Category Archives: Discrimination

Pregnant Worker

New Act to Protect Pregnant Employees

The Council of the District of Columbia recently passed The Protecting Pregnant Workers Fairness Act of 2014. This act requires employers to provide reasonable accommodations in the workplace “for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, a related medical condition, or breastfeeding . . . .” “Reasonable accommodations,” generally, are any accommodations that do not cause undue hardship in the operation of the particular business.  “Reasonable accommodations” can include, but are not limited to, providing a private space (non-bathroom) for expressing breast milk, providing more frequent or longer breaks, providing time off to recover from childbirth, and having employees refrain from heavy lifting.

An employer is prohibited from taking adverse action against an employee who requests or uses a reasonable accommodation related to her pregnancy. An employer also is prohibited from refusing to provide reasonable accommodations for an employee.  An employer does, however, have the right to ask an employee to provide documentation from her health care provider certifying that the reasonable accommodations are necessary.

An employee injured under this law may initiate an administrative action or bring a civil action in court.  For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070, www.jmlaw.net, or jmccollum@jmlaw.net.

Supreme Court Unanimously Holds Appeals Alleging Discrimination Dismissed By MSPB Should Be Judicially Reviewed In District Court And Not Federal Circuit

On December 10, 2012, the United States Supreme Court unanimously held that all federal employees’ appeals to the Merit Systems Protection Board (“MSPB”) of adverse personnel actions involving a claim for discrimination, which are dismissed by the MSPB should be judicially reviewed in the district court.  Previously, only appeals that were decided “on the merits” by the MSPB could be reviewed by the district court.  Those appeals that were dismissed on procedural grounds were required to be reviewed by the United States Court of Appeals for the Federal Circuit.  The case is Kloeckner v. Solis, No. 11-184.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070www.jmlaw.net, or jmccollum@jmlaw.net.

Seventh Circuit Rejects EEOC’s Argument That All Employee Medical Information Revealed Through “Job-Related” Inquiries Are Protected by the ADA’s Confidentiality Provisions

In EEOC v. Thrivent Financial for Lutherans (2012), a former employee alleged that his former employer revealed his medical information to prospective employers in violation of the medical record confidentiality requirements of the Americans with Disability Act (“ADA”), 42 U.S.C. § 12111 et seq.  The key issue for the Seventh Circuit was whether the medical information alleged to have been revealed by the former employer was obtained from “medical examinations and inquiries” of the former employee as set forth in 42 U.S.C. § 12112(d).  In holding that the information was not obtained from “medical examinations and inquiries,” the Court found that the former employer had no duty to treat its knowledge of such information as a confidential medical record and affirmed the district court’s granting of summary judgment in favor of the former employer.

In reaching its conclusion, the Court found that the word “inquiries” did not refer to generalized inquiries, but instead only to medical inquiries.  The Court also explained that other courts have required – at a minimum, that the employer already know something was wrong with the employee before initiating the interaction in order for that interaction to constitute a 42 U.S.C. § 12112(d)(4)(B) inquiry.  Because the former employer did not have any such knowledge in this case, its communication with the former employee was not an inquiry for purposes of 42 U.S.C. § 12112(d)(4)(B).

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070,www.jmlaw.net, or jmccollum@jmlaw.net.

EEOC Retaliation Claims and Security Clearances

Plaintiff, the FBI’s Legal Attaché in Saudi Arabia, filed race and national origin-based discrimination charges against his supervisors with the  United States Equal Employment Opportunity Commission(“EEOC”). After the charges were filed, one of Plaintiff’s supervisors referred him for a security investigation, maintaining that his connection with Saudi officials had put Plaintiff “inappropriately under the influence of his Saudi counterparts.”  An investigation concluded that the claims underlying his supervisor’s referral were baseless. Plaintiff filed suit under Title VII, claiming that the security referral was made in retaliation for his EEOC complaint. The government filed a motion to dismiss on the grounds that the retaliation claim was non-justiciable under Department of Navy v. Egan, 484 U.S. 518 (1988), which held that “employment actions based on denial of security clearance are not subject to judicial review, including under Title VII.”

In its initial decision, the United States Court of Appeals for the District of Columbia Circuit held that precedent “shields from review only those security decisions made by the FBI’s Security Division” and “not the actions of thousands of other FBI employees…like [Plaintiff].” The Court of Appeals remanded due to erroneous jury instructions, and particularly permitted the Title VII action against Planitff’s supervisors to go forward to the degree that the referral was premised on factually incorrect or misrepresentative information.

