Ohio football fans may be interested to learn that two former employees of the Detroit Lions filed a lawsuit against the Lions and the NFL for age and racial discrimination. The lawsuit was filed in Wayne County Circuit Court on April 5 by a former director of video operation and a former assistant video director.

Although it was noted that the Lions have been going through a department-wide change in personnel since January 2016, the two former employees had been employed by the team for a long period of time. One of the employees said that he made complaints about certain racial comments that were being made by another employee. He was terminated soon after making the complaints. The other employee was fired after allegedly standing up for the terminated employee. However, he alleged that he had racial comments made towards him as well.

According to an attorney for the former employees, the two men were seeking compensation for lost wages and emotional distressed caused by their terminations. The court stipulations noted that the amount being sought was in excess of $25,000.

It is illegal for companies to allow racial discrimination to occur in the workplace. If an employee reports incidents of discrimination, which can include racial comments, and the employer fails to come to a proper resolution, the victim may have some legal options. An attorney could review the case to determine if workplace discrimination did occur and if the employee’s rights were violated. If the client has a case, the attorney may file a lawsuit in an effort to recover damages.

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To meet the legal definition of harassment, an action must be severe or pervasive enough to create a hostile working environment. Therefore, employees in Ohio and elsewhere might not have a case against their employer even if they are the victim of lewd comments or sexual innuendo. However, lewd or sexually suggestive comments could be indicative of how managers perceive their workers, and that could have an impact on their careers.

In one recent case, women at Nike created a survey that was eventually sent to the company’s CEO. The female employees claimed that they were marginalized and passed over for promotions. Furthermore, some claimed to have been called names or received emails about a colleague’s breast size.

Companies should do whatever it takes to prevent employees from being victims of harassment. In some cases, upgrading an anti-discrimination policy is both the right thing to do and a way to reduce legal liability.

By taking more action against managers when they engage in what seem like minor transgressions, they can prevent more serious acts from occurring. Ideally, companies will emphasize to managers the amount of trust that workers need to have in them. They should also stress that managers are supposed to provide equal opportunities to all workers.

Employees who experience sexual harassment or workplace discrimination based on gender at work may choose to take legal action against their employers. If successful, employees might be entitled to compensation for back pay or benefits lost because of a demotion or wrongful termination. An attorney may review the case to determine if harassment was harsh enough to constitute a hostile working environment using evidence such as witness statements.

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The Age Discrimination in Employment Act of 1967 (the “ADEA”) prohibits discrimination against older workers, including employment practices that have a disparate impact on older workers. In Kleber v. Carefusion Corporation, No. 17-1206, the Seventh Circuit Court of Appeals emphasized that these protections extend to applicants as well as existing employees.

In Kleber, a 58-year old attorney applied for a position, but was ultimately not selected for an interview as the employer specifically sought employees with no more than seven years of experience. The employee brought suit, arguing the employer’s policy of excluding experienced employees was “based on unfounded stereotypes and assumptions about older workers,” “deters older workers from applying for positions,” and “has a disparate impact on qualified applicants over the age of 40.” The Seventh circuit agreed, and overturned the lower court’s dismissal of the case.

If you have been declined for a job because you had “too much experience,” or if you feel you have otherwise been discriminated against on the basis of age by a current or prospective employer, we would like to speak with you. Please contact us for your free consultation today.

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For many workers in Ohio, facing racial discrimination and other types of civil rights violations on the job can be an all too common reality even when working for large employers. For example, the major retail chain, Target, recently agreed to a $3.7 million settlement after a lawsuit that alleged that its process of criminal background checks discriminated against African American and Latino applicants. The settlement is currently pending court approval.

Under the terms of the settlement, the retailer will give priority to hiring Latino and black applicants who had previously been rejected from employment due to a background check. The lawsuit claims that these rejections often related to offenses that were years old or were unrelated to the positions to which they applied. The NAACP Legal Defense and Education Fund said that the background check procedures harmed many qualified people looking for a good job, noting that these types of overly broad checks can limit opportunities for black and Latino workers in a way that amounts to racial discrimination.

