Maria Greco Danaher at Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Gender Stereotyping Based on a Person’s Non-Conforming Behavior Violates Title VII

As the U.S. Supreme Court has recognized, Title VII of the Civil Rights Act of 1964 is intended to “strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotyping.” Recently, a federal...more

5/17/2013 - Discrimination EEOC Gender Discrimination Sexual Stereotyping Title VII

Ostracism and Petty Mistreatments May Collectively Rise to the Level of Hostile Work Environment for Light Duty Employee

A female plumber on “light duty” in the city of Chicago’s Department of Sewers filed a lawsuit alleging that her supervisor assigned menial work to her, prohibited her co-workers from interacting with her, and subjected her...more

5/7/2013 - Employer Liability Issues Harassment Hostile Environment Light-Duty Positions Title VII Workplace Violence

Does Partial Deafness Constitute a Disability Under the ADAAA? The Question Remains Unanswered

A federal court in Pennsylvania recently dismissed a lawsuit filed by a female newspaper page designer who claimed that she was laid off because of her gender and her deafness in one ear. Mengel v. Reading Eagle Company, No....more

4/29/2013 - ADA ADAAA Disability Disability Discrimination Discrimination Termination

Employer’s Judgment About What Constitutes an Essential Job Function Carries Substantial Weight

Is being licensed to drive a commercial vehicle an “essential function” of a warehouse manager’s position, even though that manager rarely is required to drive? According to the Eighth Circuit Court of Appeals, that answer...more

4/23/2013 - ADA Essential Functions Hiring & Firing Termination

Dishonest Response on an Initial Application Can Come Back to Haunt an Employee

In a non-precedential opinion, the Third Circuit Court of Appeals recently upheld a hospital’s firing of a security guard who had admitted that he was a recovering drug addict. Because that firing was based upon the fact that...more

4/10/2013 - Discrimination Drug & Alcohol Abuse Failure to Report Hiring & Firing Job Applicants

Facebook Postings Showing Misuse of FMLA Leave Can Form Sufficient Legal Basis of Termination

Based on the number of social media decisions from the National Labor Relations Board over the past two years, most employers understand that when employee Facebook postings constitute “protected activity” under the National...more

3/26/2013 - Facebook FMLA Hiring & Firing Medical Leave NLRA NLRB Protected Concerted Activity Social Media Termination

Employer Has No Obligation to Provide “Light Duty” Assignment Under FMLA or ADA

Employers often assign light duty to employees who are returning to work after recuperating from illnesses or injuries. The Seventh Circuit Court of Appeals has held, however, that neither the Family and Medical Leave Act...more

3/12/2013 - ADA Disability Discrimination Discrimination Essential Functions FMLA Light-Duty Positions Reasonable Accommodation

Permanent “Light-Duty” Position Not Reasonable Accommodation for Disabled Employee Under the ADA

In an unpublished opinion, the Sixth Circuit Court of Appeals recently upheld the dismissal of a case in favor of an employer who refused to convert a temporary light-duty position into a permanent job for a disabled...more

1/31/2013 - ADA Disability Dismissals Essential Functions Light-Duty Positions Reasonable Accommodation

Employer’s Reliance on Third Party Assessment to Determine Reasonable Accommodation May Lead to ADA Liability

The Sixth Circuit Court of Appeals recently addressed an issue of first impression, holding that the ability to hear is not necessarily an “essential function” of the job of lifeguard. Keith v. County of Oakland, No. 11-2276...more

1/24/2013 - ADA Disability Discrimination Keith v County of Oakland Lifeguards Reasonable Accommodation Third-Party

Vegan Employee May Proceed with Religious Discrimination Claim

A federal district court in Ohio has refused to dismiss a complaint for religious discrimination made by a hospital employee after the employee was fired for refusing to be vaccinated for the flu. The basis of the refusal to...more

1/17/2013 - Chenzira Discrimination EEOC Federal Rule 12(b)6) Hiring & Firing Motion to Dismiss Reasonable Accommodation Religious Discrimination Termination Title VII Vaccinations Veganism

Assignment to a Lesser Position Upon Return From Leave May Support FMLA Interference Claim

The Eleventh Circuit Court of Appeals reversed summary judgment in favor of an employer, holding that a plaintiff’s testimony and evidence related to her transfer to a position of less responsibility upon return from leave...more

1/3/2013 - Burden of Proof Evidence FMLA Genuine Issue of Material Fact Hiring & Firing Medical Leave Retaliation Summary Judgment Termination

Layoff Upon Return From Military Leave May Qualify as a “Reemployment Position” Under the USERRA

According to the Eighth Circuit Court of Appeals, the Uniformed Services Employment and Reemployment Rights Act (USERRA) requirement that a returning service member be reemployed in the position that he or she would have...more

12/18/2012 - Military Leave Military Service Members Reemployment Termination USERRA

Temporal Proximity Between FMLA Leave and Firing Does Not Always Lead to Successful Legal Claim

