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McKenna Employment Bulletin – May 2012

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Prior Direct Evidence Statement Can Support Retaliation Claim

In Hicks v. Forest Preserve Dist. Of Cook County, Ill., No. 11-1124, April 18, 2012, U.S. Court of Appeals, Seventh Circuit, the employee alleged that the employer demoted the employee in retaliation for the employee having participated in an investigation of a co-worker's discrimination claim, as well as for having filed his own discrimination claim. The plaintiff’s supervisor had told others that the employee and a co-worker needed to be gotten “rid of” because they had lodged discrimination claims against that supervisor. The employee’s demotion resulted in a $9 an hour reduction in pay. The Court found that reduction sufficient to constitute an actionable adverse action. The Court further found that the supervisor's remark, although it came 22 months prior to the plaintiff’s termination, supported a retaliation claim because the substance of the statement constituted direct evidence of retaliation. In addition, the Court found that just because the supervisor and plaintiff did not enjoy an ideal working relationship, that did not preclude the Court from ordering that the plaintiff be reinstated to his old position under the supervisor.

Supervisor'S Prior Statement Did Not Support A Discrimination Claim

In Dass v. Chicago Board of Education, Nos. 10-3844 and 11-1104, April 12, 2012, U.S. Court of Appeals, Seventh Circuit, judgment was entered for the employer in the employee’s Title VII and Section 1981 action alleging that the employer failed to renew the employee-teacher's contract on account of her national origin. The employer based its decision on its perception that the employee could not control the children in her classroom. The Court held that the plaintiff could not base any discrimination claim on the employer’s decision to assign her to teach a seventh-grade classroom as opposed to the employee’s third-grade classroom. This was because the assignment did not constitute an adverse action. In addition, the fact that the supervisor-decision maker made a statement 10 months prior to the decision not to renew the employee’s contract that the employee should look for a job on the North Side of the City where most Indian children go to school was too remote to constitute direct evidence of discrimination. Finally, the plaintiff also failed to provide any evidence that the rationale for the decision not to renew her contract, that she could not control the children in her class, was untrue.

A Policy Enforcing A “Standard” Leave Of Absence May Violate The Ada

Some employers have policies that state if an employee has been on leave of absence for a specific period of time, the employee is administratively terminated. The EEOC has taken the position that this kind of policy violates the ADA. The agency’s position is that where an employer terminates an employee after a “set” period of time, this does not require the employer to make an individualized assessment of the disabled employee’s need for additional accommodation, following the “normal” leave period. The EEOC feels that accommodation could take the form of still more leave. The EEOC expects an employer to modify its “no-fault” leave policy if a disabled worker requires additional time off. The EEOC wants the employer to engage in a dialogue and analysis that leads to a credible claim of “undue hardship” before it denies the request for further leave. The EEOC feels the following potential grounds for denial of the additional-leave accommodation based on undue hardship could be:

The company demonstrates it is unable to meet its production goals;

It is unable to properly serve its customers;

It will incur significant added costs, due to overtime or hiring of temps;

Coworkers will be forced to shoulder the absent employee’s job responsibilities to the neglect or detriment of their own; or

The disabled worker is unable to provide a definitive return date.

The EEOC emphasizes that the simple inability to state a definitive return date may not be enough to establish this employer defense.

Salary Differences Based On Salary History At A Prior Employer Are Not Discriminatory

In Keeton v. Morningstar, Inc., No. 11-2298, January 13, 2012, U.S. Court of Appeals, Seventh Circuit, the employee alleged in Title VII and Section 1981 actions that the employer discriminated against the employee on account of her race when it paid the employee less salary than what it had paid others doing comparable work. The employee also alleged that the employer retaliated against the employee for complaining about being treated differently than her co-workers. However, the salary differences between the employee and her co-workers were based on the co-workers’ prior salary history at the time the co-workers were first hired by the employer. The wage increases given to the co-workers by the employer were based on job performance. Furthermore, the employee failed to show that she had engaged in protected activity to support retaliation because her complaint to management did not mention any race or any protected classification as a motivation by any actions taken by management. Therefore, the Court affirmed entry of judgment in the defendant-employer’s favor.

This Employment Bulletin is intended to provide information of general interest and does not constitute legal advice. Readers should consult with their counsel before taking any action based on the information in this publication. All rights reserved. Copyright 2013, McKenna Storer. 

Categories Employment Bulletin Publications



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