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.

ac-com-mo-date

verb

to make suitable or consistent; adapt

This simple word, or the lack thereof, is costing a California non-profit, the Asian American Drug Abuse Program, Inc. (AADAP), a lot more than a broken New Year’s resolution. In a recently returned special verdict, California jurors awarded Della Hill a staggering $4.5 million against her former employer AADAP. Hill, a counselor at AADAP, was fired from her position while out on a medical leave that was extended due to an onslaught of depression. Following her dismissal, Hill sued AADAP, mainly alleging violations of the California Family Rights Act (FRA) and the Fair Employment Housing Act (FEHA). She also threw in claims alleging failure to pay minimum wage and fairly compensate for overtime work.

The Fine Print

New Year, Same Accommodations…Employer Forced to Shell Out Millions for Failure to Accommodate Employee on Disability LeaveHill began at AADAP in 2011.During the New Year holiday of 2015, Hill broke her humerus—that’s a bone in her arm—and immediately began medical leave. Not long after, Hill was diagnosed with major depression and needed more than the 12 weeks protected by the FRA (all certified by her doctor to AADAP). When Hill’s 12 weeks of leave was up, AADAP terminated her for “failing to return from her medical leave.”

Hill’s complaint alleged that AADAP’s actions violated the California FRA and FEHA. Hill argued, and the jury concurred, that she was fired because of her physical and/or mental disabilities, and in retaliation for her taking protected leave for medical treatment.

Moreover, under the FEHA, Hill alleged that AADAP failed to reasonably accommodate her disability. The jury determined that Hill would have been able to perform the essential duties of her job (or a similar vacant position) with reasonable accommodations. The jury also found that AADAP, despite its knowledge of Hill’s circumstances, did not take reasonable steps to communicate with Hill about her disability, her leave, or potential accommodations to facilitate her return. Further, according to the jury, Hill’s proposed accommodations would not have created undue hardships for her employer.

The Big Picture

Although Hill’s case is brought under California laws, the implications of the verdict extend well beyond the borders of the Golden State.

First, AADAP is a non-profit. Given the sheer size of Hill’s award, it follows that juries (at least in California) won’t hesitate to penalize employers, non-profit or otherwise, in an employment case. Keep in mind only $546,000 of the verdict was attributable to back and front pay. The jury gave Hill over $1.9 million in compensatory damages and, because the jury found AADAP acted with malice, it tacked on an additional $2.6 million in punitive damages. The best sense is bought sense, but it’s safe to say that AADAP has bought more than enough for other employers to share. Learn from this scenario: Be very careful with employees taking medical leave or needing reasonable accommodations, and work with the people who work for you.

Also, the jury was apparently peeved (to the tune of millions) by its belief that AADAP failed to engage in the interactive process. For those of you not in California, the ADA requires an interactive process and it is a remarkably easy procedure to shortchange. Under the interactive process, employers are required to determine what reasonable accommodations are necessary so an employee can perform essential job functions. In this case, as in any other, there are always two sides to the coin, and we don’t know what evidence that AADAP presented that the jury may have ignored. However, an ounce of prevention would have been worth a pound of cure, and AADAP may have fared better if they could have produced a comprehensive paper trail of their interactions with Hill.

So What Does This Mean for Employers?

In a phrase, “CYA” — cover your accommodations.  In the Hill case, there was apparently enough evidence for the jury to conclude that AADAP did not engage in the interactive process. Learn from its mistake, and save your company the $4.5 million payout by taking these steps:

Create a paper trail. As soon as an employee requests leave or accommodation, document it. Then, send some type of correspondence acknowledging its receipt to the employee who submitted the request.

Follow-up. It’s not enough to say that you received the request. Investigate. Ask questions. Request additional information about the impairment—within reason—to find out what the employee’s doctor says she can (or cannot) do.

Talk it out. This is not a one-sided conversation. Speak with the employee, and get his feedback and suggestions on how you can accommodate his needs while also ensuring that your business productivity and continuity is preserved. Involve the employee’s doctor or your company doctor as appropriate. Keep an open mind about what accommodations may work (and don’t forget that the EEOC thinks–and some courts agree–that leave is a reasonable accommodation).

Create (another) paper trail. After you confer with the employee, send another correspondence outlining what you discussed, whether you reached a viable solution, and what action steps you both have to take going forward. Don’t reach the end of the process until you are sure there is no reasonable accommodation.

The duty of accommodation is continuing; it doesn’t stop after the first request or the first meeting. Each employee and her circumstances will present unique sets of problems that require constant vigilance, attention, and awareness on the employer’s behalf.