Articles Posted in Discrimination

As you may know from past posts, the U.S. Equal Employment Opportunity Commission (EEOC) enforces five federal laws that prohibit employment discrimination against applicants for federal employment, current federal employees, or former federal employees: Title VII of the Civil Rights Act of 1964, as amended (prohibiting discrimination on the basis of race, color, religion, sex, or national origin); the Equal Pay Act of 1963 (prohibiting agencies from paying different wages to men and women performing equal work in the same work place); the Age Discrimination in Employment Act of 1967, as amended (prohibiting discrimination against persons age 40 or older); Sections 501 and 505 of the Rehabilitation Act of 1973, as amended (prohibiting discrimination on the basis of disability); and Title II of the Genetic Information Nondiscrimination Act of 2008 (prohibiting discrimination based on genetic information).

But what if the individual discriminating against a federal employee is the head of the agency or division wielding vast influence not only in the employee’s division but the entire agency? What if the alleged discrimination is inflicted by the head of the EEO office? Federal employees may fear that the EEO office is not investigating thoroughly such claims of discrimination and/or is predisposed not to find that any discriminatory conduct occurred.
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On June 26, 2015, the Supreme Court of the United States (“SCOTUS”) decided the 5-4 landmark decision, Obergefell v. Hodges, No. 14-556 (June 26, 2015). What’s so important about this case, which has resulted in nationwide parades, rainbow lighting of the White House, and rainbow-tinted profile pictures on Facebook? And, more important to us here at BerlikLaw, what might the Obergefell ruling portend for the employment discrimination realm?

Well, I’ll tell you. Obergefell determined that the states could not ban same-sex marriage. Prior to June 26, 2015, thirty-six states permitted same-sex marriage, but the remaining states still prohibited it. Then, last Friday, in a sweeping act of federalism, SCOTUS determined that the states could not constitutionally prevent same-sex couples from legally marrying in any state. SCOTUS answered a “YES” to the pivotal constitutional question: do the Equal Protection and Due Process clauses of the Fourteenth Amendment require all states to perform same-sex marriages? Yes, yes, they do.
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Virginia employers take note: even one racial slur (or sexist comment) by one employee to another can subject you to legal liability under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-3(a).

Title VII protects employees against discrimination in the workplace if the discriminatory conduct is based on gender, race, color, disability, religion, or national origin. Harassment is unwelcome conduct based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is not harassment if your supervisor is mean or rude to you–unless said conduct is based on one of aforementioned discriminatory bases.
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A few days ago, SCOTUS (the Supreme Court of the United Sates) surprised us some by deciding not to hear appeals from several states that sought to prohibit same-sex marriage. However, the non-ruling has been hailed as a historical and momentous event changing an untold number of lives. What happened? Well, the Supreme Court “denied cert“–that is, it declined to review appellate decisions–from cases in Virginia, Utah, Indiana, and some other states, which had held that bans on same-sex marriage were unconstitutional. By refusing to hear the appeals, the court gave tacit approval of the lower courts’ decisions, making gay marriage legal in 11 more states. Legal gay marriage across the country is happening, people, as it’s now legal (or about to become legal) in 35 states, including the District of Columbia.

On October 7, hot on the heels SCOTUS’s denial of cert of 4th Circuit decisions allowing same-sex marriage in Virginia, the Virginia Commonwealth University in Richmond announced that it intended to broaden its discrimination policies to include gender identity and sexual orientation. These developments are interesting as they may be portentous as Virginia state law does not yet include gender identity and sexual orientation as protected classes, which enables employers to fire an employee for being gay.
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The Age Discrimination in Employment Act (“ADEA”) prohibits an employer from discriminating against an employee on the basis of age. To prevail on an ADEA claim, it is not enough to show that a supervisor was biased against older employees. A successful plaintiff needs to show that she suffered an unfavorable employment action that she would not have suffered but for age discrimination. All illustrated by the recent case of Lavina D. Jernagin v. John M. McHugh, even if a supervisor refers to an employee as an “old-timer” and a “dinosaur,” if age was not the “but for” cause of an unfavorable employment action, the plaintiff will be unable to recover.

