Sex Discrimination
HR manager files class-action suit against Toshiba. Aformer HR manager has filed suit requesting certification of a class of “all females who are or have been employed by Toshiba in the United States.” The suit alleges systemic gender discrimination in com- pensation, promotion and terms and conditions of employment under Title VII and the Equal Pay Act. The suit seeks to cover all Toshiba subsidiaries. The plaintiff had been an HR manager for the Toshiba Nuclear Energy Corp. sub-
sidiary. Cyphers v. Toshiba American,
Inc. (S.D., NY, 2011).
Trashing harassment complaint
creates case.
After-the-fact action does not cure the problem. A cleri- cal employee gave a written
complaint of sexual harassment to
her supervisor after several verbal
complaints received no action. The
supervisor wadded up the complaint,
threw it in the trash, pointed at the
door and said, “This is total [BS]! I
want you out of here and never want
to see you again!” The employee left,
assuming she was fired. Two days
later, the company’s HR director
learned of the incident, called the
employee, informed her she was not
fired and asked her to come back.
She refused, claiming that she could
not reasonably re-enter the environ-
ment after what occurred. She sued
for Title VII retaliation. The court
ruled that there was a valid claim
of retaliation. The supervisor’s act
clearly violated Title VII. The com-
pany’s attempt to cure was too late
to overcome such an overt act by the
supervisor. Young-Lousee v. Graphic
Packaging Int., Inc. (8th Cir., 2011).
Disability Discrimination
Is an essential function essential to the job?
A shoulder injury made a UPS driver unable to do his job. He applied for several other positions he believed he could do. The
company rejected him due to essential job functions
in the job descriptions requiring lifting and
mobility beyond his medical limitations. Yet
the employee produced evidence that these
functions were not actually performed
in the real job. The court allowed the
case to go to trial. The courts give great
weight to an employer’s determination
of what duties should make up a job,
and the job description’s list of essential
functions is a powerful defense in an ADA
case. But the court ruled that there must
be more than a hollow defense. “The employer
will have to show that it actually imposes such
requirements on its employees in fact and not simply
on paper.” Supinski v. United Parcel Service, Inc. (3rd
Cir., 2011).
Messing up president’s schedule was valid
reason for discharge.
A communication director had cancer. He
incorrectly scheduled the organization’s
president, resulting in the president missing
a major, important public-relations event.
The communication director was fired.
He sued, claiming that he was replaced
by a person without a medical condition
and therefore the discharge was a prima
facie case of disability discrimination. The
court disagreed. It found no connection
between the cancer and the discharge. A
major job blunder is a valid non-discriminatory
reason for discharge. McCermott v. New York City
Housing Development Corp. (S.D. NY, 2011).
Bob Gregg,
partner in Boardman
Law Firm,
shares his roundup of
diversity-related legal
issues. He can be
reached at rgregg@
boardmanlawfirm.
com
Family & Medical Leave Act
Faith-healing pilgrimage was
not covered by FMLA.
A hospital employee was denied FMLA to take a seven-week overseas
trip for “faith healing” of her
husband’s heart and kidney condi-
tions. During the trip, they visited
churches and met with clergy but
saw no medical professionals. The
husband’s doctors provided no
medical verification for the leave,
guided in treatment by Christian
Science practitioners. However,
the plaintiff in this case was
not a Christian Scientist. Her
husband did not reject standard
medical treatment and had several
regular doctors. There is no other
religious exception in the
FMLA, so any leave must be for
verified standard medical treat-
ment. Tayag v. Lehey Clinical
Hospital (1st Cir., 2011).
To read more legal articles from Bob Gregg, visit
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