News for November 5, 2018

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Featured this week:

Employee was 'qualified' for job despite performance issues but bias claim fails
An employee's two-year tenure at a job meant that he was "qualified" for the position for the purposes of his race discrimination claim, despite a number of documented performance problems, held a federal district court in Alabama, rejecting the employer's assertion he was not qualified because he refused to perform the requirements of the job. Although there were reports of the employee's poor performance, they were subjective judgments and there was no evidence he did not meet a specific objective requirement of his job. However, the employee's Title VII race discrimination claim ultimately failed on summary judgment because he could not demonstrate he was replaced by a person outside his protected class or treated less favorably than a similarly-situated individual outside his protected class. And even if he had made a prima facie case, he failed to demonstrate that the employer's legitimate, nondiscriminatory reason for terminating him was pretextual. Remarks by his supervisor were not evidence of racial animus; the use of the phrase "you peoples" was ambiguous. (West v AM/NS Calvert, SDAla, October 29, 2018, Granade, C.)

EEOC advances claims that company failed to hire qualified women
Refusing to dismiss the EEOC's Title VII sex discrimination claim alleging that since at least 2009, an employer has discriminated against qualified female applicants in favor of hiring less qualified men throughout its facilities, a federal district court in New York found the alleged facts gave at least minimal support for the proposition that the employer was motivated by discriminatory intent. The court also rejected the employer's assertion that the disparate treatment claims against it should be dismissed because they were beyond the scope of the disparate impact claims raised by the charging party. The information regarding the alleged disparate treatment of female applicants was ascertained by the EEOC in the course of a reasonable investigation into the charging party's complaint and notice was provided to the employer regarding the full scope of the investigation and charges. (EEOC v Upstate Niagara Cooperative, Inc, WDNY, October 26, 2018, Skretny, W.)

Mere awareness of impairment can support 'regarded as' claim
Being removed from a position that was known to be temporary was not an adverse employment action, but a city employee's ADA discrimination and retaliation claims were supported by other alleged adverse actions that occurred soon after she returned from medical leave, including alteration of her responsibilities and termination. Largely denying summary judgment, a federal district court in Pennsylvania analyzed whether mere awareness of an employee's impairment is enough to establish that she may have been "regarded as" disabled and concluded that, under the ADAAA, awareness was enough. The employee also raised triable questions on whether her perceived disability was causally related to the adverse actions and whether the city's proffered legitimate reasons were pretext for discrimination based on perceived disability and retaliation for her EEOC charge. (Jakomas v City of Pittsburgh, WDPa, October 24, 2018, Hornak, M.)

Paying veteran less in severance than retained non-vets got in bonuses may render his release unenforceable
A military veteran, who was the only employee not retained when his employer was acquired by another company, raised triable issues on whether the release he signed in exchange for $29,000 in severance was enforceable under the "unique" provisions of 38 U.S.C. § 4302, which requires that such a release and waiver establish a right or benefit "more beneficial to" or "in addition to" the individual's rights under USERRA. Denying summary judgment, the federal court in Virginia found it significant that his non-veteran coworkers were given full-time jobs with the new company and received thousands more in bonuses, base salary, and benefits. (Tolle v PocketSonics, Inc, WDVa, October 30, 2018, Conrad, G.)

Changing workplace culture to prevent harassment requires holistic approach
At a public meeting on October 31, experts talked to the EEOC about the concrete steps that employers can take to change their workplace cultures to prevent harassment. The meeting, "Revamping Workplace Culture to Prevent Harassment," came one year after the #MeToo movement went viral. At the meeting, experts shared with the Commission various approaches aimed at preventing harassment, as well as giving employers and employees necessary skills to respond when they experience or observe harassing behavior. The witnesses focused on innovative training approaches, leadership, and accountability as components of holistic solutions to addressing harassment.



Comment period extended to December 13 on proposed joint-employer rule
Following requests by Representative Robert C. Scott (D-Va.) and Senator Patty Murray (D-Wash.) to extend the comment period on its proposed new joint-employer rule and hold public hearings, and a bid by unions to extend the comment period, the National Labor Relations Board announced that it is extending the time for submitting comments.



U.S. employers taking measures to modernize Total Rewards programs
As the war for talent in today's tightening labor market intensifies, a majority of U.S. employers are taking steps to modernize their Total Rewards programs, according to a new survey by Willis Towers Watson.



Health care costs causing stress this enrollment season, study finds
Sixty-two percent of U.S. adults identify health care costs as a significant source of stress. One in five adults cannot afford health insurance co-pays, deductibles, and out-of-pocket expenses, including prescription drugs, according to a recent study. These alarming findings come to light as people across the country prepare for open enrollment, whether through employer-based health insurance, individual insurance, or health insurance Exchanges.



Unemployment rate remains unchanged at 3.7% in October
Total nonfarm payroll employment rose by 250,000 in October, and the unemployment rate was unchanged at 3.7 percent, the U.S. Bureau of Labor Statistics reported November 2. The number of unemployed persons was little changed at 6.1 million.



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Employment NetNews is a broader look at labor and employment law issues, with both attorneys and HR professionals in mind. Employment NetNews offers timely coverage of breaking legislative developments, regulatory activity, state law changes, key case law and expert commentary by wkl&b editors.


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Special Report

Majority of executives believe results of mid-term elections will impact future hiring

As the United States prepares for this year's mid-term elections, a new Korn Ferry survey finds executives believe the outcome will have an impact in the workplace. Three quarters (75 percent) of the executive respondents from across a wide range of industries say the outcome of the elections will affect their company's future hiring decisions, with nearly a quarter (23 percent) saying the results will have a significant impact on hiring.



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