Is Refusal to Provide Light Duty Work a Violation of the Pregnancy Discrimination Act?

October 16, 2014 by Jim Higgins

By Anne Hunter Williams

If you are pregnant and you have asked your employer for light duty work, and the employer refuses, has the employer violated the law? Most likely. In most situations, an employer must provide light duty work to a pregnant employee if light duty jobs are available. Here are a few examples:

Scenario A: Annette requests light duty because of her pregnancy. Her supervisor is aware that she is pregnant and knows that there are light duty positions available that she could perform. Nevertheless, her supervisor denies her request, telling Annette that having a pregnant worker in the workplace is just too much of a liability for the company.

Result: This is a violation of the Pregnancy Discrimination Act (PDA). Because the employer made derogatory comments about her pregnancy, she doesn’t need to produce evidence it is not necessary for Annette to produce any evidence that other workers who weren’t pregnant received light duty.

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Tennessee’s New Employee Online Privacy Act of 2014

August 4, 2014 by Jim Higgins

Do you ever worry that what you say, or post, online might haunt you at work? Recently some employers have requested that new, or even current, employees divulge which online community to which they belong and provide login information and passwords. Can they do that?
Tennessee recently passed the Employee Online Privacy Act of 2014 (Online Privacy Act) which will prohibit employers from requiring an employee or applicant to give the employer access to the employee or applicant’s personal social media account. This law will go into effect in January 2015.
The Online Privacy Act prohibits an employer from:
• Requesting or requiring an employee or applicant to disclose a password that allows access to a personal internet account;
• Compelling an employee or applicant to add the employer or an employment agency to his or her list of contacts associated with a personal internet account;
• Compelling an employee or applicant to access a personal internet account in the presence of the employer in a manner that enables the employer to observe the contents of the personal internet account; or
• Discharging, failing to hire, or taking adverse action or penalizing an employee or applicant because of a refusal to disclose the password or comply with a request for one of the above prohibited actions.
There are, of course, some exceptions. Among other exceptions, an employer is allowed to:
• Discipline or discharge an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal internet account.
• Conduct an investigation or require an employee to cooperate in an investigation if there is specific information on the employee’s personal internet account regarding compliance with applicable laws or prohibitions against work related employee misconduct, or the employer has specific information about an unauthorized transfer of the employer’s proprietary information, confidential information or financial data to the employee’s personal internet account.
• View, access or use information about an employee or applicant that is available in the public domain.
• Conduct an investigation or require an employee to cooperate in an investigation regarding compliance with applicable law or prohibitions against work related employee misconduct, or an investigation about the unauthorized transfer of the employer’s proprietary information, confidential information or financial data to the employee’s personal internet account.
Individuals whose rights are violated under this law may sue the employer and recover up to $1,000.00 in damages for each violation, plus reasonable attorney’s fees and court costs.

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Genetic Information Discrimination

February 27, 2014 by Ryan Simmons

While it sounds like something that would be an issue in a science-fiction, futuristic movie, cases involving discrimination due to genetic information are popping up across the country.

On May 21, 2008 the President signed in to law the Genetic Information Nondiscrimination Act of 2008, also referred to as GINA. The law was written in order to protect Americans from being treated unfairly because of differences in their DNA that may affect their health. GINA prevents discrimination from both health insurers and employers.

The passing of GINA was important for everyone. Every person has numerous DNA differences that could increase or decrease their chance of getting a disease such as diabetes, cancer or heart disease. The research in DNA health can be used to help treat people. However, it can also be used to discriminate against people as well.

Recently, one of the first Genetic Information Act lawsuits was settled against a nursing home in New York. The nursing home would ask employees about their family medical history as part of its post-offer, pre-employment medical exam of all applicants. This kind of information request is illegal under GINA. The EEOC sued the nursing home on behalf of 138 individuals who had been asked for their genetic information and the nursing home settled for $110,400 to be payable to all of the individuals.

As cases have started popping up around the US based on genetic discrimination, people are starting to better understand the rights that are protected under GINA. People can have genetic tests done which could benefit their health while sleeping soundly knowing that the feedback provided by the tests is safely secure and unable to be used against them.

While this is still a relatively new law, both health insurers and employers do fall under the guidelines, as of 2009. However, the law as it is currently written does not cover life insurance, disability insurance or long-term health insurance.

Continue reading "Genetic Information Discrimination" »

Genetic Information Discrimination

February 27, 2014 by Ryan Simmons

While it sounds like something that would be an issue in a science-fiction, futuristic movie, cases involving discrimination due to genetic information are popping up across the country.

On May 21, 2008 the President signed in to law the Genetic Information Nondiscrimination Act of 2008, also referred to as GINA. The law was written in order to protect Americans from being treated unfairly because of differences in their DNA that may affect their health. GINA prevents discrimination from both health insurers and employers.

The passing of GINA was important for everyone. Every person has numerous DNA differences that could increase or decrease their chance of getting a disease such as diabetes, cancer or heart disease. The research in DNA health can be used to help treat people. However, it can also be used to discriminate against people as well.

Recently, one of the first Genetic Information Act lawsuits was settled against a nursing home in New York. The nursing home would ask employees about their family medical history as part of its post-offer, pre-employment medical exam of all applicants. This kind of information request is illegal under GINA. The EEOC sued the nursing home on behalf of 138 individuals who had been asked for their genetic information and the nursing home settled for $110,400 to be payable to all of the individuals.

As cases have started popping up around the US based on genetic discrimination, people are starting to better understand the rights that are protected under GINA. People can have genetic tests done which could benefit their health while sleeping soundly knowing that the feedback provided by the tests is safely secure and unable to be used against them.

While this is still a relatively new law, both health insurers and employers do fall under the guidelines, as of 2009. However, the law as it is currently written does not cover life insurance, disability insurance or long-term health insurance.

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Employment Non-Discrimination Act (ENDA): One Hurdle Passed

November 12, 2013 by Ryan Simmons

Late last week the United States Senate passed the Employment Non-Discrimination Act. This Act prohibits hiring and employment discrimination based on the sexual orientation and sexual identity of an individual. Essentially, this Act takes the law prohibiting discrimination on the basis of race, sex, religion or national origin, found in Title VII, and extends it to lesbian, gay, bisexual and transgender individuals.

The bill passed the Senate with a 64-32 vote with ten Republicans voting in favor of its passage. ENDA is not in effect yet, though it has passed one major hurdle in being passed by the Senate. Now the amended version of the bill will go to the House of Representatives for approval. The House presents another hurdle as many Republicans have spoken out against it. Further, Speaker of the House John Boehner has previously indicated that he is against the bill and will likely not even bring it up for a vote.

If the bill is indeed brought before the House and passed, then ENDA could greatly change how discrimination is defined across the country affecting both employers and employees alike. This new bill would create an entire new group of protected individuals from discrimination. However, as of now, we are waiting to see what the House does with the passed bill and we could be waiting a while.

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The Higgins Firm's Newest Addition

October 24, 2013 by Ryan Simmons

The Higgins Firm is happy to announce a new addition to the Employment law group. Aaron B. Gentry was recently hired as an associate attorney to bring more knowledge to the already strong Employment law team of Anne Williams, Jon Street and Brandon Hall. Aaron attended Clemson University where he received a Bachelor of Science degree in Political Science. Upon graduation from Clemson, Aaron went on to study law at the University of Tennessee, Knoxville College of Law. He furthered his education by also receiving a Master’s of Business Administration while at the University of Tennessee, Knoxville. With this addition, the Higgins Firm is even more prepared to fight hard for our clients on a myriad on employment law issues ranging from American with Disabilities Act matters to overtime pay issues to workplace discrimination.

