Are Hispanics Being Favored Over African-Americans In the Workplace?

A new wave of job bias claims is emerging in the workplace: Black workers are claiming they are being passed over in favor of Hispanic workers.

The federal Equal Employment Opportunity Commission has recently settled cases involving Latino workers hired over black workers, sometimes when the Hispanics had less experience.

One factor driving this trend is that

some employers believe immigrant Hispanics will work longer for less pay and are less likely to complain about unfair work conditions. There’s also a belief that Hispanics may be less aware of their job rights.

Companies run the risk of running afoul of job discrimination laws if they don’t have objective hiring criteria applied across the board without regard to race, gender, disability or age.

Hospital Can Be Sued for Doctor's Sexual Harassment

A hospital may be liable for sexual harassment by a doctor, even if the doctor is not an employee, according to a recent federal appeals court ruling.

Normally, an employer is not liable for the actions of independent contractors because the employer does not control the contractor’s actions.

In this case, a nurse sued a small hospital in Illinois, alleging the head obstetric and emergency services made life miserable for her and other staff nurses.

A federal trial court judge ruled

that the hospital could not be liable because the doctor was only an independent contractor with staff privileges.

But the federal appeals court covering Indiana, Illinois and Wisconsin said the hospital knew about the conduct and did nothing to prevent it. The fact it had no control over the doctor as an employee made no difference.

The court said the hospital could have taken steps to minimize or stop the alleged harassment.

Woman Can Sue for Bias Even if Replaced By Another Woman

When suing for job bias, a fired worker must establish certain facts in order to win the case.

One factor that a worker doesn’t have to prove is that the replacement worker is from outside the "protected class" (such as gender or age) – as long as the employee can prove that the hiring and firing decisions were made by different people.

The federal appeals court covering Maryland, Virginia, West Virginia, North Carolina and South Carolina recently said that differing decision makers on hiring and firing is noteworthy because the second decision to hire the replacement worker doesn’t necessarily mean that the first decision to fire a worker was free of bias.

When one individual makes the decision to fire the employee and another makes the replacement hiring decision, the second individual’s hiring decision doesn’t prove either way whether the initial firing decision was motivated by discrimination, the court said.

This means that a plaintiff can establish

a case of bias even if the replacement worker is in the same protected class. However, an employer can still establish that the firing decision was for reasons other than discrimination, such as job performance.

In the case, the employee worked as a sales manager. After she told her supervisor she was pregnant, he reduced her sales territory and reassigned her key accounts. The supervisor also increased the woman’s sales quotas and said she would have to maintain them during maternity leave.

She eventually returned to work and received an unsatisfactory job performance evaluation nine months later. After the company received a customer complaint about the woman, she was fired.

Her immediate supervisor wanted to hire a man to replace her, but his superiors insisted that a woman fill the position, which eventually occurred. The plaintiff sued for sex and pregnancy discrimination.

Employer Must Tell Older Workers Why it Chose Them for Layoff

An employee’s waiver of the right to sue for age discrimination was struck down recently because the employer failed to provide sufficiently personalized notice to employees regarding its reasons for selecting them for a reduction in force.

In the case, 16 employees were part of a larger group of workers selected for termination in connection with a reduction in force. Each employee had to sign a waiver in exchange for severance pay.

The selected employees also received written notification of the job titles and ages of those employees selected for termination, as well as the job titles and ages of those not selected for termination.

The workers sued the company saying the release was invalid under the federal Older Worker Benefits Protection Act.

The federal appeals court covering Kansas, Oklahoma, New Mexico,

Colorado, Wyoming and Utah reversed a judgment for the employer, saying the company must clearly state who has been selected for layoff, as well as why that employee has been selected.

In the case, the company said it considered each employee’s leadership skills, technical skills and behavior. It also took into account whether these skills matched its business needs.

But the court noted that the company did not communicate this specific information to the laid off workers prior to obtaining releases from them. As a consequence, the release was incomplete and didn’t comply with federal law.

This is the first ruling of its kind in the country, and may be persuasive to other federal courts that consider this issue in the future. We are available to help you assess your legal rights and responsibilities in this area.

Employee Can Sue for Discharge Even Though He Was Too Sick to Work

An employee may bring a claim under the Family and Medical Leave Act for retaliatory discharge, even if he was unable to work following his 12-week period of FMLA leave.

In a recent case, the employee was fired while on medical leave for recurring migraine headaches. He admitted that he would not have been able to return to work at the expiration of his medical leave.

The federal appeals court covering Maine, Massachusetts, New Hampshire

and Rhode Island said the man’s inability to return to work did not preclude him from claiming retaliation, even if his failure to return defeated a claim of interference with his job rights. The two claims are independent of one another, the court said.

A worker could suffer potential wage loss, or loss of value of employment benefits in the period between termination and the expiration of the unpaid leave, the court noted.