of dwarfism. A Starbucks store refused to place her in
a barista job. She claimed she could do the job using a
stool. However, the management did not even try this
accommodation. It concluded, without facts, that she
would “pose a danger to customers and employees.”
When the ADA case was filed, Starbucks quickly settled
for $75,000 and agreed to provide training on proper
ADA procedures to managers. The EEOC praised
Starbucks for its prompt resolution of the issue. EEOC v.
Starbucks Coffee Co. (W. D. Tex., 2011).
Excess skin was a serious medical condition.
A city employee took FMLA for a gastric-bypass surgery. She then lost more than 150 pounds. This left large
areas of excess skin that hung from her arms and abdomen. She requested FMLA to have surgery for this and
was denied. The employer considered it only cosmetic.
She was fired when she took time off for the surgery. A
jury ruled for the employee. The medical testimony was
clear that the excess skin was itself a serious condition which, if uncorrected, could cause serious infections. The employer should have considered the
medical verification before denying the leave.
Alcazar-Anseimo v. Chicago (N.D. Ill., 2011).
her attire was a function of her faith and that she would
not modify the clothing, she was fired. She sued for religious discrimination. The court granted judgment to the
nursing home based upon the First Amendment and the
Title VII deference to religious organizations. The decision was based on what was appropriate for a Catholic
service environment. A religious-based employer is
not required to accommodate the religious practices
of other-faith employees when they even minimally
conflict with the organization’s views of what is or is
not a proper environment for its own faith. Kennedy v.
St. Joseph Ministries, Inc. (4th Cir., 2011).
Conviction Records
Company overreacts to workers-compensation disability determination.
An employee with a work-related elbow
injury received a permanent partial ( 30
percent) disability determination. There
were partial restrictions on mobility and
an evaluation for not doing “a lot of heavy
lifting.” However, the company interpreted this
disability determination as meaning the employee
could do no lifting whatsoever and could not use hand
tools, and it banned him from returning to his job. The
company seemed to jump to unfounded conclusions
with no assessment and no interactive process with the
employee. In the ADA suit, the court found discrimination for “regarding” the employee as having a disability.
Jones v. Nissan North America (6th Cir., 2011).
Wisconsin legislature proposes eliminating
conviction-record discrimination protection.
The Wisconsin Fair Employment Act currently pro-
hibits job discrimination against those with conviction
records unless the crime was “substantially related”
to the job or the work environment. Assembly
Bill 286 would remove that protection and
allow employers to fire or not hire any-
one convicted of a felony, without any
assessment of relatedness to the work.
Further, AB 286 would prohibit local
governments from enacting their own
antidiscrimination rules on convic-
tion status and would void those that
currently exist. The legislature believes
that the state should set uniform standards,
rather than allow local governments to exercise
discretion or consider local needs.
Bob Gregg,
a partner in Boardman
& Clark LLP, shares his
roundup of diversity-
related legal issues.
He can be reached at
rgregg@
boardmanlawfirm.
com
Age
Religion
Employee’s clothing too modest for Catholic facility.
A non-Catholic was hired to work in a nursing home
operated by the Catholic Church. Because of her own
Church of the Brethren beliefs, the employee wore very
modest clothing, including long dresses, long sleeves
and a hair cover. The nursing director informed the
employee that her clothing made her stand out in a way
that bothered some residents and did not fit into the
operation or its mission. When the employee insisted
Car salesman has valid constructive-discharge claim
for age harassment.
In Dediol v. Best Chevrolet, Inc. (5th Cir., 2011), the court
found a valid claim of age harassment and constructive
discharge. A 65-year-old was hired as a car salesman.
His manager allegedly began daily comments about age,
never calling him by his name but always “old man,”
“pop” and “you old motherf ***er.” The manager steered
customers away from him and then escalated to more
profane statements and physical threats. The salesman
complained to higher management, but nothing was
done. The manager reacted to the complaint by threatening to beat up the salesman and “charged” at him.
The salesman left and did not return to work. The court
found ample evidence to support a harassment and
constructive-discharge case. I