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U-Haul Agrees to Pay $750,000 to Settle Racial Harassment and Retaliation Suit

October 1, 2013 by Ryan Simmons

Last week, U-Haul agreed to pay $750,000 to settle a lawsuit brought by eight African-American current and former employees claiming racial discrimination and retaliation. The U.S. Equal Employment Opportunity Commission (EEOC) had brought forth the lawsuit on behalf of the eight plaintiffs. According to the lawsuit, a white supervisor had subjected the employees to racial slurs and other racially charged comments at a U-Haul facility in Memphis. The complaint alleged that the manager had regularly referred to the black employees with racial slurs. The complaint also stated that the company engaged in retaliation by firing one employee when complaints were made to the supervisor.

The alleged conduct violates what is known as Title VII of the Civil Rights Act of 1964. The EEOC had filed suit in federal court in the Western District of Tennessee.

In addition to the payment of $750,000, the consent decree enjoined U-Haul from discriminating against its employees on the basis of race and from any retaliation against its workers who may assert their rights under Title VII in the future. In addition, U-Haul is required to implement a policy that prevents racial discrimination through training.

If you believe that you have been the victim of harassment or retaliation at your workplace, contact our Tennessee employment attorneys. We would be happy to answer any questions that you may have.

Top 5 Things to Look for When Hiring an Employment Lawyer

June 19, 2013 by Jim Higgins

You feel that your employer has treated you unfairly or may even have wrongfully terminated you. What is your next step? You want to find a good Tennessee Employment Law Attorney to evaluate your case, but you don’t even know what you should look for in a lawyer. Here is a short list of things you’ll want to consider:

1. Knowledge and Expertise. Employment cases can be very complicated. You may call a lawyer because you feel you’ve been treated unfairly, and the lawyer may find other violations you haven’t even considered. For that reason, it’s important to find a lawyer who focuses on this area of law. Just like doctors, lawyers have specialties. Look for a lawyer with a background in cases like yours.

2. Belief in your case. Your case is important to you. It should be important to your attorney, too. Choose someone who understands the outcome you are seeking and who believes you have a strong case.

3. Likeability. Believe it or not, you’ll be spending a lot of time with your lawyer so you want someone you like. You’ll need to follow the advice of your lawyer at every step, so make sure that it is someone you feel you can trust.

4. Fee structure. Make sure you find out from the beginning how the attorney will get paid. Most employment cases are done on a contingency basis, which means your lawyer takes a percentage out of your recovery. Many cases provide that if you win, the employer has to pay your attorneys’ fees. The lawyer should explain how it works in your first conversation.

5. Experience. Find out if your lawyer has a track record of success in matters like yours. Ask the lawyer for references or even a list of cases where she has been successful. Make sure the lawyer has handled cases in front of the court or agency where your case will be heard. Knowledge of procedure is just as important as knowledge of the law.

Our Tennessee Employment Lawyers are glad to discuss their qualifications with you.

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Tennessee Company Dollar General Sued Over Background Check Policy

June 13, 2013 by Jim Higgins

The U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Dollar General Corp. earlier this week based on the company’s use of criminal background checks for new hires and employees. The civil lawsuit claims that the retailer has “engaged in ongoing, nationwide race discrimination against black applicants” for almost a decade. The EEOC contends that the use of criminal background checks affects blacks disproportionately. As a firm that handles as significant number of employment discrimination claims the outcome of this case will be interesting.

The EEOC filed suit on behalf of two black former applicants who had jobs or job offers rescinded following a background check. According to the EEOC, one case involved a woman who had disclosed a felony conviction of controlled possession six years prior to her hiring. Shortly after beginning work, she was fired when the felony conviction and a misdemeanor conviction for possession of drug paraphernalia appeared on a background report.

The other case involved a female who contends that she was fired because of a background check that wrongly included a felony conviction. The EEOC said that the company refused to hire the woman even after learning of the error. The lawsuit claims that the employees were victims of a hiring policy that unilaterally bans individuals with certain convictions within specific time frames from working for the company.

An EEOC spokesperson stated that the federal agency is seeking to overcome barriers to employment. In addition, it was the agency’s hope that the “lawsuits would further educate the public and the employer community on the appropriate use of conviction records.”

Dollar General contends that its background check process is created “to foster a safe and healthy environment for its employees, its customers and to protect its assets in a lawful, reasonable and non-discriminatory manner.”

But how could this case affect you? Looking at a much broader view, the outcome of this case could affect companies as well as potential job applicants throughout the country.

If the EEOC is successful, companies may be required to review exactly how their background checks are used in determining whether to hire an employee. While this case will certainly not require that companies hire criminals or prohibit the use of background checks, it could impact the hiring process. It is possible that an outcome favorable to the EEOC could alter the way companies automatically disqualify job applicants without any process for individualized review.

If Dollar General is successful, the hiring process for companies would remain the status quo. However, at the least, this suit brings about an awareness of potential discriminatory hiring practices in areas previously not recognized as discriminatory.

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'Price Is Right' Model's Pregnancy Lawsuit Verdict Overturned

May 2, 2013 by Nicole Barto

Pregnant employees in Tennessee and all over the United States should not be discriminated against in the workplace, according to The Pregnancy Discrimination Act. Under this act, employers are forbidden from discrimination when hiring, terminating, paying, laying off, and giving promotions or benefits to someone because they are pregnant. Unfortunately, this kind of discrimination occurs all too often in the workplace to pregnant women. If you or someone you know has faced this or any other kind of workplace discrimination, it is recommended that you talk to a Tennessee employment discrimination attorney right away. They will help you to determine what kind of compensation you may be eligible to receive for your discrimination claim.

According to this lawsuit, model Brandi Cochran, who was a "Price Is Right" model for eight years, claims that she was discriminated against because she was pregnant. According to her claim, she states, after she got pregnant in 2007 that show producers treated her differently and started to give her less work before she was eventually terminated. Cochran says that this caused stress to her and her baby.

The show's producers argued that Cochran failed to produce any evidence proving that they didn't rehire her because of her pregnancy. In addition, the producers say they cannot be liable for discriminating against the model for her pregnancy-related depression, as they had no knowledge of the condition. However, prior to the jury deliberating the case, the judge apparently failed to instruct the jury on the necessary elements to find the producers liable.
According to the law, Cochran's "Price Is Right" lawsuit was a "mixed motive" discrimination case, meaning her termination arguably may have been based on both discriminatory and nondiscriminatory reasons. In such a case, the judge is required to instruct jurors that the employer is only liable if the discrimination is a "substantial motivating reason" for the termination, and not just a "motivating reason." The judge felt that the jury had received bad jury instructions and ordered a new trial, overturning the $7.7 million jury award for model Brandi Cochran.

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City Electrical Department Lineman Gets $160,000 Settlement for Federal Discrimination and Retaliation Lawsuit

March 26, 2013 by Nicole Barto

In Tennessee as well as across the United States it is against the law to discriminate against an employee or potential employee because of age, gender, sexual orientation, or disability. Unfortunately however, many companies and businesses find ways around these laws and discriminate against these employees anyway. According to a recent Americans with Disabilities Act (ADA) employment law case, Windell Rutherford started work with the city in 1998 and was promoted to lead lineman in 2002. He became disabled after an on-the job injury in June 2006. In December of 2006, Rutherford was told to return to work, but the city refused to return him to his job as lead lineman when he asked for accommodations that would have allowed him to do the job.

Rutherford claims that the electrical superintendant stated twice that he didn’t want him in his department. Once, he said it was because of Rutherford’s injury and disability. A second time he said it was because “all linemen are white.” Rutherford is black.

At First Rutherford was placed in a light duty position in the Public Works Department without a pay cut. He claims that e Public Works director and city administrator tried to force him to sign a form in April 2010 saying he would accept a demotion to Public Works clerk and a pay cut of more than fifty percent. The city had allowed a white lineman to stay on the job with medical restrictions. Rutherford accepted the demotion in lieu of being fired. He applied for a transfer to an open lineman position later that year, but the job was given to two less qualified, non-disabled white men, Rutherford alleged.