Upon rehearing, the Court of Appeals again held that Egan applies only to employees who routinely handle security clearances. In response to the government’s argument that allowing a Title VII action would end security reports that executive employees are required to make under Executive Order 12,968, the Court of Appeals narrowed its prior decision. The Court of Appeals held that Title VII allegations based on “knowingly false” information could advance consistent with Egan. Since some of the claims underlying the supervisor’s referral were false, the Court of Appeals remanded so that the district court could determine whether adequate evidence of knowingly false information existed to allow Plaintiff’s claims to go before a jury.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

Race Discrimination and National Origin Discrimination

Plaintiff sued his employer under Section 1981, Title VII and the District of Columbia Human Rights Act (DCHRA), alleging race discrimination, national origin discrimination, and retaliation.   In dismissing Plaintiff’s race discrimination claims, the Court held that Plaintiff had failed to establish that the alleged discrimination because he was from Angola (national origin) also meant that he had been discriminated against because of his race.

The Court reasoned that race and national origin are “ideologically distinct categories” of employment discrimination law.  Race discrimination, according to the Court, has to do with an employee’s “ancestry or ethnic characteristics.”  Conversely, national origin discrimination, according to the Court, relates to where an individual was born. For example, there are a number of people of Caucasian origin residing in South Africa. Therefore,  simply stating that one is “South African” does not define the race of an individual in question.  Furthermore, a Caucasian South African could not claim that other people of Caucasian decent from other nations discriminated him against on the basis of his race.

The Court highlighted that Plaintiff never classified himself as a “Black Angolan.” Furthermore, Plaintiff did not explain why labeling himself as “Angolan” should be considered a “very distinct” ancestral or ethnic characteristic.  The Court also found it relevant that Plaintiff did not identify the race of those who allegedly discriminated against him or the race of employees who were treated more favorably.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

EEOC Settles Severe Obesity Case Under the ADA

A nonprofit organization has agreed to pay a severely obese woman $125,000 to settle a disability discrimination lawsuit filed by the United States Equal Employment Opportunity Commission (EEOC).

The nonprofit fired the woman, and the EEOC alleged that she was fired because of her severe obesity although she could perform her job.  The EEOC asserted that severe obesity was a disability under the Americans with Disabilities Act (ADA).  In addition to the financial payment, as part of the settlement, the nonprofit organization will be required will provide annual training on federal disability law to all human resources personnel and corporate directors of its organization.   The nonprofit organization also will report to the EEOC for three years on all complaints of disability discrimination and all denials of a request for reasonable accommodation of a disability.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

Refusal to Hire Based on Type 1 Diabetes

A plaintiff sued the United States Attorney, alleging that the FBI refused to hire him as a special agent because of his Type 1 diabetes in violation of the Rehabilitation Act of 1973 (Act), 29 U.S.C. §§ 701 et seq.  The jury agreed with the plaintiff and, accordingly, awarded him a sum in compensatory damages. However the trial judge denied the plaintiff’s request for equitable relief (front pay and instatement).   The United States Court of Appeals agreed with the trial judge’s decision to deny the request for equitable relief.

In particular, the Court of Appeals agreed with the trial judge that the equitable request for instatement as a special agent was properly denied because of the plaintiff’s proven lack of candor during the application process.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

United States Has Not Consented to Being Sued in State Court Under Title VII

The United States Court of Appeals has concluded (2-1) that the United States and the Secretary of Homeland Security, a federal agency, did not consent to be sued in state court in a Title VII discrimination action.  The majority opinion reached its conclusion despite the unanimous Supreme Court decision in Yellow Freight Sys., Inc. v. Donnelly, 494 U.S.  820 (1990), that state courts have concurrent jurisdiction with federal courts over Title VII actions.  Stay tuned.  If not now, the Supreme Court may have to weigh in on this issue.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

Title VII Retaliation Claims

A recent decision from the United States District of Columbia addressed a number of legal related to Title VII of the Civil Rights Act of the Civil Rights Act of 1964.  Retaliation was among the matters discussed.  The court noted that Title VII prohibits two types of statutorily protected activity:  (1) opposition activity:  opposing any practice that Title VII makes an “unlawful employment practice” and (2) participation activity:  making a charge of discrimination, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at
(301) 864-6070 or jmccollum@jmlaw.net.

 

Denial of Training – Adverse Employment Action?

To establish a case for discrimination under District of Columbia and federal law, an employee must show that (1) he is a member of a protected class, (2) suffered an adverse employment action, and (3) the circumstances give rise to an inference of discrimination.

The District of Columbia Court of Appeals has recently clarified whether the denial of training constitutes an adverse employment action. The Court explained that although courts have recognized a denial of training may rise to the level of an adverse employment action, in order to prevail an employee must show "legally cognizable adversity flowing from the denial." That is the denial of training must affect the employee’s pay, hours, job title, responsibilities, promotional opportunities, and the like.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at
(301) 864-6070 or jmccollum@jmlaw.net.