Delaware Employment Law Blog

The United States Supreme Court will hear argument next month in United States v. Windsor, which addresses the constitutionality of the federal Defense of Marriage Act (DOMA).  Nearly 300 private-sector employers joined forces in opposition to the law, filing a joint amici brief.  Among the employers who oppose the law are Citigroup, Google, Facebook, and Starbucks, reports the L.A. Times.

The employers voice a number of objections to the law, all arising from the conflict between state and federal law.  Twelve states and the District of Columbia now recognize same-sex marriages.  But federal law, pursuant to DOMA, prohibits the recognition of same-sex unions.

This contradiction puts employers—particularly those operating in multiple states—in a difficult position as they attempt to reconcile what they must do according to state law, what they must not do according to federal law, and, for many employers, what they want to do according to their own policies of anti-discrimination. 

We discussed a similar conundrum in October of last year, when Nordstrom, Amazon, Microsoft, Nike, and others, took a stand in favor of Seattle’s same-sex law, Referendum 74. A similar theme is heard in the Windsor briefing—smart employers know that equality and fairness are essential to a productive and efficient workforce.  Employers lose when employees are treated unequally in the workplace. 

So it makes sense that smart employers would speak out in opposition to government-imposed inequality.

Can an employee be required to get a flu shot? Employers want a healthy workforce and, presumably, employees do not want to be sick. So a flu shot seems like a good idea. And an offer of a free flu shot for employees seems like a great perk.

But the goodwill-nature of a suggestion always seems to change when a suggestion turns into a requirement. Maybe it's just the rebellious teenager in all of us that reacts negatively to being told that we must do something. Maybe we all have authority issues. I don't know what it is about being ordered to do something that seems to set off an automatic negative response.

The real trick, though, is how to respond to that negative response. Push back? Stand your ground and insist? Or give in and abandon your request? This is the question that one employer had to deal with when its employee refused to get a flu shot.

In Chenzira v. Cincinnati Children's Hospital Med. Ctr., the employer required its employees to be vaccinated for the flu. Ms. Chenzira had worked for the hospital for 10 years when she was terminated for refusing to be vaccinated. She alleged that she refused on religious and political grounds because, as a vegan, she does not ingest any animal or animal by-products.

The employer moved to dismiss the complaint on the grounds that Veganism is not a true religion but, instead, is more of a dietary preference or social philosophy. The court denied the employer's motion, finding that the plaintiff-employee may be able to establish that veganism meets the requirements of a religious belief for purposes of Title VII's anti-discrimination provisions.

It is important to note that the court did not find that Veganism is or is not a religion. Instead, it merely held that, based on the face of the complaint, it was plausible that the plaintiff would be able to show that she subscribed to Veganism with a religious-like sincerity.

Here are two points to consider from this case.

First, take a deep breath and slowly exhale. Don't overreact. When a 10-year employee refuses to get a flu shot, consider whether this is a truly terminable offense. I would suggest that, based on the facts as they are described in the court's opinion, the answer is, "no." If it's not, let it go and move on. (The same advice applies in the context of Facebook comments by employees).

Second, do not be the arbiter of morality. Do not make a decision about whether an employee holds a "true belief" with regard to their religion (e.g., "She's not a real Catholic; she never goes to mass!"). And do not make decisions about whether a particular belief qualifies as a religion, as was the case here.

Instead, consider the practical approach. If the employee had not gotten a flu shot and she got the flu, would it have been the end of the world for the employer? Probably not. Although there are plenty of times when standing on principle is the right approach. But that is not always the case. There also are plenty of times when the better approach is a practical one.

Chenzira v. Cincinnati Children's Hospital Med. Ctr., No. 11-917 (S.D. Ohio Dec. 27, 2012).

The EEOC has enjoyed several victories in recent months. For example, the EEOC was granted summary judgment in a hostile-environment claim filed on behalf of a class of black construction workers. Even more recently, the EEOC was awarded summary judgment in an age-discrimination lawsuit against the City of Baltimore. But things haven't been all peaches and cream for the EEOC.

