Tag Archive for 'Employment'

Northwest Christian University Professor Sues For Pregnancy Discrimination

A professor who previously worked for Northwest Christian University in Oregon has filed a discrimination lawsuit against the school for terminating her employment because she became pregnant and is unmarried. The institution claims that her behavior was in violation of its values.

Coty Richardson had taught exercise science at the school for four years, and she adored the small classes, the values of the school, and its compassionate environment. However, when she informed her supervisor that she had become pregnant, she initially believed that she would be provided with the option of giving a take-home exam at the end of the semester, which coincided with the time at which she was due to deliver a baby boy.  Coty

Instead, her supervisor stated that since she was pregnant, it would become apparent as she would soon be showing. She said that he presented her with two options. One was to end the relationship with the father of the child, and the other was to get married quickly. She did not agree to either choice. As Richardson stated in an interview with www.npr.org, she was working in a professional environment, and her employer had no right to interfere with, and place demands on, her private life. As a result of her refusal to comply with his request, she was terminated. She then filed a lawsuit against the institution, alleging that she was discriminated against due to her gender, pregnancy and marital status.

Richardon’s attorney, Jason Rittereiser, said that the school has engaged in marital discrimination because had his client been married, she would not be faced with the same restriction. He went on to say that religious employers possess much leeway concerning the employment of clergy or ministers. However, with respect to the employment of someone whose role is irrelevant to a ministerial function, the employer must act in accordance with employment laws.

Douglas Laycock, a law professor at the University of Virginia, believes the school had accused Richardson of acting in violation of its principal values by having relations outside of marriage. According to Laycock, in the church’s view, she is subverting its calling. He also said that in Oregon, there is no religious freedom act, and that the Religious Freedom Restoration Act, a federal statute, cannot be applied in the school’s defense because the case focuses on state law.

Richardson said that as a result of her termination, she and her family have been under a great deal of stress, and she is currently unable to afford health insurance. If you think that you have been the victim of discrimination in the workplace based on gender, pregnancy or marital status, you should consult an employment lawyer.

Uber Driver Considered Employee and Not Contractor

In a recent decision by the California Labor Commissioner, a driver for Uber is considered to be an employee, and not a contractor. Uber is a transportation network company with headquarters in San Francisco, CA. It operates a mobile application that permits consumers to make trip requests that are routed to sharing economy drivers. Uber drivers in Florida have already been classified as employees earlier this year and California may be following Florida.

The ruling, which was issued on June 3, 2015, was made in response to a claim filed by an Uber driver named Barbara Ann Berwick, who is based in San Francisco. Berwick was awarded by the commissioner approximately $4,000, which covers the cost of her expenses and unpaid wages. However, Uber has filed an appeal, claiming that the company merely allows drivers and passengers to engage in business transactions through Uber.Uber

This ruling is in stark contrast to the decision made in 2012 by the same commissioner, who ruled that the driver was an independent contractor. In that case, the commissioner considered such evidence as the driver’s ability to set his own hours. Uber also contends that in five other states, officials determined that Uber drivers were independent contractors. However, in this case, the commissioner seems to have considered a wider range of factors.

The rationale for the commissioner’s decision is that Uber is “involved in every aspect of the operation.” According to the commissioner, Uber has control over the tools used by the driver; Uber keeps track of the driver’s ratings; and Uber  ends the driver’s ability to access the system in the event that the driver’s ratings drop below 4.6 stars.

The recent decision may well have far-reaching implications for Uber. If all Uber drivers are eventually classified as employees, then the company could incur higher costs, including Social Security, unemployment insurance, and workers’ compensation. As a result, the company, which is valued at over $40 billion, could take a loss in its market value. If the ruling is upheld on appeal, it could set a precedent that is followed by commissioners and courts in other states.

Failure to Hire Due to Religious Attire

When 17-year-old Samantha Elauf applied for a job at Abercrombie and Fitch in 2008, she was not hired even though she received a high score during the interview process. The assistant manager who conducted the interview thought she was qualified, but the manager was concerned that Elauf’s hijab would be in violation of the company’s “Look Policy.” The policy did not permit caps to be worn. After communicating with her district manager about the issue, the assistant manager agreed to lower Elauf’s score because Elauf wore a hijab.

The Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Elauf as a result of being denied a position at the retail store in Tulsa, Oklahoma. A district court ruled in her favor, granting the Muslim teen damages in the amount of twenty thousand dollars. However, the decision was reversed by the Tenth Circuit Court of Appeals, which held that an employer is free from liability for neglecting to “accommodate a religious practice” if a potential employee had not requested the accommodation. Samantha Elauf, Majda Elauf, P. David Lopez

However, the Supreme Court sided with Ms. Elauf in an 8-1 decision, with Justice Thomas the lone dissent. Justice Antonin Scalia spoke on behalf of the high Court when he said “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

Moreover, during oral arguments, Justice Samuel Alito stated that the managers at Abercrombie could have questioned her as to whether she would wear the head scarf while at work for religious reasons. But they did not ask her this question. Instead, they made the assumption that she wore the scarf as part of her religious practice, and refused to hire her for that reason.

