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- FORCED ARBITRATION ENDED IN CASES OF SEXUAL ASSAULT AND HARASSMENT
- RULES IN EEOC MATTERS APPLIED
- EMPLOYEE OPTING EARLY RETIREMENT OFFER NOT ENTITLED TO UNEMPLOYMENT
- 100% HEALED POLICY IS EQUALLY WRONG
- Tip Of The Month
FORCED ARBITRATION ENDED IN CASES OF SEXUAL ASSAULT AND HARASSMENT
President Biden this month signed a new law that makes forced arbitration illegal in cases involving sexual harassment and assault. The theory is that the forced arbitration shields perpetrators, silences survivors and enables employees to sweep episodes of sexual harassment under the rug while survivors have no understanding of what else might be going on in the workplace at the hands of a perpetrator. It will be interesting to see what happens in these cases as oftentimes the reason to want an arbitration has nothing to do with the reasons espoused above. In many cases, employees will bring claims involving sexual assault and harassment even though this may not be a major part of their claim, for example, breach of contract or age discrimination. It will also be interesting to see how the courts handle these matters. Will they accept not only the part relating to sexual assault and harassment, or the whole lawsuit? The Act is effective immediately and one who is already subject to an arbitration, but without a decision, can bring an action in the court.
RULES IN EEOC MATTERS APPLIED
A recent Minnesota District Court case raises several important issues when dealing with actions under Title VII of the Civil Rights Act. The plaintiff contended there was direct evidence of racial and national origin discrimination on the record. There is no doubt that there were, unfortunately, statements made by one employee that provided evidence. However, the statements were made by a co‑worker who was not a decisionmaker with respect to his termination. Further, the court determined that being put on paid leave while an examination of an employee’s absence from work is not an adverse employment action. Although plaintiff claimed there were other actions of adverse employment action, only the termination itself was considered. Allegations in the lawsuit were dismissed as they had not been raised at the EEOC complaint level. The court explained that there is a requirement to exhaust administrative remedies in order that a defendant is given appropriate notice of all claims the plaintiff has and gives appropriate deference to the EEOC’s “investigatory and conciliatory role.” Obviously, if these matters are not raised in the administrative proceedings, they cannot be considered as part of the court case. Mwassa v. Presbyterian Homes & Servs., No. 19-CV-01511-SRN-HB (D. Minn. 3/4/22)
In Ward v. Delta Airlines, an airline employee accepted a voluntary leave agreement (described by the employee as an early retirement) during the COVID pandemic to avoid possible future layoff without pay. Under the agreement, the employee received $27,000, two years of health insurance, life insurance and lifetime flying benefits for the employee and her family. Notwithstanding, the employee applied for unemployment benefits claiming that her voluntary termination was based on a “good reason caused by the employer” and to “save the company and save jobs for co-workers.” The Minnesota Court of Appeals affirmed the Unemployment Law Judge’s determination of ineligibility. The Court concluded that the decision to terminate employment was the employee’s, and she failed to show that her reasons were caused by the employer. In fact, there was no indication or statement the employee would be one of the employees laid off, and it turned out no employees were laid off. The Court noted the employee admitted she separated from employment because “she felt that it was better to separate from employment with benefits rather than face a possible future layoff with no benefits.” For employers, this case demonstrates that simply offering early retirement packages will not render employees eligible for unemployment, but any statement that could be interpreted as stating the employee will be laid off may change that outcome. Ward v. Delta Airlines, Minn. Ct. App. Case No. A21‑0932 (April 4, 2022).
100% HEALED POLICY IS EQUALLY WRONG
As noted in a recent EEOC press release, a company known as Employer Solutions did not have a good solution for itself. An employee was ready to come back to work, but she was still in need of crutches on the job. Obviously, the person was still disabled and was entitled to reasonable accommodation, whether it be light-duty work or additional leave. An employer settled the claim for $95,000, as it had terminated her because she was not 100% healed when she tried to go back to work. Employers need not return an employee to work when restrictions or an injury create risk to the employee or others, but the law requires accommodations in such circumstances. EEOC v. Employer Solutions Case No. 19-CV-02315 (D.C. Minn. 2022).
The question of how to handle an employee who has been alleged to have engaged in workplace misconduct can be a difficult one for employers. In many circumstances, the employer does not want the employee present in the workplace while an investigation into the allegations is conducted. In such circumstances, a recent ruling of the 11th Circuit Court of Appeals suggests that suspension with pay is a “useful tool for an employer to hit ‘pause’ and investigate” the allegations without risking retaliation or discrimination claims by the accused employee. In that case, the accused employee was in a protected class and resigned. He then sued the employer for discriminatory and retaliatory conduct based on the suspension. The Court ruled that the paid suspension was not an adverse employment action, which is a required element of such claims. The paid suspension also meant the employee could not claim constructive discharge upon his resignation.
Hanft Fride’s business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth, Minnesota. Visit our website at www.hanftlaw.com for general information on the firm and our attorneys. Our employment lawyers include Tom Torgerson, Rob Merritt and Scott Witty. Richard Burns is now of Counsel.
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