In EEOC v. McPherson Cos., Inc., a federal district court in Alabama granted summary judgment to the defendant-employer in a sexual-harassment lawsuit brought by the EEOC on behalf of an unnamed male employee. The employee worked in a warehouse with an all-male workforce.

The EEOC alleged that, after being subject to a constant barrage of "ugly talk," the employee complained to his supervisor about the allegedly hostile work environment. About a year later, the employee confronted his co-workers, who apologized and, thereafter, stopped directing rude comments his way. About a year after that, the employee complained to HR, which investigated the complaint, resulting in discipline for several workers and two supervisors. After this last complaint, the comments ceased.

The court held that the EEOC had failed to establish the existence of an unlawful hostile environment because it had not shown that the rude comments and "ugly talk" were of a sexual nature or that they were made "because of" the employee's gender.

The EEOC argued that the harassment was because of his gender and, specifically, because of his effeminate behavior. This can be a valid cause of action--when a male employee is treated badly because he acts "too girly." But, here, despite the EEOC's argument, the testimony of the employee himself contradicted this argument. Thus, the court dismissed the gender-discrimination and sexual-harassment claims.

The court also dismissed the EEOC's retaliation claim. The employee was terminated, along with 11 other employees, as part of a reduction-in-force 3 months after his complaint to HR. The court expressed that it was "hard to believe" that the EEOC "is seriously arguing that the entire RIF process was a subterfuge for fraud designed for the sole purpose of providing cover for retaliation."

EEOC v. McPherson Cos., Inc., No. 10-cv-2627 (N.D. Ala. Nov. 14, 2012).

I've posted more than my share of stories involving allegations by employees that they were terminated because they were "too sexy" for the job. For example, there was the female banker who sued Citigroup, alleging that she was terminated for being "too sexy for her job." Then there was the data-entry employee who was terminated from her job in a lingerie warehouse for, she alleged, wearing what her employer considered to be clothing that was "too sexy."

Usually, this type of allegation involves at least some level of grandiose delusion and almost always involves the employee's belief that everyone hates her for being so darn good looking. But today's post goes much closer to the realm of the legitimate. Because this post involves an actual court decision. On December 21, the Iowa Supreme Court unanimously ruled that there was no unlawful discrimination where a dentist terminated his dental assistant of 10 years after his wife became jealous.

For his part, the dentist admitted that the assistant was a good employee and wasn't fired for poor performance. Instead, he claimed that her tight clothing was too distracting and felt that he wouldn't be able to resist her charms if she remained in his employ any longer, reports CNN.

In other words, the ruling makes clear that "being irresistible" will not serve as the basis for a gender-discrimination or sexual-harassment claim.

Nelson v. James H. Knight DDS, P.C., No. 11-857 (PDF).

When an employee seeks to return to work following a failed suicide attempt, there can be concerns about safety--both for the employee and for co-workers. At the same time, savvy employers know that the ADA may provide the employee with legal protections. A recent case in the Western District of Pennsylvania, Wolski v. City of Erie, provides an opportunity to review this potential conflict.

The plaintiff-employee, Wolski, who was the City's first female firefighter, began to suffer from panic attacks and severe depression following the death of her mother in 2005. She took sick leave for several months, during which she was prescribed multiple medications by a psychiatrist.

After she failed to return to work as scheduled, she was granted additional time off. During this period of leave, she attempted suicide by disabling the carbon-monoxide and smoke alarms and setting a fire in her home. She survived the attempt and was hospitalized until early 2006. The fire was the subject of a criminal investigation.

In early March, when Wolski asked the Chief when she could return to work, he indicated that she was not likely eligible to return until the conclusion of the investigation. On April 3, Wolski ran out of sick leave and was placed on administrative leave. On April 11, after she was formally cleared in the investigation, Wolski was fired. In the termination letter, the Chief explained that Wolski was being fired as a result of her suicide attempt in December:

. . . you started a fire in your residence, having disconnected the smoke detectors and carbon monoxide detectors, and took an overdose of medication as a suicide attempt. Family members extinguished the fire, but the City firefighting crew was dispatched to your home; and you were taken by helicopter to Pittsburgh for emergency medical treatment to save your life.

