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Americans with Disabilities Act (ADA)
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Title I of
the Americans with Disabilities
Act of 1990 prohibits private
employers, state and local
governments, employment agencies
and labor unions from
discriminating against qualified
individuals with disabilities in
job application procedures,
hiring, firing, advancement,
compensation, job training, and
other terms, conditions, and
privileges of employment. The ADA
covers employers with 15 or more
employees, including state and
local governments. It also
applies to employment agencies
and to labor organizations. The
ADA's nondiscrimination standards
also apply to federal sector
employees under section 501 of
the Rehabilitation Act, as
amended, and its implementing
rules.
Link
to ADA
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ADA
Definition:"Disability"
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Under the
Americans with Disabilities Act
("ADA"), "[d]isability
means, with respect to an
individual, a physical or mental
impairment that substantially
limits one or more of the major
life activities of such
individual; a record of such an
impairment; or being regarded as
having such an impairment." 29
C.F.R. § 1630.2 (g) (2003).
Ohio defines "disability" in an
identical manner. Ohio Rev. Code
§ 4112.01(A)(13).
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Ohio
Definition:
"Disability"
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The definition of disability
under Ohio law and the Americans
with Disabilities Act, 42 U.S.C.
§ 12102, are virtually
identical. Moreover,
"[t]he essential elements
of a claim brought under the ADA
and the Ohio handicap
discrimination statute are the
same. Therefore, the case law
regarding claims brought under
the ADA applies equally to claims
brought under the Ohio Statute."
Hoffman v. Fidelity Brokerage
Servs., Inc. 959 F. Supp.
452, 457 n. 1 (S.D. Ohio
1997).
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ADA
Definition:
"Discriminate"
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The ADA
definition of the term
'discriminate' includes 'not
making reasonable accommodations
to the known physical or mental
limitations of an otherwise
qualified individual with a
disability who is an applicant or
an employee, unless such covered
entity can demonstrate that the
accommodation would impose an
undue hardship on the operation
of the business of the covered
entity.' 42 U.S.C. at §
12112(b)(5).
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ADA
Definition:
"Major
life activities"
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"'Major
life activities' refers to those
activities that are of central
importance to daily life."
Toyota Motor Manufacturing v.
Williams, 534 U.S. 184,
Syllabus (2002). Under §
4112.01(A)(13), "major life
activities" include the functions
of caring for one's self,
performing manual tasks, walking,
seeing, hearing, speaking,
breathing, learning, and
working.
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ADA
Definition:
"Otherwise
Qualified"
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In order
for the claim to succeed
plaintiff must prove that she is
"otherwise qualified" for the
job. Smith v. Ameritech,
129 F.3d 857, 866 (6th Cir.
1997). "In the employment
context, an otherwise qualified
person is one who can perform
'the essential functions' of the
job in question." Ohio Civ.
Rights Comm. v. Case W. Res.
Univ., 76 Ohio St.3d 168, 176
(1996) citing School Bd. of
Nassau Cty. v. Arline 480
U.S. 273 (1987).
Legitimate,
nondiscriminatory reasons for the
action taken by the employer may
include, but are not limited to,
the inability of the employee to
safely and substantially perform,
with reasonable accommodations,
the essential functions of the
job in question. Hood v.
Diamond Prod., Inc., 74 Ohio
St. 3d 298, 302
(1996).
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ADA
Definition:
"Substantially
Limits"
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Because
Chapter 4112 does not define
"substantially limits," Ohio
courts rely on federal guidance.
Pflanz v. Cincinnati, 149
Ohio App.3d 743, 753 (Ohio Ct.
App. 1st 2002).
Under the
ADA regulations, "substantially
limits" means the
following:
(i) Unable
to perform a major life activity
that the average person in the
general population can perform;
or
(ii)
Significantly restricted as to
the condition, manner or duration
under which an individual can
perform a particular major life
activity as compared to the
condition, manner or duration
under which the average person in
the general population can
perform the same major life
activity.
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ADA
Definition: "Substantially
Limits" with respect to
"Working"
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"'Substantially'
in the phrase 'substantially
limits' suggests 'considerable'
or 'to a large degree,' and thus
clearly precludes impairments
that interfere only in a minor
way with performing manual
tasks." Toyota, 534 U.S.
184, Syllabus. In the Sixth
Circuit, a physical condition or
limitation is not considered
substantial "unless it places an
individual so far outside the
norm as to make it impossible or
unusually difficult for that
person to perform work that could
be done by most other people."
