Kentucky Injury Lawyer Blog

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964 and Kentucky Revised Statutes, Chapter 344. These laws apply to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

Requests for sexual favors, unwelcome sexual advances, and other physical or verbal conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Many people mistakenly assume that victims of sexual harassment can only be women. However, a greater number of men are filing charges of sexual harassment in the workplace, against both female and same-sex perpetrators.

If you or someone you know would like more information about how to file a charge of sexual harassment or a sexually hostile work environment, the attorneys at Bahe Cook Cantley & Nefzger are available to assist you.

Under federal and state law, it is illegal to discriminate against someone (applicant or employee) because of that person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The laws forbid discrimination in every aspect of employment.

But what about a dress code in the workplace? In general, an employer may establish a dress code which applies to all employees or employees within certain job categories. There are a few possible exceptions.

A dress code must not treat some employees less favorably because of their national origin. For example, a dress code that prohibits certain kinds of ethnic dress, such as traditional African or East Indian attire, but otherwise permits casual dress would treat some employees less favorably because of their national origin.

An employer may require all workers to follow a uniform dress code even if the dress code conflicts with some workers' ethnic beliefs or practices.

If the dress code conflicts with an employee's religious practices and the employee requests an accommodation, the employer must modify the dress code or permit an exception to the dress code unless doing so would result in undue hardship. Similarly, if an employee requests an accommodation to the dress code because of his disability, the employer must modify the dress code or permit an exception to the dress code, unless doing so would result in undue hardship.

If an employee needs to modify a dress requirement because of a disability, the employer may need to grant that employee a reasonable accommodation.

In a unique story to make headlines an employee at a Macy’s in San Antonio was fired for not allowing a transgendered shopper to use the store’s women’s fitting room, saying doing so would violate her Christian beliefs.

A few days after Thanksgiving, Natalie Johnson refused to let a transgender woman, who she described as a man in makeup and woman’s clothes use the woman’s fitting rooms.
The Liberty Counsel is an organization representing the fired employee and who usually represents people like Johnson who believe they’ve been wrongfully terminated for their religious convictions.

“Macy’s does not comment on personnel matters,” said Melissa Goff, regional spokeswoman, about the incident at its San Antonio Rivercenter store involving Johnson. “At Macy’s we recognize and appreciate the diversity of our customers and associates.”

A conservative Christian organization, Liberty Counsel defines marriage as between a (biological) man and woman. They have characterized the rise of GLBT rights as “a radical agenda… seriously out of touch with mainstream American values.”

“Macy’s has essentially opened women’s dressing rooms to every man,” said Liberty Counsel spokesman.

It is worth noting that according to polling data the Liberty Counsel’s position on transgender rights diverges from most Americans’ and even most Christians’ opinions

Ever feel like you were unjustly stopped by the police for speeding? Ever heard of particular “speed traps” where cops hand out to meet their monthly “quota” for issuing speeding tickets? Well, apparently in Los Angeles this is not fantasy. The Los Angeles Times reports that recently 10 police officers filed suit against their employer, the LAPD, claiming that they were retaliated against for refusing to meet so-called traffic ticket quotas. These quotas, as you might suspect involved a certain number of traffic tickets that each officer had to write each month. The suit claims that in return for their refusal to meet the quotas that the officers were denied overtime and other benefits as punishment. The officers also claim that they were given negative performance reviews for refusing to meet the ticket quotas.

As it turns out, the ticket quotas set by LAPD are illegal under state law. This seems like it would be obvious because the quotas might encourage or force officers to write tickets that were otherwise not warranted or unnecessary in order to meet the quota. The suit might be successful as two prior claims by police officers for the very same thing against the LAPD were tried to a jury verdict of $2 million. Unfortunately, it is not just these police officers who are suffering because of the illegal quota system that the LAPD has put in place. Part of the allegation in the suit is that officers were drawn from routine traffic patrols to specific spots to try and “nab” speeders. This practice might very well increase crime rates by pulling already scarce resources from the streets to focus their energy on the relatively minor offense of speeding.

Continue reading "Officers sue LAPD over being forced to meet speeding ticket quotas " »

The Americans with Disabilities Act (ADA) requires reasonable accommodations when necessary so that people with disabilities can perform the essential functions of their jobs, unless doing so would constitute an undue hardship to the employer. Leaves of absence—including those beyond an employer’s permitted number of days off—can constitute reasonable accommodations.

“A period of leave -- whether for medical treatment, recovery, or training to use adaptive equipment -- is often the reasonable accommodation that permits a person with a disability to remain gainfully employed,” said EEOC Chair Jacqueline A. Berrien.

Vanessa Cantley, attorney and employment litigation partner at BAHE COOK CANTLEY & NEFZGER PLC comments: Many requests for leave can be handled under an employer’s regular leave policies, but reasonable accommodation issues arise when an employer would not ordinarily allow the leave -- for example, by having “no fault” leave policies. These policies must be modified as a reasonable accommodation, absent undue hardship, if an employee with a disability needs additional leave.

The EEOC recently litigated two large class cases against a national and a regional company, both of which had inflexible leave policies. The two cases were settled by consent decrees for millions of dollars and changes to the companies’ policies.

Sam's Club, the famous discount chain, will pay $440,000 to settle a lawsuit it was announced last week.

No, this is not stemming from the nationally followed lawsuit involving female employees – which is before the U.S. Supreme Court. Rather this lawsuit alleges that Mexican employees were discriminated against.

"Sam's Club has strong policies against discrimination and harassment," a Sam’s Club spokesperson stated. "When the full extent of the allegations was brought to the company's attention, we took them seriously, they were thoroughly investigated and we took immediate action."
At least nine employees of Mexican descent at the Sam's Club in Fresno, including one who was married to a Mexican national, endured the slurs from a Mexican-American co-worker, the agency said.