This incident renders you presumptively unsuited to be a firefighter, as you pose an ongoing threat to the safety of the public, other firefighters and yourself, having set a fire in a residence . . ..

Wolski filed suit alleging that her termination violated the ADA. The case went to trial but a retrial was ordered based on improper jury instructions, so the court's opinion does not address the question of liability. In the Wolski case, the employer argued, unsuccessfully, that the decision to terminate was not based on the employee's suicide attempt but because of her having set the fire.

But this is not the usual case. More commonly, the employer is worried that the employee will attempt to harm herself again and, in the course of doing so, may harm others. The EEOC addresses this in its Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities:

35. Does an individual who has attempted suicide pose a direct threat when s/he seeks to return to work?

No, in most circumstances. As with other questions of direct threat, an employer must base its determination on an individualized assessment of the person's ability to safely perform job functions when s/he returns to work. Attempting suicide does not mean that an individual poses an imminent risk of harm to him/herself when s/he returns to work. In analyzing direct threat (including the likelihood and imminence of any potential harm), the employer must seek reasonable medical judgments relying on the most current medical knowledge and/or the best available factual evidence concerning the employee.

According to the EEOC's Guidance, the ADA prohibits an employer from terminating an employee because of an attempted suicide. Although the employer's concerns about safety may be well intended, they are not a basis for an adverse employment decision. One purpose of the ADA is to ensure that employers do not substitute their own judgment about "what is best" for an employee and, instead, let the employee and the medical professionals make those determinations.

Wolski v. City of Erie, Case No. 1:08-cv-289-SJM (W.D. Pa. Sept. 28, 2012).

H/T Mitchell Rubinstein at the Adjunct Law Prof Blog

Litigating against the the EEOC is difficult for several reasons. For one, unlike a lawsuit brought by an individual plaintiff, a suit brought by the EEOC has the resources of the entire federal government behind it. Perhaps because of the agency's bureaucratic structure, negotiating with EEOC counsel can be difficult during litigation, at times resulting in a total breakdown of communication. A recent decision by a federal court in Illinois illustrates what happens when the lawyers in an employment-discrimination lawsuit take the driver's seat to the exclusion of the individuals at the heart of the case.

EEOC v. DHL Express (USA), Inc., was brought by the EEOC on behalf of 94 claimants, alleging that DHL discriminated against its African-American driver/dockworkers based on their race by giving them less desirable, more difficult, and more dangerous route and dock assignments than their Caucasian counterparts and by assigning African-American drivers to routes in predominately African-American areas.

DHL brought a motion to compel the EEOC to produce all of the claimants for deposition after the EEOC provided interrogatory responses that included an unsworn "vignette" for each claimant with the claimants' general allegations of discrimination. DHL argued that individual depositions were required because the vignettes were vague, filled with generalities, and, in several instances, inaccurate. DHL also argued that, because there is no standard as to what constitutes a "more dangerous assignment" and no objective criteria for what constitutes "less desirable," each claimant's individual testimony was necessary to establish its defense.

The court was not impressed by the "vignettes," finding that they failed to give any meaningful detail or specifics about the alleged discriminatory treatment. Instead, the court concluded that the additional 60 depositions (DHL had deposed 34 of the 94 claimants already), were necessary not to evaluate both potential liability and damages.

The lesson to be learned from this decision, in my opinion, relates mostly to litigation strategy. By submitting these "vignettes" in response to the defendant-employer's interrogatories, the EEOC seems to have forgotten about the individual employees whose claims were the basis for the lawsuit. Had the EEOC actually provided the sworn responses of the employees instead, the need for the employer to expend its resources to take an additional 60 depositions would not have been necessary. Or, perhaps, the EEOC should have formulated a clearer understanding of its allegations before filing its Complaint. Ah, a lawyer can dream, can't she?

EEOC v. DHL Express (USA), Inc., No. 10 C 6139 (N.D. Ill. Oct. 31, 2012).

