News for April 14, 2014

Featured this week:

In state law news:

Featured this week:

Retaliatory discipline claim revived where manager whose conduct was reported by African-American employee said he would “terminate that n****r”
Reversing in part and affirming in part a lower court decision by a federal district court in Louisiana, the Fifth Circuit held that an African-American HR representative’s retaliatory discipline claim based on a disciplinary warning should have survived summary judgment. The record evidence included an affidavit from another employee that the HR department’s general manager had told him that he was “very pissed” at the HR rep for reporting a conversation (where another employee had called African-Americans “dumb” and “lazy” in front of the general manager, without comment by the manager). Combined with the general manager’s statement that he and the HR rep’s supervisor would “terminate that n****r,” those statements could show retaliatory intent if credited. However, the panel majority found that the HR rep had waived, primarily through inadequate briefing, additional claims based on a work improvement plan and his subsequent termination. In a vigorous dissent, Judge Dennis contended that the other two claims also should have survived (Willis v Cleco Corp, 5thCir, April 8, 2014, Garza, E).

Reliance on unspecified documents and totality of circumstances in terminating white police officer supports reverse race bias claim
Acknowledging that it was troubled by the U.S. Capital Police (USCP) chief’s statement that he relied on “other department documents” and the “totality of the circumstances” — including an officer’s encounter with a founding member of the Hell’s Angels, his visit to a Hell’s Angels’ clubhouse, his alleged interactions with members of outlaw motorcycle clubs, photographs with convicted felons, and his association with at least one white supremacist — when he recommended the white police officer’s termination for conduct unbecoming, a federal district court found that fact questions remained as to what other documents and circumstances he considered and what those facts revealed about the motivation behind the termination decision. Accordingly, summary judgment was inappropriate on the officer’s reverse race discrimination claim (Turner v United States Capitol Police, DDC, March 31, 2014, Jackson, A).

Superior’s comment that a mail carrier should seek disability retirement, even though he used a cane for years without incident, was direct evidence of discrimination
A mail carrier who used a cane for years, but was placed on restricted duty after refusing light duty at new location, survived summary judgment on his Rehabilitation Act claim of disability discrimination, a federal district court in Missouri ruled. His new superior’s suggestion that he seek disability retirement was direct evidence of bias since there was no evidence the employee, or anyone else, ever complained that his cerebral palsy or use of a cane impeded his ability to perform the requirements of his job. Because there was no evidence that safety was a genuine concern, it could reasonably be inferred that the superior’s conduct was based solely on a discriminatory assumption that a letter carrier with a cane could not safely do his job. (Gillette v Donahoe, EDMo, April 8, 2014, Jackson, C).

Female firefighter allegedly subjected to feces in bathroom, required to clean sewage, called crybaby and asshole advances HWE claim
A female firefighter who alleged that she was subjected to constant harassment by her male coworkers such as being regularly left behind, bullied by a senior officer, required to clean sewage in the women’s bathroom, subjected to pornography, and ultimately transferred to a station where her work activities were limited to cleaning toilets can proceed on her Title VII hostile work environment claim, a federal district court in Puerto Rico ruled, denying the employer’s summary judgment motion (Echavarria-Diaz v Cuerpo de Bomberos de Puerto Rico, DPR, April 8, 2014, Fuste, J).

National Guardsman’s non-promotions motivated by qualifications, not military status
Upholding the declaratory judgment decision below of a superior court justice after a bench trial on a National Guardsman’s claim that he was twice denied promotion by the state department of corrections because of his military service, the Rhode Island Supreme Court found that the justice correctly applied the burden-shifting method adopted from the First Circuit and did not overlook or misconceive relevant and material supportive evidence, as contended by the veteran. Although the trial court justice did not explicitly reference the second part of the USERRA “burden-shifting paradigm,” as was preferable, “in actuality her analysis encompassed both parts.” The court was unable to find any error in the justice’s conclusion that the guardsman could not prevail because his non-promotion had been motivated by his qualifications and not his military status (Panarello v State of Rhode Island, Department of Corrections, RISCt, April 7, 2014, Robinson, W, III).

Two dozen new resources added to OFCCP database for outreach & recruitment of veterans & disabled workers
On April 4, 2014, the OFCCP announced it has added 24 new resources to its Disability and Veterans Community Resources Directory. This database was launched in March 2014 to help contractors find qualified workers with disabilities and veterans, and to assist contractors with establishing relationships with national organizations and local community groups that have access to these workers.

USCIS passes FY 2015 H-1B cap, will use random selection after initial intake completed
As anticipated, the U.S. Citizenship and Immigration Services (USCIS) has already reached its fiscal year (FY) 2015 H-1B cap. The agency announced on April 7 that it has also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption. Businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.

SHRM to NLRB: Proposed change to union election procedures would infringe on employee rights and burden employers
In a National Labor Relations Board (NLRB) hearing on April 10, the Society for Human Resource Management (SHRM) expressed strong opposition to the agency’s proposed rule to change union election procedures. Speaking on behalf of the more than 275,000-member SHRM, Roger King, a lawyer at Jones Day law firm and SHRM member said, “The board’s proposed new election rules, if adopted, will have a substantial adverse impact on two of the board’s major stakeholders—employees and employers.”

In state law news:

Wisconsin Governor Walker signs social media privacy bill
Wisconsin Governor Scott Walker signed legislation on April 8 that prohibits employers, educational institutions and landlords from requesting or requiring passwords or other protected access to personal Internet accounts of students, employees, and tenants.

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Special Report

Paycheck Fairness Act dead in the Senate

Senate Democrats on April 9 fell short of the 60 votes required to cut off debate and proceed to consideration of the Paycheck Fairness Act, S. 2199, a bill that would have amended the Equal Pay Act to provide, among other things, more effective remedies to victims of sex discrimination in the payment of wages. A motion to invoke cloture on the motion to proceed to consideration of the bill was rejected by a vote of 53-44 that fell along party lines. Independent Angus King (Maine) voted against cloture; three Senators did not cast a vote.

It was widely anticipated that the proposed legislation would not be approved in the House. However, the rejection of S. 2199 in the Senate was a surprise to many.

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