Dress Codes Cannot Violate Civil Rights

While it is acceptable for an employer to have a dress code, it is unconstitutional for an employer to discriminate against someone because of religious practice. For instance, if an employer terminates, or refuses to hire, someone because of their religious practice, and does not even attempt to accommodate them, then that counts as discrimination under Title VII of the Civil Rights Act of 1964.

Given Abercrombie’s reputation for exclusivity in its hiring and marketing practices, it is unsurprising that the store refused to hire someone because of her religious practice of wearing a hijab. Nevertheless, the managers should have realized that such a denial was a form of discrimination, and in violation of the law.

However, the company seems to be leaning towards becoming more inclusive, especially in light of a prior class-action discrimination lawsuit, which alleged that Abercrombie discriminated against minorities, including African-Americans, Latinos, and Asian-Americans, in its hiring practices and its marketing. In fact, just this past April, the company stated that it would be more “inclusive and diverse” in its hiring methods, and adopt a “more individualistic” dress code.

How Wellness Programs Might Result in Employment Discrimination Lawsuits

Employers beware: the EEOC is bringing lawsuits against businesses that use wellness programs to discriminate against disabled employees. The EEOC claims that employers are using wellness programs to subject employees to medical tests unrelated to job performance in an effort to discriminate against disabled employees.

wellness programsIn August 2014, the EEOC filed a suit against Orion Energy Systems for discriminating against Wendy Schobert. The EEOC alleges that Orion shifted premium costs to Schobert after Schobert refused to participate in Orion’s wellness program. When Schobert complained, Orion fired her. Earlier this month, the EEOC filed a second wellness program lawsuit against Flambeau, Inc. The EEOC alleges that Flambeau violated the Americans with Disability Act (ADA) by cancelling employee Dale Arnold’s medical insurance after he refused to complete biometric tests and health risk assessments.

Due to the popularity of wellness programs, the EEOC is expected to file more wellness program suits in the near future. Kaiser Family Foundation reports that about 94% of businesses with over 200 workers and 63% of smaller employers offer wellness programs. A RAND Employer Survey shows that 80% of employers with wellness programs screen their employees for health risks for program planning purposes.

Ironically, the federal government is partly responsible for the recent rise of wellness programs. The Affordable Care Act (ACA), or Obamacare, offers 30% to 50% tax credits to employers who get their employees to meet health goals. Many employers believe the EEOC’s recent lawsuits constituted a bait and switch by the federal government: Obamacare incentives them to create these wellness programs for their employees, but then the EEOC sues the employers for implementing wellness programs in a manner that saves employers on insurance costs.

Doing the Right Thing without Being Punished for It

Health employees are obviously a good thing. The employee lives longer, the employer doesn’t have to change employees as often, and everyone saves money when people don’t need medical attention. The question becomes: how does an employer get ACA tax credits without triggering an ADA lawsuit?

First, an employer cannot defend against an EEOC lawsuit by claiming that the employer had to comply with the ACA. The ACA’s tax credits are completely voluntary. Employers aren’t mandated to create wellness programs. If an employer is slapped with a lawsuit after implementing a wellness program, the employer can’t argue that the employer was entrapped because the ACA is voluntary while the ADA is not.

Okay, so employers can’t argue that they can’t comply with both laws. Employers should probably avoid creating wellness programs that will result in a discrimination lawsuit. Let’s examine what Flambeau and Orion Energy System did wrong.

Flambeau and Orion both attempted to subject their employees to unwanted medical tests. An employer might want these tests to see what kind of program they need and to see how expensive their insurance will be. The problem is that the ADA only permits medical tests on employees if the tests are related to work performance. Insurance coverage and employee health are typically not work related. Employers cannot, and should not, compel employees to take medical exams.

In the EEOC’s collective minds, shifting medical insurance costs from the employer to the employee violates the ADA’s rule on medical tests. Raising costs on an employee who refuses to undergo an exam is viewed as employee retaliation because the employer is adversely affecting an employee who stands up for an ADA right.

If an employer decides to create a wellness program, the employer should make the program completely voluntary. The employer should avoid forcing employees to pay the premiums if the employees refuse to undergo a test. It is likely that health insurance might be higher, so the employer must consider the costs of a possible EEOC lawsuit against higher insurance if the employer implements a wellness program and an employee refuses to comply with medical exams. Obamacare might want employers to promote good health among employees, but no good deed goes unpunished.

No Freedom of Speech for Miami Dolphins’ Don Jones

Miami Dolphins safety Don Jones was fined an unidentified amount Sunday and will have to go to educational training after tweeting out a negative comment about Michael Sam, the first openly gay player to be selected in the NFL draft.

miami dolphins don jonesThis raises an important legal question: can an employee of a private, non-governmental organization be fired for his or her assertions to the press about an issue completely unrelated to the job? The answer: yes.

It seems reasonable to think that this situation would violate one’s freedom of speech. However, the First Amendment provides that the government cannot infringe upon our freedom of speech and expression. There are things that are classified as “forums” where, depending on whether it’s a public forum, non-public forum, etc., they can regulate the type of speech.

Since the NFL and the Miami Dolphins are not a Government agency, the First Amendment freedom of speech would not apply in this situation. The First Amendment applies only to government agencies. As a result, the Miami Dolphins can legally can suspend, fine, and freely regulate the speech of its employees