Labor & Employment Alert: I Want to Save My FMLA for a Rainier Day -- DOL says employee cannot choose to delay or save FMLA use if he/she is taking time off lexology.com/library/detail…
Employees and employers alike in the Chicago area should know about a recent class action lawsuit filed against the University of Illinois-Urbana Champaign (UIUC).
The case,Brown v. Board of Trustees of the University of Illinois, alleges employment discrimination on the basis of race under Title VII of the Civil Rights Act of 1964, a federal law, and the Illinois Civil Rights Act of 2003, a state law. The plaintiffs in the case specifically allege that racial discrimination and harassment are part of the University of Illinois’s “standard operating procedure. The case is likely to highlight the harms of racial discrimination in employment. And also underscore the steps that employers must take in drafting and enforcing a non-discrimination policy.
In the complaint, the plaintiffs cite overt and pervasive incidents of racial discrimination and harassment on the basis of race.
For example, the complaint describes threats of racial violence. Including the appearance of nooses, KKK paraphernalia, confederate flags, racist graffiti, and swastikas. Other overt acts of racism, according to the complaint, include racial slurs. Which the plaintiffs allege other employees used against them. Moreover, the complaint also alleges that racial discrimination persisted in more subtle forms. Such as black employees subjected to disrespect from supervisors and coworkers. As well as, being subject to excessive monitoring and scrutinizing from supervisors.
The University has a written non-discrimination policy.
However, as the recent lawsuit alleges, the policy only prohibits racial harassment if it is “sufficiently severe or pervasive”. Is “objectively offensive,” and “unreasonably interferes with, denies. Or if it limits a person’s ability to participate or benefit from employment opportunities, assessment or status at the University.” Accordingly, the plaintiffs argue that the non-discrimination policy permits a hostile work environment that violates both federal and state law.
According to Arthur Ehrlich and Jonathan C. Goldman, Chicago employment discrimination lawyers, “harassment can be a form of employment discrimination under both Title VII of the Civil Rights Act of 1964 and the Illinois Civil Rights Act of 2003; when it creates a hostile work environment. An employee has a right to file a claim when facing discrimination on the basis of race.”
It is important to note that this lawsuit comes at a point in which Illinois legislators recently amended the Equal Pay Act of 2003. Which prohibits employers from discrimination against African American employees by paying African American employees lower wages for substantially similar work. This recent change to the law; along with the recent lawsuit against UIUC; should make clear that employment discrimination, on the basis of race, is taken very seriously in Illinois.
Just as the partial government shutdown shuttered the doors at the Equal Employment Opportunity Commission, the agency announced a $4.9 million settlement in a religious discrimination case.
According to the agency, the shipping company refused to hire persons with long hair or beards, even if their appearance had a religious reason. Furthermore, UPS delayed religious accommodation requests or denied them outright, according to court documents. The company did not admit liability and characterized the settlement as a business decision. We want “to focus our energy on our hiring and promotion process, rather than lengthy and costly court proceedings,” UPS said in a statement.
The settlement is just the latest in a series of employment discrimination claims against UPS.
The company settled a multimillion-dollar disability discrimination action in 2017, and another religious discrimination action in 2013. “Failure to make a reasonable accommodation is the most common type of religious discrimination in Illinois,” commented Chicago employment law attorney Jonathan Goldman. “But this term confuses many workers. As a result, they give in too quickly and give up too much.”
Most people assume that a phrase like reasonable accommodation means give and take, he explained. But in this context, and as far as the employee is concerned, this process is basically all taking and no giving. If the worker requests a religious accommodation, the employer must grant it unless the request would cause an undue hardship.
For example, assume David works in retail. He is a Christian and he wants Sundays off. His boss is also a Christian, but he feels that the religion does not specifically prohibit working on Sundays. Nevertheless, David’s boss offers to let him off every other Sunday. David might be tempted to take that offer.
But the “not officially recognized” bit is irrelevant. If David’s religious beliefs about Sundays are sincere, the law protects him. In fact, even if David started his own church and embraced certain beliefs, the law would still protect him. It does not matter if the belief was dogmatic or not.
Second, in the “reasonable accommodation” department, David and other workers meet their initial burden by demonstrating their religious beliefs and needs. They do not have to negotiate further unless the employer establishes an undue hardship. Assuming there are other employees who are available to work on Sunday, that defense probably does not apply. That’s true even if the other workers are not as qualified as David. A marginal loss is not the same thing as an undue hardship.
The second form of religious discrimination is decisions that are based, at least in part, on religion.
Typically, these decisions include hiring/firing and promotions/demotions. One would think that employers know the law and would not engage in this activity, but it happens often. For example, an employer could refuse to hire a woman who wears a hijab or give a woman a promotion on the condition that she begin attending church.
A few religious discrimination cases involve employee harassment. If that happens, the employer has a duty to promptly and thoroughly investigate the matter, and then take appropriate action based on the investigation’s results. A breakdown in any phase could give rise to a legal claim.
Contact us today at 312.332.6733 to schedule a free consultation.
Chinatown’s Xing Ying Employment Agency promised workers good wages and pleasant employment conditions.
But instead, according to court documents, the company “essentially acted as central a supply house for a buffet restaurant industry seeking to profit from illegal and exploitative wages and conditions of employment.”
