Categories
Discrimination

“OK, Boomer!”

“OK, Boomer!”

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Discrimination on Monday, December 9, 2019.

Employers always seem to find themselves as the unwitting recipient/victim of the actions of others-sometimes other companies, sometimes the Government, but in almost all cases, some of their employees. Whether it is the Federal or State Government, the Me Too Movement or in this case, Generation Z and Millennials, Employers are always going to be “at the end of the line”.

As recently highlighted in a New York Times article, a new phrase has become emblematic of the “War Between Generations”. The term “Ok, Boomer!” which has been popularized on the Internet and, in particular on Twitter by Generation Z and Millennials is now being used to dismiss Baby Boomers thoughts and opinions which are sometimes viewed by the younger generation as paternalistic or just out of step. While many may find the term, “Ok, Boomer!” as a harmless way to point out generational differences, the phrase’s popularity could and will lead to problems in the workplace.

It is very clear that under the Age Discrimination In Employment Act, anyone over the age of 40 is in a protected status and, as such, has the right to raise a claim if they are mistreated due to their age. Whether a speaker believes they are well within their rights or are merely being cute and funny, a dismissive attitude about older workers can and will form the basis for a Claim for Discrimination and/or Harassment. In point of fact, the term “Ok, Boomer!” could be considered an outright slur!

The younger generation (Generation Z and Millennials Employees) must understand that derogatory or dismissive comments related to gender, race, religion, age, national origin, disability and sexual orientation are not only inappropriate and insulting, but can create legal liabilities for their Employer and possibly, for them as well. Given the heavy prevalence of Age Discrimination lawsuits that are arising, Employers, rather than being at the end of the line and solely a recipient, better start reminding their workforce about the improprieties of derogatory and dismissive comments to individuals over 40 and make sure their employees, whether Baby Boomers, Generation Z or Millennials leave the Generation Wars at the door. Just for the record, the author is 74 – any Generation Z or Millennial WANT TO COMMENT??

Questions? Contact attorney Walter J. Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com.

Related Posts: Seventh Circuit Decision-Use Of The “N-Word”, He Who Hesitates May be Lost, What Happens if a Current or Former Employee Files a Charge of Discrimination with the Illinois Department of Human Rights (IDHR)?, Alert: Pending Legislation in Illinois Would Impose Huge Impact on Sexual Harassment Claims on all Employers

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Discrimination Harassment

Seventh Circuit Decision-Use Of The “N-Word”

Seventh Circuit Decision-Use Of The “N-Word”

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Discrimination on Monday, October 7, 2019.

In recent years, a number of Federal Appellate Courts have issued opinions finding that the single use of a racial slur would be sufficient to constitute a hostile and offensive working environment based on race. On August 21, 2019, the Seventh Circuit Court of Appeals reached the opposite conclusion in concluding that the single alleged use of the “N Word” by a Supervisor was not enough to show racial harassment given the overall work scenario of the Plaintiff.

In the case of Smith v. Illinois Department of Transportation, (No. 18-2948; August 21, 2019)the Plaintiff, Terry L. Smith, was disciplined and eventually terminated for poor work performance that included numerous safety violations during his six (6) month probationary period. While he was employed, Mr. Smith, made numerous internal complaints about harsh and unfair treatment by his Supervisors, some of them raising allegations of racial discrimination, including a claim that one of his Supervisors (Lloyd Colbert, African American) had a very angry conversation with Smith that included his (Colbert) calling Smith a “stupid A — N—–” a few weeks before he was terminated.

The Seventh Circuit affirmed the Summary Judgment issued by District Court Judge Edmond E. Chang in favor of the Illinois Department of Transportation and noted that a large majority of the Plaintiff’s complaints about harassment involved Supervisors conduct that did not relate to race. In fact, the Seventh Circuit concluded that the alleged use of the “N-Word” near the end of his employment did not affect his overall work experience at work nor change the fact that his discharge was related to “poor performance”. In fact, termination proceedings against Smith had been initiated two (2) weeks prior to Colbert’s comment and no evidence was presented to substantiate that the racial slur changed Smith’s work experience in the Department. It also should go as noted that the Supervisor who made the alleged “N-Word” comment was also an African American which may have influenced the Court’s view of the impact of this comment on Smith.