In May 2012, raises were proposed for Rutherford and three other employees. His raise was not approved because he had filed a discrimination complaint with the U.S. Equal Employment Opportunity Commission, according to the lawsuit. Rutherford sought to be reinstated to his lead lineman job and $22.50-per-hour salary or damages for future lost wages and benefits. He also sought other monetary damages.The city electrical department and Rutherford settled the case March 5, according to court records. Rutherford will be placed in an inventory clerk position. He will be reimbursed for his portion of mediation expenses, in addition to the $160,000.

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Fighting Pregnancy Discrimination in Tennessee

December 22, 2012 by Nicole Barto

Unfortunately, even though discriminating on the bases of gender, age, race, and sexual orientation and even pregnancy is against the law, many people face this kind of discrimination at their workplace frequently. If you or someone you know feels like you have been discriminated at your workplace because of your race or gender or because of your pregnancy, then it is important that you speak to a Tennessee pregnancy discrimination lawyer right away. They will hear your case and make sure that you get the compensation you need for what you have been through.

According to recent news about labor and employment, pregnancy has no evidence that it keeps women from full and equal participation in the workforce, however, many employers actively or passively attempt to push pregnant women out of the workplace. The number of claims of pregnancy discrimination that go to the Equal Employment Opportunity Commission is increasing even with federal and state laws against discrimination.

The current pregnancy law, known as the Pregnancy Discrimination Act of 1978 prohibits employers with fifteen or more workers from discriminating based on pregnancy or childbirth. Pregnant women must be allowed to work as long as they are able, with any absences treated the same as any other disability leave. This law however does not require any accommodation to be made by the employer. This year, 2012, the EEOC plans to give employers new guidance to make clear that the 35-year-old Pregnancy Discrimination Act prevents employers from firing, refusing to hire or otherwise discriminating against a worker because she is pregnant.
There is also a proposed new act known as the Pregnant Workers’ Fairness Act that was introduced to the United States in September of 2012. This act borrows the “reasonable accommodations” from the Americans with Disabilities Act. It would require accommodations for employees limited by pregnancy, childbirth or related medical conditions. Some of these accommodations could include: providing stools for pregnant employees whose jobs require a lot of standing, allowing pregnant workers to carry water bottles on the job, modifying lifting requirements or reassigning nonessential tasks.
The act would also prohibit employers from firing employees because of pregnancy, or requiring them to take pregnancy leave.

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The Equal Employment Opportunity Commission obtains $5 million settlement in ADA pattern and practice lawsuit

December 18, 2012 by Nicole Barto

In Tennessee as well as across the United States it is against the law to discriminate against an employee or potential employee because of age, gender, sexual orientation, or disability. Unfortunately however, many companies and businesses find ways around these laws and discriminate against these employees anyway. According to a recent case, the Equal Employment Opportunity Commission filed a lawsuit against Interstate Distributor Company, a trucking firm because the Commission claims that the Interstate company maintained a “no restrictions” leave policy in which employees on leave were automatically terminated after exhausting 12 weeks of leave unless they were able to return to full-duty work without limitation. The federal agency’s position in this lawsuit is that employers must make an individualized determination for each employee that has exhausted a leave of absence as to whether the employee can return to work with or without reasonable accommodation for a disability.

The Interstate Distributor trucking firm has agreed to pay $4.85 million in a settlement for their pattern and practice personnel policies which the EEOC alleged were in violation of the Americans with Disabilities Act or ADA. The lawsuit is a reminder that those companies with outdated personnel policies could face a large amount of potential liability.

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‘The Price Is Right’ Model was discriminated against according to Jury

November 30, 2012 by Nicole Barto

Although it is not surprise, illegal employment discrimination can be found across the country and across all industries. Probably even less shocking is that it can be found in that superficial world of Hollywood. According to this case, Brandi Cochran claims she was rejected by the game show’s producers after trying to return to the show in 2010 after having taken maternity leave. The Superior Court jury did determine that her pregnancy was in fact the reason she was not rehired. The jury awarded Cochran $776,944 in her discrimination lawsuit against producers FremantleMedia North America and The Price is Right Productions.

The producers claim that they were satisfied with the five models working on the show at the time Cochran sought to return. A second part of the trial will determine if Cochran should receive punitive damages.

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Auto Parts Company Agreed to pay $750,000 in Settlement for Tennessee EEOC Lawsuit over Drug Testing

September 10, 2012 by Nicole Barto

According to this lawsuit, filed by U.S. Equal Employment Opportunity Commission against Dura Automotive Systems Inc for being in violation of the Americans with Disabilities Act, the EEOC stated that the Dura Automotive Systems Inc. Company had all of their Lawrenceburg, Tennessee employees tested for twelve substances, five of which were controlled substances, and the others were legally prescribed medications, in May of 2007. The EEOC also claims that the Dura Company required all employees who tested positive for legally prescribed medications to disclose medical conditions that they had that required them to take the drugs and the company also made it a condition of employment that they stop taking the medication without evidence that the drugs were affecting their job performances. The Dura Company even suspended employees until they agreed to stop taking the medications and terminated employees who were unable to do their jobs without the medications. Dura also informed its whole workforce about the identities of those employees who had positive drug tests.

The Dura Company has agreed to pay$750,000 to settle the lawsuit. In addition to this, the company is prohibited from making medical inquires and from conducting medical exams which are in violation of the Americans with Disabilities Act. They are also prohibited from conducting drug tests that are not job related or necessary for the business.

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Jury Awarded $1 million to Police Sergeant in Retaliation Case

September 2, 2012 by Jim Higgins

Tennessee employees as well as employees all across the country work hard for their money and they deserve to work in a safe and friendly work environment. They also should be able to by law report problems with their workplace without fear of retaliation or being terminated if they do so. Unfortunately, Tennessee whistle blower claims are on the rise. According to a recent lawsuit, Sergeant James Abbate claims he was targeted for retaliation after he reported that his superior Captain Ruben De La Torre had avoided tolls for months during this commute to work. Abbate claimed that he was told by another officer that Captain De La Torre put duct tape on his rear license plate in order to avoid toll road cameras. In the lawsuit, Torre claimed that his grandchildren had placed it on the plate. Also, according to the lawsuit after Abbate voiced his concerns, he was switched from evening to day shifts making it hard for him to take care of his mother. Abbate also received two complaints claiming that he was neglecting his duties. Abbate was cleared of any wrong doing however; De La Torre changed the evidence for the complaints so that they would still stand. De La Torre resigned last year following an investigation.

The jury awarded Abbate $1 million for emotional damages as well as for future lost wages. Abbate had been with the police department for thirty years and stated that he did not expect this verdict to affect his performance and duties at the police department.

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Tennessee Employmen Lawyer, Jim Higgins, Discusses Retaliation Claims

August 28, 2012 by Jim Higgins

Recently the Department of Labor released a study setting forth the most common employment law complaint filed with the EEOC. As in years past, the most common employment law claim is retaliation. This is no surprise to the Tennessee Employment Law Division of our office.

What is puzzling about this statistic is the "why". I can't count how many cases I have had where employees are mistreated after making a complaint to their boss or HR department. The most strange part of this is if the employer would have simply took the time to fix an underlying situation instead of punishing an employee looking for help the matter would likely have ended there instead of a courtroom.

Recently, our Nashville Labor Lawyer, Jim Higgins was interviewed on this topic. You can watch the interview below:

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Pregnancy Discrimination against Employees and Caregivers Still Tops EEOC’s List

July 30, 2012 by Nicole Barto

In Tennessee as well as all over the United States, employees should be able to expect fair and equal treatment at their workplace. Unfortunately, however, many employees are discriminated against because of their gender, age, disability, sexual orientation and even now for whether or not they are a pregnant employee. If you or someone you work with has been discriminated against for being pregnant or for any other reason, then it is important that you speak to a Tennessee employment discrimination lawyer right away.

