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-Oliver Wendell Holmes, Jr.

McKenna Employment Bulletin – August 2012


Ada Does Not Require An Employer To Accommodate An Employee’S


In Savage v. Gee, 665 F.3d 732 (6th Cir. 2012), the Court held that the employee’s request for an altered work schedule to permit an earlier commute was not a reasonable accommodation for her narcolepsy. The employee did not present evidence supporting the theory that her proposed schedule would provide a commute with lighter traffic. Furthermore, the Court commented that many courts have found that the ADA does not require an employer to accommodate an employee’s commute. The difference may be that an employer is required to provide reasonable accommodations that eliminate barriers in the work environment. An employer is not required to eliminate those barriers which exist outside the work environment.

Courts Disagree Over Eeoc Right To Bring Class Action Before Conciliating All Claims

A federal district judge in Illinois ruled that an EEOC class action suit may go forward even though the agency did not individually investigate and attempt to settle every class member’s claim before filing. The judge ruled that the EEOC made an attempt to conciliate although it did not individually investigate an attempt to settle every class member’s claim before filing suit against United Road Towing, Inc.

In contrast, the U.S. Court of Appeals for the Eighth Circuit did not allow the EEOC to proceed with a class action where the EEOC did not investigate and conciliate every individual claim of sexual harassment against CRST Van Expedited, Inc.

The issue in each case was whether the EEOC satisfied or failed to satisfy its pre-suit administrative obligation as to the individual claimants.

If You Act In Accordance With Your Administrative Policy, It May Be An Adverse Action

In Arizanovska v Wal-Mart Stores, Inc., 2012 WL 2104517 (7th Cir. 2012), the employer placed a part-time employee on an unpaid leave of absence after she filed her EEOC charge of discrimination. The Court found this was an adverse employment action sufficient to support the employee’s retaliation claim under Title VII. This was true even though the action had been

consistent with the employer’s internal accommodation policy. The Court ruled that companies are not allowed to retaliate, or discriminate with impunity, even though the employment action complained of is consistent with some internal policy.

Sexual Orientation Claim Dismissed Where There Was No Supporting Evidence

In Young v. Illinois Human Rights Commission, 2012 IL App (1st) 112204 (June 26, 2012), the employee alleged that the employer denied her overtime, and disciplined and discharged her due to her sexual orientation. The Illinois Human Rights Commission dismissed the charge because there was no substantial evidence to support the charge. There was no evidence that the City treated similarly-situated, non-homosexual employees more favorably than the Plaintiff in access to overtime. In addition, the City had a legitimate reason for disciplinary action and discharge due to the employee’s violation of the employee absenteeism policy.

Sexual orientation is a relatively new protected category under the Illinois Human Rights Act. This case shows that the courts will apply the same rules for sexual orientation discrimination as they do for other categories of discrimination.

Selecting An Employee Because He Was A “Young Go-Getter” Supports A Charge Of Age Discrimination

In Weinert v. Village of Lemont Police Dept., 2012 WL 698352 (N.D. Ill. 2012), a police officer presented circumstantial evidence to support his age discrimination claim. The evidence was that the police chief told the employee that he selected another officer, who was outside the protected class, because the other officer was a “young go-getter,” a “young officer” and a “young Kid.” These statements were made to the officer around the time of the decision and in reference to the fact that the position went to the younger officer.

Non-Fmla Leave Is Subject To An Employer’S Absentee Policy

In Jones v. C & D Technologies, Inc., No. 11-3400, 7th Cir., June 28, 2012, the Court affirmed judgment for the employer where the employer’s termination of the employee was based on excessive absenteeism as defined in the employer’s attendance policy. The employee alleged that the absentee policy served to improperly interfere with the employee’s attempt to take leave under the Family and Medical Leave Act (FMLA). The Court found that the absence occurred during the period of time when the plaintiff visited his doctor’s office to obtain a drug refill prescription. The Court held this did not constitute covered “treatment” for purposes of the FMLA in the absence of a doctor ever evaluating or examining the plaintiff during that period. Thus, the plaintiff failed to establish that he was receiving treatment that required that he be away from work. Therefore, the employer could terminate the plaintiff pursuant to its attendance policy because the plaintiff was not entitled to take FMLA leave as a matter of law.

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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