The clear path of other Circuits in finding that the single use of racial slur would constitute racial harassment at least now seems to run contrary to the Seventh Circuit opinion. The Seventh Circuit opinion may give employers some support in the argument that racial harassment requires more proof of severe and pervasive conduct that directly affects the terms and conditions of the Plaintiff’s employment rather than a single event standing alone, but there are certainly a number of Appellate Courts in Federal System that believe that a “single use of a racial slur” is sufficient to support a finding of racial discrimination.

Questions? Contact attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com

Tags: Racial Slurs, Smith v Illinois Department of Transportation, discrimination, harassment

Related Posts: “OK, Boomer!”, He Who Hesitates May be Lost, What Happens if a Current or Former Employee Files a Charge of Discrimination with the Illinois Department of Human Rights (IDHR)?, Alert: Pending Legislation in Illinois Would Impose Huge Impact on Sexual Harassment Claims on all Employers

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Discrimination

He Who Hesitates May be Lost

He Who Hesitates May be Lost

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in EEOC on Monday, July 8, 2019.

While the statement “he who hesitates may be lost” has been around for decades, it may be the underpinning of a very recent Supreme Court decision. In a unanimous decision issued by the United States Supreme Court on June 3, 2019 (Fort Bend County vs. Davis, No. 18-525, Argued 4/22/19; Decided 6/3/19) the Supreme Court of the United States held that an employment discrimination plaintiff’s failure to exhaust administrative remedies is not a jurisdictional prerequisite to filing litigation and, therefore, Federal courts may be able to hear discrimination claims under Title VII even if workers fail to raise those claims with the Equal Employment Opportunity Commission (“EEOC”) or a state workplace bias watchdog group.

Under most Federal laws prohibiting discrimination and retaliation, such as Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, and the Age Discrimination and Employment Act, plaintiffs are required to file an Administrative Charge alleging the discrimination or retaliation with the EEOC or state agency before they may file a lawsuit in Federal or State Court alleging such discrimination and retaliation. In point of fact, many state civil rights statutes contain similar administrative exhaustion requirements for employment claims. Simply stated if a plaintiff has not “exhausted their administrative remedies” the lawsuit may be subject to dismissal.

In the Fort Bend County vs. Davis litigation, Lois Davis filed a charge with the Texas Workforce Commission alleging sexual harassment and retaliation by her employer, Fort Bend County. While the charge was pending, Davis informed her supervisor that she could not work on a particular Sunday due to a “previous religious commitment” but the supervisor did not approve her absence. When Davis failed to report to work on that Sunday, she was terminated. Davis then submitted to the Texas Workforce Commission documentation about her charge dealing with sexual harassment and retaliation and hand wrote the word “religion” as an additional claim of harm but did not amend her original charge of discrimination to add “religion” to the “allegations of sexual harassment and retaliation”. Sometime later, the EEOC issued to Ms. Davis a right to sue letter and she filed a lawsuit in the Federal District Court alleging retaliation and religious discrimination under Title VII. The Federal District Court granted summary judgment to the County on all claims and Davis appealed.

The Fifth Circuit affirmed the Federal District Court decision with regard to the retaliation claim, but reversed dismissal of the religious discrimination claim and remanded that claim to the District Court for further action. On the remand, the Fort Bend County, for the very first time, raised the issue that Davis had failed to exhaust her administrative remedies on the religious discrimination claim as required by Title VII and the District Court agreed, finding that administrative exhaustion is a jurisdictional prerequisite in Title VII cases and that the County did not waive the defense by failing to assert it in the initial court proceedings.

On a second appeal, the Fifth Circuit sided with Davis and held that the “exhaustion requirement” is not a jurisdictional bar to the suit, but an affirmative defense that must be pleaded by the defendant in a timely fashion.