According to recent reports, experts informed the EEOC at a public meeting that “at a time when most pregnant women want and need to work, and more American workers struggle to balance work and family, discrimination against pregnant women and workers with care giving responsibilities remains a significant problem.” Following the testimony of ten panel members, the Equal Employment Opportunity Commission released a statement announcing that the Commission was “committed to ensuring that job applicants and employees are not subjected to unlawful discrimination on account of pregnancy or because of their efforts to balance work and family responsibilities.”

After the public meeting, the EEOC has filed a pregnancy discrimination lawsuit against James E. Brown and Associates and has participated in three settlements with employers over claims of pregnancy discrimination. The settlements involve one case where a medical staffing agency has agreed to pay $148,000 to settle a claim of pregnancy discrimination, another case involving a $30,000 payment made by a hair salon and a final case involving a $140,000 payment made by a agricultural products supplier. This focus on pregnancy discrimination and caregiver discrimination by the EEOC is intended for employers to notice that these claims are being taken very seriously.

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Employee Awarded $193,000 in Age Discrimination Lawsuit

July 30, 2012 by Nicole Barto

Another age discrimination case reflects on the struggles some elderly workers are facing. In this case, home health care employee, Debra Moreno, claims that her manager stated that she was a thorough and efficient worker but the company’s owner allegedly thought that Moreno sounded “old on the phone” and looked like a “bag of bones. The company’s owner, Carolyn Frutoz-De Harne, also allegedly told one of the managers that Moreno was not the type of worker she wanted representing her company.

Following, the company laying off Moreno in 2008, the manager told Moreno of the owner’s opinions. In 2010, Moreno filed an age discrimination lawsuit with the Equal Employment Opportunity Commission against Carolyn Frutoz-De Harne. The judge in this case ordered the health care company to pay Moreno $193, 236 for the lawsuit. The healthcare company made no comment to the media concerning the settlement and has closed its doors in the meantime.

In Tennessee and all across the United States, all employees deserve to go to work and be treated with respect and equal rights. Unfortunately, too many employees are the victim of discrimination at their workplace. If you or someone you work with has been discriminated against due to your gender, age, race, disability, or for any other reason, then you should speak to a Tennessee employment discrimination lawyer right away. They will hear your case and make sure you get the compensation you are entitled to by law.

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Court Decides that Racial Workplace Discrimination Suit Can Continue

June 28, 2012 by Jim Higgins

Unfortunately, even though discriminating on the bases of gender, age, race, and sexual orientation is against the law, many people face this kind of discrimination at their workplace frequently. If you or someone you know feels like you have been discriminated at your workplace because of your race or gender, then it is important that you speak to a Tennessee employment discrimination lawyer right away. They will hear your case and make sure that you get the compensation you need for what you have been through.

In a recent lawsuit, Teresa Hernandez who was an employee at a hospital in the food service department claims that two of her supervisors made racist and offensive jokes in her presence. She also claims that when she spoke up about the comments she was ignored. As stated in the lawsuit, when Hernandez complained to human resources, she was suspended for telling a supervisor, “Maybe I’m not white enough.” Then a decision to terminate Hernandez was made and her supervisors were instructed to make a case against her.

The hospital asked that Hernandez’s employment discrimination lawsuit be dismissed because there were not enough incidents of offensive behavior to amount to a hostile work environment. The hospital also stated that it was unclear that the jokes and comments were intended for Hernandez. The appeals court decided that Hernandez found enough specific examples to justify her case against the hospital. They also decided that it didn’t matter whether the jokes or comments were intended for her.
The court decided that Hernandez’s lawsuit against the hospital could continue.

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Appeals Court Maintains Verdict on Discrimination of Hearing Impaired Applicant

June 7, 2012 by Jim Higgins

In Tennessee as well as across the United States it is against the law to discriminate against an employee or potential employee because of age, gender, sexual orientation, or disability. Unfortunately however, many companies and businesses find ways around these laws and discriminate against these employees anyway. If you have a disability and where not hired or where discriminated against on the job because of your disability, then you need to talk to a Tennessee employment and ADA lawyer right away. They will hear your case and work with you to make sure that you get the compensation you deserve for what you have been through.

In this lawsuit, Service Temps refused to hire a female applicant for a stock clerk job after learning that she was hearing impaired. The applicant had explained using a sign-language interpreter that she was qualified for the position and had many years of store clerk experience; however, the company would not interview her or consider her for the position. A manager at the company even stated that the woman who not be hired because she could not hear.

The EEOC filed the lawsuit in district court claiming that the company was in violation of the Americans with Disabilities Act which prohibits disability discrimination and requires employers to make reasonable accommodations for employees and applicants as long as there is no undue hardship. A pre-litigation settlement was not reached. In September of 2010, a jury made a decision that the company was in violation of the ADA. The woman received $ 103,200 and interest for lost wages, emotional harm and punitive damages. The EEOC also motioned for an injunction and the company was not allowed by law to discriminate against people with disabilities, people who are seen as disabled, or have a record of a disability.

A year from the award was given, an appeals court made a ruling that rejected all the company’s claims on the appeal. The higher court also rejected the company’s argument and cited that the EEOC’s presentation of evidence at the trial showed that the company’s manager who had the authority to hire was employed in a managerial capacity and was acting within the scope of his employment when he refused to allow the woman to apply for a job even when considering that his action was allegedly in violation of a company policy.
The U.S. Court of Appeals for the Fifth Circuit recently upheld a jury’s verdict against Service Temps, Inc.

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6th Circuit Modifies Test for Disability Discrimination

May 29, 2012 by Jim Higgins

The 6th Circuit Federal Court, which includes Tennessee, has finally departed from an unreasonably difficult burden placed upon workers asserting rights under the Americans with Disabilities Act. Historically, the law required the trial courts to instruct juries that an employee's disability must be sole reason for his or her firing. In other words, if the jury believed an employee was fired because of a disability, but was also fired for another reason, the employee would lose. That is right. If the worker was fired because they lost a limb, but the employer also created another reason for the termination, there was no remedy for the disabled employee.

The 6th Circuit Federal Court, in the case of Lewis vs. Humboldt Acquisition Corporation, rightfully found that the burden on the employee to show that disability was the sole reason for being fired put an unfair burden on the employee because it gave the employer incredible leeway in creating “other valid reasons” for the firing. In this case, Susan Lewis filed a lawsuit against the Humboldt Acquisition Corporation in 2007 alleging that she was terminated for a medical condition that made it difficult for her to walk and required her to need a wheelchair. The Corporation alleged that Lewis was terminated due to a profanity based incident with her supervisors and not solely because of her disability. The Court instructed the jury to only rule in Lewis’ favor if her disability was the sole reason for her being terminated. The jury ruled in favor of the Corporation.

When Lewis appealed the decision, she argued that the court should have told the jury that her disability only had to one “motivating” factor, the same standard that is used for cases of discrimination based on race, religion, and gender. She reasoned that The Americans with Disabilities Act was brought about to expand protections beyond those protected classes to cover disability discrimination; therefore, Lewis claimed the same test, that the disability was a “motivating” factor and not simply the sole reason, should apply.

The 6th Circuit Court drew away from the “motivating” factor, but they settled on an intermediate test that would require employees to prove that they would not have been terminated if they did not have a disability. This same test is applied to age discrimination claims where an employee must be able to show that he would not have been terminated absent age discrimination.

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Tyson Foods Reach Settlement in EEOC Disability Discrimination Lawsuit

February 27, 2012 by Jim Higgins

In Tennessee and all across the country it is against the Americans with Disabilities Act not to hire an employee because of a disability. However, many companies and businesses still find ways around this law and discriminate against employees with disabilities by not hiring them or not making reasonable accommodations for them. If you or someone you care about has been discriminated against at the workplace due to a disability, then you should speak with a Tennessee employment ADA lawyer right away. They will work with you to make sure you get the compensation you are entitled to for the discrimination you have suffered.