The lawsuit was filed as a class action complaint on behalf of all applicants who had been rejected from working at Target after May 11, 2006. The named plaintiffs in the case had 10-year-old misdemeanor convictions or drug charges. Target concluded the settlement offer shortly after the complaint was filed. The retailer said that its criminal history checks began over 10 years ago and that it continues to perform background checks. However, the check is now performed later in the process and is considered in addition to other factors.

Employer practices can violate civil rights law when they have a disproportionate, unjustified impact on a specific group of people based on race, sex or national origin. An employment lawyer may be able to help employees who have faced workplace discrimination or who have dealt with discriminatory barriers when seeking employment to pursue justice and accountability.

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The Americans with Disabilities Act (“ADA”) limits an employer’s ability to make disability-related inquiries or require medical examinations. During employment, employers “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” Any employee can challenge a disability-related inquiry or medical examination that is not “job-related and consistent with business necessity.”

The Equal Employment Opportunity Commission (“EEOC”) has defined a “disability-related inquiry” as “a question (or series of questions) that is likely to elicit information about a disability.” This may include asking an employee about the severity of a disability, asking an employee to provide medical documentation regarding a disability, asking about prior workers’ compensation history, or asking about prescription medications, for example.

A “medical examination” is a “procedure or test that seeks information about an individual’s physical or mental impairments or health.” A number of factors should be considered when assessing whether a medical examination is improper under the ADA. These include whether the test is administered and/or interpreted by a health care professional, whether the test is designed to reveal an impairment or physical or mental health, whether the text is normally given in a medical setting, and whether medical equipment is used, for example.

In general, a disability-related inquiry or medical examination of an employee may be “job-related and consistent with business necessity” when an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.” The 6th Circuit has held that this entails “dual requirements that there be evidence sufficient for a reasonable person to doubt whether an employee is capable of performing the job, and that any examination be limited to determining an employee’s ability to perform essential job functions.”

Individuals who have suffered from workplace injuries can be particularly vulnerable to these types of inquiries or examinations. Pursuant to the EEOC, employers are permitted to ask questions or require examinations that are limited to the specific workplace injury and its impact on the employee only when necessary for the employer to determine the employee’s eligibility for workers’ compensation benefits.

Nilges Draher recently defeated an employer’s motion for summary judgment on this very issue. In Angel v. Bilfinger Weston, Inc. an Ohio federal court found there to be a genuine issue of material fact as to whether an employer was allowed to require an employee to submit to a medical examination, after the employer had previously required the employee to attend various doctors’ appointments after a workplace injury. This is an unprecedented decision in the 6th Circuit.

If you have questions regarding disability-related inquiries or medical examinations, please call us to discuss whether your employer has gone too far.

The Angel v. Bilfinger decison can be accessed by clicking on this link: Angel Decision.pdf

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Earlier this week, our firm filed a collective action lawsuit for unpaid overtime on behalf of a former Huntington Bank call center employee. The complaint alleges that Huntington failed to pay its call center employees for time spent booting up computers and logging into phone systems. If you worked for Huntington as a call center employee, please call us at (330) 470-8656.

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For far too long the prevailing theory behind paying women less than men was that men had wives and children at home for whom they were the sole financial support. This provided employers with a rationalization for paying women less by assuming they were simply making “extra” money and not solely responsible for the support of the family.

Fortunately, a plethora of legislation beginning in 1963 changed all that. With the passing of the Equal Pay Act in 1963, employers could no longer substantiate paying women less for the same amount of work due to antiquated notions about the American family.