The Supreme Court, in its June 3, 2019 unanimous decision affirmed the Fifth Circuit holding that the “administrative exhaustion requirement” is not a jurisdictional prerequisite to filing a Federal lawsuit under Title VII and that employers must bear the burden of asserting it in a “timely fashion” as an affirmative defense. Employers who fail to timely raise the exhaustion defense in a timely fashion will forfeit the right to raise it at a later date.

It is essential for employers who are dealing with a job bias claim, whether in Federal or State Court properly analyze the litigation and determine whether the lawsuit raises issues that have not been raised in the plaintiff’s administrative charge. Employers must assert this exhaustion defense early in the litigation as an AFFIRMATIVE DEFENSE or may be forced to be litigating a job bias claim that could have been avoided.

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com.

Related Posts: EEOC Collection Of Employer Pay Data On Target For September, EEOC Charges At 12-Year Low, EEOC Lawsuits Demonstrate An Aggressive Position On Employer Obligations To Reasonably Accommodate, Outsourcing Administration of Employee Leaves of Absence to a Third-Party Vendor Did Not Insulate Dollar General Store from Responsibility to Rehire Returning Service Member under USERRA

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Discrimination Harassment

Alert: Pending Legislation in Illinois Would Impose Huge Impact on Sexual Harassment Claims on all Employers

Alert: Pending Legislation in Illinois Would Impose Huge Impact on Sexual Harassment Claims on all Employers

By Anthony J. Caruso Jr. of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Discrimination on Monday, June 10, 2019.

On April 11, 2019, the Illinois state Senate passed Senate Bill 1829, also known as the Workplace Transparency Act. If passed by the Illinois House of Representatives and if signed by the Governor, this Act would impose new requirements and limitations with respect to harassment and discrimination claims on Illinois employers. As of May 10, 2019, this bill is pending before the House Rules Committee.

What would the Workplace Transparency Act REQUIRE?

  • It would prevent employers from including sexual harassment claims in employment contracts with non-disclosure and non-disparagement clauses.
  • Under the Illinois Human Rights Act, arbitration clauses in an employment contract could not include harassment and discrimination claims, however, it would be allowable in settlement agreements.
  • Any employer would be required to report on an annual basis to the Illinois Human Rights Department any settlement, adverse judgement or administrative ruling against the employer as to a discrimination or harassment claim.
  • It would require sexual harassment training of employees on an annual basis.
  • It would expand protections under the Illinois Human Rights Act to non-employees (i.e., independent contractors).
  • It would amend the Victim’s Economic Security and Safety Act to include sexual harassment as a basis for leave.

This is not yet law in Illinois. Illinois employers are now just being put “on notice” that the above changes may be required by law in the near future if the bill is signed into law.

If you have any questions, please contact attorney Anthony J. Caruso, Jr., Esq. at (630) 377-1554 or by email at ancaruso@wesselssherman.com.

Related Posts: “OK, Boomer!”, Seventh Circuit Decision-Use Of The “N-Word”, He Who Hesitates May be Lost, What Happens if a Current or Former Employee Files a Charge of Discrimination with the Illinois Department of Human Rights (IDHR)?

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Discrimination

What Happens if a Current or Former Employee Files a Charge of Discrimination with the Illinois Department of Human Rights (IDHR)?

What Happens if a Current or Former Employee Files a Charge of Discrimination with the Illinois Department of Human Rights (IDHR)?

By Joseph H. Laverty of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Discrimination on Monday, June 24, 2019.

The first thing to check is: Was the Charge of Discrimination filed “timely”? A Charge of Discrimination must be filed within 300 days after the alleged discriminatory actions, or one year for a fair housing case.

Employers accused of discrimination are required to preserve any records pertinent to the Charge. Additionally, employers are prohibited from retaliating against any person because he/she has filed (or has otherwise participated in the investigation of) a Charge. A person who believes he/she has been retaliated against may also file a retaliation Charge with the IDHR.

