That’s a trick question. The answer is none. Still, courts hear it all the time. “We’re an exception to harassment/discrimination laws because … We’re in a gritty industry …We’re doctors …. We have an extra-friendly workplace.” Whatever. One company just wrote a $1.5 million check trying that defense. It doesn’t work in 2008.

Case In Point: A group of black employees complained that they were subjected to racial harassment from co-workers at a power plant construction project in Massachusetts. The workers complained of racist graffiti, demeaning language and having their tools stolen.

The employees complained to the on-site project management team. But no action was taken and the graffiti was allowed to remain. Then it got worse. The complainers soon faced retaliation and eventually were fired.

The black employees filed a race discrimination and retaliation claim with the EEOC. The employer tried to shrug it off because construction sites are rough-and-tumble workplace. (EEOC v. Washington Group Int’l Inc., consent decree approved 3/17/08)

How did this case end … and what lessons can be learned?

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If employees ask for Sunday off work for religious reasons, must they attend services on that day? A new court ruling clarifies that the answer is no. And you could face a religious discrimination lawsuit even if you try to accommodate employees by allowing them to find their own replacement for Sunday shifts ...

Case In Point: Kimberly Bloom, a cashier at an Aldi grocery store in Pennsylvania, asked for Sundays off work for religious reasons. Aldi’s shift rotation system required Bloom to work only one Sunday every two months. It also provided a voluntary shift-swap system so employees could trade days with co-workers who could work Sundays.

Bloom told her boss that her religious convictions as a Christian prohibited her from working Sundays or from asking her co-workers to work in her place. The company offered to let her come in later so she could attend church services, but she said she didn’t go to church. Instead, she read the Bible, watched TV services at home and spent time with family.

When Bloom failed to show up to work on two Sundays, the store fired her. She filed a Title VII religious discrimination claim with the EEOC, which backed her lawsuit. On its web site, the EEOC says employers must “reasonably accommodate employees’ sincerely held religious practices unless doing so would impose an undue hardship on the employer.”

In court, Aldi lawyers argued that the company’s voluntary shift rotation policy was a “reasonable accommodation.” And it said that working on Sundays was an “essential job function” for cashiers and that if Bloom were exempt, it would cause undue hardship.

The grocery store also claimed that since Bloom didn’t go to church, her desire not to work the Sunday shifts was personal, not religious. (EEOC v. Aldi Inc., 3/28/08).

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Do you have to treat transgendered job applicants differently? Which box, if any, do you check on the application—male or female? And what special laws must you know about?

Federal workplace anti-discrimination laws don’t specifically extend protection to transgendered people (those who present themselves as members of the opposite sex). However, 13 states—California, Colorado, Hawaii, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington—plus several cities and counties have passed such laws.

A new court ruling shows that even if your state or city doesn’t have such a law, your organization may still face liability for discriminating against transgendered people. That’s why it’s wise to handle interviews with transgendered people just as you would with anyone—focused on job-related information only.

Case In Point: Raul Lopez is a biological male who presents himself in public as Izza Lopez, a female. Lopez applied for a position as a telephone scheduler at a Houston medical clinic. He submitted his application using both his male and female names and was open about being transgender.

Two people interviewed him for the position. He thought they both knew he was transgender because he had friends at the clinic who shared that information. Lopez used both names for his background check and drug test. He was eventually offered the position.

But the HR director demanded to know what Lopez’s biological sex was and later rescinded the offer, saying Lopez “misrepresented” himself as a female in the interview. The clinic has a written policy that refuses to hire people whose background checks reveal they misrepresented themselves to get hired.

Lopez sued for sex discrimination under Title VII of the Civil Rights Act of 1964. But he didn’t sue because he was transgendered (remember, that’s not protected under the law). Rather, he sued because he was allegedly discriminated against because he was perceived as not conforming to traditional gender stereotypes of how a male should look. (The Supreme Court has said Title VII cases can be based on an employer’s perception that an individual fails to conform to traditional gender roles.)