Lavina Jernagin began civilian employment with the United States Army in 1997, working as a Logistics Management Specialist with the Army’s Directorate of Logistics (DOL). In 2003 and 2005, Ms. Jernagin received annual performance ratings of “outstanding” or “excellent.” In 2007, Sergeant Travania Fair and Pamela Kent became Ms. Jernagin’s first and second line supervisors. Sergeant Fair considered Ms. Jernagin’s performance below average. In July 2007, as part of a branch reorganization, Lawrence Lawson and Mary Costa became Ms. Jernagin’s first and second line supervisors. At trial, witnesses testified that Ms. Costa had made several derogatory age-related statements toward Ms. Jernagin and her coworkers.
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The U.S. Equal Employment Opportunity Commission (“EEOC”) recently released a comprehensive set of fiscal year 2013 data tables showing that it obtained the highest monetary recovery in agency history through its administrative process, increasing by $6.7 million to $372.1 million of the 93,727 charges received in fiscal year (“FY”) 2013.

There was actually a nearly 6% decrease in charges filed in FY 2013 from FY 2012. In total, 93,727 employees filed charges with the EEOC. Consistent with past years, retaliation was the most commonly cited basis (more than 35,500 charges) for discrimination charges and increased in FY 2013. The next most commonly charge was racial discrimination (more than 33,000 charges) followed by gender/sexual harassment/pregnancy discrimination (nearly 28,000 charges) and then disability discrimination (with almost 26,000 charges). EEOC’s data showed more than 3,000 charges were found to be “reasonable cause,” where the evidence gained in the investigation rendered a conclusion that discrimination occurred. The data also demonstrated that the EEOC successfully conciliated 1,437 charges (approximately 40%). A “successful conciliation” is described by EEOC as one that results in substantial relief to the employee citing discrimination and all others adversely affected by discrimination.
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A plaintiff employee with no direct evidence of disability discrimination must establish a prima facie case of wrongful termination. If he succeeds, the defendant employer is required to articulate a legitimate, non-discriminatory reason for the termination. The burden then shifts back to plaintiff to show that the reason offered was merely a pretext for discrimination. The United States District Court for the Western District of Virginia recently employed this burden shifting framework in Ruggles v. Virginia Linen Service, Inc. and granted the employer’s motion for summary judgment.

Timothy Ruggles was a route salesman for Virginia Linen Service and New System Linen Service. His duties included bringing extra linens to clients who had run out of linens before their scheduled delivery date. The extra linens rarely weighed more than 25 pounds. Ruggles also acted as a substitute driver for ill or vacationing employees, although he contended that substitute driving or “running a route” was not a primary function of his position. Running a route required him to make new deliveries of linens and pick up bags of soiled linens from customers. Occasionally, the bags of soiled linens weighed up to 100 pounds. When running a route, Ruggles and other employees often separated the heaviest bags of soiled linens into smaller bags to reduce the weight and make the bags easier to lift.

Ruggles suffered a back injury that was not related to his work. As a result, his doctor ultimately placed him on restrictions that prevented him from lifting more than 10 pounds for four weeks. Later, an orthopedic specialist permanently restricted laundry.jpgRuggles from lifting more than 50 pounds and/or continuous lifting of more than 25 pounds. Defendants offered Ruggles a sales position that would not require heavy lifting, but Ruggles rejected the offer. Defendants eventually terminated him based on the permanent restrictions the orthopedic specialist put in place.

Bettina Jordan works for the United States Postal Service. In 2012, she filed two separate actions against the Postmaster General, Patrick Donahoe, alleging discrimination under Title VII and the Rehabilitation Act. In February of 2012, Jordan suffered a physical injury on the job and accepted a limited duty assignment. She has collected workers’ compensation benefits since the injury. She did not appreciate, however, the manner in which the USPS handled her workers’ compensation reimbursement, so she filed a third lawsuit, alleging retaliation, defamation, and intentional infliction of emotional distress. All three cases were filed in the Richmond Division of the Eastern District of Virginia.