What the Equal Pay Act says about your paycheck

The fact that your employer identifies your position with one title and a man’s position with another has no effect on your right to equal pay. What matters is that the composition of your positions is substantially equal. The factors that indicate this equality include the following:

• Establishment: You and the other party must work in the same, distinct physical place. Even if you are at separate sites, as long as they fit into a distinct physical place, the law considers it the same establishment.
• Responsibility: Your position must involve the same level of accountability as others.
• Skill: This factor represents the education, experience, training and ability needed to carry out the duties of your job.
• Working conditions: This includes the hazards and physical conditions you face while on-the-job.
• Effort: This requirement encompasses the amount of mental or physical exertion you expend to carry out your job duties.

If your job meets these conditions, but your pay is less than a male employee’s, you may be the victim of pay discrimination. Of course, variables such as merit, seniority and quality or quantity of production may affect a particular person’s rate of pay. The point is that your gender cannot prevent you from earning the same wage when all factors are considered equal.

What you can do about it

If you somehow discover that a male employee with whom you are on equal footing makes more than you do, you have the right to question why. If you do not receive either a satisfactory answer or an adjustment in pay, you may need to go outside of your company for help. A thorough review of your situation could reveal that you have a legally actionable claim.

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The Fair Labor Standards Act (“FLSA”) requires employers to pay non-exempt employees time and a half for all hours worked over 40 per work week. Most call center employees qualify for overtime pay. Call center employees may be required to perform “off the clock” work, resulting in unpaid overtime for these employees. This “off the clock” work commonly includes, among other things, booting up computers and logging in and out systems and programs. There have been several lawsuits that have been brought and settled on behalf of call center employees.

Earlier this week, our firm filed a class and collective action lawsuit for unpaid overtime on behalf of a former Securitas call center employee. The complaint alleges that Securitas failed to pay its call center employees for time spent booting up computers and logging in and out of programs. If you worked for Securitas as a call center employee, please call us at (330) 470-8656.

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Some Ohio pro football fans may have heard that a former cheerleader for the New Orleans Saints has filed a complaint with the Equal Employment Opportunity Commission. The woman, who was fired because of an unproven allegation that she attended the same party as a football player and a photo she posted to Instagram, is arguing in the complaint that the discrimination is sex-based because the rules for cheerleaders do not apply to players.

The New York Times investigated further and found that the organization has several requirements that only apply to cheerleaders. They cannot post photos of themselves to social media wearing Saints gear, and they must have private accounts and block NFL players. They also must leave any unapproved events if an NFL player is there even if it is dinner in a restaurant in some cases. Players are not under the same obligation to not contact cheerleaders.

Several other football teams have faced lawsuits from cheerleaders related to wages. The Oakland Raiders and the Tampa Bay Buccaneers both settled with cheerleaders while the Buffalo Bills disbanded their cheerleading squad after accusations of minimum wage law violations.

Workplace discrimination is generally considered to be discrimination directed at an employee because of a factor such as race, sex, religion, disability and other protected characteristics. People who believe they are being discriminated against in the workplace may want to talk to an attorney about whether the behavior constitutes illegal actions and how they should respond. For example, many organizations have channels for reporting discrimination. Unfortunately, these reports are not always adequately investigated or addressed. If this happens, an attorney may be able to advise regarding the next step including the possibility of filing a lawsuit.

Source: SB Nation, “Discrimination complaint, investigation reveal how much Saints try to control cheerleaders’ personal lives“, Christian D’Andrea, March 26, 2018

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The Fair Labor Standards Act requires that employers pay an overtime premium to most employees for all hours worked in excess of 40 per workweek. This applies to all non-exempt employees, even if they are paid a salary, day-rate, piece-rate or commission. Thus, never assume that you are not entitled to overtime because you are not paid by the hour. The class of employees who are not entitled to overtime (i.e., non-exempt employees) is fairly narrow. And, employers that claim an employee is exempt has the burden to prove it.

If your employer does not pay you overtime for your hours over 40, you may be entitled to recover not only your unpaid overtime but also liquidated damages, which can be equal to the amount of unpaid overtime. Our attorneys have recovered over 24 million workers who were denied overtime pay. If you feel you have been denied overtime pay, contact us for your free consultation today!

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