Apparently people really can sue for anything.  A Detroit planning department employee is suing the city because she claims the strong scents from her co-worker’s cosmetics are preventing her from working.  Further details regarding the facts of the case are limited at the moment, but I’m going to go out on a limb here and say the plaintiff is probably nuts.  The employee is alleging the fragrances in her office are in violation of the Americans with Disabilities Act, which, as I stated earlier, seems pretty nuts.

Let’s just try to break this one down a little, shall we?  I’m assuming the employee is suing based on Title I of the Act since that’s the part that deals with employment.  The relevant part of this section would seem to be that workplace discrimination based on a person’s disability includes among other things “not making reasonable accommodations to the known physical or mental limitations of disabled employees.”

In reading that section, two words jump out to me: reasonable and disabled.  These two terms are very general and open for some board interpretation that I’m sure any lawyer worth his salt could probably spin into a lawsuit.  However, in my opinion, not one that can or should be won.

You see, though “reasonable accommodations” could mean essentially anything that can be done to allow a disabled person to do their job.  The caveat is that it must actually be reasonable, in other words, not nuts.  The employee wants all similar scents to be banned from her place of employment.  Which, to make an analogy, would be like using a grenade to kill an ant.  Both are ridiculously overkill.  A more reasonable accommodation would be to just give her a separate office or even just prevent people who wear cosmetics with scents from approaching her (though even that one is pushing it).

Now even if the employee were to agree to this compromise, she’d still have a much bigger problem on her hands: proving she’s disabled.

Call me old-fashioned, unhip, uncool, or whatever it is kids use to describe people who aren’t with it these days, but I really don’t think a person is disabled just because they don’t like the smell of something.  Barring some incredibly rare allergy that renders this particular employee in some sort of pained state, there’s no way she’d be able to convince a judge (though maybe a jury) that she’s disabled.  The only thing she’d be able to prove is how overly sensitive and litigious people have become.  Instead of wasting the time of the court, she should just learn to deal with the little daily annoyances of life because last time I checked there are a lot of them.

Sorry, I’ll get off my soapbox now.  All I’m saying is that there are a lot of more important issues for the court to decide.  And it’s those types of cases that deserve our great justice system’s attention.

Don’t Like How Your Co-Worker Smells? SUE!! is a post from: LegalMatch Law Blog

Let’s start with the basis for any age discrimination claim: The Age Discrimination in Employment Act (ADEA).  The ADEA provides that discrimination of individuals over the age of 40 based on their age is illegal and a prosecutable offense.

Currently, the majority of age discrimination cases we see at LegalMatch are employment related: hiring, firing, and forced retirement contexts.  This trend is not limited to one employment sector but rather affects both blue collar and white collar employees alike.

The most obvious culprit affecting these age discrimination numbers is the rising nationwide unemployment rate, currently hovering around 9.1%.  Any time there is an economic downturn, people lose their jobs.  When alternative jobs aren’t immediately available, a layoff that normally would be ignored can turn into an age discrimination lawsuit.

Interestingly enough, the Supreme Court recently made it much harder to win an age discrimination suit by ruling that the employee now bears the full burden of proving that age was the determining factor in his or her layoff, firing or demotion.  This is a significant departure from the previous balancing test the Court employed, and makes this type of lawsuit especially difficult because rarely would an employee be present when their employers are discussing their future- a key piece of evidence.

A recent article in the Wall Street Journal looked at another interesting aspect of age discrimination in the wake of layoffs- reverse age discrimination.  The article examined the rise in younger employees being laid off, often times in numbers equal or greater than their older colleagues.  Employees in their 20s and 30s are finding themselves more at risk of a layoff, as employers look to avoid age-discrimination lawsuits by adopting a last-one-in, first-one-out policy.

The LegalMatch study also confirmed this trend as a number of the age-discrimination inquires were disgruntled employees under the age of 40.  One of the big problems with this trend is that this younger age group does not have the same legal recourse.  There is no similar protection as the ADEA in place provided for the younger generation.  Essentially, by laying-off the younger members of the company, employers are shielding themselves from an age discrimination lawsuit.