Northern Delaware managed to escape Sandy largely unscathed, I feel very lucky to say. Our thoughts are with those who are still without power and, especially, with those whose homes were damaged by the storm. I am grateful to be able to return to work, though. In the spirit of maintaining normalcy, today's post is not going to focus on hurricanes, floods, or other natural disasters. Just employment law. Stay safe, everyone.

No federal employment law expressly prohibits discrimination against an employee because of the employee's involvement in domestic violence. For many employers, the idea of intentionally discriminating against a victim of domestic violence may be difficult to envision, even. I have seen this issue manifested in a few different contexts.

First, there's the employee who is chronically absent from work as a result of domestic violence at home. In that case, the employer wants to know whether it is lawful to discipline the employee for her absenteeism, or whether it must permit her some type of leeway because the absences are not merely a result of the employee playing "hooky." This question is particularly difficult when the employer's attendance policy distinguishes between "excused" and "unexcused" absences.

Second, there's the employer who wants to terminate an employee who is involved with a violent domestic partner for fear that the partner will carry out a violent act in the workplace. This usually arises when the employer learns that the partner has been stalking the employee, often on or just outside the employer's property. In that case, the employer is concerned about protecting its employees and wants to prevent a workplace shooting or similarly tragic event. This issue is as complicated as the first scenario, above, because it proposes that it is better to save the flock than a single sheep.

But where does Title VII and the ADA come into play in these and other situations involving domestic violence? The EEOC's most recent fact sheet addresses this question and offers some thought-provoking answers. The fact sheet offers some examples of how the federal anti-discrimination laws may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking. Many of the examples are not as much about domestic violence as they are about anti-retaliation and anti-harassment. For instance, the fact sheet explains that an employee who is given less favorable assignments after reporting that she was raped by a manager during a business trip. This example is, in my opinion, a bit obvious and not precisely within the framework of domestic-violence discrimination.

But a more provocative item on the fact sheet is the "Answer" that concludes that an employer who terminates an employee after learning she has been subjected to domestic violence, saying that he fears the potential 'drama battered women bring to the workplace.' On the whole, I would agree that this sort of gender-based stereotype likely violates Title VII. The trouble that I have with it, though, is that it's a bit conclusory on the question of intent.

I can easily imagine a scenario like the one I described above, when an employer decides to terminate a female employee whose husband has appeared at the workplace and threatened the employee or even her coworkers. Worried about the likelihood of future disruptions and potential violence, the employer considers whether it owes a duty to its other employees to prevent such incidents by terminating the victim. Although it would be easy to assume the worst by concluding that the employer just wanted to avoid the "drama" associated with battered women, it may be a more legitimate fear that drives the employer's decision.

Employment decisions are never easy. Employers often have to make tough calls and, rightfully so, worry that their choices will be later challenged as unlawful. The best starting point for these tough choices is to ask, "what's fair?" It's no coincidence that an honest answer to that question also is usually the most legally defensible position.

I spent my Labor Day weekend in the office. Yesterday, I spent my birthday (or 14 hours of it, anyway), in my office. This is not a result of some deeply-seeded self-loathing tendency or a lack of enthusiastic friends. It's a different type of popularity that is keeping me tied to my desk these days--popularity with clients. Or at least that's what I tell myself. Truth told, the real reality is that I'm just plain ole' busy.

And that's a good thing, or so I tell myself. But let me not feel too sorry for myself. [FN 1]
Misery does love company, after all. And I, apparently, am not alone.

According a Hildebrandt survey as reported by the Washington Post, employment lawyers across the country have been burning the midnight oil. While the largest legal markets have dropped 2 to 3 percent, labor-and-employment work increased by nearly 5 percent in the second quarter of 2012, as compared with the second quarter of 2011.

Many employers are all too familiar with this phenomenon, unfortunately. As we've previously reported, the EEOC received more complaints last year than ever before. And discrimination is not the only thing keeping my friends in the plaintiff's bar busy, either. The number of FLSA suits has tripled in the last decade.