The clinic argued that Lopez couldn’t purse the case because transgender people aren’t a protected class under Title VII. (Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 4/3/08)

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Chances are, you’ve got at least one diabetic employee in your workplace. What would you say if that person asked for an altered work schedule so she could eat regular meals, check her blood or exercise? Are you required by law to grant such requests?

Diabetes is not automatically a disability under the Americans with Disabilities Act (ADA). But as a new court ruling shows, if employees can prove their diabetes “substantially limits one of their major life activities,” such as eating, then the employee is legally disabled and protected by the ADA. As a result, supervisors would be required to engage in an interactive discussion to arrive at a reasonable accommodation.

Case in Point: Lisa Robbins, a television station manager, was diagnosed with Type II Diabetes. She regularly worked 45 to 50 hours a week.

She repeatedly asked her supervisor and even his boss to reduce her hours and give her a “more manageable” work schedule so she could better control her diabetes with regular meal times, routine blood checks and the opportunity to exercise. Those requests were ignored. In fact, Robbins saw her workload increased after making the requests.

Robbins eventually resigned and filed an ADA lawsuit, claiming the station failed to accommodate her disability.

The TV station argued that Robbins couldn’t legally pursue an ADA case because she wasn’t “disabled” under the law. (The ADA protects people who are “substantially limited in a major life activity” yet can still perform the essential functions of the job, with or without a reasonable accommodation.)

The station claimed that her doctor’s recommendations to eat limited portions, have regular meal times and eat healthy was no different than recommendations made to nondisabled people who were trying to control their weight. (Robbins v. WXIX Raycom Media, S.D. Ohio, No. 1:06cv278, 3/5/08)

How did this case end … and what three lessons can be learned?

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“So exactly why do you need those four days of leave?” Your supervisors may ask such questions, perhaps out of curiosity or because they’re the ones who must approve FMLA requests. But as this ruling shows, asking the wrong questions—and then divulging that confidential medical info—can quickly turn into a violation of the Americans with Disabilities Act (ADA).

That’s because the ADA prohibits employers from “making inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” The ADA also says all medical information must be collected on separate forms, kept in separate files and treated as confidential.

Case in Point: “John Doe,” a credit-company employee, was diagnosed with HIV and needed to have his blood drawn regularly. Doe was written up by his supervisor for missing work to attend medical appointments.

Once when he needed four days of leave for doctor’s appointments, Doe didn’t want to approach his direct supervisor, fearing that he’d gossip about Doe’s HIV status. So Doe approached another supervisor, Danny Dunson, to approve a schedule-change accommodation.

Dunson demanded to know Doe’s specific diagnosis. He pressed him, stating, “I have to know why actually to accommodate you when other people are coming and asking for accommodations and I am turning them down. Why am I going to give you an accommodation?”

Doe replied that his condition was “confidential and stigmatizing.” But Dunson pressed on, demanding to know “what’s going on.” Doe eventually revealed his HIV diagnosis to Dunson. It didn’t take long for word to spread.

Dunson told Doe’s immediate supervisor, apparently because the direct supervisor wanted to know exactly why Doe was no longer on the regular schedule. As Doe feared, his direct supervisor soon disclosed his HIV diagnosis to a handful of his co-workers.

Doe complained. An HR investigation determined that the supervisor breached Doe’s right to confidentiality. Doe claimed he suffered shame, embarrassment and depression as a result of the workplace gossip.

Doe sued under the ADA, claiming the company made unlawful inquiries into his medical condition and wrongfully disclosed his confidential medical diagnosis. The company argued that it did nothing wrong, saying Doe volunteered the information and there was no “sustainable injury” caused to Doe when the information was divulged. (EEOC v. Ford Motor Credit Company, 1/14/08)

How did this case end ... and what three lessons can be learned?

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Do some of your employees’ spouses or children have serious (and expensive) health troubles? It may be tempting to offer suggestions about less-costly treatments—or even to send that employee packing. But don’t do it. As this new ruling shows, it’s illegal to discriminate against employees based on their relationship with a disabled person …

Case in Point: Phillis Dewitt was a nurse manager at Proctor Hospital in Peoria, Illinois. She was a rising star and received excellent evaluations. Her husband, Anthony, suffered from prostate cancer for several years.