USPS employees seeking workers’ compensation must submit periodic documentation to the Office of Workers’ Compensation Programs (“OWCP”) showing their continued eligibility for benefits. Jordan was entitled to compensation based on a four-hour work day due to her limited duty assignment, but because of an administrative error, USPS had been compensating her for an eight-hour work day through July 2012. In August of 2012, an OWCP claims manager changed Jordan’s claim forms to accurately reflect the number of work hours and, upon finding backdated and inconsistent medical notes Jordan had submitted, undertook a reevaluation of Jordan’s claim in September 2012. The claims manager wrote to Jordan questioning her submissions and asking for clarification. She also sent the letter to a Department of Labor Claims Examiner and the USPS Manager of Health and Resource Management.

Jordan did not appreciate being asked these questions. She sued, claiming that the way in which USPS handled her workers’ compensation reimbursement was in retaliation for her discrimination claims. She also contended that the claim manager’s letters defamed her and that they intentionally inflicted emotional distress. The USPS, through Mr. Donahoe, moved for summary judgment. The court granted the motion.

The exhaustion of remedies doctrine requires parties to initiate and follow administrative procedures before seeking relief from the courts. The rationale behind the doctrine is that administrative agencies have specialized personnel, experience, and expertise to handle matters that arise under their jurisdiction. Additionally, an administrative complaint puts parties on notice of alleged wrongdoing, and administrative proceedings allow parties to resolve their disputes in a more efficient and less formal manner.

To allege discriminatory employment practices in a deferral state like Virginia, prior to filing any lawsuit, an aggrieved employee must exhaust administrative remedies by initiating an EEOC charge. Otherwise, the claim will be forever barred. The United States District Court for the Western District of Virginia recently addressed the exhaustion of remedies requirement in Kerney v. Mountain States Health Alliance.

Keltie Kerney was the Home Health Director at Norton Community Hospital (“NCH”) when she began having medical problems with her eye. She informed NCH that her medical problems would require medical leave and possibly future accommodation in eye.jpgorder to continue her employment. NCH granted Kerney medical leave from August 19, 2010 through December 14, 2010 when her physician released her to return to work “with accommodations.” Upon her return to work, the hospital terminated Kerney. Kerney claims that the hospital discriminated against her on the basis of her age and disability and that it retaliated against her for her request for medical accommodations. Kerney brought suit against NCH and its owner, Mountain States Health Alliance (“MSHA”) under the Age Discrimination in Employment Act of 1967 (“ADEA”) and the Americans with Disabilities Act (“ADA”).

Many people don’t realize that the Americans with Disabilities Act (ADA) protects not only employees with substantial hearing, visual, or mental impairments, but also those with HIV or AIDS. The ADA prohibits discrimination against “qualified individuals with disabilities.” Any physical or mental impairment that substantially limits one or more major life activities can qualify as a disability, and HIV disease is such an impairment.

Earlier this month in Norfolk, former Burger King manager Christopher Peña filed a discrimination suit against Burger King for allegedly terminating him upon learning he was HIV positive. Burger King says he was fired for poor performance. The complaint seeks compensatory damages for lost past and future wages, benefits, and emotional distress. It also seeks punitive damages, costs and attorney fees, reinstatement, and an injunction precluding further violations of the ADA.

Peña joined Burger King in 2004 and became a district manager, responsible for nine restaurants. When he learned he was HIV positive, he debated whether to tell the company but decided he should do so in case he reacted to his medications and AIDS.jpghad to miss work. He claims he had no disciplinary actions against him prior to disclosing his HIV status to a supervisor in June 2011. But shortly after the disclosure, one of his restaurants failed an audit, other restaurants within his management experienced service problems, and he dismissed an employee for stealing money. The company terminated his employment in September 2011.

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