- IF YOU DISCOURAGE A TITLE VII COMPLAINT, YOU RETALIATE
- YOUR EMPLOYEE MUST ALLEGE FACTS TO SUPPORT A CLAIM OF AGE AND GENDER DISCRIMINATION
- YOUR SUPERVISOR’S BIAS CAN BE LINKED TO YOUR EMPLOYMENT DECISION
- IF YOU TERMINATE RIGHT AFTER A TITLE VII COMPLAINT AND ALSO CHANGE YOUR REASON, YOU MAY HAVE RETALIATED
- YOUR EMPLOYEE WITH PERIODIC EPISODES OF DEBILITATING PAIN MAY HAVE A DISABILITY UNDER THE ADA
IF YOU DISCOURAGE A TITLE VII COMPLAINT, YOU RETALIATE
In Young-Losee v. Graphic Packaging Intern, Inc., 2011 WL 222513 (8th Cir. 2011), an
administrative assistant filed a formal complaint of sexual harassment against her company. The plant supervisor
met with her, wadded up her complaint, called it "total bullshit", and threw it in the garbage can. The
supervisor told the employee to leave and said he never wanted to see her again. The employee left, did not return
to work and eventually filed a retaliation suit. The court held that the manager’s actions in response to the
employee’s complaint would have dissuaded a reasonable employee from making a complaint of harassment. Thus, the
employee suffered a materially adverse action sufficient to support her claim for retaliation under Title VII.
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YOUR EMPLOYEE MUST ALLEGE FACTS TO SUPPORT A CLAIM OF AGE AND GENDER DISCRIMINATION
In Joren v. Napolitano, No. 10-1017, February 7, 2011, the Seventh Circuit affirmed
the dismissal of a Title VII action against the employer. The employee alleged that she was subject to hostile work
environment in her airport security screener job. The employee based her claim on gender, age and disability
discrimination. The employee also alleged she was discriminated against based on her disability in violation of the
Federal Rehabilitation Act. However, the plaintiff’s allegations did not suggest any facts indicating that either
age or gender played any role in her employer’s actions. Because the employee did not allege sufficient facts to
support her complaint, the court dismissed her complaint. In addition, the court held that the plaintiff’s Federal
employee claim under the Rehabilitation Act was pre-empted by the Aviation & Transportation Security Act.
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YOUR SUPERVISOR’S BIAS CAN BE LINKED TO YOUR EMPLOYMENT DECISION
In Schandelmeier-Bartels v. Chicago Park District, Nos. 09-3286 and 09-3468,
February 8, 2011, the jury returned a verdict in favor of the plaintiff in a Title VII action in which the employee
alleged she was terminated on account of her race shortly after the employee’s supervisor had harshly criticized the
plaintiff through use of racial slurs. The supervisor did this when the plaintiff reported a possible incident of
child abuse against an African-American child by the child’s African-American aunt. The supervisor did not make the
termination decision. However, the decision-maker, who made no independent investigation of the employee’s alleged
job-related shortcomings, relied on the memorandum drafted by the racially biased supervisor who also recommended
the employee’s termination. This permitted the jury to find a link between the racial bias of the supervisor and the
employer’s termination decision.
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IF YOU TERMINATE RIGHT AFTER A TITLE VII COMPLAINT AND ALSO CHANGE YOUR REASON, YOU MAY HAVE RETALIATED
In Loudermilk v. Best Pallet Co., LLC, 2011 WL 563765 (7th Cir. 2011), the employee
alleged that the employer terminated the employee in retaliation for the employee’s protest of racial discrimination
with respect to job assignments. The employer terminated the employee within minutes after the employee handed the
supervisor a note raising the protest. The employer first argued that the supervisor had not read the employee’s
note when the termination occurred but that he had read the note at some point in time. Subsequently, the employer
shifted explanations for the plaintiff’s termination by stating that the employee was fired for taking pictures of
the worksite. The employer suggested that the employee was fired for gathering evidence to support his claim of
racial discrimination. The court held that the termination was sufficiently close to the employee’s protest so
as to generate an inference of retaliation which was also supported by the employer’s shift in explanation for the
termination.
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YOUR EMPLOYEE WITH PERIODIC EPISODES OF DEBILITATING PAIN MAY HAVE A DISABILITY UNDER THE ADA
In EEOC v. Autozone, Inc., No. 10-1353, December 30, 2010, the EEOC alleged that the
employer failed to accommodate the employee’s back-related disability. The employee experienced periodic episodes
of debilitating pain. The employee’s testimony was that he was unable to take care of himself, which included
almost daily assistance with respect to dressing and washing himself. The court held that a jury could potentially
find that the employee’s impairment was covered under the ADA. The fact that the employee experienced only periodic
flare-ups of his back condition did not require a different result under the ADA. Further, the court held that the
employee was not required to present medical testimony in order to establish the severity of his disability.
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