teachers against me.” The Polish teacher was reassigned to teach
bilingual Spanish-English, for which she was not qualified. She was
then given negative evaluations for not successfully teaching. The
principal then recommended non-renewal of the teacher’s contract,
ending the employment. In Darchak v. Chicago Bd. of Ed., the court
rejected summary judgment and found sufficient evidence of
national-origin discrimination to warrant trial (7th Cir., 2009).
A resident’s difficulty to communicate created a
direct threat to patients.
In Jacubowski v. Christ Hospital, the court found a hospital had valid reason to remove a medical resident with Asperger’s
Disorder. The condition caused clarity-of-communication problems
with patients and other staff. The hospital did, however, offer the
accommodation of a residency in pathology, where there was less
interaction and communication. But the plaintiff refused and sued
under the Americans with Disabilities Act and Rehabilitation Act.
The court ruled that communication was a clear patient-care and
safety issue, and the resident’s lack of clarity created a direct threat,
warranting the hospital’s action (S.D. Ohio, 2009).
Failure to respond to request for raise is adverse
action that extends statute of limitations indefinitely.
Cases are beginning to be decided under the Lilly Ledbetter Fair Pay Act, which creates a “forever” statute of limitations. Once an
adverse pay action occurs, each successive pay check (or retirement
account check) is a continuing violation of that action. The standard
300-day Title VII statute of limitations for filing suit is not applicable.
Mikula v. Allegheny County of Pennsylvania (3rd Cir., 2009) involved an
employee’s request for a pay raise. The supervisor made no response.
Much later, the employee filed a sex-discrimination case alleging
unequal pay. The county defended, claiming that no actual decision
had been made denying any request. But the court disagreed. It ruled
that a non-response to a pay raise request is a denial and has the same
no-raise effect as a formal denial; thus, it is a “compensation decision”
that fits into the Ledbetter Act’s continuing violation provision.
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A $145,000 settlement because of company’s
inadequate response to sexual-harassment complaints.
In EEOC v. Cal. Psychiatric Transactions Inc., the agency has obtained a settlement of a case claiming ongoing, overt verbal and physical
sexual harassment of nine female employees by a male supervisor. The
problem: When the women complained, the company did not investigate their allegations. Instead, it just showed an anti-harassment video
to all employees. The supervisor at issue, however, did not watch the
video; the harassment continued. The settlement provides $145,000 to
the women, requires the company to provide effective training for
managers and states that it be monitored for compliance by the EEOC
for three years (E.D. Cal., 2009).
; Family & Medical
Leave Act (FMLA)
Ignorance of FMLA is a
poor defense.
Avice president of property management was fired a day after informing her
employer’s president that she needed six
weeks off under FMLA. She sued. Although
the company claimed her discharge was
because of poor performance, the court
found this reason to be pretextual. There
was no prior warning, only letters praising
the employee’s performance, and the
company failed to follow its own progressive discipline policy. In DeFreitas v.
Horizon Investment Mgt. Co., the court
stated, “We note the elephant in the
room”—the evidence of the timing of the
FMLA request and the discharge was just
too big for the company to overcome.
Another significant factor in the decision
was the company president’s ignorance of
FMLA; he testified that he was unaware of
what the FMLA required at the time of his
decision to fire the vice president (10th Cir.,
2009).
A school principal
can be personally sued for
FMLA violation.
The FMLA defines an “employer” as “any person who acts directly or
indirectly in the interest of the employer.”
In Cooley v. Chicago Bd. of Education, the
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