It’s Still Flu Season and Mandatory Flu Vaccines Can Still Cost You

Remember that case we told you about last year with the flu vaccines and the EEOC suing for employees on religious discrimination grounds? To recap– in Equal Employment Opportunity Commission v. Mission Hospital a federal district court in North Carolina denied the hospital’s motion for summary judgment, letting the case move forward. That meant that three employees and the EEOC were going to trial in a case about whether their hospital-employer discriminated against them on religious grounds. Well, that case has settled to the tune of $89,000. Not a record setter but real money and a good reminder to look at your flu vaccine program to make sure it is well within the legal limits.

Quick Reminders for Mandatory Flu Shot Programs

  • When an employee’s religious belief conflicts with an employer’s mandatory flu shots, the employer must provide a way for employees to request an accommodation (which, by the way, Mission Hospital did).
  • Once an employee requests the accommodation, the employer can (1) dispute that it is a sincerely held religious belief (riskiest path), (2) provide a reasonable accommodation (path of least resistance but maybe not necessary), or (3) demonstrate that it could not reasonably accommodate the employee’s religious needs without undue hardship (somewhere in between).
  • Step back, and be sure to treat employees the same whether they want or don’t want the vaccine. If a number of employees got to opt out for non-religious reasons, make sure you can distinguish them from your religious objectors. Oh—and make sure to clearly document all of this.

Not Your Grandad’s Facebook? Targeted Social Media Ads Spur Age Discrimination LawsuitCan you target advertisements to a group based on age? The Communications Workers of America (CWA) and several individuals think not and filed suit against T-Mobile, Amazon, Cox Communications, and Cox Media Group. The complaint alleges that these companies ran afoul of the Age Discrimination in Employment Act (ADEA) by sending ads targeting Facebook users in specified age bands (based on their Facebook profiles). The ADEA makes it unlawful for an employer to fail or refuse to hire any individual because of that individual’s age. Does that mean an employer has to send ads to all ages?

The complaint includes various examples of the offending ads (including pictures). By way of example, T-Mobile posted an ad for people looking for a customer care career. According to the complaint, if you clicked on “why am I seeing this ad?” you got a message explaining that T-Mobile wants to reach people interested in customer service based on activity such as liking pages or clicking on ads. The explanation continues with other reasons, including that T-Mobile “wants to reach people ages 18 to 38 who live or were recently in the United States.” Plaintiffs claim that these major American employers violated federal, state, and local laws prohibiting age discrimination in employment advertising, recruiting, and hiring by posting these ads targeting younger individuals on Facebook. Plaintiffs propose both a plaintiff class (of older workers excluded from receiving these ads) and a defendant class (of employers and employment agencies that use Facebook’s ad platform to exclude older workers from receiving these ads).

Facebook is not named in the lawsuit and claims it is shielded from third-party liability by the Communications Decency Act.

Apparently, targeted employment ads are commonplace on Facebook, so we may see a rise of lawsuits similar to this one. Until this plays out, employers should take note. While age targeted advertising may be easy and cheap—and maybe determined to be legal—recognize that you may have to defend it in court.

“Don’t Tase Me, Boss!” Eleventh Circuit Reinstates Claims of Police Officer Who Refused Taser TrainingIf an employee gets a doctor’s note saying she can’t participate in training because of a physical limitation, does that make her disabled? It might if you treat her like she is—at least that is what the Eleventh Circuit ruled last month in Lewis v. Union City, Georgia when it reversed summary judgment in favor of the Union City Police Department (UCPD)  on claims of race, gender and disability discrimination.

The Facts

Detective Jacqueline Lewis, an African-American female, was scheduled for taser training. She brought a doctor’s note stating that due to a past mild heart attack, she should not participate in training that included officers receiving a five-second shock. Her employer, UCPD, put Lewis on indefinite unpaid leave until her doctor released her for duty. During the ensuing 21 days, Lewis said she attempted to get an accommodation and also tried to get information from her doctor to the department. However, on the 21st day, the UCPD terminated Lewis claiming that she had exhausted her accrued leave and had failed to turn in any FMLA paperwork.

Lewis filed suit alleging disability, race and gender discrimination. In support of her race and gender claims, she pointed to two white male officers who were put on administrative leave after failing physical fitness tests, but then were given 90-day and 449-day leave periods before being terminated.

The district court dismissed Lewis’s disability claim on the basis that she had not shown she was a “qualified individual” under the ADA and dismissed her Title VII claim on the basis that the white male comparators were not similarly situated. The court also noted that the detective position would put her in proximity to Tasers and therefore she could not be accommodated. Ms. Lewis appealed.

Eleventh Circuit Opinion

The Eleventh Circuit first looked at the basic case required under the ADA. They agreed with the lower court that Lewis’s mild heart condition did not substantially limit a major life activity, so she wasn’t disabled. However, the court did find that the UCPD’s putting her on administrative leave until she got a letter from her doctor showed that she was “regarded as” having a disability, which also meets the ADA standard. With regard to the qualified individual prong of her ADA case, the Eleventh Circuit did not agree with UCPD’s claim that she could not perform the essential function of the detective job solely because she might be exposed to a Taser shock. The court pointed out that the written job description did not mention anywhere that it was necessary for a detective to be exposed to a Taser shock. As such, the issue of whether it was an essential function of the job should be left to a jury.

The Eleventh Circuit also addressed UCPD’s claim that under Title VII, the two white male officers were not proper comparators because they failed physical tests while Lewis failed weapons training. On this issue, the court found that it was a much closer call but noted that both the weapons training and physical tests were essential functions of the job. At best, this created an issue of fact about whether the men were proper comparators and therefore summary judgment was not proper. Regardless, the court went on to state that there was enough circumstantial evidence of discrimination surrounding Lewis’s termination (placed on involuntary leave after notifying them of a medical condition, using exhaustion of that involuntary and indefinite leave as the reason for termination, etc.) that summary judgment should not have been granted.

What Did We Learn?

This opinion touches on numerous issues:

  • First, it re-emphasizes that an employer can get itself into trouble simply by treating someone as if they are disabled, even if the facts later show that the alleged disability was not enough to impact a major life function.
  • Second, it shows (again) how important accurate and extensive job descriptions are in ADA cases. Job descriptions should constantly be reviewed and revised, if necessary.
  • Finally, it points out that it may look bad to put someone on unpaid indefinite administrative leave over their objection and then later use their failure to show back up to work as a reason to fire them.