A female co-worker, on the other hand, had sent emails that included photos of almost completely nude men to other people in the cabinet, but she kept her job.

The cabinet defended this action, saying the decision to fire the male worker was made while he was still in his probationary period, whereas the female worker’s case wasn’t finalized until after she had become a full-time employee. Because of this change in status, she was protected by additional rights given to permanent employees. The fired worker’s lawyer had evidence showing that his case had been purposely rushed through in order to get him fired before he became a permanent employee. This included an email marked “high importance” from his supervisor requesting information immediately “because the state would like to be able to terminate the employee while in his probation period.” This same action was not taken against the female employee who had sent the nude pictures.

Continue reading "State of Kentucky Found Guilty of Workplace Discrimination" »

People have differing views on attorneys. Some consider them money-hungry and willing to do anything for a dollar. Others look at them as champions of justice, protecting those who need it. But people seldom think of them as plaintiffs or defendants. In a New York case that was recently settled, attorneys were both plaintiffs and defendants. A collections attorney at Kelley Drye & Warren turned 70 in 2008. The firm's policy at the time was to "de-equitize" any partner who decided to work after age 70. That means the attorney would lose all ownership in the firm and would only be paid a yearly bonus for any work done.

The attorney did not think this was fair, so he filed an age discrimination claim with the Equal Employment Opportunity Commission (EEOC). The EEOC protects various groups from discrimination based on religion, gender, race, origin and age. The attorney then filed a retaliation claim because his annual bonus dropped by two-thirds after he had contacted the EEOC. A lawsuit was filed by the EEOC on his behalf in January 2010. The lawsuit sought both compensatory and punitive damages for the attorney and also asked that the firm be prohibited from "engaging in any employment practices which discriminate on the basis of age."

In April 2012, Kelley Drye & Warren settled the lawsuit against them for over $500,000. Additionally, they will provide training sessions on age discrimination for those involved in making employment decisions and they will inform the EEOC of any complaints of age discrimination they receive. When the law firm said they had voluntarily dropped the discriminatory policy after the lawsuit was filed in 2010, the EEOC defended their pursuit of the claim, saying many law firms still have these policies and ""We don't think attorneys should be forced to leave their chosen profession simply because they reach some arbitrary age if they have the skill and the energy."

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In an ironic twist, an organization that has stood for equal opportunities for everyone is the subject of a workplace discrimination lawsuit. Four women have filed a lawsuit against the YMCA alleging they were paid less than their male counterparts. The YMCA where the women are employed uses a scoring system to determine salaries. Several factors including the effort, skill, and responsibility of each employee is taken into consideration. One of the women who is a vice-president scored better than some associate vice-presidents, but was still paid $5000-$7000 less. Men at the same level as she was were each paid over $25,000 more.

Samuel Cordes, the attorney representing the women, said they are “are losing a significant amount of money just because they are not men. What you're creating is second-class citizens in that workplace." The lawsuit has been filed under the federal law entitled the Equal Pay Act of 1963 (EPA). The EPA was added as an amendment to the Fair Labor Standards Act of 1938 and is enforced by the Equal Employment Opportunity Commission (EEOC). This act specifically addresses the issue of equal pay for men and women. It states that unless the employees’ wages are based on a system that rates employees by seniority, merit, or volume of work produced, men and women who hold the same position should receive the same pay. In the case of the YMCA, the employees were rated by a system called the Hayes Methodology, but this test showed the women’s work was at least the same as, or even superior to, their male counterparts who were paid significantly more.

The lawsuit seeks restitution in several forms. It requests that the YMCA be prohibited from practicing pay discrimination in the future. It also asks for financial compensation for the women. All wages that should have been paid to the women over the years if their wages had been equal are being requested, as well as any interest on those wages. Punitive damages that serve to punish the defendant for their illegal acts are also being sought. The women are also asking for their attorneys’ fees to be paid in full.

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National origin discrimination is defined by the Equal Employment Opportunity Commission (EEOC) as “treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).” This type of discrimination can also occur if an employee is related to someone who is from another country or has a different ethnicity.

Mesa Systems, Inc., a Colorado moving company doing business in Salt Lake City, Utah, was sued by the EEOC on behalf of Latino and Polynesian employees last month for national origin discrimination. The employees first complained in 2007 and the EEOC began their investigation. The suit says their supervisors called them derogatory names based on their assumed national origin. While a stray comment or an episode of teasing is not considered illegal, consistent belittling of an individual because of his nationality is illegal and creates a hostile work environment.

Also, in 2006, Mesa Systems made it company policy in their Salt Lake City facility that all employees had to speak English when at work. The complainants felt this policy was instituted to discriminate against them because English was not their first language. The EEOC states “An “English-only rule”, which requires employees to speak only English on the job, is only allowed if it is needed to ensure the safe or efficient operation of the employer’s business and is put in place for nondiscriminatory reasons.”