The hospital, which was struggling financially, had a partially self-insured health care plan. Over a three-year period, the hospital was regularly notified of Anthony’s escalating medical costs.

At one point, a supervisor confronted Phillis about those high costs and suggested she consider “less expensive” hospice care over the current treatments of chemotherapy and radiation. On a separate occasion, with Phillis present, the supervisor held a meeting to discuss the hospital’s financial crisis and said the hospital would require “creative” cost cuts.

A few months later, Phillis was fired and marked as “ineligible to be rehired.” Her husband died the following year. She sued, alleging the firing was caused by “association discrimination,” which is unlawful under the federal Americans with Disabilities Act (ADA). The hospital argued Phillis was fired for insubordination. (Dewitt v. Proctor Hospital, 7th. Cir., 2/27/08)

How did this case end ... and what three lessons can be learned?

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Sometimes it just seems like good old-fashioned ribbing between co-workers. But when does insensitive teasing turn into an illegal hostile work environment that violates Title VII of the federal Civil Rights Act? One court said that while individual incidents may be viewed as singular events, courts will view all incidents “as a whole” when deciding if they add up to unlawful harassment.

Case in Point: Gloria Nieves was of Colombian origin and worked at a deli in Delaware. Her co-workers ridiculed her because of her limited English skills. They suggested that she knew a lot about drugs because she was from Colombia. They frequently joked about the status of her green card. She was allegedly called “stupid” by a co-worker. Another co-worker admitted that Nieves was called racial slurs behind her back and given the nickname of “Chihuahua.”

While Nieves complained to her managers, they took no action. Management even denied that Nieves ever notified them about the incidents, even though a co-worker testified that she overheard Nieves complaining at least once.

Nieves reported experiencing chest pains and crying spells because of all the comments. Eventually, she filed discrimination claims with the EEOC and state labor department and a lawsuit under Title VII for harassment based on national origin.

The deli responded by arguing that the co-workers’ conduct wasn’t severe enough to be unlawful under Title VII. That left the court with this question: How much harassment is enough to tip the scales into being unlawful? (Nieves v. Acme Markets Inc., D. Del., March 7, 2008)

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Sometimes, the simplest mistakes are the most expensive. When faced with the decision of firing an assembly-line worker or giving her a chair to ease her arthritis, this company took the litigious route—and paid the price …

Case in Point: Delores Vaughn worked on the assembly line for Sharp Manufacturing. When the arthritis in her legs got bad, her doctor said she needed to sit during the workday. He suggested she be given a stool to sit on as an accommodation.

But the company refused, saying it was an “essential function” of her job to stand all day. Vaughn filed a complaint with the EEOC, arguing that the company failed to provide her with a “reasonable accommodation” for her disability, a violation of the Americans with Disabilities Act (ADA). The company eventually fired her, claiming that she couldn’t do the essential function of her job, so she wasn’t protected by the ADA.

Ten days after she was fired, Vaughn filed for Social Security Disability Insurance, claiming she was disabled. The company argued that this filing proved that she was totally disabled, unable to work and, therefore, not protected by the ADA. Vaughn countered that a simple four-legged stool accommodation was all she needed to be able to perform the job’s essential function. (EEOC vs. Sharp Mfg. Co. of Am., W.B. Tenn., 2/1/08).

How Did This Case End … And What Lessons Can Be Learned?

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If your organization leases temporary employees from an agency, what should you do if one of them complains she’s being harassed? Who should do the investigation—your organization or the temp agency? A new ruling says that even though temps aren’t your employees, you’d better take quick action to investigate the situation and stop the conduct—and the agency should do the same.

Case in Point: Kristen McGee worked as a temp for Kelly Services. The agency contracted McGee out to a General Motors parts plant. Right away, the plant manager allegedly began subjecting McGee to non-stop harassing conduct. He asked her about her sex life, made suggestive comments and put his arm around her frequently.

After several months of putting up with it, McGee finally approached a GM manager to ask if she could use the GM hotline to report the harassment. The manager alerted HR and within one day GM initiated an investigation, which included contacting Kelly Services. Kelly Services initiated its own investigation as well.