Clark v. Whirlpool Corp.,
252 F. Supp. 2d 528, 534 (N.D.
Ohio 2003) quoting Szalay v.
Yellow Freight Sys., 998 F.
Supp. 799, 802 (N.D. Ohio
1996).
The term
substantially limits means
significantly restricted in the
ability to perform either a class
of jobs or a broad range of jobs
in various classes as compared to
the average person having
comparable training, skills and
abilities. The inability to
perform a single, particular job
does not constitute a substantial
limitation in the major life
activity of working. 29 C.F.R.
§ 1630.2 (j)(3)(i).
(Emphasis added).
To be
substantially limited in the
major life activity of working,
then, one must be precluded from
more than one type of job, a
specialized job, or a particular
job of choice. If jobs utilizing
an individual's skills (but
perhaps not his or her unique
talents) are available, one is
not precluded from a substantial
class of jobs. Similarly, if a
host of different types of jobs
are available, one is not
precluded from a broad range of
jobs. (Emphasis added). Sutton
v. United Airlines, 527 U.S.
471 (1999).
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Age
Discrimination in Employment Act
(ADEA)
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The Age
Discrimination in Employment Act
of 1967 (ADEA) protects
individuals who are 40 years of
age or older from employment
discrimination based on
age.
Link
to ADEA
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Constructive
Discharge
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"Before a
claim of constructive discharge
can be submitted to the jury, the
plaintiff must prove that her
working conditions were so
difficult or unpleasant that a
reasonable person would have felt
compelled to resign." Neal v.
Hamilton Cty., 87 Ohio App.
3d 670, 676 (Ohio Ct. App. 1st
1993); accord Mauzy v. Kelly
Services, Inc., 75 Ohio St.3d
578 (1996). This is an objective
test in which "courts seek to
determine whether the cumulative
effect of the employer's actions
would make a reasonable person
believe that termination was
imminent. . . . [A]
myriad of factors are considered,
including reductions in sales
territory, poor performance
evaluations, criticism in front
of coemployees, inquiries about
retirement intentions, and
expressions of a preference for
employees outside the protected
group." Id. at 589. The
employee's perception of forced
resignation is viewed objectively
without consideration of undue
sensitivities. Wilson v.
Firestone Tire & Rubber
Co., 1932 F.2d 510, 515 (6th
Cir. 1991).
When an
employer presents an employee
with "legitimate options for
continued employment," that
generally "precludes a finding of
constructive discharge."
Therefore, when an "employer
gives an employee a realistic
option of improving his or her
situation, and the work
environment is not otherwise
unreasonably intolerable, the
employee cannot claim that he or
she was forced to
retire."
Hillman
v. Safeco Insurance Co., 190
F. Supp. 2d 1029, 1036-1037 (N.D.
Ohio 2002) citing Vannoy v.
OCSEA Local 11, 36 F. Supp.
2d 1018 (S.D. Ohio
1999).
Constructive
discharge does qualify as an
adverse employment action. See
Hoon v. Superior Tool Co.
(Jan. 24, 2002), 8th Dist. No.
79821; Policastro v. Northwest
Airlines, Inc. (C.A.6, 2002),
297 F.3d 535, 539.
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Discrimination
- Age
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"[A]bsent
direct evidence of age
discrimination, in order to
establish a prima facie case of a
violation of R.C. 4101.17 in an
employment discharge action, a
plaintiff-employee must
demonstrate (1) that he or she
was a member of the statutorily
protected class, (2) that he or
she was discharged, (3) that he
or she was qualified for the
position, and (4) that he or she
was replaced by, or that the
discharge permitted the retention
of, a person not belonging to the
protected class. Under this
modified standard, it should be
abundantly clear that direct
evidence of age discrimination
will be sufficient to establish a
prima facie case." Kohmescher
v. Kroger Co. (1991), 61 Ohio
St.3d 501, 505.
See
also:
In order to establish a prima
facie case in an age
discrimination action, a
plaintiff-employee must
demonstrate that he or she "(1)
was a member of the statutorily
protected class, (2) was
discharged, (3) was qualified for
the position, and (4) was
replaced by, or the discharge
permitted the retention of, a
person of substantially younger
age." Coryell v. Bank One
Trust Co. N.A., 101 Ohio
St.3d 175, 180, 2004-Ohio-723
¶ 20.(fn1)
Defendant-employer
may then overcome the presumption
inherent in the prima facie case
by propounding a legitimate,
nondiscriminatory reason for
plaintiff's discharge. Finally,
plaintiff must be allowed to show
that the rationale set forth by
defendant was only a pretext for
unlawful
discrimination.