When the employees complained about the verbal harassment and the adoption of the English-only rule to the EEOC, some of their hours were reduced and others were fired. This type of action by an employer – called retaliation – is also illegal under Title VII of the Civil Rights Act of 1964, which protects certain classes of individuals from discrimination in the workplace. Individuals can be protected by Title VII based on their gender, nationality, religion, age, or disability.

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Many states have passed or are passing laws that prohibit smoking in public places, including restaurants, universities, airports, and hospitals. These laws have been enacted mainly to protect non-smokers from the effects of second-hand smoke. It also allows them to enjoy public places without smelling smoke or having their hair or clothes smell of smoke. Many businesses, even if not covered by state laws, are becoming smoke-free as well for the same reasons. Some places of employment, however, may be taking the smoke-free workplace a little too far.

About 6,000 businesses around the country have adopted “no-nicotine” policies, which not only prohibit smoking at the place of business, but also prohibit the hiring of smokers or other tobacco users. Most employers hope to save health insurance costs and some believe they will have a healthier, more productive staff by not hiring smokers. A few companies may be trying to encourage potential employers to either quit using tobacco or convince them not to start smoking in the first place. One justification given by hospitals and other medical providers is that they should be setting a healthy example for their clients, and having employees smoking outside a medical building sends the wrong message.

While federal law does not protect smokers, 29 states have instituted laws that make this selective hiring illegal. In 1994, Kentucky included smokers as a group that could not be discriminated against in hiring or other employment decisions. KRS 344.040 states, “It is an unlawful practice for an employer…To require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products outside the course of employment, as long as the person complies with any workplace policy concerning smoking.” More recently, Indiana passed a similar law.

Kentucky employees who use tobacco products are protected in some ways, but the law does not prohibit companies from charging them more for their health insurance. Employees who smoke may also be offered certain incentives to encourage them to quit smoking.

While encouraging people to make healthy choices and saving companies money on health insurance may seem beneficial, there are other issues. In this economy, many people are having a difficult time finding work, and someone who is very qualified may be denied a job simply because they use tobacco products. An employer would not know if a potential or current employee is using tobacco products when he is not at work unless the employer requires testing or watches an employee while he is off the clock. This sounds a little extreme, especially since it is perfectly legal for adults to use tobacco products. If companies are not hiring tobacco users to cut insurance costs, will they also not hire people who eat too much cholesterol because they may have heart issues or those who indulge in too much sugar because they may have diabetes? The list could go on and on.

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Who doesn’t dream of being a star and living in Hollywood? Big houses, fancy cars, bank accounts full of money. While that is what comes to mind when we think of Hollywood, the truth is that the majority of actors and actresses struggle to make ends meet, just like the rest of us. With TV producers turning more toward reality shows and needing fewer trained actors, smaller parts not filled by well-known stars are becoming few and far between.

One such struggling actress has filed a lawsuit stating her chances of finding work have become even slimmer since her age was posted on Internet Movie Database Pro, a website owned by Amazon. She is referred to as “Jane Doe” in all court documents and articles to protect her anonymity. “Jane Doe” is over 40, which many consider over the hill in show business.

Some think the actress is whining and the lawsuit is frivolous. They point to numerous actresses who are well over 40 and are sought after for movies and TV shows. Susan Sarandon, Sandra Bullock, and Meryl Streep are just a few of the examples given. But these are all women with incredible star power, not women who are struggling to land a small part on one episode of a TV series. Rather than giving unknown actors a chance to prove their ability to fill a role, they are dismissed as soon as the casting director checks the online database and sees they are five years older than the character to be portrayed.

Most Kentucky employees are not actors or actresses in Hollywood, but the same discrimination can occur in any other work setting. If anything on an individual’s resume reveals his age to a potential employer, he may be immediately discarded as being “too old” before he has a chance to prove himself as able to fill the position. In order to combat age discrimination, the Age Discrimination in Employment Act was passed in 1967. It gives people over the age of 40 the same opportunities as those who are younger.

Individuals over 40 are protected under this act when they are applying for positions and when they are employed. Potential employers cannot ask the age of an applicant directly, nor can they ask questions that may reveal someone’s age, such as a graduation date or the ages of the applicant’s children. Recruiters and placement agencies are also prohibited from obtaining ages and providing them to their clients. Applicants of any age with the same qualifications must be given the same consideration for open positions. Texas Roadhouse, a Kentucky company, was sued for age discrimination last fall because older applicants were being rejected and older employees were not allowed to work in the front of the restaurant. Restaurants managers were told to look for younger people when they were hiring and young people were the only type pictured in the restaurant’s training materials. The case is still pending.

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Are employees wrongfully terminated and denied certain roles based on their appearances? According to numerous lawsuits over the last few years, the answer is yes. The following cases cover a variety of topics including age, race, disability, and religious discrimination.