So, why the uptick in labor and employment work? According to the article, our practice is "countercyclical." In a bad economy, more employees are let go. And the longer they go without being able to find new work, the more likely they are to sue.

On the flip side, the economy has been bad long enough that employees who've been itching to leave but too scared to take that step find they're tired of waiting and they're jumping ship. When they jump ship and climb aboard with a competitor, the former employer is more likely to sue to enforce a non-compete agreement if one exists.

More employees filing suit and more employers filing suit equals more work for labor and employment lawyers like me. I'll put my birthday celebrations on hold for the moment. For now, I'll make a toast to job security.

[FN 1] Don't feel too bad for me. I did see The Boss in Philly on Labor Day. See Picture, above. And what could be more motivating than Bruuuuuuuuuuuce to get me through the workweek?

Sex, drugs, and rock 'n roll. Employment law can involve any or all three. Which explains why it takes a certain personality to really love this gig. Lately, though, I've seen a bevy of employment-law stories involving claims based on or involving beautiful people.

Last week, for example, I reported on yet another story involving a woman who claims she was fired from her data-entry job in a lingerie warehouse for being too sexy. [Ed. Note: This story, which involves a woman alleging she was too sexy for her job in a lingerie warehouse owned by Orthodox Jews, should clear up any doubt about why I love my job.] This wasn't the first story of this kind, though. I've reported about at least two similar claims in the past couple of years. And I recently reported about a gender-discrimination claim based on the plaintiff's part-time job as a dancer.

Michael Schmidt of the Social Media Employment Law Blog reports a different type of case involving exotic dancers. [Ed. Note: Michael's post is overflowing with hilarity in the form of well-crafted double entendres. For a great read, be sure to jump over to his original post, Slowly Stripping Away Privacy Rights. Brava, Michael!] In In re Penthouse Executive Club Compensation Litigation, No. 10-cv-1145 (KMV) (S.D.N.Y. May 10, 2012), the employer-defendant sought to compel one of the plaintiffs, an "entertainer in the Penthouse Executive Club," to produce nine pages of Facebook messages that she'd exchanged with other plaintiffs and with non-parties about others joining the FLSA suit.

The judge considered the motion in the same way any similar motion would be considered. She found that the Facebook messages sent to non-parties were "prepared in anticipation of litigation" and, as such, were protected by the work-product doctrine because they were "descriptions of conversations with Plaintiffs' counsel regarding litigation strategy, as well as responses to questions about the lawsuit." On the other hand, Facebook messages sent by non-parties to the plaintiff were not subject to the same protections and had to be produced.

And here's a twist on the theme. Instead of claims brought by beautiful people, here's a story brought against beautiful people. The owner of Marylou's, a coffee shop in Rhode Island known for employing beautiful baristas donned in pink shirt, is speaking out against the EEOC. The coffee shop has been under investigation for more than a year by the federal agency, which claims to be investigating the business' hiring practices. There has not been a complaint of discrimination, though, and many members of the community are outraged at the expenditure of federal funds and the cost imposed on the business in the absence of any actual charge of wrongdoing.

Maybe the EEOC is just trying to balance out all of those don't-hate-me-because-I'm-beautiful claims.

The EEOC recently released new data, which identifies the number of charges filed by state. It's no surprise that the number of charges has increased steadily over the past three years, up from 163 charges filed in FY 2009, to 175 in FY 2010, to 228 last year.
But the percent of charges filed in Delaware as compared to the rest of the U.S. has remained consistent for the past 3 years--making 0.2% of the total charges filed in the U.S.

To put it in perspective, Delaware has one of the smallest populations in the country--we rank 45th out of 50. With less than 1 million residents, Delaware makes up less than 0.3% of the nation's population.

Although these numbers do sound positive, employers should remember that the EEOC isn't the only game in town. Because Delaware has a work-share agreement with the EEOC, the Delaware Department of Labor also receives charges of discrimination. In FY 2009, for example, the DDOL took 728 charges. The EEOC, on the other hand, received only 163 charges that year. In short, Delaware employers should look at these numbers with cautious optimism.