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Discrimination
- Age - Ohio
Statutes
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An action for age
discrimination regarding
employment can be maintained
under three different statutes
within R.C. Chapter 4112. R.C.
4112.02 prohibits discrimination
in employment on the basis of
age, and specifies that a civil
action to "enforce the
individual's rights" relative to
such discrimination must be
instituted within 180 days of the
alleged unlawful discriminatory
practice. See 4112.02(N).
R.C. 4112.14, previously
codified at R.C. 4101.17,
provides a remedy for age-based
discrimination in the hiring and
termination of employees.
Although it does not include a
limitations period, the Ohio
Supreme Court has determined that
the six-year limitations period
of R.C. 2305.07 applied to claims
based upon R.C. 4101.17. See
Morris v. Kaiser Engineers,
Inc. (1984), 14 Ohio St.3d
45, paragraph two of the
syllabus; Ferraro v. B.F.
Goodrich Co. 149 Ohio App.3d 301,
2002-Ohio-4398 (the statute of
limitations period applicable to
R.C. 4112.14 age discrimination
claims is six years).
(It has been held that a jury
demand is unavailable under R.C.
4112.14 because an action for age
discrimination did not exist at
common law; thus, there is no
right to a jury trial. Hoops
v. United Telephone Company of
Ohio (1990), 50 Ohio St.3d
97.
R.C. 4112.99 provides an
independent cause of action for
"damages, injunctive relief or
any other appropriate relief" to
remedy any form of discrimination
identified in R.C. Chapter 4112.
Ferraro, supra, citing Elek v.
Huntington Natl. Bank (1991), 60
Ohio St.3d 135. The applicable
limitations period under this
section has been held to be six
years. See Cosgrove v.
Williamsburg of Cincinnati Mgt.
Co., Inc. (1993), 70 Ohio
St.3d 281.
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Discrimination
- Applicable Law
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"[F]ederal case law
interpreting Title VII of the
Civil Rights Act of 1964, Section
2000(e) et seq., Title 42, U.S.
Code, is generally applicable to
cases involving alleged
violations of R.C. Chapter 4112."
Plumbers & Steamfitters
Commt. v. Ohio Civil Rights
Comm. (1981), 66 Ohio St.2d
192 196.
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Discrimination
- Direct Evidence,
Circumstantial
Evidence
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Under the direct method of
proving discrimination, a
plaintiff may present
circumstantial, statistical, and
direct evidence from which the
finder of fact could conclude
that purposeful and unlawful
discrimination occurred.
Kohmescher v. Kroger Co.
(1991), 61 Ohio St.3d 501;
U.S. Postal Service Bd. of
Governors v. Aikens (1983),
460 U.S. 711, 717, 103 S.Ct.
1478.
Direct evidence of
discrimination is "that evidence
which, if believed, requires the
conclusion that unlawful
discrimination was at least a
motivating factor in the
employer's actions." Jacklyn
v. Schering-Plough Healthcare
Prods. Sales Corp., 176 F.3d
921, 926 (6th Cir. 1999).
Circumstantial evidence,
on the other hand, is proof that
does not on its face establish
discriminatory animus, but does
allow a factfinder to draw a
reasonable inference that
discrimination occurred.
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Discrimination
- Disability - Failure to
Accommodate
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In order for a plaintiff to
prevail on an allegation of
handicap discrimination based on
failure to accommodate, he must
first establish a prima facie
case by showing that: (1) he is
an individual with a handicap as
defined in 29 C.F.R. §
1614.203 (a)(1); (2) he is
qualified for the position as
discussed in 29 U.S.C. §
1614.203(a)(6); (3) the agency
was aware of his disability; (4)
an accommodation was needed,
i.e., a causal relationship
existed between the disability
and the request for
accommodation; and (5) the agency
failed to provide the necessary
accommodation. Gaines v.
Runyon, 107 F.3d 1171, 1175
(6th Cir. 1997)
An employer is not required to
give the best accommodation or
even the accommodation requested
by the employee as long as the
accommodation provided is
reasonable. Zimmerman v.
