Kentucky Injury Law Blog

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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