In this case, the U.S. Equal Employment Opportunity Commission or EEOC filed a lawsuit against Tyson Foods Inc in May of 2010, claiming that the company failed to hire Mark White for a maintenance position because he had epilepsy. The EEOC claimed that when Tyson refused to hire White that they violated the Americans with Disabilities Act or ADA.

The lawsuit claims that White’s epilepsy was controlled by medication and had been for the last twelve years and that he had been a previous employee for Tyson two times during this period. The Tyson Company introduced a new medical assessment procedure since the last the last time they hired White and they refused to hire him again because he failed to pass a medical evaluation required for applicants with epilepsy in order to determine whether or not he could safely perform the job.

According to the lawsuit, the doctor who performed the evaluation did not examine White but relied on outdated medical research to determine that he could not safely perform the job. During this time, Tyson also employed other employees with epilepsy who were grandfathered in.

Tyson Foods Inc has agreed to pay $35,000 to settle the disability discrimination lawsuit. In addition to paying the $35,000, Tyson agreed to introduce a new assessment procedure for similar cases. This means that an applicant who is disqualified from Tyson’s employment because of the medical assessment will have the right to a second medical assessment at the applicant’s expense. An independent and third medical assessment will also be made for any applicant not hired after the second assessment. The settlement also provides injunctive relief, including training to individuals involved in the assessment procedure, as well as posting notices for employees and complying with and reporting to the EEOC.

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Tennessee Wal-Mart Employee Terminated After Cancer Surgery

January 13, 2012 by Jim Higgins

In Tennessee and all across the United States, employees with disabilities are supposed to be given reasonable accommodations that allow them to be able to work better according to the Americans with Disabilities Act. However, some companies fail to provide these accommodations and may even go as far as to fire an employee when they are asked to provide the accommodations for them. A recent lawsuit claims that Wal-Mart denied a twelve-year employee of its Tennessee distribution center a reasonable accommodation after he had cancer surgery which meant that he suffered weakness in his right shoulder. The lawsuit is also claiming that Wal-mart terminated him in retaliation for complaining about the company’s refusal to accommodate him.

This employee had been a successful forklift driver after his surgery. He had requested that Wal-mart not require him to cover a twenty minute break in the shipping department because it would require manual lifting. Wal-mart denied him the accommodation and discharged him. They claimed that he could not perform the essential functions of his job. The lawsuit was filed by the EEOC on the employee’s behalf after first trying to reach a pre-litigation settlement. This case was among the EEOC first lawsuits filed under the Americans with Disabilities Amendments Act of 2008 or the ADAA.

According to the settlement, Wal-mart will pay $275,000 and has to agree to an eighteen month consent decree which prevents them from further failing to provide reasonable accommodations, absent undue hardship or failing to follow proper procedures for handling requests that deal with the ADA or ADAA. This decree also requires Wal-mart to provide anti-disability discrimination training to its management staff, maintain records of any accommodation requests and furnish them to the EEOC and post a notice to employees about the lawsuit that includes the EEOC’s contact information.

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Woman Files Lawsuit over Pregnancy Discrimination

December 13, 2011 by Jim Higgins

In Tennessee as well as all across the country, employees are not allowed to be discriminated against for their age, gender, disability, medical condition and even for pregnancy. If an employee faces discrimination for these reasons, it may go against their rights under the Family Medical Leave Act and the Pregnancy Discrimination Act. If you or someone you know feels like you have been discriminated against at your workplace or terminated for any of these reasons, then you should speak with a Tennessee employment and FMLA lawyer right away. They will work with you to determine your case and make sure you get the compensation you deserve by law.

According to this lawsuit, Ashley Shelton was placed on family medical leave in January when she was placed on bed rest indefinitely as a result of premature contractions during her pregnancy. At the time, she worked for Synergy Care Inc. In February Shelton was terminated from her job via an e-mail from her supervisor. Shelton then filed a lawsuit against Synergy Care Inc claiming Synergy hired another employee, Katy Shipp, in early 2011, when they learned that Shelton was pregnant.

The lawsuit also is accusing Synergy of interfering with Shelton entitlement to FMLA, violating the Pregnancy Discrimination Act and the Americans with Disabilities Act. Shelton is seeking damages for lost wages, salary, employment benefits, emotional pain and suffering, inconvenience, mental anguish, non pecuniary losses, punitive damages, interest, and attorney’s fees. A jury trial has been requested for the case.

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Starbucks Company Settles Disability Discrimination Lawsuit

August 29, 2011 by Nicole Barto

In this case, The Equal Employment Opportunity Commission filed a lawsuit against the Starbucks Company for allegedly denying Elsa Sallard, who has dwarfism, reasonable accommodations and firing her from one of their locations. According the EEOC and the lawsuit, during an orientation, Sallard suggested that she could use a stool so she could more easily perform some of the tasks of her job. Later that day, Sallard was fired because the Starbucks Company claimed that she would put customers and employees “in danger.” The EEOC claimed that this action by the Starbucks Company violated The Americans with Disabilities Act. The Starbucks Company agreed to pay $75,000 to Sallard and to provide ADA training to all Starbucks managers and supervisors.

It is always puzzling to me as to why an employer will choose to fire a good employee instead of complying with the ADA and providing a reasonable accommodation. Not only is it against the law to treat someone this way but it is just wrong. It is all to common that a company abandons common sense and places profits over their people. Sad.

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How Rights are Enforced under Uniformed Services Employment and Reemployment Rights Act

April 12, 2011 by Jim Higgins

In Tennessee and all across the country, employees have certain rights when they have to take family or medical leave. However, if you are an employee in the military these rights may be a little different and how they are enforced by a company or under the law may be a little different as well. If you are an employee who also serves in the military and are curious about how your rights are enforced under the Uniformed Services Employment and Reemployment Rights Act or USERRA, then you should speak with a Tennessee employment USERRA lawyer right away. They will answer any questions you may have and talk to you about whether or not you may be entitled to any compensation.

If a company or business is found to be in violation of USERRA, then the employee may file a claim with the Secretary of Defense or file an independent USERRA lawsuit with a military lawyer or other private employment lawyer in court. If a case is filed with the Secretary of Defense and the Secretary is not able to help the employee in upholding their rights under USERRA, then the employee can ask that the Secretary refer their case to the Attorney General in order to file a USERRA lawsuit or hire a military or private lawyer to file the lawsuit.

If an employee decides to file a USERRA lawsuit, a court has several options which include the following: they can force the company to abide by USERRA, they can compensate the employee for any lost wages or benefits they may be entitled to due to the failure of the company to abide by USERRA, or they can require the company to pay twice the amount of lost wages and benefits if it is decided that the company did violate USERRA willingly. Also, the employee is allowed to recover any attorney’s fees and costs that are related to the USERRA lawsuit. However, if an employee loses the lawsuit, he is not required pay any attorney’s fees or costs acquired by their employer.

There are no statutes of limitations on a USERRA claim. A lawsuit may be filed at any time in order to recover lost wages or benefits. However, the time that a USERRA lawsuit is filed may impact the other rewards a court may give. For instance, a court may not be able to require that a company rehire someone as is their right under USERRA, if the employees files the lawsuit years after the military leave took place.

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How Seniority and Benefits Apply Under the Uniformed Services Employment and Reemployment Rights Act

April 8, 2011 by Jim Higgins

When Tennessee workers and workers throughout the country take medical or another type of leave from work, they may be expected to take another position when they return from leave or they may lose some benefits. However if you are an employee that serves in the military and you have to take leave for war or a national emergency then you apply for rights under the Uniformed Services Employment and Reemployment Rights Act or USERRA, and different seniority and benefits may apply to your case. If you have questions about your rights under USERRA, then you should speak to a Tennessee employment USERRA lawyer right away. They will answer any questions you may have and help make sure your rights are protected under USERRA.