See also, What the Delaware Charge Statistics Mean for Employers
and DDOL Charge Statistics for FY 2009

Is it unlawful to fire an employee for being too sexy?  Well, it depends.  That's the claim that a New Jersey woman filed with the EEOC, though, so she and her lawyer must think so.  Lauren Odes, 29, worked in her data-entry job for just one week before she was let go.  She claims that there was no dress code in place and that other employees wore very casual "athletic wear," which makes sense given the fact that they were working in a warehouse instead of a traditional office environment.  Odes claims, though, that, in the first few days on the job, her supervisors cautioned her that her outfits were too provocative, "her lips and hair, 'too fresh,'" and her breasts too big. On one occasion, according to the Huffington Post, she was given a bathrobe to wear over her clothes. 

Finally, she alleges that she was told that she was just "too hot" for the workplace.  Gloria Allred has taken up the case.  Odes' Charge alleges gender- and religious-discrimination claims.

And where, you might ask, does religion play into this?  The employer is owned by an Orthodox Jewish family and, Odes claims, they were trying to impose their religious beliefs on her with respect to appropriate attire.  As if there weren't enough irony in this story already, the employer is a lingerie company.  It seems to me that the fact that the company sold, in Odes' words, "thongs with hearts placed in the female genital area" would be evidence against Ms. Odes' claim that she was targeted for her religious beliefs. 

For my long-time readers, this story may seem a bit familiar.  If so, it's likely because this is not the first time I've had the occasion to write about employees who claim to have been fired for being too darn hot.  I've written about similar stories on two other occasions--once back in 2008 and then, again, in 2010, when a female employee sued Citigroup, alleging that she was terminated for being "too sexy for her job."

And people wonder why I love my job!

Reporter Sarah Tressler covered high society and fashion for the Houston Chronicle. She also worked as an exotic dancer on a part-time basis. According to Tressler, she worked as a stripper only "rarely" and did it for the "exercise" since she "didn't have a gym membership." So she must have been surprised when her "workouts" got her fired from her day job.

The Chronicle told her that she was being terminated for failing to disclose her side job on her employment application, according to MSNBC.

But Tressler ain't buying it. She hired celebrity lawyer Gloria Allred, who has filed a charge of discrimination on Tressler's behalf with the EEOC. The charge alleges that the termination constitutes gender discrimination.

"Most exotic dancers are female, and therefore to terminate an employee because they had previously been an exotic dancer would have an adverse impact on women, since it is a female-dominated occupation," Allred said.

And she may just have a point. If Tressler was fired because she worked part-time as an exotic dancer and she can show that male reporters who failed to disclose their part-time employment on their job applications, it may be a viable claim. On the other hand, journalists usually are subject to strict workplace policies. Newspapers and other traditional media outlets impose high standards on their reporters and, if the paper enforced those rules consistently, it may have a solid defense. Either way, it makes for a good story.

For more employment-law stories involving this profession, check out my prior post, Strip Clubs: One Social Event Not to Include In a Summer-Intern Program. If that doesn't satiate the interest, Dan Schwartz at the Connecticut Employment Law Blog has you covered.

An employee who sues his employer for discrimination almost always believes that his protected characterstic was the real reason behind a negative outcome, such as termination, discipline, etc.. A new decision from the U.S. District Court in Delaware reminds us that an employee's subjective belief regarding discriminatory motive is not sufficient to establish liability against an employer. This decision likely won't stop employees from filing lawsuits but it should provide some reassurance to employers who make carefully considered and well-documented employment decisions.

Facing Facts
The case of Luta v. Delaware Department of Health and Social Services was brought by a black, Kenyan employee of DHSS, who had been denied several promotions. Ms. Luta had been employed with the agency for 5 years when she applied for three internal promotions. She was considered qualified for each position and was placed on a list of eligible candidates.

Two of the positions remained unfilled because the manager was not satisifed with any of the eligible candidates. Instead, two women continued to perform the duties of those positions in a temporary capacity. The third position was awarded to a white male with signficant experience.

Mr. Kennedy had 20 years' experience in the Air Force's Medical Service Corps, but had limited experience with HIV/AIDS.