What steps take place once a Charge of Discrimination is filed?

I. Intake: For free, the IDHR’s intake unit will assist people (also called “Complainants”) in preparing a Charge of Discrimination.

  • The person filing the Charge will have to provide their home address, phone number, information about the employer, the most recent date the alleged discrimination took place, names and contract information of witnesses and copies of relevant documents.
  • A Charge can be filed in person or mailed in.

II. Mediation: The IDHR will offer the parties to take the case to mediation. The IDHR will provide a mediator for the case to see if the case can be resolved without a formal investigation by the IDHR. If both parties don’t agree to the mediation, or if the parties are unable to reach an agreement at mediation, the Charge will proceed to the investigation stage.

III. Investigation Stage:

The IDHR has the power to subpoena relevant documents and persons. IDHR Investigators may contact and interview relevant witnesses and may obtain pertinent documents from either party.


FACT FINDING CONFERENCE: Employers are required to send a written response to the Charge to the IDHR. The Investigator will then set a Fact Finding Conference which takes place in person at the IDHR. At the Fact Finding Conference, each party can present their side of the dispute and respond to the other side. Failure to attend the Fact Finding Conference without good cause can result in dismissal of the Charge for the Complainant (i.e., the current or former employee filing the Charge) or default for the Respondent (i.e., the employer).

  • The IDHR Investigator may identify and request further documentation necessary to investigate the Charge.
  • The Illinois Human Rights Act (IHRA) requires that the IDHR conclude all proceedings and make a finding within 365 of the perfected Charge being filed (or an extension which both parties must agree to).
  • If the IDHR does not make a finding by the 365th day (plus the number of days for extensions), the Complainant has 90 days to file a complaint with the Illinois Human Rights Commission (IHRC) or to file a complaint in state circuit court.
  • After completing the investigation, the IDHR Investigator writes a report summarizing the information obtained and making a recommended finding based upon the relevant evidence. After approval, the IDHR sends a copy of the report to both parties.

IV. Findings and Results

The Investigator’s written report either finds “substantial evidence” of a violation of the Act or “lack of substantial evidence.”

  • LACK OF SUBSTANTIAL EVIDENCE: If a “lack of substantial evidence” is the determination, the Complainant has the option of either 1) filing a request for review with the Illinois Human Rights Commission; or 2) commencing a civil action in a state Circuit Court.
  • SUBSTANTIAL EVIDENCE: If “substantial evidence” is found by the IDHR, the Complainant has the option of either: 1) requesting the IDHR to file a complaint on the Complainant’s behalf, with the Illinois Human Rights Commission, or 2) commencing a civil action in state Circuit Court.

If the Complainant requests the IDHR to file a complaint with the IHRC, an IDHR attorney will be assigned to help the parties resolve or “conciliate” the Charge. If a settlement agreement is not reached, the IDHR will file a complaint with the IHRC on behalf of the Complainant. The Complainant then has to prosecute his/her Charge and bears the burden of proof of proving the case before the Illinois Human Rights Commission.

Conclusion: Employers are encouraged to promptly investigate situations in the workplace and document their investigations. If a Charge is filed, employers should cooperate with the IDHR Investigator and attend the Fact Finding Conference at the IDHR. Many times, employers will be successful with the IDHR on the merits of their case but at other times they also can be successful by cooperating in the complaint process because the Complainant fails to cooperate with the IDHR.

Knowing about all aspects of the IDHR process increases an Employer’s chance of successfully defending against a Charge of Discrimination.

If you have any questions about the complaint process with the IDHR, please contact Attorney Joe Laverty at jolaverty@wesselssherman.com or give him a call at (563) 333-9102.

Related Posts: “OK, Boomer!”, Seventh Circuit Decision-Use Of The “N-Word”, He Who Hesitates May be Lost, Alert: Pending Legislation in Illinois Would Impose Huge Impact on Sexual Harassment Claims on all Employers

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Discrimination Harassment

Rumors of “Sleeping Your Way to the Top” Can Constitute Sex Discrimination

Rumors of “Sleeping Your Way to the Top” Can Constitute Sex Discrimination

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Harassment on Friday, March 15, 2019.

