Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

Race and Gender Discrimination.  WSBTV in Atlanta reported on an award of $1.18 million against Fulton County as the result of discrimination based on race and gender.  Doug Carl worked for Fulton County's Department of Human Services.  He was working as the interim director, when he was denied a promotion to director.  He claimed that former County Manager Thomas Andrews and Commissioner Emma Darnell wanted "to replace the African-American female who left the position with another "African-American female and that Darnell had stated 'there were too many white boys on staff'".  Last year, after a jury trial, Carl was awarded $300,000 in back pay.  Last week, the judge's order awarded additional amounts as a result of Carl losing his pension and 5 years of future pay.  The court has yet to rule on Carl's claims for attorney's fees and expenses. 

Practice pointer.  The jury decided this case in favor of Carl.  It is currently on appeal, so the legal fee meter is still running.  Employers must be careful about what they say:  it can be very costly, in dollars, time, and bad publicity. 

ADA Lawsuit Against Hooters.  In St. Louis, Sandra Lupo worked as a waitress at a local Hooters.  Last summer, she had brain surgery, and she returned to work with a buzz hair cut and a healing scar.  She alleges that her boss manager visited her in the hospital and told her she could return to work wearing a "chemo cap" or jewelry to distract attention away from her hair and scar. Although she was promised she could return to work following her surgery, the regional manager told her that she could not work unless she was wearing a wig.  According to Lupo, wearing a wig would impair her healing.  She refused to wear a wig, and her hours were cut until she was forced to quit.  Her lawyer claims that she was humiliated by the way Hooters treated her, but that the surgery did not cause any long term problems.  She recently filed suit alleging that she was terminated in violation of the Americans With Disabilities Act, which prohibits discrimination based on an actual physical or mental impairment, a history of having an impairment, or being regarded as having an impairment. 

Practice pointer.  Employers should train all employees, including management, about what is required, and what is prohibited, under state and federal laws.  At the very least, management should be made aware of when to ask questions concerning employment issues, especially if their conduct results in termination, whether voluntary or involuntary.

EEOC Sues Bojangles' For Religious Discrimination.  In North Carolina, the EEOC filed suit against Bo-Cherry, a NC corporation that operates a number of Bojangles' restaurants in the Charlotte area.  A male employee, who was a practicing Muslim for 14 years, applied for a job at Bojangles'.  After he was interviewed, the manager told him that he might have to cut his beard.  The employee advised the manager that he was a Muslim, and could not cut his beard.  He was hired and began work the following it.  The next day, the manager allegedly told him that he had to shave his beard if he wanted to continue working for Bojangles.  He refused, telling his manager that he could not shave it due to religious reasons.  He refused to shave, and he was fired.  The EEOC filed suit, and is seeking back pay, compensatory and punitive damages, reinstatement and injunctive relief.

Practice pointer.  I feel that I need to emphasize what I wrote above:  Employers should train all employees, including management, about what is required, and what is prohibited, under state and federal laws. At the very least, management should be made aware of when to ask questions concerning employment issues, especially if their conduct results in termination, whether voluntary or involuntary.

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Recently, eBossWatch, in honor of National Boss Day, released a list of the top 25 workplace settlements over the past 12 months dealing with employment related issues in the workplace.  Citing multiple sources, including the EEOC and new releases, eBossWatch found more than $356 million in settlements and verdicts around the country.  Leading the pack is a judgment against Mercy General Hospital in the amount of $168 million for sexual harassment. Claims involved race discrimination ($25 million judgment against ArcelorMittal), age discrimination ($18.3 million judgment against Dr. Pepper Snapple Group), disability discrimination ($8.5 million judgment against Tesoro Refining and Marketing Company), religious discrimination ($5 million judgment against AT&T), retaliation ($1.8 million judgment against US Department of Veterans Affairs),and sexual orientation and religious discrimination ($1.6 million judgment against Mary Ann's Mexican Restaurant).  None of these top 25 came out of Alabama this year, according to this list.   

Practice pointer.  As you can tell from the amount involved in workplace judgments and settlements, claims can be very expensive for employers.  These amounts don't include the attorneys fees incurred in defending the claims, the impact of bad publicity, and the time spent by numerous employees dealing with the claims rather then performing their normal job duties.  As we approach the end of the year, it is a good time for employers to review their policy and procedure manuals, train the work force, and make any changes as necessary. 

