News for February 6, 2017 Featured this week: Chipotle manager fired for poor performance, not objections to director’s ‘hiring too many Hmong people’ comment Long-time worker screened out of position by obesity proceeds on ADA claim Black security guard patted down by store manager and accused of theft states viable discrimination claim Government had legitimate belief DHS officer who joked of suicide could not perform essential functions Forecast is mixed for health benefits in 2017 and beyond Payroll employment up by 227,000 in January, but unemployment rate little changed BLS reports union membership rate in 2016 is 10.7%, down from 11.1% in 2015 In state law news: ‘Muslim ban’ draws legal challenges by states Ban-the-box EO enacted in Kentucky to give felons a chance Featured this week: Chipotle manager fired for poor performance, not objections to director’s ‘hiring too many Hmong people’ comment Although he was fired just two months after complaining about a team director’s comment that he was hiring “too many Hmong people,” a Chipotle employee failed to raise a fact issue as to whether the stated reason for his termination—declining work effort and performance—was pretextual. Accordingly, the Eighth Circuit affirmed summary judgment against his Minnesota Human Rights Act reprisal claim. (Sieden v Chipotle Mexican Grill, Inc, 8thCir, January 26, 2107, Strand, L.) Long-time worker screened out of position by obesity proceeds on ADA claim After 34 years in the same job, the plaintiff was required to reapply when BNSF took over operations. According to his EEOC charge, BNSF failed to hire him because it concluded he was not "medically qualified" for a safety-sensitive position due to his obesity because his body mass index (BMI) was over 40. According to a federal district court in Illinois, this sufficiently alleged a qualification standard that tended to screen out disabled individuals, thereby administratively exhausting a disparate impact claim under ADA Section 12112(b)(6). The court therefore denied BNSF’s partial motion for judgment on the pleadings as to this claim. However, the plaintiff’s failure to allege that he was subjected to a medical exam precluded him from bringing a claim under Section 12112(b)(6) and that claim was dismissed. (Shell v Burlington Northern Santa Fe Railway Co, NDIll, January 27, 2017, Coleman, S.) Black security guard patted down by store manager and accused of theft states viable discrimination claim An African-American security guard who alleged she was searched and falsely accused of theft because of her race while working at a Coach outlet store can proceed with her Section 1981 and Title VII discrimination claims, a federal district court in Illinois ruled, denying Coach’s motion to dismiss. Even though she worked for an outside security company, she did not need to have a contract with Coach to prevail since she alleged that Coach interfered with her employment relationship. Her allegations also sufficed to state a Title VII claim under a joint employer theory, said the court. Her state law intentional infliction of emotional distress claim failed, however, because the behavior to which she was allegedly subjected was not sufficiently extreme and outrageous. (Thomas v Coach Outlet Store, NDIll, January 27, 2017, Lee, J.) Government had legitimate belief DHS officer who joked of suicide could not perform essential functions A Customs and Border Patrol Officer who was removed from his position after joking about suicide was unable to demonstrate that he could perform the essential functions of his job, a federal district court in Virginia has ruled. Granting summary judgment against his discrimination claim under the Rehab Act, the court found that in removing the officer, the government reasonably relied on the opinions of psychiatrists who interviewed the officer and concluded he was not fit for duty. (Cousin v United States, EDVa, January 27, 2017, Brinkema, L.) Forecast is mixed for health benefits in 2017 and beyond The health insurance industry can expect to see more change in 2017, and employers are concerned about how potential new healthcare legislation may affect their employee benefits programs, according to a new report issued by Wells Fargo Insurance. Read Payroll employment up by 227,000 in January, but unemployment rate little changed Total nonfarm payroll employment increased by 227,000 in January, and the unemployment rate was little changed at 4.8 percent, the U.S. Bureau of Labor Statistics reported February 3. Read BLS reports union membership rate in 2016 is 10.7%, down from 11.1% in 2015 The union membership rate—the percent of wage and salary workers who were members of unions—was 10.7 percent in 2016, down 0.4 percentage point from 2015, the U.S. Bureau of Labor Statistics reported January 26. Read In state law news: ‘Muslim ban’ draws legal challenges by states President Trump’s "extreme vetting" order, which temporarily restricts individuals from seven majority Muslim countries from entering the United States but gives a preference to Christians as members of a minority religion from those countries, has continued to spark legal challenges, including by the States of Washington, Minnesota, Massachusetts, New York, and Virginia, as well as the City of San Francisco. Read Ban-the-box EO enacted in Kentucky to give felons a chance Kentucky Governor Matt Bevin on February 1 issued Executive Order (EO) 2017-064, "Relating to Fair Chance Employment," to remove questions about convictions and criminal history in applications for executive branch positions. The EO mandates that criminal history inquiries may not be made until the applicant is contacted to interview for a job, unless otherwise required by law to do so. Read