It remains an unfortunate, though persistent, stereotype in our society that women who advance in the workplace, especially those who do so rapidly and have a male superior, do so not by merit, but rather, because of a sexual relationship with their superior. In other words, they only obtained the position because they are “sleeping with the boss.” When such false rumors and gossip persist – and are even advanced by other managers, can they form the basis of a claim for sex discrimination? The Fourth Circuit Court of Appeals just determined that they can.

In Parker v. Reema Consulting Servs., Inc., 915 F.3d 297 (4th Cir. 2019), the court addressed the question of whether a false rumor that a female employee slept with her male boss to obtain promotion can give rise to liability under Title VII for discrimination “because of sex.” The court answered in the affirmative, particularly when the employer participates in the circulation of the rumor and acts on it by sanctioning the employee, rather than the source of the rumor.

The plaintiff, Parker, began as a low-level clerk and received six promotions in 18 months, ultimately rising to the level of Assistant Operations Manager. Shortly after obtaining the position, Parker learned that certain male employees were circulating a false rumor that she was having a sexual relationship with another manager in order to obtain the position. However, the gossip did not just come from jealous co-workers – the highest ranking manager in the facility participated in spreading it. The rumor continued to circulate throughout the plant, including a complaint from one of the individuals responsible for starting it – and the company responded by disciplining and ultimately terminating Parker. Parker filed a claim for sex discrimination, contending that the false rumor created a hostile work environment that the company failed to address.

The lower court dismissed the claim, finding that the objectionable harassment was directed at Parker because of her conduct, not her sex. The Fourth Circuit disagreed, finding that the conduct at issue struck to the heart of damaging sex stereotypes:

As alleged, the rumor was that Parker, a female subordinate, had sex with her male superior to obtain promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception – one that unfortunately still persists – that generally women, not men, use sex to achieve success. And with this double standard, women, but not men, are susceptible to being labelled as “sluts” or worse, prostitutes selling their bodies for gain.

***

In short, because “traditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society,” and “these stereotypes may cause superiors and coworkers to treat women in the workplace differently from men,” it is plausibly alleged that Parker suffered harassment because she was a woman.

The court allowed the claim to proceed, finding that the conduct at issue was also sufficiently severe and pervasive to create a hostile work environment.

It is unfortunate that such stereotypes persist in the workplace. Still, they do, and it is important that employers recognize that malicious gossip and false rumors can form the basis of liability, especially if they persist and appear to be sanctioned by the company. Thus, while it can be very difficult to stop rumors and gossip in the workplace, that is no excuse for an employer to ignore it, or, even worse, to further or sanction it. Of course, as with many such issues, one wonders why there is still a need to even have to write about it.

If you have questions about sex discrimination, sexual harassment and the problem of rumors and workplace gossip, contact Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

Related Posts: Internal Harassment Complaints, Seventh Circuit Decision-Use Of The “N-Word”, Illinois Workplace Transparency Act, Alert: Pending Legislation in Illinois Would Impose Huge Impact on Sexual Harassment Claims on all Employers

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Discrimination

Limitation On Age Discrimination Claim

Limitation On Age Discrimination Claim

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Discrimination on Thursday, February 7, 2019.

Recently, the United States Court of Appeals for the Seventh (7th) Circuit (applicable to the State of Illinois, Indiana and Wisconsin) issued a far-reaching decision on the basis of an 8 to 4 decision (all twelve justices of the 7th Circuit Court of Appeals Hearing and Ruling on the case) establishing that job applicants may not bring a claim for unintentional age discrimination under the Age Discrimination and Employment Act (ADEA) (Kleber v. Care Fusion Corporation decided by Seventh Circuit En Banc Panel January 23, 2019).