When it comes to seniority in your job and benefits under USERRA, an employee returning from military leave is entitled to the same seniority and job as though the employee never left. This means that the seniority applies even when the employee is on leave. An exception to this is if the employee is not qualified for this position or if they have become unable to perform the duties of the position due to injury. When the employee is not qualified for the position that they are supposed to have seniority for, under USERRA, it is required that the company train or assist the employee in meeting the qualifications for the position. If this not possible, USERRA requires that a company rehire the employee for the next possible position for which they are or will become qualified. The USERRA also requires a company to make reasonable accommodations for an employee that became disabled or injured while on leave.

The USERRA also entitles an employee returning from leave to any benefits of seniority as if they had not left for leave. These benefits may include medical and pension benefits which a company is expected to provide while the employee is on leave. However, the employee must still pay part of the benefits that they would be expected to pay if they were still employed. The USERRA does not provide any rights for employee that they would not already have had, had they not taken leave.

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Uniformed Services Employment and Reemployment Rights Act Offers Certain Reemployment Rights to Military Employees

March 30, 2011 by Jim Higgins

In Tennessee and all across the United States when employees take leave for a certain amount of time, they are typically informed about their rights before taking the leave and also told that if their position is no longer needed while they are on leave, they may return to a different position with equal pay or they may be let go. If you are in the military and you take leave to go to war or for a national emergency your reemployment rights are a bit different under the Uniformed Services Employment and Reemployment Rights Act or USERRA. If you or someone you care about is in the military and you have questions or concerns about these rights you should speak with a Tennessee USERRA employment lawyer right away. They will answer any questions you may have and help you with your case.

Under USERRA, employers are not allowed to discriminate against anyone serving in the armed forces or retaliate against them after they return from military leave. This act also obligates businesses to rehire or reemploy military employees when they return from military leave or duty whether they are active or inactive military employees. However, the employee must provide the business with advance notice before military leave unless it is not possible by military necessity, in order to qualify for rehire under USERRA. If a military employee protected under USERRA is seeking reemployment they must do so quickly.

If the time needed for the leave was less than thirty-one days, then USERRA requires that the employee return to the business or workplace the next working day after the leave. If the leave was for less than one hundred and eighty one days but more than thirty, the employee has fourteen days to seek reemployment. If the leave was for more than one hundred and eighty days, then the employee has ninety days to seek reemployment. If the employee is injured or suffering from an illness after their leave, then USERRA permits the employee to wait up to two years in order to recover before seeking reemployment. If an employee does not report or reapply within the required time period they do not automatically lose their entitlement to rights and benefits under USERRA. The business or place of work is still required to apply its general disciplinary rules or guidelines even if the military employee returning from leave does not meet the proper deadlines.

Some exceptions to these rights under USERRA include the combined time away from a job for military leave will not be covered if it is for more than five years. Also, if a business or workplace can provide proof that it is impossible or unreasonable to rehire the employee because it would place a burden on the business or if the position was only intended for a short time, then the business is not required to rehire the employee under USERRA.

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USERRA Allows Military Personnel to Take Leave without Employment Termination Risk

March 22, 2011 by Jim Higgins

For Tennessee workers and workers throughout the country, when you take a leave of absence from work your employment is usually not guaranteed and you may face termination if your position is no longer needed when you return or you may be moved to another position upon your return. However, the Uniformed Services Employment and Reemployment Rights Act or USERRA allows those employees taking military leave to return to their positions and does not allow them to be terminated by an employer for the first one hundred and eighty days or to be discriminated against by employees. If you or someone you love services in the military and you feel that you were unfairly terminated after your leave, then you should speak with a Tennessee employment lawyer about your USERRA rights. They will help you receive the compensation you deserve.

The USERRA also allows The President of the United States to extend protect under the act to others in times of war or a national emergency. This act provides protections such as not allowing discrimination from employers, requiring a company to rehire or return someone to their position or a similar position with seniority as if the person never left, and requires employers to maintain the employee’s health and other benefits while they are in the service. USERRA pertains to private employment as well as state and federal employment.
This act does not permit discrimination in the hiring, promotion, reemployment, or any other benefits of employment to employees who are serving in the military and take a leave of absence. This act also does not allow retaliation against these employees and will help anyone enforcing their rights under USERRA.

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Filipinos at California Hospital File Lawsuit Due to Discrimination over English-Only Rule

December 8, 2010 by Jim Higgins

Tennessee workers and workers all across the country have certain expectations when they go to work. They expect to be treated with respect and dignity and to be treated fairly. Unfortunately, in many workplaces this does not always happen. Many workers face discrimination based on their race, gender, sexual orientation, and even weight. This is not fair to any employee and it is also against the law. If you feel that you have been discriminated against for any reason while at work, then you should speak with a Tennessee employment lawyer right away. They will hear your case and make sure you get the compensation and respect you deserve.

In this case, fifty-two Filipino nurses and other medical staff filed a lawsuit against their employer, Delano Regional Medical Center, claiming that the hospital banned them from speaking Tagalog and other Filipino languages, even though they still allowed other employees to speak Spanish and Hindi. These workers are hoping to join a complaint filed in August in Kern County over the hospital enforcing a rule that requires their employees to speak English.

In 2006, Filipino workers were called to a meeting and told to speak only English and were also told that surveillance cameras would be installed, if needed, to monitor them. Since the meeting, Filipino workers said they were told on a regular basis to speak only English even on their break time.

Elnora Cayme, who worked for the hospital from 1980 to 2008, stated that, "I felt like people were always watching us, even when we spoke English ... people would come and approach us and tell us, 'English only.' “According to the lawsuit filed by the EEOC, the hospital in California's San Joaquin Valley has created a hostile environment for Filipinos to work in by singling them out for punishments and expecting other workers to report them. The workers in this case, are seeking that the English-only rule to be changed, and for staff to be trained on the new rule.

Nonprofit Company that Helps Sight Impaired Workers Faces Discrimination Lawsuit

November 3, 2010 by Jim Higgins

In these tough economic times, it is difficult for everyone, including Tennessee residents, to find a job and unemployment is on the rise. However, for people that have disabilities such as being sight impaired the difficult task of finding a job becomes even more difficult. There are many organizations and programs all across the country though, that help these individuals find employment. This is why it is unfortunate and sad when we discover that even some of these organizations discriminate against their employees because of these disabilities. If you feel that you have been discriminated against at work because of a disability, medical condition or other situation, it is important that you speak with a Tennessee employment lawyer right away. They will help work with you to make sure you get the compensation you deserve and that you rights are upheld.

In Nebraska a nonprofit organization that supposedly helps blind people to find jobs, Outlook Nebraska Inc, is being accused by their blind employees, who claim they are not allowed to file for supervisory positions and that employees who do not have sight impairments are treated better. The lawsuit filed by the National Federation of the Blind of Nebraska Inc in U.S. District Court in Omaha, also claims that its blind employees receive less pay than their co-workers without sight impairments. The lawsuit goes on to claim that, "Some blind workers have been specifically told that they will not be allowed to manage because they cannot see.”

The lawsuit was filed on behalf of the blind employees of Outlook Nebraska Inc and is seeking an injunction to prevent the organization from discriminating against its blind employees and also compensation for these employees. According to the lawsuit, Outlook Nebraska Inc promotes employment for the blind and also makes paper products for the government. Federal law states that seventy-five percent of the work must be done by blind employees in order to receive government funding.

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Auto Dealers Being Sued for Racial Discrimination

October 20, 2010 by Jim Higgins

Vegas car dealers Shack-Findlay recently found themselves being sued by the Equal Employment Opportunity Commission for racial discrimination and harassment. The suit is seeking backpay, reinstatement, implementation of new company policies and an permanent injunction against any further discrimination.

