Kentucky Employment Law Blog

Retaliation Prohibitions Narrowed By Sixth Circuit

The anti-retaliation prohibitions in Title VII have been narrowed by the Sixth Circuit sitting en banc in Thompson v. North American Stainless, LP, No 07-5040 (June 5, 2009), reversing and vacating a earlier panel decision of the Court discussed in an earlier posting at Employer's Retaliation Against Fiancee of Employee Charging Discrimination Violates Title VII.

By a vote of 10-6 the Court ruled that the firing of the fiancee of an employee who had formally and officially charged the employer with discrimination could not sue under Title VII for retaliation.  

This case and the Supreme Court's decision last week in Gross v. FBL Financial Services, Inc., No. 08-441 (June 18, 2009), illustrate the continuing need for Congress to amend employee protection, anti-discrimination and anti-retaliation laws in the face of judicial decisions that practically eliminate the protections the laws are intended to provide. 

Robert L. Abell
www.RobertAbellLaw.com 

Call Center Employees Sue For Overtime

Call center employees for APAC have filed a class action lawsuit seeking overtime pay reports the LaCrosse Tribune, "Former APAC Employees Sue Call Center."  The suit claims that the employees are required to log onto their computers before and after their shifts and during breaks to review frequently changing billing rates, equipment prices and repair policies so they can answer questions from client customers during their shift.  

The federal Fair Labor Standards Act and Kentucky wage and hour law require that nonexempt employees be paid for all hours worked over 40 in a week at a rate one and half times their regular hourly rate.  

Robert L. Abell
www.RobertAbellLaw.com

Male Accused of Sexual Harassment May Sue For Sex Discrimination

A man accused of sexual harassment and stereotyped by his employer as guilty because he was male can sue for sex discrimination the Second Circuit Court of Appeals ruled recently in Sassman v. Gamache, No. 07-2721 (May 22, 2009).

Sassaman was accused by a co-worker of sexual harassment. She made a formal complaint and a criminal investigation by the local sheriff found insufficient evidence for a criminal charge. Nonetheless, after Brant hired a lawyer, Sassaman was told he would be fired based on the following: "I really don't have any choice. [Brant] knows a lot of attorneys; I'm afraid she'll sue me. And besides you probably did what she said you did because you're male and nobody would believe you anyway."

Sassaman sued for sex discrimination, claiming that he was terminated "on the basis of sex stereotyping." The district court threw his case out of court, ruling that he could not prove any sex discrimination.

The Second Circuit reinstated Sassaman's sex discrimination claim. First, the court observed that discrimination could be proved by the employer's invidious comments about others in the employee's protected group or the sequence of events leading to the employee's discharge.  Sassaman met this standard by evidence that (1) he was accused as "probably" guilty because he was "male" and, (2) the failure to properly investigate the sexual harassment charge against him. Second, the court reiterated the Supreme Court's admonition in Price Waterhouse v. Hopkins: "we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group."

The Court also rejected the employer's claim that fear of a lawsuit from Brant justified Sassman's firing. "Fear of a lawsuit," the court asserted, "does not justify an employee's reliance on sex stereotypes to resolve allegations of sexual harassment, discriminating against the accused employee in the process." The court further added that Title VII "requires that, in the course of investigating such claims, employers do not presume male employees to be 'guilty until proven innocent' based on invidious sex stereotypes."

Robert L. Abell
www.RobertAbellLaw.com

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Epileptic Awarded $475,000 In Disability Discrimination Suit

An epileptic proved disability discrimination and a jury verdict awarding him $475,000 in damages, including $410,000 in back pay, was affirmed recently by the Eighth Circuit Court of Appeals in Finan v. Good Earth Tools, Inc., No 08-2221 (May 19, 2009).  The employee claimed that he was "regarded as" disabled and fired by his employer in violation of the American With Disabilities Act.

Finan was employed as a traveling salesman. He suffered from seizures and was eventually diagnosed with epilepsy. His doctor returned him to work and advised that he could resume driving after being seizure-free for six months. Nonetheless, he applied for and began receiving benefits under a private disability policy. Finan also returned to work before being fired on February 9, 2004. After being fired, he applied for and was awarded Social Security disability benefits.

Finan sued under the ADA on a "regarded as" theory; that is, that his employer regarded him as disabled even though he was not. A jury awarded him $410,000 in back pay and $65,000 in other damages.

The court ruled that neither Finan's receipt of private disability benefits nor of Social Security disability benefits undermined his claim. First, the court noted that the private disability policy required merely that he suffer from a disability or sickness, be under a doctor's care and, as a result, sustain an income reduction of 20% or greater. Second, the Social Security Administration did not determine that he could not perform the essential functions of his job; rather, it found only that considering his age, education, work experience, and residual functional capacity, there were not a significant number of available jobs for him in the national economy.   

Robert L. Abell
www.RobertAbellLaw.com