In the case at hand, the involved plaintiff, Dale Kleber had applied for a senior in-house attorney position in the Care Fusion Law Department. Kleber who was 58 had applied for a position based on a posted position that obviously required the individual to have a law degree and certain limited experience. While Mr. Kleber certainly had the law degree and more than the requisite experience, Care Fusion hired a 29 year old applicant who met but did not exceed the posted experience requirement. Kleber sued at the Federal District Court Level claiming both disparate treatment discrimination (i.e., that the company intentionally refused to hire him because of his age) and disparate impact implication (i.e., claiming that the company unintentionally discriminated against him because of its hiring policies which appeared neutral but had a disproportionate impact on the individuals over the age of 40. The District Court dismissed the disparate impact claim and Kleber voluntarily dismissed his disparate treatment claim and the matter went up to the Seventh Circuit.

While the initial three-judge panel of the Seventh Circuit reversed the District Court decision, a subsequent request for En Banc review was requested and the case went before all twelve (12) judges. The Seventh Circuit En Banc panel held that the provisions of the ADEA permit disparate impact claims but those claims do not apply to job applicants. Specifically, Section 4(a)(2) made it unlawful for an employer “to limit, segregate or classify his employees in any way that would deprive or tend to deprive the individual of employment opportunities or otherwise affect his status as an employee, because of his age”. The Court held that, therefore, Section 4(a)(2) limited the protection of disparate impact claims solely to employees and that an applicant had “no status as an employee”. The Court further stated that while Section 4(a)(1), the disparate treatment portion of the statute did specifically deal with applicants predicated on the terminology that Section 4(a)(1) applied to an individual who an employer “failed or refused to hire” because of their age and therefore, while applicants could make a disparate treatment claim under Section 4(a)(1), an applicant was not able to make a claim under Section 4(a)(2) because job applicants were not part of the protection of the Age Discrimination and Employment Act for disparate impact claims.

Whether or not the United States Congress will modify the statute with regard to future claims is an issue that is subject to debate and/or consideration but, for now, based on the En Banc court decision in the Kleber case, disparate impact claims do not have validity with regard to job applicants.

Questions? Contact attorney Walter Liszka in our Chicago office at (312) 629-9300 or by e-mail at waliszka@wesselssherman.com

Tags: Age Discrimination, Kleber v Care Fusion Corporation

Related Posts: “OK, Boomer!”, Seventh Circuit Decision-Use Of The “N-Word”, He Who Hesitates May be Lost, What Happens if a Current or Former Employee Files a Charge of Discrimination with the Illinois Department of Human Rights (IDHR)?

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Discrimination

It Is Dangerous For An Employer To Just Assume That Pregnant Employees Cannot Get The Job Done!

It Is Dangerous For An Employer To Just Assume That Pregnant Employees Cannot Get The Job Done!

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Discrimination on Tuesday, January 8, 2019.

Employers put their companies and themselves at great legal risk (unnecessarily!) when they assume that their pregnant employees cannot do their job just because they are pregnant.

Of course, pregnancy can affect or limit an employee’s ability to do her job in certain ways, but employers should be very careful that they do not make the blanket assumption that the pregnant employee cannot do her job.

Some employees do not reveal at the time they are interviewed for a new job that they are pregnant. Surprising to some employers, these job applicants have no legal responsibility to reveal their pregnancies before being hired. They can legally withhold that personal information.

U.S. SUPREME COURT CASE: There is an often cited U.S. Supreme Court case from 1991 (United Automobile Workers v. Johnson Controls Inc.) that involved a workplace policy barring women of childbearing age from taking jobs within Johnson Controls that exposed them to lead (lead can harm fetuses). The U.S. Supreme Court ruled that this Johnson Controls policy was both illegal and paternalistic. No one really doubted that Johnson Controls was simply trying to protect the women employees and fetuses from possible harm. Not caring about the employer’s good and protective motive, the U.S. Supreme Court found that the attitude of preventing pregnant employees from doing certain jobs is illegal and discriminatory, if the only reason to limit the employee is due to her pregnancy.