The EEOC said that since late 2005, the victims were barraged with frequent insults about Mexicans, including references to Mexicans only being good for cleaning the harasser's home.

At a meeting held last week, the U.S. Equal Employment Opportunity Commission (EEOC) heard testimony that age discrimination is causing the nation’s older workers to have a difficult time maintaining and finding new employment, a problem exacerbated by the downturn in the economy. The number and percentage of age discrimination charges filed with the EEOC have grown, rising from 16,548 charges — 21.8 percent of all charges — filed in fiscal year 2006, to 22,778 —24.4 percent — in fiscal year 2009.

The Commission heard testimony from a number of experts on the impact of the economic crisis on older workers, the legal issues surrounding age discrimination today, and best practices to retain older workers. Dr. William Spriggs, Assistant Secretary for Policy, U.S. Department of Labor, testified that the rate of unemployment for people age 55 and over “rose from a pre-recession low of 3.0 percent (November 2007) to reach 7.3 percent in August, 2010, making the past 22 months the longest spell of high unemployment workers in this age group have experienced in 60 years.” Older workers also spend far more time searching for work and are jobless for far longer periods of time compared to workers under 55.

Assistant Secretary Spriggs’ testimony reflected the experience of Jessie Williams, who had worked for 31 years in Las Vegas at Republic Services, a multi-million dollar waste disposal company. After more than three decades of stellar employment, he was terminated along with four other foremen over 40. He testified, “I was told that I wasn’t needed any longer . . . [and] that they were going to ‘get rid of the old foremen and get some new blood.’” Following his discharge, Mr. Williams had to move out of state to find employment. He later became part of the EEOC’s suit against Republic filed on behalf of more than 20 workers discharged due to their age. The case was ultimately settled for nearly $3 million.

Another panel discussed legal issues relating to age discrimination, including the impact of legal precedents, as well as the important role the EEOC can play in addressing the issue. Finally, representatives of the AARP and the Society for Human Resource Management (SHRM) discussed best practices to retain and attract older workers. These include increasing part-time and flexible work schedules, offering “phased retirement,” and, in appropriate situations, permitting employees to switch to geographically distant locations during certain seasons — the so-called “snow bird” migration to warmer climates in the wintertime.

“The treatment of older workers is a matter of grave concern for the Commission,” said EEOC Commissioner Stuart J. Ishimaru. “We must be vigilant that employers do not use the current economy as an excuse for discrimination against older workers.”

Materials from the Commission meeting, including biographies and statements of the panelists, with links to information about age discrimination can be found on the EEOC’s website at http://www.eeoc.gov/eeoc/meetings/11-17-10/index.cfm. A transcript of the meeting will be posted there at a later date.

The EEOC enforces the nation’s laws prohibiting employment discrimination. More information about the EEOC can be found on its website at www.eeoc.gov.

Bank of America Corp., the nation's largest bank by assets, has been sued in federal court-- accused of not paying its employees proper overtime and other wages.

According to a complaint filed in the United States District Court, District of Kansas, Bank of America requires employees to work more than eight hours a day or 40 hours a week, yet does not pay them both for overtime and for all straight time worked.

The complaint also accuses the company of requiring employees to work during unpaid breaks, failing to provide meal and rest breaks, and failing to timely pay terminated employees for earned wages and accrued vacation time.

Vanessa Cantley, attorney and partner at Bahe Cook Cantley & Jones, is representing current and former employees of Bank of America in claims against the company for violating the Federal Fair Labor Standards Act and state laws. She comments: "It is infuriating when any company exploits its workers and violates wage and hour laws. We believe Bank of America has made millions of dollars of ill-gained profit at the expense of its hourly employees and systematically failed to provide proper working conditions for them. They must be held accountable. I will be asking a judge to put a stop to Bank of America's illegal conduct. I will also be seeking monetary damages to compensate my clients and punitive damages to punish the company for years of intentional exploitation of its workers."

To learn more about the lawsuit filed against Bank of America, please call Vanessa Cantley directly at (866) 587-0002, or e-mail her by clicking here.

Most people don't know what an employer can and cannot ask a job applicant during an interview when it comes to that applicant's medical history.

The ADA places restrictions on employers when asking job applicants to answer medical questions, take a medical exam, or identify a disability.

An employer may not ask a job applicant, for example, if he or she has a disability (or about the nature of an obvious disability). An employer also may not ask a job applicant to answer medical questions or take a medical exam before making a job offer.

An employer may ask a job applicant whether they can perform the job and how they would perform the job. The law allows an employer to condition a job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same job have to answer the questions or take the exam.

Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer has reason to believe an employee would not be able to perform a job successfully or safely because of a medical condition.

The law also requires that the employers keep all medical records and information confidential and in separate medical files.

Vanessa Cantley, partner at Bahe Cook Cantley & Jones, was in the news this week after she represented her client, Chris Glass, a PRP firefighter, in front of the PRP Fire Protection District Board. Mr. Glass filed a complaint alleging harassment and racial discrimination against his former captain, Robert "Danny" Heil. Heil's disciplinary hearing was held in front of the Board Wednesday evening, January 20. The Board listened to witness testimony and arguments from the attorneys. It was charged with deciding what discipline, if any, to impose upon Heil.

After listening to the evidence and deliberating for several hours, the Board found that Heil acted inappropriately and contrary to Board policy, and determined that he should be dismissed from the PRP Fire Protection District.

Click here to watch news coverage of the hearing and the Board's decision, courtesy of WHAS-11 News: WHAS-11 News Story.

If you or a loved one has experienced discrimination in the workplace, feel free to contact Vanessa Cantley directly at (502) 587-2002, or e-mail her by clicking here: E-mail Vanessa.