Traps for the Unwary

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With multiple avenues for expanding a family and a plethora of different family models, employers would be wise to re-consider their parental leave policies to suit the needs of the modern family.

In May, a large multi-national corporation settled a class action lawsuit regarding its parental leave policy for $5 million. As written, the employer’s policy gave its employees who were primary care-givers 16 weeks of paid leave, and gave its employees who were non-primary care-givers only 2 weeks of paid leave. According to the lawsuit, the employer had an unwritten policy that made it almost impossible for men to qualify as a primary caregiver unless the birth mother was unable to care for the baby because she was medically incapable or because she was back at work. Such a policy, even if unwritten, could violate federal and state laws that prohibit employers from making employment decisions on the basis of sex.
Continue Reading Employers should review their parental leave policies in wake of parental leave class action settlement

In March 2019, the City of Cincinnati became the latest in a small but growing list of states and municipalities prohibiting employers from asking prospective employees about their prior compensation. Citing concerns about the perpetuation of pay discrimination against women in the workforce, the legislation bars Cincinnati employers with 15 or more employees from asking…

As many of you know, we have been keeping up on the growing litigation involving the accessibility of websites under the Americans with Disabilities Act (ADA) in our past posts: “Florida federal judge holds that supermarket chain’s website must be accessible to disabled” and “ADA public accommodations law reform on its way?” Many stakeholders have urged that websites of businesses that operate public accommodations should be accessible to the WCAG 2.0 AA standard. WCAG is the Web Content Accessibility Guidelines developed by the World Wide Web Consortium (W3C), the private organization focused on improving the Internet experience and who develops recommendations for website accessibility. There are levels of “success criteria:” A, AA and AAA—in increasing levels of accessibility. The government recently issued regulations requiring federal government websites to be accessible to the WCAG 2.0 AA standard and often insists on this same level of compliance when it settles enforcement actions against private businesses.
Continue Reading Adding more confusion to the world of website accessibility, WCAG 2.1 has been published

In Ohio, it has been a long-standing principle that an employee injured at work could lose eligibility for temporary total disability compensation in a workers’ compensation claim when the employee is terminated by the employer for violation of a written work rule. The written work rule must define clearly the prohibited conduct, identify the conduct as a dischargeable offense, and was known or should have been known by the employee.

However, a recent court decision by the Franklin County Court of Appeals in State ex rel. Demellweek v. Indus. Comm, is limiting this defense for employers. In its ruling, the court held that employers will not be entitled to use the voluntary abandonment doctrine as a defense when the employer terminates an employee for a minor infraction.
Continue Reading Ohio court whittles away at employers’ defense of voluntary abandonment of employment in workers’ compensation cases

Employers cannot discriminate against employees based on their transgender or transitioning status, despite (at least in some cases) the employer’s sincere religious objections. Those are the key takeaways of the 6th Circuit’s landmark decision in EEOC v. R.G. & G.R. Employers who are subject to Title VII, particularly those in the 6th Circuit (i.e., Kentucky, Michigan, Ohio and Tennessee), should review their policies to ensure that they comply with this decision.

In EEOC v. R.G., the Equal Employment Opportunity Commission (EEOC) filed suit under Title VII after a Michigan funeral director, Aimee Stephens, was fired because of her intent to transition from male to female. The owner of the funeral home, Thomas Rost, is a lifelong Christian who believes that employing a transgender funeral director will make him complicit “in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” Rost also believes that employing a transgender funeral director will distract his clients and interfere with their healing process, will interfere with his calling to serve God by ministering to grieving people, and will pressure him to leave the funeral industry and end his ministry.Continue Reading Sixth Circuit holds that Title VII prohibits discrimination based on transgender and transitioning status notwithstanding the employer’s religious objections

Yesterday (Feb. 15, 2018), The U.S. House of Representatives passed a bill, the ADA Education and Reform Act (HB 620), that would impose new requirements on plaintiffs before they file a lawsuit. Places of public accommodations, including websites and apps, would have 6 months to bring their place of public accommodation into compliance before a claimant could file a lawsuit seeking injunctive relief and attorneys’ fees.

Any employer who is also a place of public accommodation knows that lawsuits under the Americans with Disabilities Act (ADA) Title III have long posed a problem for businesses. Businesses want to comply but are often unaware of minor issues of noncompliance at their facilities. This law, if it passes the Senate and is signed by President Trump, would allow businesses notice of the alleged issues of noncompliance and a grace period to fix the issues before they would face potential liability for attorneys’ fees and costs.Continue Reading ADA public accommodations law reform on its way?

In the first trial on the merits involving website accessibility, a federal judge in Florida ruled on June 13, 2017, after a two-day bench trial, that supermarket chain Winn-Dixie violated the Americans with Disabilities Act (ADA) by failing to make its website accessible. Juan Carlos Gil, a blind Florida man who attempted to use Winn-Dixie’s website to locate Winn-Dixie store locations, fill and refill prescriptions, and obtain store coupons, sued Winn-Dixie alleging that he was unable to access these services because the website was not integrated with his screen reader technology. Screen reader technologies such as JAWS read the content of websites to blind users and assist them through voice prompts in navigating websites.

ADA Title III background

 ADA Title III requires that places of public accommodation provide “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” Twelve categories of public accommodations are established in the ADA, 42 USC § 12181(7), and include retail stores, restaurants, grocery stores, hotels, among other categories of businesses open to and serving the public.
Continue Reading Florida federal judge holds that supermarket chain’s website must be accessible to disabled

Kenneth Savage was terminated by FedEx about a month after a military leave and after complaining about the calculation of his pension benefits due to his military service. That proximity was not enough to establish a discrimination or retaliation claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Savage’s case was remanded because FedEx may have miscalculated his pension benefits by failing to account for potential overtime hours he might have worked during periods of military service.

Background

Kenneth Savage was employed by FedEx for eleven years as an aviation mechanic. During that same time, he served as an officer in the Navy Reserve. Throughout his employment, FedEx allowed Savage leave for military duties and permitted him to complete military computer training while at work. In 2012, Savage began complaining about the calculation of his pension benefits as it related to breaks in service for military leave.Continue Reading FedEx employee terminated for using discount to sell on eBay loses USERRA termination challenge but can seek higher pension benefits