Articles Posted in Employment Discrimination

The Americans with Disabilities Act requires employers to provide reasonable accommodation to qualified employees with disabilities. The key phrase in that sentence that is so often the subject of litigation is “reasonable accommodation.” In a recent decision, the Seventh Circuit considered whether a two-pound lifting limit and a restriction on repetitive grasping and lifting arms more than 5% above the shoulder were reasonable accommodations for an employee of a regional sporting goods retailer. In affirming an order of summary judgment in favor of the sporting goods store, the Seventh Circuit found that such accommodations were unreasonable and left the employee unable to perform her essential job functions.

The plaintiff in the case, Angela Tonyan, was employed as a store manager at a Dunham’s Sports store in Wisconsin. During her employment, Tonyan sustained a series of injuries to both shoulders and left arm. After multiple surgeries and various temporary restrictions failed to remedy her condition, her doctor imposed several permanent restrictions including a two-pound lifting limit and restricting her from having to raise her arms above her head.

In response to these restrictions, Dunham’s fired Tonyan. The sporting goods retailer contended that its “lean” staffing model made physical work such as unloading and shelving merchandise essential job functions of its store managers like Tonyan. Following her termination, Tonyan sued claiming that the company violated her rights to reasonable accommodation under the ADA. The District Court found that the store did not violate her rights under the ADA and granted summary judgment to her former employer. Continue reading ›

A collection of car dealerships operated through independent LLCs but received management services from the same company. The management services company was owned by the same person who owned the majority interest in each of the dealership LLCs. Each dealership had fewer than fifteen employees individually. A salesman with one of the dealership was fired, and later sued the dealership for racial discrimination. The salesman claimed that the dealerships were subject to Title VII because, in aggregate, they employed more than 15 people. The salesman argued that the corporate veil should be pierced because the dealerships were not actually independent entities. The district court rejected these arguments, and the appellate court affirmed. The appellate court found that the management company and the dealerships observed proper corporate formalities and did not demonstrate the degree of integration that would justify piercing the corporate veil for employee aggregation purposes.

Shannon Prince worked as a salesman with Applecars, LLC for several months in 2017 until he was fired. Applecars claimed that Prince was fired for performance issues, while Prince maintained that the defendants discriminated against him because of his race.

Applecars operated a used car dealership in Appleton, Wisconsin. The dealership was affiliated with four other dealerships throughout Wisconsin: in Wausau, Antigo, Green Bay, and La Crosse. Each of the dealerships was independently owned by a separate Wisconsin limited liability company. Robert McCormick owned a majority or outright share in each of the LLCs. Each of the dealerships also received management services from Capital M, Inc., which McCormick also owned. Applecars had fewer than fifteen employees, but in aggregate the dealerships employed more.

The overlap between the dealerships was substantial, as Capital M provided many services to each dealership, and also tracked dealership inventory, held personal employee records, and issued identical employee handbooks for each dealership. Capital M’s operations manager hired, fired, and promoted each dealership’s general manager. The employees for each dealership gathered as one for events and parties several times per year. Each dealership and LLC, however, properly maintained corporate formalities and records. Capital M billed each dealership separately and each paid Capital M individually for services and for the use of the single website and its associated trademark. Each dealership also filed and paid their own taxes, paid their own employees, and entered into their own contracts for business purposes. Continue reading ›

The restaurant industry has long been a notorious boys’ club, full of misogyny and sexual harassment. With men maintaining most of the power in the industry, women didn’t feel like they had a choice other than to put up with the constant groping and harassment from both male staff and patrons, but a new settlement in a New York sexual harassment case might change all that – or at least move the needle in the right direction.

At the end of 2017, the New York Times reported on multiple allegations made by 11 women working at the Spotted Pig in Manhattan that the owner of the restaurant, Ken Friedman, had repeatedly groped and sexually harassed them. The plaintiffs also allege that Friedman fostered a sexist environment in which they constantly felt unsafe and unwelcome and that he retaliated against them when they tried to speak out against the mistreatment.

The New York State attorney general’s office investigated the matter and recently ordered Friedman to pay the 11 plaintiffs a combination of $240,000, to be split among them and paid out over the next two years, as well as 20% of all his profits from the restaurant over the next ten years, including any money he makes off the sale of the restaurant (of which he currently owns 75-80%) if he decides to sell it. The women are unlikely to see any money from his profits since the restaurant has been in the red for a while, but the almost quarter-million-dollar settlement is nothing to sneeze at. Continue reading ›

The government enforces a separation of church and state, but what about a separation of church and employer?