Although the standard for age discrimination has been raised, the potential for suits is alarming and laying off younger workers is seen as a solution.

New Issues with Old Discrimination is a post from: LegalMatch Law Blog

To the lucky few fortunate enough to have dodged the wave of layoffs, as they say, go the spoils.  Only in this case instead of getting those same old boring rewards, this elite group gets the extra special gift of actually keeping their menial soul-draining jobs, but without all that unnecessary stuff, like shorter hours or, you know, more money.  At least they’ll get yolked (it’s slang people, get with it) since they’ll have to do the work of three people just to keep said soul-crushing job.

But with being fired inevitably comes the stages of job loss (which by the way seem suspiciously similar to some other grief process – I think the Kübler-Ross estate might have a lawsuit).  There’s no better feeling than finally getting over being let go, picking yourself up by your bootstraps, and then hiring an attorney to file a wrongful termination suit against your old employer.  Ahhhh, sweet revenge, I’ve missed you…

All joking aside, wrongful termination is a real and serious issue.  Homelessness is on the rise and as this economy continues to tank, more and more people will likely be fired from their jobs.  Unemployment doesn’t only destroy a person’s financial livelihood.  It can also damage a person’s self-worth, not to mention obliterate a marriage.  Finding out whether you’ve been wrongly terminated from your job can be difficult, especially in a bad economy where an unjust firing can easily be passed off as a cost-cutting layoff.  But if there’s one thing that is certain, when people are pushed into a corner, they’ll likely fight back.

In fact, according to our client case database, in the month of June alone LegalMatch.com has seen a nearly 100 percent increase in the total number of wrongful termination cases brought by our clients when compared to the same month in 2008.  Furthermore, the average number of wrongful termination cases handled by LegalMatch.com has consistently increased by approximately 20 percent over the past four fiscal quarters.  Those employed under at-will contracts in the retail, transportation, or manufacturing industries were most likely to bring a claim for wrongful termination, making up nearly one-third of all wrongful termination cases LegalMatch.com received.  These figures increased in portion to the sagging US economy.

So what can you do if you think you’ve been wrongly terminated from your job?  First thing would be to see if you qualify under any of these exceptions:

• Discrimination – The employer cannot terminate employment because the employee is a certain race, nationality, religion, sex, age, or in some states, sexual orientation.
• Retaliation – An employer cannot fire an employee because the employee filed a claim of discrimination or is participating in an investigation for discrimination. This “retaliation” is forbidden under civil rights law.
• Contractual Employees – Generally, an employee with an employment contract can only be terminated for the reasons stated in the contract. Employment contracts for specified periods of time or permitting terminations only for specific reasons are rare today.
• Illegal Acts -An employer is not permitted to fire an employee because the employee refuses to commit an act that is illegal.
• Family or Medical Leave – Federal law permits most employees to take a leave of absence for specific family or medical problems. An employer is not permitted to fire an employee who takes family or medical leave for a reason outlined in the Family and Medical Leave Act.
• Not Following Own Termination Procedures – Often, the employee handbook or company policy outlines a procedure that must be followed before an employee is terminated. If the employer fires an employee without following this procedure, the employee may have a claim for wrongful termination.

However, the best way to find out whether your termination was wrongful would be to consult with a qualified employment lawyer who can sit down with you and walk you through your options.  Otherwise you might end up like this guy.

What!? Fired!?? But Why….? is a post from: LegalMatch Law Blog

According to the AARP, of the 11.1 Million unemployed people as of December 2008, 1.4 Million alone were age 55 and over.[2]  Age discrimination complaints filed with the Equal Employment Opportunity Commission (EEOC) have recently become one of the fastest-growing discrimination categories in U.S. history since the ADEA act was passed.[3] 

During the past five calendar years, EEOC data reports a 9.3% increase in age discrimination complaints, or over 92,000 complaints nationwide.  Of these, only a fraction of these complaints had merit (15,430) but even with this small number of meritorious complaints damages totaled to $348 Million![4]  Over the past five years ending 5/28/09, nearly 6,000 cases specifically alleging age discrimination have been filed, nationwide, with LegalMatch and are reflective of the general trend. 