Two African-American men claim that while they were employed by the auto dealer they had to endure racial slurs, ethnic jokes and a hostile workplace because of their race. They also claim they were the victims of retaliation. The men haven't worked for the company for more than three years.

An internal investigation by the company turned up nothing. The EEOC won't say what information it has that led to the bringing of the suit.

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Tennessee Court makes it Easier to File a Lawsuit against an Employer for Illegal Firings

September 28, 2010 by Jim Higgins

In Tennessee and all across the country, when workers feel that their employment rights have been violated or that they were fired from their jobs without a good reason, it used to be more difficult to file a lawsuit against a former employer for this reason. This usually left many Tennessee workers without many options except for to get a new job and move on and hope that the company learned its lesson. Now however, the Tennessee Supreme Court has reversed a precedent which will make it easier for Tennessee workers to file a lawsuit against a former employer if they feel they were fired illegally. If you have questions on how this may affect your case or if you feel you were fired illegally, you should speak with a Tennessee employment lawyer right away. They will help answer your questions and make sure that you get the compensation that is rightfully yours.
In a court ruling of 3-2 last week, employers must now prove that a workers’ claim of discrimination or retaliation are false or possibly be faced with a trial. Before this decision, it was up to an employee to prove that they were wrongfully fired and this was often very difficult to do because most employers will not say, “I'm firing you because you're black' or 'because you're over 40,''' said Wade Cowan, the attorney for the plaintiff in the case, Gossett v. Tractor Supply Co. Inc.

In federal court, more than forty percent of cases were an employee had to prove they were illegally fired, never got the chance to go to trial before their cases would be dismissed, according to the American Bar Association. Before this decision, Tennessee used the federal model for determining whether or not these cases should go to trial. Many businesses fear that this will hurt small businesses and increase Tennessee business costs in general. Other attorneys think that this will give employees a right to present their case and not have it dismissed before it is even heard.

This decision will not only affect the number of cases that go to trial but also increase settlement values and have most Tennessee employment cases getting filed in state courts instead of federal ones.

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Supreme Court Ruling Allows Public Employees Text Messages to Be Read

June 22, 2010 by Jim Higgins

Technology is changing everywhere and part of this technology is the use of cell phones and texting ability. Many of us across the country and right here in Tennessee use cell phones each day, and may even be guilty of texting while at work a time or two, but a new ruling has allowed employers to read personal text messages of employees when the text messaging service is supplied by the employer or when it is violation of work rules.

This ruling is very important because it discusses employment and privacy rights and laws. This ruling also questioned the Fourth Amendment ban on “unreasonable searches” and questions whether this puts limits on public employers, mostly due to a privacy lawsuit filed by police officer, Sgt. Jeff Quon in Ontario, California, when the department’s chief of police Lloyd Scharf decided to read some of the text messages being sent using the department’s texting pagers. The lawsuit found that Sgt. Jeff Quon was texting personal messages to his ex-wife and girlfriend, using these pagers. After this happened, Sgt. Jeff Quon sued on the basis of privacy and won his case. However, this ruling the law favors the employer not the employee and the employee has “limited privacy expectation” when using a texting pager supplied by the department.

The search was considered reasonable because it was for a legitimate work-related reason and was not excessive. This ruling was thought to be very narrow and does not dispute all the issues that will come up in the future concerning technology and privacy rights for employees and their employers.

Many of us here in Tennessee and around the world, use technology such as computers, cell phones, and text messaging every day. However, maybe this ruling will be a wakeup call to many people that sometimes privacy laws and rights do not apply in some cases involving technology and the workplace. If you or your loved one have any questions or concerns about how this may affect you and your privacy, we encourage you to contact one of our experienced and caring Tennessee employment attorneys right away. We will hear your case, answer your questions and make sure your rights are being well protected.

Discrimination Charge Filed by Waiter of Ritz-Carlton due to racial prejudice

April 27, 2010 by Jim Higgins

These days with the rough economy, it is hard enough to find work and then if you do, you may find that some employers discriminate against certain employees. This should not happen, but there are still many cases in which it does, even in Tennessee.
On April 21, 2010, a waiter at the Ritz-Carlton hotel in Naples, Florida filed a discrimination against the hotel , its vice president and managing director, because they allowed a couple to make a “no colored” waitress request. This discrimination lawsuit was filed under Section 1981 Title 42 of the Civil Rights Act and is connected to the “contracts with employees and employer contract”.

The waiter, Wadner Tranchant, said that the couple Rodney Morgan made a discriminatory request and told the staff that they did not want to be served by any “people of color” or waiters with “foreign accents”. The hotel manager and vice president then allegedly entered this request into the hotel’s computer system.

The lawsuit also alleges that when the waiter who worked at the hotel for 15 years, attempted to serve the couple on March 12th, his supervisors did not allow him to serve them based upon the family’s biased request and reservation for “banquette seating”. The waiter also said this was not the first time the hotel allowed prejudice requests.

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Wal-Mart May Face Massive Class Action Suit in Trial

April 27, 2010 by Jim Higgins

Even the residents here in Tennessee know about Wal-mart and all of their success. Many of us also know about the problems they have faced over employee issues and much more. So, this new story may not come as much of shock to many across the country and here in Tennessee.

Wal-Mart may owe billions in legal damages due to a divided federal courting in San Francisco that ruled on Monday April 26, 2010, a massive class action suit which alleges gender discrimination over pay for female workers. In the 6-5 ruling the 9th Circuit U.S. Court of Appeals said that the world’s largest private employer will have to face charges in trial that allege that it pays women less than men for the same jobs and that the female employees get fewer promotions and have to wait longer for these promotions than male employees.

Wal-Mart has tried to fight this lawsuit since it was first filed in federal court in San Francisco in 2001. It lost two previous rulings in trial court and appeals court in 2007. Wal-Mart was able to convince the appeals court to revisit the case in 2007 with a larger eleven judge panel. They argued that women who allege discrimination should file individual lawsuits. They also argued that the case was too big to defend.

“In this case six women who have worked in thirteen Wal-mart’s 3,400 seek to represent every woman who has worked in those stores over the course of the last decade- a class estimated in 2001 to include more than 1.5 million women.”

The appeals court told the trial judge to reconsider awarding punitive damages as well.
We all know that over the years, Wal-Mart has faced several similar allegations and problems and maybe now their employment practices will finally improve.

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Tips for Choosing a Tennessee Employment Attorney

April 2, 2010 by Jim Higgins

After you have struggled with an employer or company over your compensation or different employment rights, you may feel very frustrated and confused. You want to be able to hire the best Tennessee employment attorney possible, but you may not know how to go about doing this or you may worry that you may choose the wrong one. Here are some tips to help get you started. This way you can pick the best employment attorney possible for your case.

First, it may be a good idea to talk with friends and family and even coworkers. They may have had employment disputes before and may be able to recommend a good Tennessee employment attorney for you. It will also help you to feel reassured knowing a close friend or family member trusts them, so you should too. It also may be a good idea to contact your Tennessee Bar Association. They may have a referral system you can use and may be able to give the name of the best attorney there may be for your specific case.

After you get the names of a few employment attorneys, it is a good idea to do some research. Go online to their website and check out their experience, the cases they have handled and any other organizations they may be a part of. It also may be important to give them a call and ask any questions you may have. This will let you know what you can expect when you meet with them and if they help you with your case.

When you meet with Tennessee Employment attorneys, it is always a good idea to ask about their experience and if they have any previous clients you may be able to call for a reference. It is also a good idea to ask about the fees and additional costs they may have. It is important to ask for an estimated cost if they were to take on your case.

All of these tips and suggestions can help you make the important decision about which Tennessee Employment attorney to choose. It is also best to trust your instincts and go with what makes you the most comfortable. The Tennessee employment attorneys at the Higgins firm are experienced and we care about your case and getting you the rights and treatment you deserve.