McGee wasn’t given a copy of the GM harassment policy, but she was given the one from her employer, Kelly Services. Also, she did know about the GM hotline because it was communicated in postings throughout the plant.

McGee filed a claim with the EEOC against GM alleging sexual harassment and retaliation. She also claimed that GM never completed the investigation, which it had not. But GM countered by saying that it shouldn’t be liable because it stepped up and investigated right away. (EEOC vs General Motors Corp., SV. Miss.)

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Every school has a class clown. So, it seems, does every workplace. Sometimes, those jokesters cleverly craft their double entendres so they can be taken either way … sexual or not sexual. But a new court ruling says enough of those coy games. “If a reasonable juror could find that in context such comments took on a sexual meaning,” the joke will be on you in the form of a sexual harassment lawsuit.

Case in Point: Ray Stark and Brian Paonessa worked together at a Florida car dealership. Paonessa allegedly propositioned Stark constantly, using vulgar language to describe his sexual fantasies of them together. Stark complained to a supervisor of Paonessa’s ongoing comments and conduct, which included zipping and unzipping his pants in front of Stark. However, the supervisor felt the behavior was “innocuous” and took no action to stop it or report it up for an investigation.

Stark eventually filed a sexual harassment claim with the EEOC. The employer denied the charges, claiming Paonessa was only engaged in “horseplay and roughhousing” and Stark took his comments “the wrong way.” The employer argued, for example, that when Paonessa told Stark he’d “enjoy the ride,” Paonessa was really referring to “carpooling” to work together, not sexual activities. (EEOC v. Belle Glade Chevrolet, Inc. S.D. Fla. 1/3/08).

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Does your company have a written progressive disciplinary policy? Do you and your supervisors follow it step by step--like a recipe? A new court ruling says that if you don’t, you could whipping up a recipe for disaster and liability under the Age Discrimination in Employment Act (ADEA).

Case in Point: Cynthia Kildo and Leann Richter worked as sales associates at a Cellular One store. Both were over 40. The company laid out very specific sales quotas for its sales associates and a written progressive disciplinary process for failing to meet such expectations. To make sure that managers used the discipline process fairly and consistently, the policy set multiple levels of review before disciplinary action could be taken.

Kildo and Richter were fired for failing to meet their sales quotas five times during a 12-month period. They thought their age was the real reason for the firing, so they filed ADEA lawsuits. (The ADEA is a federal law that protects workers age 40 and over from employment discrimination.)

Their proof: alleged inconsistency in applying the discipline policy. The women argued that the regional vice president used his discretion to enforce the disciplinary procedures when quotas weren’t met. They pointed to other sales associates under 40 who had also failed to meet their quotas but got to keep their jobs.

The company, however, thought it had an ace up its sleeve: It argued that the company’s policy “reserved the right” to impose different discipline based on particular infractions. (Whitesell v. Dobson Commc’ns t/a Cellular One, W.D. Pa., 2/20/08)

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Memories fade and employees come and go.

That’s why it’s crucial to retain certain records for future reference. Among the records you should keep forever are past organizational charts that show who had supervisory authority over other employees. As this case shows, they can come in handy in court.

Case in Point: Stephanie Goebelbecker filed a sex discrimination lawsuit, arguing that she was constantly passed over for promotions. Her smoking-gun evidence: She claimed her supervisor told her that she’d never be promoted because she is a woman.

The company’s response: That “supervisor” was not a supervisor at all. The company argued that the man who made the anti-woman remark really had no supervisory authority over Goebelbecker. So his comment couldn’t be used as evidence of job bias.

To prove its point, the company produced an organizational chart that showed no supervisory relationship. The problem: the org chart was dated Dec. 27, 2006. The year in question was 2002. The company didn’t retain its previous org charts. (Goebelbecker v. Plastipak Packaging, No. 1:06-CV-576, ND OH, 2007)

How did this case end … and what lessons can be learned?