General Motors, Delphi Energy
& Engine Management System
Div., 959 F. Supp. 1393 (D.
Kan. 1997); see also Keever v.
City of Middletown, 145 F.3d
809, 813 (6th Cir. 1998) quoting
Miranda v. Wisconsin Power
& Light Company, 91 F.3d
1011, 1016 (7th Cir. 1996)
(holding "the ADA does not
obligate an employer to provide a
disabled employee every
accommodation on his wish
list."). An accommodation is
reasonable when it assists the
disabled employee perform the
essential functions of his or her
job. See e.g. 29 C.F.R. §
1630.2(o)(ii).
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Discrimination
- Disability - Prima Facie
Case
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A plaintiff can establish a
prima facie case of handicap
discrimination only if she can
establish: (1) she is
handicapped; (2) her employer
took an adverse action against
her because of her handicap; and
(3) that the person, though
handicapped, can safely and
substantially perform the
essential functions of the job in
question. Columbus Civ. Serv.
Comm. v. McGlone, 82 Ohio
St.3d 569, 571 (1998).
"For his ADA claim to succeed,
plaintiff must prove that (1) he
has a disability; (2) that he is
'otherwise qualified' for the
job; and (3) that defendants
either refused to make a
reasonable accommodation for his
disability or made an adverse
employment decision regarding him
solely because of his
disability." Smith v.
Ameritech, 129 F.3d 857, 866
(6th Cir. 1997).
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Discrimination
- Disability - To State A
Claim
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In Ohio, it is an unlawful
discriminatory practice for an
employer to discriminate against
an employee with respect to the
terms and conditions of
employment because of their
disability. Ohio Rev. Code §
4112.02. To state a claim of
disability discrimination under
the ADA, a party must establish
that "(1) he is an individual
with a disability, (2) he is
'otherwise qualified' to perform
the job requirements, with or
without reasonable accommodation,
and (3) he was discharged solely
by reason of his handicap."
Monette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1185
(6th Cir. 1996).
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Discrimination
- Discriminatory
Remarks
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There is a four-part test to
determine whether a remark is
actionable race or sex
discrimination: (1) was the
comment made by a decision maker
or an agent in the scope of
employment; (2) was the comment
related to the decision-making
process; (3) was the comment an
isolated remark; (4) was the
comment in proximity to the
alleged discriminatory act."
Cooley v. Carmike Cinemas,
Inc. (6th Cir. 1994), 25 F.3d
1325, 1330.
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Discrimination
- Disparate Impact and Disparate
Treatment
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"There are different types of
discrimination in employment
settings: disparate treatment
(intentional discriminatory
treatment of an employee) and
disparate impact (where a
facially neutral employment
policy is applied in a
discriminatory fashion, without
regard to the employers's
intention)." Ohio Civ. Rights
Comm. V. Kent State Univ.
(1998) 129 Ohio App. 3d 231, fn.
10.
In a disparate treatment case,
liability depends on whether the
protected trait &endash; here,
age &endash; actually motivated
the employer's decision. Hazen
Paper Co. v. Biggins, 507
U.S. 604, 610 (1993). The
employer may have relied on a
facially discriminatory policy
requiring adverse treatment of
older employees or may have been
motivated by age to discriminate
against an individual on an ad
hoc basis &endash;
"[w]hatever the
employer's decision making
process, a disparate treatment
claim cannot succeed unless the
employee's protected trait
actually played a role in that
process and had a determinative
influence on the outcome."
Id. Proof of
discriminatory motive is thus
critical to the success of a
plaintiff's discriminatory
treatment claim. Id. In
contrast, in a disparate impact
case, liability may result
without a demonstration of
discriminatory motive. Id.
at 609.
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Discrimination
- Employment - General -
McDonnell Douglas
Framework
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In a case alleging employment
discrimination, the plaintiff
bears the initial burden of
either presenting direct evidence
of discrimination, or of
establishing a prima facie case
of discrimination indirectly by
following the standard set forth
in McDonnell Douglas Corp. v.
Green (1973), 411 U.S. 792,
93 S.Ct. 1817; and Byrnes v.
LCI Communication Holdings
Co. (1996), 77 Ohio St.3d
125. Peters v. Ohio Dept. of
Nat. Resources, Franklin App.
No. 03AP-350, 2003-Ohio-5895.
