Retaliation Claim Can Be Based on Co-Workers’ Harassment

A woman worked for the U.S. Postal Service, which fired her supervisor after she complained that he made a lewd comment toward her.

Her co-workers were apparently unhappy with the supervisor’s termination and for nearly two years allegedly subjected the woman to verbal abuse and threatening actions. They also allegedly vandalized her car in the workplace parking lot.

The woman sued the Postal Service, claiming it retaliated against her by tolerating a hostile work environment toward her. The Postal Service

countered by arguing that federal law didn’t support her retaliation claim, because as her employer it had done nothing against her.

The federal appeals court covering Pennsylvania, New Jersey and Delaware sided with the woman, ruling that she can sue for retaliation based on a hostile work environment.

Federal appeals courts around the country are divided over this issue, with most courts upholding the right to sue for retaliation under similar circumstances. The U.S. Supreme Court may have to eventually decide this issue.

Company Couldn’t Refuse to Reinstate Worker Despite History of Insanity, Violence

The Pacific Bell telephone company fired a telephone service technician because he failed to mention on his resume that he had been convicted of a misdemeanor battery on a police officer.

He filed a grievance through his union. While his grievance was pending, his battery conviction was expunged from his record. Meanwhile, PacBell conducted a background check and learned the man had been found not guilty by reason of insanity on a charge of attempted murder. It also learned that prior to working for the telephone company, he was a patient in a mental hospital for over two years.

He eventually won his grievance and became eligible for reinstatement, but the company refused to reinstate him. PacBell said it was inappropriate to allow someone with his history to have unsupervised customer contact.

He sued under the Americans with Disabilities Act (ADA), claiming PacBell fired him and refused reinstatement because it regarded him as mentally disabled.

The company argued the man’s claim should be rejected because the ADA does not allow a lawsuit based on a refusal to reinstate.

A jury awarded damages to the man, and a federal appeals court in San Francisco approved the award, saying PacBell couldn’t legally deny the man employment in these circumstances.

The court said that the ADA allows this type of lawsuit as long as new evidence of unfairness related to the refusal to reinstate comes to light after the worker is fired.

Numerous other federal appeals courts have made similar decisions.

Company Can Force Employees to Use Arbitration Instead of Suing in Court

Courts around the country are divided on whether a company can require its workers to submit their complaints to arbitration rather than filing lawsuits.

Often, an employer will include a provision in an employee handbook stating that disputes have to be resolved in arbitration. There’s no real negotiating between workers and the company.

Some companies prefer arbitration because it’s less expensive and time consuming than lawsuits. And they believe arbitrators may be more inclined to rule in their favor than juries.

A recent case demonstrates that the many courts will uphold arbitration even in the absence of any real negotiations between a company and its workforce.

In the case, a woman was employed at an Anheuser-Busch distribution center. A year after she was hired, the company created a dispute resolution policy requiring arbitration and inserted it into the employee handbook. The woman received a copy of the handbook and signed an acknowledgment form.

A couple of years later she was injured on the job and began receiving workers’ compensation benefits. The company eventually fired her while she was receiving the benefits.

She sued the company in court, claiming she was discharged in retaliation for receiving workers’ comp. But the Illinois Supreme Court required the woman to instead go through arbitration to resolve her claim.

The court said the company could enforce the handbook provision compelling arbitration despite the unequal bargaining power between them. Her decision to continue working after learning about the arbitration provision meant that she had accepted it and was sufficient to enforce it, according to the court.

Most courts around the country when faced with this issue have made similar decisions. But a minority of them have ruled that an arbitration “agreement” is enforceable only if it’s voluntarily negotiated and agreed to by workers.

Court Says Race Bias Can Be Proven With ‘Circumstantial’ Evidence

A worker can rely on circumstantial evidence, rather than direct proof, to win a race discrimination claim, according to a recent ruling by a federal appeals court.

In the case, an African-American man was director of lending and chief operating officer for a non-profit credit union. He was the only African-American in upper level management. His employer eventually hired a Caucasian chief executive officer to whom he reported.

His new boss reorganized the management team, which ultimately resulted in a demotion to a position with less responsibility for the African-American man. He was the only member of management to be given less responsibility.

The man sued for race bias. He had evidence that the CEO had excluded him from meetings related to the management restructuring and demoted him because of race.

A trial court judge dismissed the man’s claim, and he appealed.

The federal court of appeals covering Oregon sided with the worker, ruling that he had enough evidence to support his claim and that it should be considered by a jury.

The court noted that finding direct proof of job discrimination – such as the use of racial slurs – is often difficult. Companies can carefully offer a nondiscriminatory reason for an employment decision that’s not contradicted by direct evidence.

Employees should be allowed to offer specific circumstantial facts in support of their claims, the court said.

In this case, the man could go to trial based on the circumstantial evidence that he had been performing his job adequately, and that he was the only African-American in management and the only person who was demoted in the restructuring. He offered concrete circumstantial facts that a jury could construe as showing his demotion was based on race, the court said.

English-Only Work Policy Can Potentially Violate Employment Rights

Requiring workers to speak only English on the job may be justified on safety grounds, such as on construction sites or in other high-risk occupations.

But if an English-only rule isn’t substantially related to a job, or if it’s extended to non-work areas such as a lunch room or break area, an employer could very well violate federal law.

In a recent case, a federal appeals court ruled that a group of bilingual Hispanic employees should be allowed to present their employment bias case to a jury. They claimed their employer, a city in Oklahoma, created an English-only policy in the workplace that discriminated against them and violated their civil rights.

The city argued that the policy was necessary to ensure that all workers and supervisors could understand what was being said over city radios, to alleviate alleged morale problems, and to avoid safety hazards caused when employees failed to use a common language around

heavy equipment.

A trial court judge ruled in favor of the city and dismissed the claims of the workers.

But the appeals court covering Oklahoma and other states said the case should go to trial because the workers had enough evidence to show that the policy could create a hostile work environment. The court noted that the city management realized that the English-only rule would likely lead to taunting of Hispanic employees.

The court also questioned whether work-related concerns justified the policy, particularly since the policy may cover non-work periods.