And, it’s not just the 40 to 50 year old workers who are making these allegations.  In March 2009, the EEOC settled a lawsuit alleging age discrimination against the Meenan Oil Company in Tullytown, Pennsylvania who terminated a 71 year old sales representative because of his age.[5]  The company settled for $80,000.  This is no different than customers of LegalMatch who inquired about age discrimination and who ranged in age from as young as 40 years old to as old as 85! 

During the past 12-months, the following are the top ten states where LegalMatch customers sought attorneys to represent them with their age discrimination complaints.  Together, all ten states accounted for over half of the age discrimination complaints filed with LegalMatch.

1. CA
2. TX
3. FL
4. IL
5. OH
6. NY
7. AZ
8. TN
9. VA
10. GA

Given our own LegalMatch.com data and the records of the EEOC, we expect allegations of employer’s discriminating against older workers to continue to rise as the U.S. population ages.  Apparently, it is only through private legal actions or through claims filed via the EEOC or both that older U.S. workers will gain protection in the workplace.

[2] Port Lucie Woman Wins $75,000 in Age Discrimination Case 

[3] U.S EEOC Web Site

[4] U.S. EEOC ADEA Claims

[5] Meenan Oil and Litigation

Age Discrimination is Alive and Well in the United States is a post from: LegalMatch Law Blog

1. Professional (law, accounting, architecture, etc.)
2. Education
3. Construction
4. High Technology
5. Retail
6. Transportation
7. Manufacturing
8. Government

Only “retail” and “professional” place in the top 14 jobs by number of employed, according to the Bureau of Labor Statistics. Retail actually tops the BLS’s list. Why the discrepancy?

In 2007 there were over 30,000 racial discrimination claims filed at the US Equal Employment Opportunity Commission. People on the human resources side of the equation were startled at the massive increase-in most cases plus 10%-of new cases compared to the previous year.

Instead of looking at jobs sorting people by how many are employed, the place to look is how many are unemployed. Most discrimination claims, after all, begin after someone has been let go. The 8 jobs listed above are a veritable who’s who of the hardest hit jobs in the economy since 2007. Almost every job on the list, other than government, has lost near or above half a million workers in the past year according to the BLS.

No surprise, then, that these jobs will have a large amount of disgruntled former employees claiming discrimination. Their cases may be warranted too, but all signs point to the massive layoffs of late as the key culprit for rising employment discrimination claims.

Economy Likely Culprit for Increased Racial Discrimination Claims at Work is a post from: LegalMatch Law Blog

Retail: 28%
Manufacturing: 16%
Government: 12%
Transportation: 9%
Professional (law, accounting, architecture, etc.): 9%
Education: 8%
Construction: 8%
High technology: 6%

Approximately 61% of these respondents reported their sexual harassment to their superiors. Federal whistleblower protections are meant to protect these people from retaliation. With these rules in place, why are almost 40% of employees not reporting sexual harassment?

For one, litigating a claim in federal court is intimidating. Federal Whistleblower cases are costly and complicated. The burden of losing a job often outweighs the small consolation of possible redemption years down the road.

Additionally, whistleblower protections may not have applied to a large portion of sexual harassment victims until recently. The recent Supreme Court case of Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, finally applied federal whistleblower laws to in-house employer investigations. Prior to this ruling, an employee could be retaliated against for answering an employer’s questions about sexual harassment in a private employer investigation. Lower courts stated that such investigations did not come under the ambit of federal protections, creating the absurd situation where employees reporting discrimination on their own initiative were protected, but employees reporting the same discrimination in the same words when their boss asked a question could be fired.

Such an obvious ruling should have come a lot sooner. How many sexual harassment cases flew under the radar while lower courts created and followed this absurd precedent?

Jobs with Most Reported Sexual Harassment Cases, 2004-Present is a post from: LegalMatch Law Blog