In issuing its decision, the Court focused primarily on the third position, HIV/AIDS Coordinator. In support of her claim for unlawful failure to promote, Ms. Luta relied argued that she had more experience treating and researching HIV/AIDS diseases than the individual who had been awarded the position. Ms. Luta claimed that she had been told by an HR manager that HIV/AIDS experience was "essential" to the position. By contrast, DHSS argued that management experience was the key skill desired in candidates and, in that regard, the individual selected had far more experience than Ms. Luta.

The Court concluded that Ms. Luta had failed to meet her burden in presenting evidence of discrimination. The Court noted that the human resources manager with whom Luta spoke was not authorized or qualified to elaborate upon the skills required to perform medical positions. The statements of medical professionals responsible for making the hiring decision were given more weight, and supported the contention that management experience was more important that knowledge of HIV/AIDS. The Court also noted that, contrary to Ms. Luta's assertions, the successful candidate did have experience with HIV/AIDS diseases, albeit more limited than her experience. In addition, the comparator was the more desirable candidate because of his extensive management experience.

Setting aside their relative qualifications, however, the Court emphasized that Ms. Luta needed to present some evidence of discrimination. "A reasonable factfinder could not conclude, based solely on the fact that a white man with more managerial experience was hired over a black Kenyan woman with arguably more HIV/AIDS experience . . ., that racial and national origin discrimination had occurred." Based on this conclusion, the Court dismissed Ms. Luta's claims.

This decision represents a beacon of hope for Delaware employers in that it goes to show that a lawsuit will not succeed without some evidence of discrimination other than "I believe" coming from the plaintiff-employee.

Many employers continued to face financial challenges in 2011. But business is booming for at least one group. The EEOC received a record number of complaints last year--almost 100,000 in all.

Almost half (40%) of the complaints alleged unlawful retaliation, making it the most "popular" type of claim. Race- and sex-discrimination claims ranked second and third highest.

The newest law on the EEOC's enforcement task list is GINA, the Genetic Nondiscrimination Act. As expected, there were few GINA complaints filed--only 245 in 2011.

There could be any number of reasons for the increasing amount of discrimination complaints filed with the EEOC. Unfortunately, though, it doesn't seem that this trend is likely to slow any time soon.

In Meditz v. City of Newark (PDF), the Third Circuit concluded that the City of Newark, New Jersey’s residency requirement may have unlawful disparate impact on non-Hispanic white applicants.  The case was brought Gregory Meditz, an attorney acting pro se.  Meditz alleged that the City’s residency requirement disparately impacted white, non-Hispanics and, as a result, white, non-Hispanics were under-represented in the City’s workforce.

Meditz, a white male, applied for a job as an Analyst with the City of Newark, New Jersey.  He was rejected for the job because he lived in Rutherford, New Jersey and a City ordinance required that non-uniformed employees live within City limits.  Meditz filed suit, alleging that the City’s residency requirement negatively impacted the hiring of white, non-Hispanics.

In support of his suit, Meditz provided statistical information that he’d gathered from publicly available sources.  Newark argued that the disparity reflected by the statistics were not sufficiently substantial.  The federal district court agreed with the City and found that the statistical evidence Meditz presented did not “constitute sufficient evidence of a significantly discriminatory hiring pattern.”  The Third Circuit Court of Appeals did not agree and reversed.

The Third Circuit found, instead, that the statistics showed that the percentage of white, non-Hispanics in Newark’s non-uniformed workforce was lower than the percentage that would be expected based on Newark’s general population.  The case was remanded for the District Court to analyze the evidence in accordance with the correct standard, as described in the Third Circuit’s decision.

Meditz v. City of Newark, No. 10-2442 (3d Cir. Sept. 28, 2011) (PDF).

For more on disparate impact, see also:

9th Cir. on ADA and Drug Addiction

Overview of the Risks of Employment Testing

The Link Between Race and Obesity—Disparate Impact Waiting to Happen?

EEOC’s Proposed Regs for Age Discrimination Disparate-Impact Claims