COMPLICATIONS FROM PREGNANCY ARE POTENTIAL DISABILITIES: Pregnancy is not a disability under the Americans with Disabilities Act (ADA), but employers should certainly evaluate complications from pregnancy as potential disabilities under the ADA. Employers should therefore engage in the “interactive process” (required by the ADA when an employee has pregnancy-related disabilities).

Of course, the employer does not need to grant all requests from employees with pregnancy-related complications. The employer just needs to consider them. The employer should attempt to meet all requests for reasonable accommodations put forward by the pregnant employee where such requests do not result in an “undue hardship on the Company” as defined by the ADA.

INTERACTIVE PROCESS: If a pregnant employee has a medical restriction, for example, and cannot do certain aspects of her job, the employer has a legal obligation to engage in the “interactive process” to determine what can be done to allow the pregnant employee to still do her job within the limits of the medical restrictions as set forth by her doctor. Maybe the employer can transfer the pregnant employee to another position where she can safely perform her duties. Perhaps a lighter workload or different hours can be of assistance in these circumstances. The employer does not have to agree to these accommodation requests-just carefully consider them.

CAREFULLY EVALUATE IMPACT OF AN ACCOMMODATION: Under the ADA, there is no bright line between reasonable and unreasonable accommodations and between undue hardships and minimal hardships on the company. So employers have to carefully evaluate the impact of an accommodation request upon the company before the employer grants or denies the accommodation. Certain states have additional “pregnancy reasonable accommodation policies.”

MANY STATES HAVE PREGNANCY ACCOMMODATION LAWS: For example, Illinois requires employers to provide reasonable accommodations to employees (and job applicants) for any medical or common condition related to pregnancy or childbirth. The Illinois law makes it unlawful to fail to hire or otherwise retaliate against an employee or applicant for requesting such accommodations. If an Illinois employer demonstrates the accommodation would impose an undue hardship on the “ordinary operation of the business of the employer,” the employer need not provide the requested accommodation. “Undue hardship” is an action that is “prohibitively expensive or disruptive” under the Illinois law.

In view of the growing number of states with pregnancy accommodation laws, it is a wise idea for employers to have a pregnancy accommodation policy included in their employee handbook. Sometimes, the state in question actually requires that the pregnancy accommodation policy be included in the employee handbook. Additionally, employers should be sure to train their supervisors so they know how to handle requests for reasonable accommodation from pregnant employees.

Supervisors should be frequently and adequately trained not to assume that pregnant employees cannot do their jobs as they did when they weren’t pregnant. This is an area where supervisors must be very aware of the legal rights of the pregnant employee.

Questions?: For assistance with evaluating a pregnancy related workplace issue or drafting a pregnancy accommodation policy, please contact Attorney Nancy Joerg at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: “OK, Boomer!”, Seventh Circuit Decision-Use Of The “N-Word”, He Who Hesitates May be Lost, What Happens if a Current or Former Employee Files a Charge of Discrimination with the Illinois Department of Human Rights (IDHR)?

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Discrimination Harassment Illinois Department of Employment Security (IDES)

Legislative Update: Key Changes to the Illinois Human Rights Act New Employee Rights and New Requirements for Employers

Legislative Update: Key Changes to the Illinois Human Rights Act New Employee Rights and New Requirements for Employers

By Anthony J. Caruso Jr. of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Illinois Department of Employment Security (IDES) on Friday, January 25, 2019.

On June 8, 2018 and August 24, 2018 respectively, Governor Bruce Rauner signed into law a number of amendments to the Illinois Human Rights Act which in the State of Illinois regulates discrimination claims due to a protected category, disability or sexual harassment claims.

New Employee Rights

  • The time to file a charge before the Illinois Human Rights Department (IDHR) increased from 180 days to 300 days.
  • Employees have the right to opt out of the investigation process at the Illinois Department of Human Rights (IDHR) and sue in state court. The request for opt-out must be made within 60 days from notice by the IDHR and the IDHR has 10 business days to issue the notice of the right to sue.