Joel Dahl, who founded and runs Dahled Up Construction, requires all his workers to attend Christian Bible Study as a condition of continued employment.

Ryan Coleman, a convicted felon, said attending Bible study was not a condition of employment for the first month that he worked as a painter for Dahl. When it became mandatory, he attended for almost six months, afraid his felony conviction would prevent him from getting another job. When he finally said he wouldn’t attend the Bible study anymore, he was fired.

Coleman was disappointed, having just received a pay raise two weeks beforehand. He also loved his job, claiming he was excited to get up and go to work in the morning, and realizing how lucky he was to be one of the few people who could say that.

Coleman, who is half Native American, told Fox News that Christianity just wasn’t for him. Continue reading ›

Chicgo-non-compete-agreement-and-Chicago-trade-secret-lawyers-300x115A doctor who owned her own practice, billed her patients directly, and filed taxes as a self-employed physician was not an employee of the hospital she had privileges at, and therefore was not entitled to sue the hospital for discrimination after it revoked her practice privileges.

For almost 13 years, Dr. Yelena Levitin performed surgeries at Northwest Community Hospital in Arlington Heights, Illinois. Levitin is a female, Jewish surgeon of Russian descent. She owns and operates Chicago Surgical Clinic, Ltd., a private medical practice. From 2000 until 2013, most of her revenue came from the work she performed at Northwest.

In 2008, Levitin complained to Northwest that Dr. Daniel Conway, another surgeon, was harassing her. Levitin alleged that Conway repeatedly criticized her medical decisions, undermined her in front of her patients, and interrupted one of her surgeries. Northwest reprimanded Conway, and the harassment stopped in January 2009. After that, at least four doctors filed complaints concerning Levitin’s professional judgment. Another refused to work with Levitin entirely. The head of pathology complained that Levitin habitually requested inappropriate tests from his department. In response to the complaints, Dr. William Soper, then the chair of Northwest’s surgery department, informed Levitin that he would begin proactively reviewing the surgeries she scheduled for potential issues.

Soper also reviewed Levitin’s prior surgeries. He referred 31 cases to the Medical Executive Committee, which oversees physician credentialing at Northwest. The committee found that Levitin deviated from the appropriate standard of care in four of the cases. The committee initially determined that Levitin should receive quarterly reviews, but it reconvened after Levitin operated on a patient without proper sedation. At this meeting, the committee decided to revoke Levitin’s practice privileges. Levitin appealed the committee’s decision but was unsuccessful in getting her privileges reinstated. Continue reading ›

The glass ceiling continues to prove itself to be more shatterproof than many women suspected. Most of the time, just when a woman thinks she’s broken through – or is about to breakthrough – all she finds are more roadblocks. This allegedly turned out to be the case for Nancy Saltzman after she joined ExlService Holdings in 2014 as the firm’s general counsel. As an attorney with twenty years of experience under her belt, Saltzman was the most senior female executive when she joined the publicly traded consulting firm. But even with Saltzman on the executive team, the firm’s leadership consisted primarily of men.

Saltzman said she took her role as part of the company’s leadership very seriously, knowing other women looked up to her as a role model and an example of what women could achieve, both in the company and in the world at large. But the rest of the firm’s leadership allegedly saw Saltzman’s position on the team as a challenge that needed to be squashed.

In a recent discrimination lawsuit filed against Exl, Saltzman alleges Rohit Kapoor, the firm’s CEO, blocked her from opportunities to advance her career, subjected her to more scrutiny than her male peers, and micromanaged her to a much greater extent than her male colleagues. For example, Kapoor allegedly denied her travel request for a work trip in which every other member of the executive team traveled abroad to meet with clients. Kapoor then allegedly criticized Saltzman for not spending enough time with clients. Continue reading ›

Although the number of women attending law school has outnumbered the number of men attending law school for several years now, it seems those women have a harder time climbing the corporate ladder than their male counterparts once they graduate from law school. According to a recently proposed class action lawsuit against Jones Day, the law firm allegedly maintains a fraternity-type culture that consistently treats men better than women – especially women who are pregnant and/or already have children.

