June, 2013

Can height be a disability under the Americans with Disabilities Act?

June 14, 2013 | by Eric B. Meyer

Barbara Joy McElmurry worked for the Arizona Department of Agriculture. In a Complaint she filed in federal court, she alleged that her supervisor forced her into a field work position in which she would not be able to drive vehicles because she was too short (4’10”). So, McElmurry asserted a claim for discrimination on the basis of disability, namely, her short stature.

So, could height (or lack thereof) be a disability?

Well, under the Americans with Disabilities Act, a person is disabled if she suffers from “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” An employer could also regard an employee as disabled, even if she isn’t; that too would bring the employee within the scope of the ADA.

The most cockamamie excuse evah for firing a pregnant employee

June 13, 2013 | by Eric B. Meyer

When it comes to reasons for firing employees, I’ve heard some good ones in my day — and by good, I mean legitimate.

Conversely, the excuse I just read in the Seventh Circuit’s opinion in Hitchcock v. Angel Corps., Inc., a case involving a pregnancy discrimination claim, may be the worst. The worst one ever.

Angel Corps and its management staff feel that as a result of [the plaintiff’s] actions she compromised the health and safety of this client. According to policy and procedure this action will result in an immediate termination.

#SHRM13 ROLL CALL!!!

June 12, 2013 | by Eric B. Meyer

We are less than a week from the start of the SHRM Annual Conference & Exposition, which kicks off in Chicago on Sunday, June 16.

I will roll into town on Monday. My plan is to hit the House of Blues that night for The Official #SHRM13 TweetUp & Afterparty. Next day, I’ll be ~~chugging hair of the dog~~ shuttling between the Blogger’s Lounge and The HIVE, where I’ll ultimately set up shop and take your social media questions in the “Ask the Expert Session” at 10:30 AM.

Does firing a law firm associate for discussing wages violate federal labor law?

June 11, 2013 | by Eric B. Meyer

There’s not a whole lot that we have in common. I’m more erudite (you know, the blog thing), better looking, and more ~~arrogant~~ confident.

Given our differences, what I’m about to say may come as a surprise: when I was a associate attorney, I discussed salaries with other associates.

(I’ll pause as the shock dissipates).

The ethical tightrope of social media as a litigation tool

June 10, 2013 | by Eric B. Meyer

Savvy lawyers today use social media to mine and collect important data about litigants. But cross that line from savvy to shady, and you may find yourself in deep do-do.

(Kinda like the blow-out I encountered when I reached inside the back of my youngest’s wetsuit at the pool this weekend to check his diaper. But different. And TMI. Anyway…)

James McCarty of the The Plain Dealer reported here last week that an Ohio prosecutor was fired for pretending to be a woman in a Facebook chat with an accused killer’s alibi witnesses in an attempt to persuade them to change their testimony.

“What do you mean, ‘you people’?”

June 7, 2013 | by Eric B. Meyer

Trouble in the workplace; funny in the jungle.

Not for Teacher: Court denies request to miss Tuesdays for Sabbath

June 6, 2013 | by Eric B. Meyer

Bad Van Halen pun aside, let’s play some Skynyrd. Even Waldo agrees.

So, there was this woman in Louisiana who took a teaching position at an elementary school. You know the kind; one that operates on weekdays. And, around her start date, she asked the administration for Tuesdays off to pray and observe her Sabbath. And the administration was all like, no.

So, a month later, the teacher filed a Charge of Discrimination with the EEOC, claiming religious discrimination for failure to accommodate.

Tough HR issues: ADA and extending a leave of absence

June 5, 2013 | by Eric B. Meyer

Alright smarties. One of ABC Company’s employees suffers from post-partum depression. She’s been out of work for over a month, and the company wants to replace her. But, first, it wants your advice.

Read all the facts below:

Emily Employee is an HR Coordinator at ABC Company. ABC provides short-term disability benefits for regular full-time employee like Emily. Last year, Emily began a 12-week maternity leave under the FMLA, during which time she received STD benefits. She returned to work with no restrictions.

Firing a woman for lactating at work is against the law

June 4, 2013 | by Eric B. Meyer

Allow me to be serious for a moment…

Moment’s passed, eh? Ok. Let me bring it back…

Last week, the Fifth Circuit Court of Appeals ruled (here) that discharging a female employee because she is lactating or expressing breast milk is sex discrimination and, therefore, violates Title VII of the Civil Rights Act of 1964 (Title VII).

Supreme Court passes on ADA transfer accommodation case

June 3, 2013 | by Eric B. Meyer

Thumbnail image for Supreme Court.jpg

Here’s the scenario: You have a disabled employee who seeks an accommodation. Mindful of the Americans with Disabilities Act, and being the compliant company that you are, you engage that employee in an interactive dialogue to discuss reasonable accommodations — options to allow the employee to perform the essential functions of the position.

Ah yes! You recall that there is another vacant position for which the employee is qualified — albeit barely. That’s a reasonable accommodation. But, oh no! You remember seeing the resume of the perfect candidate for that position.

Question: If there is no other reasonable accommodation available, do you have to offer that open position to the barely-qualified disabled employee? Or can you fill the position with the more qualified candidate?

I’ll discuss after the jump…

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