The Family and Medical Leave Act (FMLA) continues to create administrative challenges for employers. One particular issue of concern is the discipline and/or termination of an employee who has requested or is on FMLA leave....more

12/11/2012 - FMLA Hiring & Firing Performance Reviews Retaliation ScriptPro Termination

Termination for Facebook Posting Does Not Violate State Invasion of Privacy Law

Recent court decisions related to employees’ online postings have centered on whether disciplinary decisions regarding those postings may violate the National Labor Relations Act (NLRA). The NLRA protects certain employee...more

11/27/2012 - Facebook Hiring & Firing Invasion of Privacy NLRA Protected Concerted Activity Termination

Employee’s Signs of Severe Emotional Distress and Anxiety May Constitute a “Report” of the Need for FMLA Leave

To state a claim of interference under the Family and Medical Leave Act (FMLA), an employee must show that his or her employer denied benefits to which the employee was entitled under the FMLA. For example, an employee might...more

11/20/2012 - Appeals FMLA Hiring & Firing Interference Claims Mental Health Summary Judgment Termination

NLRB Provides Further Direction on Social Media Policies in Recent Advice Memorandum

Last month, employers received a little more help from the National Labor Relations Board (NLRB or Board) in formulating social media policies that pass muster under scrutiny from the Board. On October 19, 2012, an Associate...more

11/5/2012 - NLRA NLRB Social Media Social Media Policy

EEOC Suggests That Title VII and ADA May Apply to Employment Situations Involving Domestic Violence and Sexual Assault

Neither Title VII of the Civil Rights Act nor the Americans with Disabilities Act (ADA) specifically prohibits discrimination against individuals who may be victims of domestic or dating violence, sexual assault, or stalking....more

11/1/2012 - ADA Discrimination Domestic Violence EEOC Harassment Reasonable Accommodation Retaliation Sexual Assault Stalking Title VII

Employer’s Permanent Modification of Payroll Workweek in Order to Eliminate Overtime is OK under the FLSA

The Eighth Circuit Court of Appeals has determined that an employer’s permanent modification of employees’ “workweeks” in a way that reduced the number of overtime hours did not violate the Fair Labor Standards Act (FLSA)....more

10/22/2012 - FLSA Over-Time Wage and Hour

NLRB Is Finding Ways To Implement Its Employee Rights Notice Posting, In Spite Of Legal Challenges

On September 28, 2012, a three-member panel of the National Labor Relations Board (NLRB) affirmed the decision of an Administrative Law Judge (ALJ) who upheld a car dealership’s firing of a salesperson that was based on a...more

10/1/2012 - Facebook Hiring & Firing NLRB Protected Concerted Activity Section 7 Social Media Termination

Employee’s Request to Move from Rotating Shift to Straight Shift not a “Reasonable Accommodation” under the ADA

The 8th U.S. Circuit Court of Appeals recently addressed an issue of concern frequently raised by employers: whether allowing an employee to move from rotating shifts to straight daytime work is a required “reasonable...more

9/25/2012 - ADA Alliant Energy Corporate Services Disability Discrimination EEOC Essential Functions Reasonable Accommodation

Definition Of “Concerted Activity” Continues To Be Construed Broadly By The NLRB

Recently, the National Labor Relations Board (NLRB) has issued a number of decisions restricting the ways in which employers can limit employee electronic communications, even when those communications may damage the company...more

9/10/2012 - Costco NLRA NLRB Protected Concerted Activity Section 7

An Indefinite Exemption From The Essential Functions Of A Job Is Not A Reasonable Accommodation Under The ADA

An issue that confounds employers on a regular basis is whether the discharge of an employee who is unable to return to work after a medical leave will violate the American with Disabilities Act (ADA). Most employers...more

8/27/2012 - ADA Disability Discrimination Essential Functions Hiring & Firing Reasonable Accommodation Termination

Federal Appeals Court Resists Categorizing “Sexual Stereotyping” Claim As Violation Of Title VII

Under Title VII, an unlawful employment practice is established when an employee demonstrates that gender is a motivating factor for an adverse employment action. Under that analysis, a number of federal appellate courts...more

8/20/2012 - Discrimination EEOC Gender Discrimination Sex Discrimination Sexual Stereotyping Title VII

FMLA Does Not Prohibit Termination Of Employee Who Abuses Leave

The FMLA permits eligible employees to take up to 12 workweeks of leave during a 12-month period if a “serious health condition . . . makes the employee unable to perform the functions of [his or her] position.” Employers are...more

8/6/2012 - FMLA FMLA Abuse Hiring & Firing

Employers Must Be Able To Recognize A Weingarten Request In Order To Avoid Liability Under The NLRA

Section 8(a)(1) of the National Labor Relations Act (NLRA) makes it illegal for an employer to interfere with or restrain employees from exercising the rights accorded to them under that Act. In NLRB v. J. Weingarten 420...more

7/30/2012 - NLRA NLRB Unions Weingarten Rights

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Maria Greco Danaher

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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