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Outback Settles $19M Sexual Discrimination Suit

January 27, 2010 by Jim Higgins

Outback Steak House is going to have to serve a whole lot of bloomin' onions to make up for the $19 million dollar settlement it agreed to pay in order to end a class action sexual discrimination lawsuit. The suit alleged a glass ceiling for female workers by requiring that all employees reaching the profit sharing managerial level have experience in the kitchen. The problem was female employees were consistently being denied any positions in the kitchen for then to gain the necessary experience. This has been hotly denied by OSI Partners, Outback's parent company.

Also part of the settlement is a consent decree that makes significant changes to OSI Partners promotion process including an online application that will allow employees to apply for managerial positions via the Internet. Human Resources will also get assistance in the form of a "Vice President for People". And just to make sure that all of this is actually happening, an outside consultant will be brought in for at least two years and every six months they will be reporting to the EEOC.

This is not the first time Outback has been called to task for treatment of its female employees. Over the years there have been thousands of complaints at hundreds of restaurants alleging discriminatory treatment of servers and managerial staff. In one instance they paid over $1.2 million to a woman who was fired only to find her position was filled by a man making twice her salary.

In a bit of an ironic twist, Flemings, a sister company to Outback, is facing its own lawsuit for sexual harassment. This one involves male workers. Obviously OSI Partners has some issues to address regarding their attitude toward employees. Not doing so has proved costly in the past. It could be devastating in the future.

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Store to Pay $35,000 for Disability Discrimination

November 22, 2009 by Jim Higgins

Julie Tufts is feeling a bit more vindicated than she did before. Her employer, Hob Lob, LLC, operating under the name of Hobby Lobby, has been ordered by a judge to pay the fine as part of a settlement in a lawsuit filed by the Equal Employment Opportunity Commission. Hobby Lobby refused to allow Tufts to perform her work from a wheelchair.

Employed since 2005 with the company, Tufts injured herself on the job. She has a medical condition that causes diminished sensation in the legs and feet and she did not realize she'd torn tendons in her right foot. Her doctor instructed her to keep to a wheelchair and avoid any weight on that foot. Hobby Lobby's response was to come back when she was healthy and any employee had to be able to climb ladders carrying 40 pounds. Her assurances that she was healthy and could perform work from her wheelchair fell on deaf ears After weekly, then monthly requests to be allowed to return to work she was officially fired a year later.

Along with the $35,000 fine, Hobby Lobby was ordered to conduct training on the Americans With Disabilities Act and post a resolution in the branch where Tufts had previously worked. They also had pay substantial equitable relief and have injunctions against retaliation and discrimination. Their employee handbook will have to be revised to include policies for treating those with temporary disabilities. Hobby Lobby is being monitored by the EEOC for 30 months to ensure their compliance.

Discrimination is illegal in Tennessee as well as all 50 states. An employer can't fire someone for an injury suffered on the job or a disability. The Americans with Disabilities Act protects disabled workers from termination or discrimination.

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Discrimination of All Types on the Rise

October 30, 2009 by Jim Higgins

Tennessee workers and employees across the nation are filing more workplace discrimination lawsuits. And no longer is it predominantly women claiming gender discrimination or sexual harassment. As workplaces become more diverse, a greater number of individuals are able to be singled out due to race, religion, sex, ethnic, or medical reasons. According to the Equal Employment Opportunity Commission, during 2008 there was a 15% upswing from the previous year. This equaled 13,000 more filings than 2007.

Aging Boomers are another contributing factor in the increase of illegal terminations and instances of age discrimination. A worsening economy and surplus of workers all vying for the same few positions are resulting in cases of wrongful termination and passing over for hiring.

Recent amendments to the Americans With Disabilities Act have made interpretation of "disability" a much broader term covering more conditions than ever before. Bias against an employee regarding health insurance or employment based on genetic information is prohibited under the Genetic Information Nondiscrimination Act.

Continue reading "Discrimination of All Types on the Rise" »

Supreme Court Strengthens Rights For Victims Of Workplace Sexual Assault Claims

October 25, 2009 by Jim Higgins

A couple of recent events have made it easier for Tennessee employees and workers all across America who have experienced sexual assault in the workplace. A recent Supreme Court ruling has made it possible for a jury trial even if the signed contract stipulated arbitration instead of a jury trial. One problem with arbitration is the removal of the arbitrator from the adversities of everyday life whereas a jury is made up of individuals from all segments of society. Another is that often the arbitrator is chosen by the defendant leaving significant question as to impartiality.

Senator Al Franken introduced a bill that was passed by the Senate restricting funds to contractors who demand arbitration instead of trial by jury for their employees in instances of sexual assault. Senator Russ Feingold introduced legislation in April that would invalidate many clauses of binding arbitration and send many disputes involving civil rights, employment and consumer rights back to the courts.

Continue reading "Supreme Court Strengthens Rights For Victims Of Workplace Sexual Assault Claims" »

Nashville, Tennessee Companies Facing Discrimination and Retaliation Lawsuits

September 23, 2009 by Jim Higgins

Nashville, TN businesses are facing a number of Title IV discrimination lawsuits for outlandish actions at the workplace almost unimaginable in 2009. Examples of these discrimination lawsuits that have increasingly been publicly filed against Nashville, TN companies can be found in the sexual discrimination lawsuit filed by the Equal Opportunity Employment Commission (EEOC) this Monday against Southeastern Telecom and the racial discrimination lawsuit against Nashville Electric Service.

At the core of the EEOC sex discrimination lawsuit is the claim that Nashville-based Southeastern Telecom retaliated against one of its female employees when she filed a sex discrimination complaint. Suzanne Sword, an account executive, had complained to her manager about gender discrimination and how she saw jobs were assigned according to sex. Once this sexual discrimination complaint had been filed, the EEOC lawsuit alleges, Southeastern Telecom fired Sword, having first disabled her computer and restricted her company email and intraweb access during the week it took for the company to fire her. The retaliation lawsuit seeks recovery of backwages, among other damages.

Another Title IV discrimination lawsuit gaining national coverage regards race discrimination allegations made by 20 former or current African-American utility workers against Nashville Electric Service and the city government. These allegations of discrimination based on race at the Nashville-based utility center on hiring and promotion practices and hostile work environment. Allegations of retaliation are also included for some plaintiffs in this federal Title IV discrimination lawsuit.

Three plaintiffs have stated that a dark-skinned training dummy with a noose placed around its neck was kept at the work during the racially charged time of September 2007. For those of you who do not recall, two years ago there were various civil rights protests in Jena, LA where local high school students had performed acts of racially-motivated violence against minorities and, to commemorate, hung nooses around the school. Three electrical workers were suspended for the act at the time, but other white employees took donations to make sure those suspended would not suffer lose of pay for their actions. One employee claims her car was vandalized for reporting the incident.

Many more African-American employees were made to suffer racial slurs at the workplace from co-workers and supervisors. Moreover, management, it is alleged, never reprimanded or took disciplinary action against Nashville Electric Service employees who wore Confederate flags and other Confederate regalia during working hours. To further describe this environmental racially hostile to its Black employees, the lawsuit also claims a foreman told an employee with the utility for 20 years, “During Black History Month where I come from, we hang people.”

The workplace discrimination lawsuit filed this week requests class action status for more than 100 current, former, and prospective employees and that the court to order NES to restructure its workforce and award back pay and other damages to discriminated workers.

At the Higgins firm, we take seriously the charges of discrimination and actively fight for those individuals discriminated against. Title VII of the Civil Rights Act of 1964 and the Equal Pay Act protect employees who make complaints of sex- or race-based discrimination from retaliation. If you have been retaliated against for making a formal complaint of workplace discrimination, or if workplace discrimination has affected your ability to work or cost you your job, I and my fellow TN employment law attorneys can help. I encourage you to complete our online TN employment lawyer inquiry form or to call our Nashville, TN employment law offices directly at 615-353-0930.