Wyatt Employment Law Report

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Stellar Performance Record Does Not Prove Pretext in Age Discrimination Lawsuit

By Michael D. Hornback

Past performance is usually a decent indicator of future performance . . . but not always. Employees who were once excellent performers have periods of time when, for various reasons, their work product takes a dip. It happens to everyone. However, when a good employee admittedly violates numerous policies of the employer, termination may be warranted, as the Sixth Circuit Court of Appeals recently held in Hughey v. CVS Caremark Corp., 2015 WL 6123550.

clinic-doctor-health-hospitalIn Hughey, the plaintiff was hired by CVS as a Pharmacist in Charge about one month prior to his 40th birthday. For over a decade, the plaintiff was a star performer, receiving “Exceeds Expectations” marks on his annual performance reviews. He was also named the Pharmacist of the Year in his district on two occasions.

As a pharmacist with CVS, the plaintiff was expected to comply with the policies contained in the CVS Operations Manual. Of import in this case were Continue reading

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EEOC Finds That Discrimination Based on Sexual Orientation is Prohibited by Title VII

By Courtney Ross Samford

On July 16, 2015, the EEOC announced that sexual orientation is included within Title VII’s prohibition against sex discrimination in Complainant v. Foxx, 2015 WL 4397641 (EEOC July 16, 2015).  Foxx worked as an air traffic control specialist in Miami, Florida.  He claimed that he was discriminated against in violation of Title VII when he was not selected for a permanent promotion based on his sexual orientation.  Foxx alleged that one of his supervisors said, “We don’t need to hear about that gay stuff” in response to a story about his male partner, and referred to his relationship as a “distraction in the radar room” on numerous occasions.  The EEOC found that the complaint properly stated a claim of sex discrimination because “sexual orientation is inherently a ‘sex-based consideration.’”

In the decision, the EEOC further opined that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”  As such, “[a]n employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.”  This expands the EEOC’s previous interpretation that Title VII only encompassed discrimination based on an employee’s failure to conform to gender stereotypes.

While the EEOC’s decision is momentous for the LGBT community, it is not binding on state or federal courts.  Even if courts choose not to adopt the EEOC’s expansive definition of sex discrimination, employers should re-evaluate their current policies to avoid compliance issues with the EEOC.

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Fate of the $185 Million Pregnancy Discrimination Verdict Against Autozone Revealed: Parties Jointly Move to Dismiss

By Leila G. O’Carra

pregnancy, workOn Monday, July 20, Autozone Stores, Inc. and former employee Rosario Juarez jointly moved to dismiss Juarez’s highly publicized pregnancy discrimination case. Juarez filed suit against Autozone in 2008, claiming that Autozone demoted her and then fired her because of her pregnancy. She also claimed that Autozone harassed her because she was pregnant, and retaliated against her when she complained about the discrimination.

In November 2014, a jury found in Juarez’s favor on all of these claims, and awarded her $879,719.52 in compensatory damages, and an astounding $185,000,000.00 in punitive damages.

Autozone promptly asked the United States District Court for the Southern District of California for a new trial, and to rule that punitive damages could not be awarded against Autozone under the facts presented at trial. Autozone also asked the court to declare a mistrial and sanction Juarez’s attorneys for alleged inappropriate contact with jurors.

According to Autozone’s court filings, Juarez’s trial team communicated with a juror before the trial was over. The juror had been dismissed after the liability phase of the trial, before the punitive damages phase, because Continue reading

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Employers Must Accommodate Religious Practices Even Without Actual Knowledge: Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___ (2015)

By Chelsea K. Painter

Supreme CourtClothing retailer Abercrombie & Fitch (“Abercrombie”) refused to hire Samantha Elauf (“Elauf”), a practicing Muslim, because the headscarf required by her religion violated Abercrombie’s “Look Policy” prohibiting “caps” of any kind. Although Elauf’s interviewer informed the store manager that she believed “Elauf wore her headscarf because of her faith,” the store manager directed her not to hire Elauf. Elauf did not mention her faith and/or religion to her interviewer or the store manager prior to their decision.  After Abercrombie refused to hire Elauf, the EEOC sued Abercrombie on Elauf’s behalf, claiming religious discrimination under Title VII. The District Court granted the EEOC summary judgment on the issue of Continue reading

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Kentucky Supreme Court Rules in Lawsuit Filed by Morbidly Obese Employee of Wagner’s Pharmacy

By Amanda Warford Edge

Employee-TerminationOn May 14, 2015, the Kentucky Supreme Court issued a ruling in Wagner’s Pharmacy, Inc. v. Melissa K. Pennington. Pennington had filed the lawsuit back in 2007, alleging that her employer, Wagner’s Pharmacy, discriminated against her by terminating her employment due to her morbid obesity. At the time of filing the lawsuit, Pennington weighed 425 pounds. She is just 5’4” tall.

Wagner’s cited Pennington’s poor personal appearance and declining sales as the reasons behind Pennington’s termination – not Pennington’s weight. Prior to her termination, Pennington had operated a food and drink concession truck owned by Wagner’s at Churchill Downs. She had been employed by Wagner’s for approximately ten years.

In support of her discrimination lawsuit, Pennington relied on the expert testimony of Dr. Gaar, a board-certified surgeon who had performed nearly 2,000 gastric bypass surgeries. Dr. Gaar testified in detail as to the causes of morbid obesity, stating that Continue reading

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Courts May Review EEOC’s Pre-Suit Conciliation Efforts Under Title VII

By Courtney Ross Samford

Gavel and scalesOn Wednesday, the U.S. Supreme Court released an important decision concerning the EEOC’s obligation to engage in pre-suit conciliation efforts under Title VII. The decision of Mach Mining v. EEOC, No. 13-1019, 2015 WL 1913911 (Apr. 29, 2015), involves a woman who filed an EEOC charge against Mach Mining, LLC, claiming that she was denied employment as a coal miner based on her gender. Following an investigation, the EEOC found reasonable cause to believe that Mach Mining had discriminated against the woman and other similarly situated women in their hiring process. The EEOC sent a letter to both parties informing them of its decision and advising them that it would “contact [them] to begin the conciliation process.” Id. at *3. Approximately one year later, the EEOC sent a second letter to Mach Mining announcing that “such conciliation efforts…have occurred and have been unsuccessful.” Id. The EEOC then sued Mach Mining in federal court.

In its answer, Mach Mining raised the EEOC’s failure to “conciliat[e] in good faith” as an affirmative defense. Id. The EEOC moved for summary judgment on this ground, claiming that its conciliation efforts are not subject to judicial review. Mach Mining argued that Continue reading

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U.S. Supreme Court Sets Forth Test for Evaluating Pregnancy Discrimination Claims

By Michelle High

The Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), dictates that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same” as other employees who are “similar in their ability or inability to work.”  The Act has two sections.  The first section provides that employers can’t discriminate on the basis of pregnancy because it would be sex discrimination and the second section provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability to work.”  The second section of the law has been the source of repeated questions for employers and employees alike.

pregnancyIn Young v. United Parcel Service, Inc., a newly released 6-3 opinion, the U.S. Supreme Court has provided a test detailing when the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees to extend such accommodations to pregnant employees who are similar in their ability or inability to work.

Peggy Young was a driver with UPS.  When she became pregnant, her obstetrician advised her not to lift more than 20 pounds.   Generally, UPS drivers were expected to carry packages of up to 70 pounds, but the company offered accommodations to those injured on the job; those with conditions recognized as Continue reading


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