New Employer Requirements

Employers must post the Illinois Department of Human Rights Sexual Harassment and Discrimination in the Workplace poster. Click here to download a copy of the poster.

Employers must also include the content of this notice in their employee handbook policies on sexual harassment and discrimination. This means that company sexual harassment and discrimination policies in employee handbooks must be amended to include information about reporting discrimination to the IDHR in filing a charge as well as information about the Sexual Harassment and Discrimination Help line number of 877-236-7703. Finally, employee handbooks must include a statement that employees may request a reasonable accommodation due to disability or pregnancy.

Questions? Need help re-working your employee handbooks to follow these new requirements? Contact attorney Tony Caruso in our St. Charles office at (630) 377-1554 or by e-mail at ancaruso@wesselssherman.com

Related Posts: Don’t Fall Asleep On One Of The Most Important Due Dates Regarding Your IDES Audit!, It’s Easier for Illinois Employers to Win Before the IDES on Cases involving Misconduct, Help! I Just Found Out I Am Going To Be Audited By The IDES! , Watch Out For Minefields in the IDES Worker Relationship Questionnaire: Proving Your Independent Contractors Are Not Misclassified

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Discrimination

Intent To Discriminate No Longer Inferred From Conduct Caused By Disability

Intent To Discriminate No Longer Inferred From Conduct Caused By Disability

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Discrimination on Wednesday, August 1, 2018.

Over the last several years, the Wisconsin Labor and Industry Review Commission (“LIRC”) has developed a maddening interpretation of the Wisconsin Fair Employment Act as it relates to disability discrimination; that is, if the conduct that prompted an employee’s discipline was caused by a disability, then taking action based on that conduct is an act of discrimination, regardless of whether the employer was aware of the connection between the two. For example, if an employee with a known mental disability tells his supervisor to “stick it” and is then disciplined, but later contends his conduct was due to his disability, LIRC has found that disciplining the employee because of his conduct is tantamount to disciplining him because of his disability, and therefore a violation of the WFEA.

Not anymore. In Wisconsin Bell v. LIRC, 2018 WI 76, the Wisconsin Supreme Court put an end to this “inference method” of proving an intent to discriminate on the basis of disability. Under the WFEA (as in any discrimination law), an employee must prove that the employer discriminated against him “on the basis of” his disability, which requires proof of intent. In the absence of direct evidence of a discriminatory motive, LIRC has found that proof of intent can be inferred when an employer bases its adverse action on a problem with an employee’s behavior or performance that is caused by the employee’s disability,” regardless of whether the employer knew of the connection between the two.

The Court found that application of the inference method of proof in cases involving disability discrimination violated the WFEA’s requirement of proof that an employer acts “on the basis of” the disability. It thus held, “an employer does not engage in intentional discrimination when it bases an adverse employment action on the employee’s conduct unless the employee proves the employer knew his disability caused his conduct” – which generally requires more than the employee’s word. Id at ¶ 41.

This is huge, especially in cases involving issues with mental conditions, which are often conveniently used, after discipline is issued, to justify unacceptable behavior. Moreover, given the “amorphous nature” of certain disabilities (in Wisconsin Bell, the employee suffered from bipolar disorder), “an employee’s bare assertion of causality cannot be credited as authoritative.” Id at ¶ 46. In other words, proof of knowledge will generally require more than an employee’s claim that his condition caused his conduct. Of course, this is not to say that an employer may remain blissfully ignorant of mental health issues in the workplace, which are always difficult. It does, however, prevent an employer from being blind-sided and held responsible for after-the-fact hindsight and imputed motives based on evidence that was not in existence at the time it made its decision.

If you have any questions feel free to contact WS Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

Related Posts: “OK, Boomer!”, Seventh Circuit Decision-Use Of The “N-Word”, He Who Hesitates May be Lost, What Happens if a Current or Former Employee Files a Charge of Discrimination with the Illinois Department of Human Rights (IDHR)?

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