reinstatement to the job as prospective relief, and the court could order
reinstatement and prohibit future
discharge. (The 11th Amendment
would still bar an award of back
pay.) Nelson v. University of Texas
(5th Cir., 2008).
How Much Age Bias
Is Egregious?
The remedy for egregious age
discrimination is doubling the
standard economic damages. The
Age Discrimination in Employment
Act has no provisions for pain and
suffering or other sorts of compensatory damages. The court dismissed an age-harassment case in
which the employee was subjected
to unwelcome attention but was not
fired, thus suffering no economic
damages and claiming none. The
court also found the alleged conduct
was not of a sufficient level to be harassment under the law. [But a form
of pain-and-suffering damages were
awarded under a different theory in
another case.] Collazo v. Nicholson
(1st Cir., 2008).
Dog Bites Not Discrimination
The Washington, D.C., police
department’s decision to reorganize its K- 9 unit resulted in a rescheduling and loss of shift differential pay for a unit of white
K- 9 officers. They sued, alleging
the rescheduling was racially discriminatory. The court dismissed
the case, finding that this one unit
in question was responsible for approximately 60 percent of the dog-bite incidents (out of four units
total). The police department had a
valid, nondiscriminatory reason to
reorganize, reschedule and assign
new supervisors to the officers to
try to address this disproportionate record. Ginger v. Dist. of Columbia (D.C. Cir., 2008).
Personal Staff Can’t
Sue for Sex Harassment
Title VII has a specific exclusion
for the “personal staff of elected
officials.” They are not able to sue
for discriminatory treatment. In
Saddles v. Quitman County School
Dist. (5th Cir., 2008), the court
dismissed the sexual-harassment
case of an elected superintendent’s
executive secretary. The finding
was that she was personal staff,
not a regular employee.
Fertility Treatments Covered
An employee’s approved time
off of work for fertility treatments
was considered a negative attendance factor in determining
whom to lay off or retain in a
company reorganization.
The court held that fertility
treatments were clearly “related
to pregnancy” and fell under the
protection of the Pregnancy Discrimination Act. Hall v. Nalco Co.
(7th Cir., 2008).
Pregnant Workers
Get Leave Choices
A city violated the Pregnancy
Discrimination Act by forcing
a police officer to exhaust sick
leave before using vacation time
to cover her pregnancy-related
absences. Unused accumulated sick
leave could be cashed in for extra
retirement credit, while vacation
time had no cash-in value. Therefore, forcing exhaustion of sick
leave had a significant long-term
financial detriment to the officer.
Presumably, this might also be
argued for leave taken under the
ADA or FMLA. Orr v. Albuquerque
(10th Cir., 2008).
Alcohol-Related Disability?
Sears fired a manager for
violating the policy requiring
employees to report any arrests
to management. The employee
was arrested twice for driving while
intoxicated and did not report the
arrests. She sued for alcohol-related
disability discrimination, claiming
that she had not violated the policy.
She was a manager and said that she
complied with the policy by “
reporting the incidents to herself.”
The court considered the plaintiff’s reasoning less than valid and
ruled that Sears was justified in
firing her for intentional violation
of the policy. Davis-Dietz v. Sears
Roebuck & Co. (11th Cir., 2008).
ADA Accommodations
Not Arbitrary
The ADA and Rehabilitation
Act both require an interactive
process in which the employer
and employee have thorough,
good-faith discussion and exploration of the potential reasonable
accommodations for a disability.
Among viable accommodations,
an employer is legally able to pick
the one that best fits its needs,
whether or not it is the employee’s
preferred accommodation.
However, it may not arbitrarily
pick an accommodation without
good-faith consideration of the
other potentials. In Fowler v. USPS
(M.D., Cal. 2008), the employer
had numerous opportunities to
transfer the employee with disabilities into a job she could reasonably perform but refused to even
consider these options, leaving the
employee in a job that was difficult
even with the accommodation the
employer chose to give.
Bob Gregg, partner in Boardman Law
Firm, shares his monthly column on
diversity-related legal issues with our
readers. He can be reached at rgregg@
boardmanlawfirm.com.