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Sometimes employees get frustrated. Sometimes they even act rudely. But a new ruling highlights a legal risk you may not have thought about: Employee’s rude treatment can quickly turn into an ADA lawsuit if the customer is disabled. A New York court last week called the problem a “failure to train” case:

Case in Point: Alice Camarillo is legally blind. She can only read large type that’s close to her face. She frequents fast food restaurants near her home, including a Taco Bell, Burger King, McDonalds and Wendy’s. She has informed employees at the restaurants that she is legally blind and unable to read the menus.

When she’s asked employees to read the menus to her, Camarillo claimed she was “made fun of, stared at and forced to wait until other customers behind her in line were served.” Even then, she said, employees responded with annoyance and only read parts of the menu.

Camarillo filed an ADA lawsuit, claiming that the failure to provide large print menus violated the ADA. A lower court dismissed her case on the grounds that employees always read the menus to her and she was never turned away from the restaurants.

But Camarillo filed an appeal taking a different approach: that the restaurants failed to train their employees in the proper handling of disabled employees. Thus, they didn’t take necessary steps to make sure customers aren’t treated different due to their disabilities. (Camarillo v. Carrols Corporation, 2nd Cir., 2/8/08)

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Have you ever flat-out fired an employee for poor performance without any warning? If employees are “at-will,” you can fire them for any reason or no reason at all, as long as it’s not for a discriminatory or illegal reason. Does that allow you to drop the guillotine without guilt? As a new court ruling shows, supervisors should resist that urge (and give the person a chance to shape up) if that employee recently voiced a complaint about discrimination.

Case in Point: Michael Bruno worked as the director of hospitality for a Mississippi casino for 11 years. Bruno had been looking to hire a buffet manager and eventually located someone who he thought was highly qualified. Bruno told his supervisor, who immediately rejected the applicant as “too old,” saying the casino didn’t need “another squatter,” referring to a 50-year-old employee the supervisor deemed as unproductive.

Bruno argued that it “wasn’t right” to reject the candidate solely on age, noting that the candidate was “very qualified.” Regardless, his supervisor tossed the application back at Bruno shouting “too bad."

Within less than two weeks of his complaint, Bruno was fired without warning. He was only given vague reasons, including that he had “substandard” kitchen cleanliness and managerial performance. Despite the fact that the casino had a progressive disciplinary policy, it was ignored in Bruno’s case. He wasn’t given any chance to correct his supposed mistakes.

Bruno shot off a retaliation lawsuit under the federal Age Discrimination in Employment Act (ADEA) and state law. He claimed his firing was in retaliation for opposing his supervisor’s discriminatory hiring decision. The casino, however, argued that it had a nondiscriminatory right to fire Bruno for poor performance. (Bruno v. RIH Acquisitions MS 1 LLC d/b/a Bally’s Resorts, N.D. Miss 1/14/08).

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You’ve probably got an ADA policy that extends reasonable accommodations to any disabled workers. That’s good. But are your managers following through? If your paper policy is the only thing granting accommodations, a court could make you pay the price … big time. As in punitive damages.

The Americans with Disabilities Act (ADA) offers job protection to people with qualified disabilities who can perform the essential functions of the job (with or without a reasonable accommodation). The kicker: As FedEx learned last week, your company can get hit with punitive damages in ADA lawsuits if it shows “reckless indifference” for the law and rights of the employees.

Case in Point: Ronald Lockhart, who was deaf, worked as a FedEx package handler in Maryland for three years. He never requested accommodations to perform his regular work, but he repeatedly asked for a sign language interpreter or written materials to understand what was said in meetings and training sessions. FedEx ignored his requests. Lockhart couldn’t even tell what was being discussed during the meetings.

In one instance, he became very upset during the national anthrax emergency because FedEx delayed giving him a security badge for several months due to lack of an interpreter.

Eventually, Lockhart filed an EEOC charge. FedEx fired him. The EEOC won him a jury award of $8,000 in compensatory damages and $100,000 in punitive damages (which the court agreed was “nothing” compared to what FedEx could afford.)

Still, FedEx appealed, arguing that it made “good faith efforts” to comply because it had an ADA policy in its employee handbook.

So the question arose: Does having a written ADA policy shield a company from punitive damages? (EEOC v. Federal Express Corp. 4th Cir., 1/23/08)

How did this case end…and what lessons can be learned?
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