In order to establish a prima
facie case, the plaintiff must
demonstrate that: (1) she is a
member of a protected class; (2)
that she suffered an adverse
employment action; (3) that she
was qualified for the position;
and (4) either that she was
replaced by someone outside the
protected class or that a
comparable, non-protected person
was treated more favorably.
See, e.g., Samadder v. DMF of
Ohio, Inc., 154 Ohio App.3d
770, 2003-Ohio-5340, at ¶35;
Ferguson v. Lear Corp.,
155 Ohio App.3d 677,
2003-Ohio-7261, at ¶17,
citing Brewer v. Cleveland Bd.
of Edn. (1997), 122 Ohio
App.3d 378, 385; Plumbers
& Steamfitters Joint
Apprenticeship Commt. v. Ohio
Civ. Rights Comm. (1981), 66
Ohio St.2d 192, 197.
Once the plaintiff establishes
a prima facie case, the burden
shifts to the employer to set
forth a non-discriminatory reason
for the discharge. If the
employer does so, the burden then
shifts back to the plaintiff to
demonstrate, by a preponderance
of the evidence, that the
legitimate, non-discriminatory
reason was merely a pretext for
discrimination. Id.
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Discrimination
- Hostile or abusive work
environment
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The plaintiff must show that
the harassing conduct was
"sufficiently severe or pervasive
to alter the conditions of
[the victim's] employment
and create an abusive working
environment." quoting
Henson, 682 F.2d at
904.
``In Harris v. Forklift
Sys., Inc. (1993), 510 U.S.
17, 21-22, 114 S.Ct. 367, 370,
126 L.Ed.2d 295, 302, the court
further explained:
`` `Conduct that is not severe
or pervasive enough to create an
objectively hostile or abusive
work environment is beyond Title
VII's purview. Likewise, if the
victim does not subjectively
perceive the environment to be
abusive, the conduct has not
actually altered the conditions
of the victim's employment, and
there is no Title VII
violation.'
``However, the conduct need
not be psychologically injurious
to be actionable. `A
discriminatorily abusive work
environment, even one that does
not seriously affect employees'
psychological well-being, can and
often will detract from
employees' job performance,
discourage employees from
remaining on the job, or keep
them from advancing in their
careers. Moreover, even without
regard to these tangible effects,
the very fact that discriminatory
conduct was so severe or
pervasive that it created a work
environment abusive to employees
because of their race, gender,
religion, or national origin
offends Title VII's broad rule of
workplace equality.' Id.,
510 U.S. at 22, 114 S.Ct. at
370-371, 126 L.Ed.2d at 302.
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Discrimination
- Pregnancy
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Marvel Consultants, Inc. v.
Ohio Civ. Rights Comm.
(1994), 93 Ohio App.3d 838, 841.
To prove a prima facie case, the
commission had to prove by the
preponderance of the evidence
that: (1) Pace was pregnant; (2)
she was discharged; and (3) she
was replaced by a nonpregnant
person. See McDonnell Douglas,
supra; Frank v. Toledo
Hosp. (1992), 84 Ohio App.3d
610, 616, 617 N.E.2d 774,
778.
The evidence was
uncontradicted that Pace was
pregnant. Denial of maternity
leave mandated by Ohio
Adm.Code 4112-5-05(G)(6) is, in
effect, terminating the employee
because of her pregnancy.
Frank, supra, 84 Ohio
App.3d at 617, 617 N.E.2d at 779.
Ohio Adm.Code 4112-5-01(G)(6)
says:
"If the employer has no leave
policy, childbearing must be
considered by the employer to be
a justification for leave of
absence for a female employee for
a reasonable period of time.
Following childbirth and upon
signifying her intent to return
within a reasonable time, such
female employee shall be
reinstated to her original
position or to a position of like
status and pay, without loss of
service or credit."
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Discrimination
- Religious Belief -
Employment
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In evaluating a claim of
religious discrimination, a
two-step analysis is employed.