The proposed class action gender discrimination lawsuit was filed by Andrea Mazingo, Nilab Rahyar Tolton, and four other women who have chosen to remain anonymous, on behalf of all female associates who are working for or have worked for Jones Day in Irvine, California. Despite the fact that the firm hires the same number of male and female associates, their situations allegedly vary drastically once they get the job. Female associates are allegedly paid less than their male counterparts and are significantly less likely to make partner. The law firm also allegedly has a practice of regularly firing women who get pregnant and retaliating against women who speak up.

By contrast, the lawsuit alleges male associates were consistently mentored, groomed for partnership, and given better assignments and more access to clients than their female counterparts. Mazingo alleges she was encouraged to wear high heels, another plaintiff claims she was told to smile more, and another was allegedly referred to as “eye candy.” Continue reading ›

Sara Tirschwell, an investor who had been hired by TCW in 2016 to raise and run a new distressed debt fund for the giant asset-management firm, suddenly found herself without a job on December 14, 2017. She had been called into a meeting with the firm’s chief compliance officer and general counsel and informed that she had unethically told an employee in another department about a potential deal. According to TCW, it was Tirschwell’s fifth violation in 18 months and grounds for termination.

Tirschwell said the firm’s chief executive offered her a $500,000 severance package on the condition that she sign an agreement promising not to sue the firm. Tirschwell did not take the deal because she didn’t think her termination had anything to do with compliance – she claims it was retaliation.

Nine days before this meeting, Tirschwell had sent an email to the head of human resources, saying that her boss, Jess Ravich, had pressured her into having sex with him several times since she started working for the firm and that he had groped her in the office. When she put a stop to it, he allegedly sabotaged her job by refusing to support her fund. The general counsel and head of HR interviewed Tirschwell about her complaint and promised to investigate. Instead, she claims she was fired in retaliation for bringing harassment claims to the attention of management. The company claimed that she knew she was about to be fired for poor performance and simply created grounds to claim retaliation especially given the many holes in her story and gaps in her memory and failure to meet performance and money raising goals. Continue reading ›

The #metoo, can be viewed as a disease in business practice.  In its wake, thousands of women have come forward to raise complaints of sexual harassment.  Workplace harassment does not simply remain in the realm of celebrity, its reach is much greater.  People are getting worked up about it and are taking sides.  Statistically speaking, since the movement began, the Legal Defense Fund has received more than 3,500 requests for assistance from workers in more than 60 different industries in all 50 states. Any business anywhere could be targeted for some event that could have happened for a time period prior to the current management in place.

In the past, people have not spoken up because of the fear.  With taking a stance can come the loss of job which leads to a loss of financial security.  The risk was too great.  This had lead to many debates and reconsideration of the way in which business practices transact business and of its operation.

Businesses are looking towards countering that culture.  Getting their name enmeshed in a lawsuit looks like a poor reflection on them from a commercial perspective.  Consumers have that much power.  That is why bystander protections are measures being introduced.  Ensuring policies that already exist in manuals are enforced or stood by are another way of standing firm to the commitment of culture. Continue reading ›

With the increase in sensitivities to gender and race discrimination and the resulting lawsuits, more corporations are seeking ways in which to help cater for the divisions in gender and background of employees.

Sexual harassment suits have gone up in the light of the #metoo and many other ethnic-related and religious identities are not holding back when it comes to taking behavior that they do not approve of to the courts.

Some suits have gone so far to include the following words in their pleadings as proof of an alleged racist or sexist culture:

A consumer bureau “maintains a biased culture replete with harmful stereotypes regarding its racial minority and female employees that infect its policies and decision-making, including performance evaluations, compensation, and promotions.” (U.S. Consumer Financial Protection Bureau have charged they were discriminated against by officials of the bureau once headed by Cordray.) 

In that suit, the bureau has responded by stating Cordray “worked hard to build a more inclusive and diverse workplace, launching initiatives to ensure women and minorities receive fair treatment and fundamentally reforming the management practices of the bureau. Civil rights leaders stood by Director Cordray then, and they stand by him now.”

This has forced some companies to change their approach when it comes to steering away from segregated groups within a workforce environment.  People who are not included, do not divest and are more likely to drive up costs for employers overall.  Disgruntled, angry employees take it to the news and courts, leading to bad publicity and unnecessary costs. Continue reading ›

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