Missouri Court Rules Discrimination Does Not Require A Specific, Discrete Adverse Employment Action

In Missouri, in order to make a claim for discriminatory harassment, the individual has to be able to show four things:

1. The individual is a member of a protected class (race, color, religion, national origin, ancestry, sex, disability, or age);
2. The individual suffered harassment related to their protected class;
3. The harassment occurred because the individual belonged to the protected class; and
4. A “term, condition, or privilege” of the individual’s employment was affected by the harassment.

The question faced in a recent Missouri appellate decision is whether the fourth requirement can be met even in a scenario where someone has not suffered from one specific act that caused economic harm. Fuchs v. Dept. of Revenue, WD77155 (Mo. App. W.D. Aug. 26, 2014).  Hit the jump for the details…

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Medical Information: What do I have to share with my employer?

When medical issues affect your work life it is natural to want to keep your health information as private as possible.  Often, employers will request that the individual sign an incredibly broad release that would grant them access to basically all of an individual’s health information which is far beyond what the law requires.  However, when deciding what information to share with your employer, bear in mind that there are some minimum standards of disclosure that must be met in order to claim protection under federal law.  This post will examine two cases, one under the Family Medical Leave Act and one under the Americans with Disabilities Act, where an individual shared information but the courts decided it wasn’t enough.  Fortunately, in most situations there is a balance that can be achieved between protecting your information and protecting your job.

Union Advocacy and Free Speech

I have written about the free speech rights of public employees a few times now but a recent case from a federal court in New York creates an important precedent for union members advocating on their coworkers’ behalf.  See Pekowsky v. Yonkers Bd. of Educ., No. 12 Civ. 4090 (S.D.N.Y. May 29, 2014).  Before getting into the details of Pekowsky, it’s important to understand the general landscape of public employee First Amendment rights.  The courts have taken several opportunities to limit general free speech rights in the somewhat unique scenario where the government is also an individual’s employer.  In order for a public employee’s speech to be protected under the First Amendment (and therefore protect them from any discipline for that speech), the speech must meet four tests:

1. The employee must be speaking as a citizen and not pursuant to their official duties;
2. The speech must be on a topic of public concern;
3. The employee’s free speech interests must outweigh the employer’s interests; and
4. The speech must be the motivating factor of an adverse employment action.

At issue in Pekowsky, was how these tests would apply to a union representative disciplined after advocating for his coworkers.  Hit the jump for more…

Charter Schools and Discriminatory Admissions

New (or renewed) guidance from the U.S. Department of Education, combined with a new coalition of civil rights groups filing lawsuits against charters in several states, have placed new scrutiny on the admissions practices of charter schools.  As Missouri, and other states, continue to expand their reliance on charter schools for providing public education now is a good time to review some of the legal dangers unique to charter education.  Hit the jump for a quick and dirty overview of a few of these developments… 

Court Upholds $450,000 Age-Discrimination Claim Against Kansas City School District

In a decision that could have repercussions for districts across Missouri, a Missouri appellate court has upheld a jury decision against the Kansas City School District with damages totaling almost $450,000.  See Hurst v. Kansas City Mo. Sch. Dist., No. WD76534 (Mo. App. W.D. April 29, 2014).  The decision highlights methods that many districts are using to “creatively” cut workforce and circumstances where such methods break the law.  Hit the jump for all the details…

Missouri Court Rules Parents May Be Liable for Injury to Teacher Aide

Teachers and teacher aides dealing with violent students may feel there are few resources to correct the students’ behavior and protect themselves.  Administrators, tired of dealing with the same students repeatedly, will leave the classroom staff to fend for themselves and police and prosecutors are reluctant to press criminal charges against minors.  Additionally, school employees are often reluctant to protect themselves as that, almost unerringly, leads to a hotline report of child abuse or neglect.  This leaves many school employees facing a workplace where they can routinely expect to be punched, bit, scratched, and spit on.  However, a recent decision from the Missouri Court of Appeals, Eastern District, may provide some remedy when the student’s parents have refused to take action to alleviate the situation.  See Ridgell v. McDermott, No. ED100402 (Mo. App. E.D. April 15, 2014).

Hit the jump for all the details…

Disability Accommodations – When is Attendance “Essential”??

When an individual is suffering from a disability, as defined in the American’s with Disabilities Act, their employer is required to work with them to find a reasonable accommodation that would allow them to complete all of the “essential duties” of their job.  If the individual cannot complete all of the essential duties then they could be terminated even though they have a disability.  Therefore, determining what qualifies as “essential” is a crucial step in the accommodation process.

While courts will generally look to a number of sources to determine what duties are essential to any given job (job descriptions, time sheets, etc.), there are some aspects of work that are nearly always considered to be essential.  Attendance at work is one of these aspects that courts will almost always accept as being “essential” without much further analysis.  However,  a recent decision from a federal court in Indiana shows that courts may be willing to analyze how essential attendance is on a case-by-case basis.  See E.E.O.C. v. AT&T Co., Case No. 1:12-cv-00402-TWP-DKL (S.D. Ind., Nov. 20, 2013).  This case could be useful for anyone whose disability affects their ability to routinely attend work.

Need a Disability Accommodation? Make Sure You Ask for Everything

Most of the people that I work with are aware that the American’s with Disabilities Act (ADA) allows employees to request modifications to their employment so that they an continue to work.  However, often they are less clear on what sort of modifications they can request and what work responsibilities they must still be able to complete.  A trio of recent cases demonstrate why it is important to make your request for accommodations as broad and all-encompassing as possible…

I’m on Medical Leave, Can I be Fired? Do I Have To Do Work?

The Family Medical Leave Act (FMLA) is one of the most important protections for workers dealing with their own medical issues or the health issues of a family member.  It provides time off for medical care or recuperation and guarantees that you cannot be disciplined or terminated for taking the leave (if you need to get acquainted with the basic protections of the FMLA, here is a video presentation I made with all the info).  Unfortunately, while the FMLA does protect you from termination for taking medical leave, there still may be other grounds that an individual can be terminated even while on leave.  Additionally, many employers now require some amount of call-in or work done while on leave, but the contours of what exactly can be required are fuzzy.  Hit the link for a few cases that illustrate these aspects of the FMLA…

Decision May Broaden Speech Protection for “Teaching and Writing on Academic Matters”

When I talk with educators they are routinely surprised by how limited their free speech rights are (for previous coverage of First Amendment issues, click here).  The courts have repeatedly narrowed the broad protection provided by the First Amendment so that now public employee speech must pass a number of tests before determining whether it is protected.  However, a recent decision out of the federal 9th Circuit Court of Appeals may be changing that trend.  See Demers v. Austin, 729 F.3d 1011 (9th Cir. 2013).  Hit the jump for a discussion of the first few glimmers of change, along with a heavy helping of cautions…