See Smith v. Pyro Mining
Co. (C.A.6, 1987), 827 F.2d
1081, 1085, certiorari denied,
485 U.S. 989, 108 S.Ct. 1293, 99
L.Ed.2d 503. An employee bears
the initial burden of
establishing a prima facie case
of religious discrimination. He
meets the burden by showing that
he holds a sincere religious
belief that conflicts with an
employment requirement, he has
informed his employer of the
conflict, and he was discharged
for failing to comply with the
conflicting employment
requirement. Id. See, also,
Equal Employment Opportunity
Commn. v. Arlington Transit Mix,
Inc. (C.A.6, 1991), 957 F.2d
219, 221.(fn1)
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Discrimination
- Religious Belief - Public
Accommodation
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In order to establish a
prima-facie case of religious
discrimination in a public
accommodation case, appellant has
to establish the following: ''(a)
Complainant has a bona fide
religious belief that conflicts
with a rule or regulation of a
place of public accommodation;
(b) Complainant informed the
representative of the place of
public accommodation of this
belief; (c) Complainant was
deprived of a benefit for failure
to comply with the conflicting
rule or regulation.'' In re
Chui (Oct. 14, 1986), Ohio
Civ. Rights Comm. Complaint No.
4386, at 2, 1986 WL 327228.
See, also, Franks v. Natl.
Lime & Stone Co. (2000),
138 Ohio App.3d 124, 740 N.E.2d
694. (employment discrimination
case).
Once a prima-facie case of
religious discrimination is
established, the burden then
shifts to the business ''to show
that it could not accommodate
Complainant's religious belief
without an undue hardship on the
conduct of its business.''
Chui at 3. See, also,
Franks at 131, 740 N.E.2d
694.
Undue hardship need only be a
de minimis cost to the business.
Franks at 132, 740 N.E.2d
694; Ward v. Hengle
(1997), 124 Ohio App.3d 396, 404,
706 N.E.2d 392 (employment
discrimination cases).
Plaintiff bears the initial
burden of establishing a prima
facie case of religious
discrimination by a preponderance
of the evidence. Seale v.
Springfield (1996), 113 Ohio
App.3d 384, 388, 680 N.E.2d 1286,
1288-1289. The trial court
properly granted summary judgment
because plaintiff could not
establish genuine issues of
material fact with regard to the
elements of religious
discrimination under R.C. Chapter
4112. In order to avoid summary
judgment, a plaintiff alleging
discrimination must present
sufficient evidence not only that
he was a member of a protected
class, but also that his
protected status was the "but
for" cause of the alleged adverse
employment action. Mitchell v.
Toledo Hosp. (C.A.6, 1989),
878 F.2d 382, 1989 WL 67987.
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Discrimination
- Sex - Harassment
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A plaintiff may establish a
violation of R.C. 4112.02(A)'s
prohibition of discrimination
"because of * * * sex" by proving
either of two types of sexual
harassment: (1) "quid pro quo"
harassment, i.e., harassment that
is directly linked to the grant
or denial of a tangible economic
benefit, or (2) "hostile
environment" harassment, i.e.,
harassment that, while not
affecting economic benefits, has
the purpose or effect of creating
a hostile or abusive working
environment. Hampel v. Food
Ingredients Specialties, Inc.
(2000), 89 Ohio St.3d 169, 729
N.E.2d 726, paragraph one of the
syllabus.
To establish "constructive
discharge," a plaintiff alleging
sexual harassment must show that
the abusive working environment
became so intolerable that her
resignation qualified as a
fitting response. An employer may
assert the Ellerth/Faragher
affirmative defense to such a
claim unless the plaintiff quit
in reasonable response to an
adverse action officially
changing her employment status or
situation, e.g., a humiliating
demotion, extreme cut in pay, or
transfer to a position in which
she would face unbearable working
conditions. Pennsylvania State
Police v. Suders, 124 S. Ct.
2342 (2004).
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Disparate
Treatment
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"Under a disparate-treatment
analysis, the employer treats
some people less favorably than
others because of race, color,
religion, sex or national origin.
Discriminatory motive is
necessary to this theory."
State v. Wyant (1992), 64
Ohio St.3d 566, 575
A plaintiff can also make out
a prima facie disparate treatment
case by showing that he or she
(1) was a member of the
statutorily protected class, (2)
was discharged, (3) was qualified
for the position, and (4) was
replaced by, or the discharge
permitted the retention of, a
person outside the class. The
plaintiff may also show, in
addition to the first three
elements, that the employee was
"treated differently than a
similarly situated employee from
outside the protected class."
Policastro v. Northwest
Airlines, Inc. (C.A.6, 2002),
297 F.3d 535, 538, citing
Mitchell v. Toledo Hosp.
(C.A.6, 1992), 964 F.2d 577, 582
-583.