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AT&T was hit with a $5 million jury verdict for discriminating against a Muslim woman.  According to the Kansas City Star, Susann Bashir worked for AT&T for more than 10 years in Kansas City.    Before she converted to Islam, she was recognized by AT&T as doing a good job.  After her conversion, co-employees began harassing her about her religion.  Bible verses were left on her desk, she was asked if she was going to blow up the building she worked in, and she was called a "towelhead" and a "terrorist".  She called the AT&T Employee Help Line to complain and ask that her co-workers receive sensitivity training.  In 2008, she filed a charge with the EEOC and an investigation started.  She says that after the investigation started, her supervisor "snatched her scarf and exposed her hair" during a routine office meeting.  Muslim women consider their head and hair  "private parts", which why they keep them covered in public. She complained that she was so stressed, that she could not return to work.  She asked that either she be transferred, or her boss be removed.  She was fired after being away from work for 9 months.  She had been making $70,000 a year when she was terminated.  She alleged that the stress caused her to go through a divorce, and she moved to Alaska.  The jury awarded her $120,000 in lost wages and other compensatory damages, and $5 million in punitive damages.  Her claim for attorneys fees is pending.  Missouri law caps the award at 5 times the actual damages, so it is likely that the judge will reduce the award.

Practice pointers.  It is important that when a complaint is made, that a prompt, thorough and complete investigation take place.  It appears as if there was a hostile work environment where Ms. Bashir worked, and no investigation was done after she complained.  The entire work force should be trained as to what is prohibited by Title VII, including supervisors.  Failing to do so can result in large verdicts, bad publicity and disruption in the workplace.  It should be noted that AT&T was hit with a $1.3 million verdict in 2009 in Jonesboro, Arkansas, when 2 former employees were fired for attending a Jehovah's Witnesses convention. 

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Last week, the 11th Circuit issued an opinion in the case of Daniel Dixon and Mary Sharon Dixon v. The Hallmark Companies, Inc., et al.  The case arose from Florida, where the Dixons, a husband and wife team, where she was the on site property manager, and he was the on-site maintenance technician.  While working at Thornwood, their third complex for the Hallmark Companies, they were provided a rent free apartment to live in adjacent to the complex's management office.  Thornwood was a recipient of Federal Funds under the Department of Agriculture's rural development program, and was subject to periodic inspections.  At one of the earlier complexes they managed, the Dixons had been informed that Hallmark's policy prohibited the display of religious items in the management office.  During one inspection, at Thornwood, the Dixon's supervisor, Christina Saunders, was also present.  She noticed that the Dixon's had hung on the wall a 26" x 50" picture of flowers with the words, "Remember the Lilies...Matthew 6:28".  Ms Dixon confirmed to Ms. Saunders that the wording was a Bible citation, and Ms. Saunders directed her to remove the artwork.  Ms. Saunders later testified that she believed that the artwork violated the Fair Housing Act and that she could lose her job if Hallmark was found to be in violation of the FHA.  Ms Saunders contacted her supervisor, who instructed her to remove the picture from the wall herself, and to make sure that the Dixons understood the fair housing laws.  A dispute arose, and Saunders ultimately fired the Dixon's.  Although the testimony was disputed, at some point in time Ms. Dixon retrieved a picture of Jesus from her apartment and held it close to Ms. Saunders, asking if it offended her.  Ms. Saunders allegedly said, "You're fired too.  You're too religious".  Ms. Saunders denied making the comment.  Saunders instructed the Dixons to vacate the building within 72 hours. 

The Dixons filed a lawsuit against Hallmark, alleging that Hallmark violated Title VII by intentionally discriminating against them, failing to accommodate their sincerely held religious beliefs and retaliating against them.  Hallmark moved for, and the trial court granted Summary Judgment, holding that even if Ms. Saunders made the statement, "You're fired too.  You're too religious", it was not direct evidence of religious discrimination.  On appeal, the 11th Circuit reversed, finding that "Direct evidence of discrimination is evidence that, if believed, proves the existence of a fact without inference or presumption....only the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination".  The statement allegedly made by Ms. Sanders was something for the jury to consider as to whether or not it was direct evidence of religious discrimination. 

Practice pointer.  According to EEOC records, the number of religious discrimination charges doubled between 1992 and 2007.  They have continued to increase over the last 2 fiscal years.  Since we are in the middle of the Holiday season for many religions, it is important to make sure that employees are not discriminated against based on their religious beliefs.  An example of this is a lawsuit filed against Belks in North Carolina by the EEOC, alleging religious discrimination when a Jehovah's Witness was terminated for refusing to wear a Santa hat.    According to the employee, she was prohibited by her religion from celebrating any secular or religious holiday, and Belks failed to accommodate her religious beliefs.

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