Pre-employment tests are commonly used by employers to prescreen applicants and/or determine if applicants are suitable for hire. Employers should be careful what they ask on these tests for two reasons: (1) the ADA and (2) potential disparate impact discrimination claims.

The EEOC recently settled its challenge to Target’s pre-employment testing for $2.8 million. The…

The Sixth Circuit Court of Appeals reverses district court’s summary judgment ruling in Yazdian v. ConMed Endoscopic Tech., Inc., on a Title VII retaliation claim, finding a reasonable jury could conclude the former employee was terminated for engaging in protected activity.

Background

Reza Yazdian, an Iranian-American Muslim, was employed with ConMed Endoscopic Tech., Inc. from April 1, 2005 through July 26, 2010, as a territory manager. In 2009, Yazdian received favorable ratings in all categories and was described as a talented salesman. Yazdian’s direct supervisor from 2008 until the time of his termination was Timothy Sweatt, and Sweatt reported directly to Scott Jackson.

In or around 2009, Yazdian began noting incidents that he believed demonstrated Sweatt’s prejudice against Iranians and Muslims. In April 2010, Yazdian closed a major sale and drafted a news article about the sale he wished to have published in ConMed’s internal newsletter. After much back and forth, Sweatt stated that the article would not be published as written. Sweatt went on to describe the article as “embarrassing,” “poorly worded,” and “far too self-serving.” Yazdian confronted Sweatt about the comments stating “[y]ou don’t like the way I write, you don’t like the way I talk, I guess you don’t like my race, either.”

During a June telephone meeting, Yazdian accused Sweatt of creating a hostile work environment. Shortly after that call, Yazdian called Scott Jackson and requested a transfer to another division that was under a different manager. Yazdian also told Jackson that Sweatt was creating a hostile work environment, treating him differently from other territory managers and possibly discriminating against him. Jackson took no action.

Sweatt, Jackson and Karen Hutto, Vice President of Human Resources, met to discuss the tension between Sweatt and Yazdian and, after the meeting, Sweatt drafted an email to Hutto detailing examples of Yazdian’s “behavioral issues.” Hutto reviewed the email and directed an HR manager to prepare a written warning. Yazdian, however, was never provided an opportunity to respond or present his side of the story.

On July 13, 2010 Sweatt called Yazdian to inform him about the written warning and informed Yazdian that the reason for the warning was his “ongoing unacceptable conduct and behavior, particularly in his communications.” Sweatt provided the written warning and several supporting examples. In fact, Sweatt referenced Yazdian’s comment that Sweatt was creating a hostile work environment. Yazdian stated he would provide a response through his counsel in writing. Sweatt again drafted an email to HR and Jackson outlining the comments made by Yazdian during the call. Sweatt closed the email by stating, he was “not optimistic that there was anything close to a recognition [by Yazdian] of needed behavioral changes much less a commitment for improvement” to which Jackson asked what “next steps” should be taken. Sweatt found termination was the only appropriate next step.Continue Reading Sixth Circuit Court of Appeals reverses district court’s ruling in Title VII retaliation case, proving that getting the entire story is key for employers

Americans with Disabilities Act compliance can take you beyond workplace and employment issues. If you operate a business accessible to the public then the ADA public accommodation rules are important to you as well. That can mean more than just making sure your physical facilities are accessible. If you maintain a website for use by…