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Equal
Pay Act
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The Equal Pay Act, which is
part of the Fair Labor Standards
Act of 1938, as amended (FLSA),
and which is administered and
enforced by the EEOC, prohibits
sex-based wage discrimination
between men and women in the same
establishment who are performing
under similar working
conditions.
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FMLA
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Covered employers (29 CFR
825.104) must grant an eligible
employee (29 CFR 825.110) up to a
total of 12 workweeks of unpaid
leave during any 12-month period
for one or more of the following
reasons:
- for the birth and care of
the newborn child of the
employee;
- for placement with the
employee of a son or daughter
for adoption or foster
care;
- to care for an immediate
family member (spouse, child,
or parent) with a serious
health condition; or
- to take medical leave when
the employee is unable to work
because of a serious health
condition.
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FMLA
Interference Claim |
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A plaintiff asserting an
FMLA “interference”
claim must establish the following by
a preponderance of the evidence:
(1) she is an eligible
employee, as defined in
29 U.S.C.
§ 2611(2);
(2) Defendant is a
covered employer, as defined in
29 U.S.C.
§ 2611(4);
(3) she was entitled to
take leave under the
FMLA;
(4) she gave adequate
notice of her intention to take leave; and
(5) Defendant denied her
FMLA
benefits to which she was entitled or
otherwise
interfered
with her
FMLA
rights.
See
Hoge,
384 F.3d at 244.
See also
Harcourt v. Cincinnati
Bell Telephone Co.,--F.Supp.2d--,
2005 WL 2000666, at *5 (S.D.Ohio Aug.18,
2005);
Sorrell v. Rinker
Materials Corp.,
395 F.3d 332, 335 (6th Cir.2005);
Cavin v. Honda of Am.
Mfg., Inc.,
346 F.3d 713, 719 (6th Cir.2003).
The employer's intent is irrelevant;
if Plaintiff can show that she was denied
FMLA
benefits to which she was entitled,
the employer is strictly liable. See
Hoge,
384 F.3d at 244.
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FMLA
Retaliation Claim |
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“Retaliation” or
“discrimination” claims arise under
29 U.S.C.
§ 2615(a)(2),
which prohibits employers from discharging,
or discriminating against, employees who
oppose unlawful
FMLA
practices. See
Hoge,
384 F.3d at 244.
To survive summary
judgment on a
FMLA
retaliation claim, a plaintiff must first
make a prima facie showing of (1) an
employee's engagement in activity protected
by
FMLA;
(2) some adverse employment action; and (3)
a causal connection between the protected
activity and the adverse action.
Skrjanc
v. Great Lakes Power Service Co.,
272 F.3d 309, 314 (6th Cir.2001).
With respect to causal connection, the
plaintiff must show that an employee's use
of
FMLA
leave was a “significant factor” motivating
the retaliatory action. See, e.g.,
Polk v.
Yellow Freight System, Inc.,
801 F.2d 190, 199 (6th Cir.1986).
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FLSA
- Fair Labor Standards
Act
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The Fair Labor Standards Act
(FLSA) establishes minimum wage,
overtime pay, recordkeeping, and
child labor standards affecting
full-time and part-time workers
in the private sector and in
Federal, State, and local
governments. Covered nonexempt
workers are entitled to a minimum
wage of not less than $5.15 an
hour. Overtime pay at a rate of
not less than one and one-half
times their regular rates of pay
is required after 40 hours of
work in a workweek.
LINK
TO FLSA
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FMLA
- Interfering With
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The law forbids
employers from interfering with an
employee's use or attempted use of medical
leave.
"Interfering with"
the exercise of an employee's rights would
include, for example, not only refusing to
authorize FMLA leave, but discouraging an
employee from using such leave. It would
also include manipulation by a covered
employer to avoid responsibilities under
FMLA, for example:
(1) transferring
employees from one worksite to another for
the purpose of reducing worksites, or to
keep worksites, below the 50-employee
threshold for employee eligibility under the
Act;
(2) changing the
essential functions of the job in order to
preclude the taking of leave;
(3) reducing hours
available to work in order to avoid employee
eligibility.
(c) An employer is
prohibited from discriminating against
employees or prospective employees who have
used FMLA leave.
29 C.F.R. § 825.220
(b).
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The citations provided here are meant to
provide a quick, easily accessible statement
of the law at the time of the decision of
the court. The law, however, changes. You
should not rely on these citations as the
current statement of the law; rather, they
are intended to provide a path for your
legal research.
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