In 2007, Lester Roy was forced to leave his position as a Long Island Beach lifeguard because he refused to wear a certain type of swimwear for his annual swim test. Being over 60, he did not feel comfortable wearing a Speedo-type suit, but thought the looser board shorts or boxer-style suit would slow down his time. He wanted to wear a “jammer” suit, which resembles bike shorts and had been his outfit choice for previous annual tests. His request was denied, and without taking the test, he was no longer qualified to lifeguard at the beach. He attempted to take the new lifeguard test in 2008, but was again denied permission to wear the swimsuit of his choice. He filed a lawsuit in 2009 alleging age discrimination, saying he was forced out of his position to make room for younger lifeguards. His case was dismissed, but the decision was overturned by the Court of Appeals, so it is still pending.

In another case of modesty versus work-mandated attire, Hani Khan filed a lawsuit against Abercrombie & Fitch in June of this year when she was told she could no longer wear her headscarf, or hijab. In her religious discrimination claim, Ms. Khan states she was told she could wear a headscarf when she was hired as long as it matched the company’s colors. But four months later she was told to remove it and was subsequently suspended and terminated when she refused. With the help of the Equal Employment Opportunity Commission (EEOC), LaKettra Bennett filed a claim in St. Louis against the Hollister clothing chain, a subsidiary of Abercrombie & Fitch. Ms. Bennett is Pentecostal, and women who follow this faith do not wear skirts above the knee or pants. Her lawsuit claims that she was fired from Hollister when she refused to wear shorter skirts.

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Simon Property Group is an Indianapolis, Indiana company that specializes in large real estate ventures, particularly malls and shopping outlets. It employs several thousand people worldwide. As a result of its size, it is not surprising that it is involved in numerous lawsuits, including a few recent discrimination cases.

In 2008, Poetry Nightclub, located at Simon Property Group’s Forum Shops at Caesars in Las Vegas, filed a lawsuit alleging racial discrimination. The owners of the nightclub claimed they were being forced out of the space with lease issues and unnecessary security requirements because the majority of their clientele is African-American. In April, 2011, the U.S. District Court dismissed the claims against Simon Property Group and the other defendants. A spokesperson for Caesar’s Palace stated “We are pleased that after a weeklong trial during which all parties presented their evidence, Judge Mahan found every allegation of discrimination against Caesars and SPG [Simon Property Group] was without merit. The ruling is an affirmation of our long-standing commitments to diversity and to providing guests from all walks of life with great service and entertainment."

Apparently their “long-standing commitments to diversity” only extends to guests, not to their employees. In July 2009, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of several janitors employed at the Forum Shops at Caesars. The plaintiffs claimed they were discriminated against in 2005 and 2006 based on their national origin. All of the plaintiffs were Hispanic or Latino. The discrimination came from a supervisor in the form of verbal harassment, derogatory comments, and physical intimidation. More than a dozen workers signed a petition in 2005 attesting to the discrimination, but no action was taken, so they contacted the EEOC. On November 8, 2011, the EEOC announced a settlement of the lawsuit which awarded $125,000 to the workers. The settlement also requires Simon Property Group to provide anti-discrimination training to its employees, to use a consultant to track future complaints against the company in Nevada, and to report back to the EEOC regarding their efforts to maintain compliance.

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Over 40 years ago, the Civil Rights Act of 1964 was enacted to abolish discrimination in several areas including voting rights, education, and employment. Title VII of this act addresses workplace discrimination. Under this portion of the Act, employees cannot be discriminated against for their race, color, religion, sex or national origin. While Title VII is fairly specific regarding what factors constitute discrimination, it is vague in its definition of who is considered an employee and is therefore protected by this part of the Act. Two types of individuals that are left in limbo by this vagueness are interns and volunteers.

A recent case concerning this situation is Bryson v. Middlefield Fire Department. Ms. Bryson alleged that she was a victim of sexual harassment while serving as a volunteer firefighter in Middlefield, Ohio. When she refused her supervisor’s sexual advances she was terminated. The Equal Employment Opportunity Commission (EEOC) confirmed that she could file a suit claiming she was “sexually harassed and subjected to a sexually hostile work environment.” In response the fire department claimed Ms. Bryson was not covered under Title VII because she was a volunteer firefighter member — not an employee — and that the fire department was not an employer because it had less than 15 paid employees, a requirement to be considered an employer. The lower court ruled in favor of the fire department and Ms. Bryson took her case to the Sixth Circuit Court of Appeals, which hears cases for Kentucky, Michigan, Ohio and Tennessee.

The Sixth Circuit disagreed with the lower court’s decision and reversed it. Basing their decision on two U.S. Supreme Court cases, the judges ruled that more than just pay needs to be considered when determining if an entity is an employer and an individual is an employee. According to the Sixth Circuit, Bryson “put forth evidence that the firefighter-members received worker's compensation coverage, insurance coverage, gift cards, personal use of the Department's facilities and assets, training, and access to an emergency fund…and that, for particular portions of the relevant time period, certain firefighter-members received a one-time, lump-sum retirement payment and others received an hourly wage.” So even though the volunteer firefighters may not receive regular paychecks, they are compensated in other ways, making them employees, and consequently making the fire department an employer. In October, 2011, Ms. Bryson’s case was remanded back to the district court which must now decide whether or not the sexual harassment, retaliation and wrongful termination occurred.

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