Again according to court documents, the Agency ran advertisements in Chinese-language newspapers targeting immigrant workers. Once these individuals enrolled with the company, the promised lavish wages never appeared. Neither did the promised housing. Many Xing Ying workers lived under an 18th Street bridge. According to a media investigation, Xing Ying was part of a much wider ring of similar exploitative employment services.
These issues are widespread, as “our Civil Rights bureau and workplace rights bureau are always taking complaints,” remarked an Illinois Attorney General spokesperson.
Types of Illegal Discrimination
Like most other jurisdictions, Illinois is an at-will employment state. For the most part, employers may hire and fire employees at any time for good reason, bad reason, or no reason at all. However, even in this environment, workers have legal rights.
“Workers cannot be fired for an illegal reason, and they must be treated fairly at work,” said Chicago employment law attorney Jonathan Goldman. Fair treatment means minimum wage, no unauthorized paycheck deductions, and no illegal conduct. The types of illegal discrimination include:
National origin,
Gender,
Sexual orientation,
Age,
Pregnancy
Race
Some forms of discrimination are in a grey area.
For example, the Supreme Court has yet to rule whether transgender discrimination falls into the “sexual orientation” discrimination category under federal law. However, several courts, including the 7th Circuit Court of Appeals, have found that “gender stereotyping”, expecting a female or male to conform to their gender identities and expected gender character, are illegal. Illinois state law also prohibits transgender discrimination.
To establish an employment discrimination case, the victim must present enough evidence to suggest that the adverse action against the employee was based on discrimination.
Replacing an older employee with a younger employee is often sufficient. The employer must then provide a nondiscriminatory reason for the adverse action. That burden is often easy to meet. Most cases are then fought on the issue of whether the employer’s claimed reason was just a pretext or an excuse for discrimination.
Remedies Available
Damages in most employment law cases include both monetary and injunctive relief.
Back wages are often the biggest category of monetary damages. Usually, the parties do not resolve their dispute for many months. Other types of economic damages may be available as well, such as lost health insurance benefits. Additional noneconomic damages may be available as well, such as compensatory damages for the stress and anxiety that a victim of discrimination may suffer.
Injunctive relief is available as well. Sometimes, that could mean reinstatement. Other injunctive relief includes antidiscrimination programs on the job, so other employees are not victimized in the same way.
Many EEOC cases involve sexual harassment claims. The EEOC is anxious to resolve these cases, and that attitude sometimes works in the defendant’s favor.
On June 25, 2017, the Equal Employment Opportunity Commission announced that Anchor Staffing would pay $30,000 to settle sexual harassment and retaliation allegations. Court documents state that the temporary agency refused to give Ana Magdana more work after she complained about sexual harassment. In addition to paying money, Anchor Staffing must abide by a two-year consent decree.
About a month earlier, the EEOC announced a similar settlement with a Downers Grove Burger King franchise. Heartland Food LLC agreed to pay $55,000 and furnish similar non-monetary relief to resolve sexual harassment claims. The agency said little about that case, besides the fact that a female employee complained about a male manager.
“These two cases are significant for two reasons,” offered Chicago employment attorney Jonathan Goldman. “First, these settlements are not big dollar amounts for big companies. But for regional businesses and small franchisees, $50,000 may be almost a year’s profits. Second, the government is very aggressive in sexual harassment cases, largely because they are easy to prove.”
The Anchor Staffing settlement did not even involve sexual harassment, Mr. Goldman noted. Instead, the EEOC pursued a retaliation claim. As a result, the agency does not need to prove sexual harassment, age discrimination, or anything else. It simply must establish that the defendant took some action against the employee because of the complaint.
Generally, the EEOC need only establish a temporal relationship. If the complaint was on June 1 and the action was on June 15, an employer will be hard-pressed to defeat a retaliation claim. So, we take a very proactive approach and try to resolve these cases as quickly and cheaply as possible.
Details were so sketchy with regard to the Burger King settlement because the employer probably included a confidentiality clause in the settlement, Mr. Goldman speculated. In many cases, the EEOC insists on a slightly larger monetary settlement before it agrees to such a clause. But in many cases, such language is worth a little extra money.
A confidentiality clause makes the EEOC’s evidence appear weak. The bellicose quote in the press release, which is something like “that company got what it deserved,” then seems rather empty. Furthermore, it is easier for the defendant to characterize the settlement as a business decision. That’s normally the case, because it would cost a lot more than $30,000 or $50,000 to litigate such a claim. Furthermore, if anyone presses the company for details, the spokesperson simply cites the confidentiality clause and drops the matter. Contact us today at 312.332.6733 to discuss your case.
OUR OWN ARTHUR EHRLICH, WILL BE GIVING A LECTURE ON EMPLOYMENT LAW AT THE EVANSTON PUBLIC LIBRARY, 1703 ORRINGTON AVE, EVANSTON, IL ON THURSDAY, APRIL 12, 2018, FROM 7:00 – 8:00 P.M.. MR. EHRLICH HAS OVER 30 YEARS OF EXPERIENCE LITIGATING EMPLOYMENT DISCRIMINATION CASES
For information and registration, follow the link below.
Chances are, many of us will have some sort of serious medical condition at some point in our lives. After all, one in four Americans visits an emergency room each year, according to Gallup. While getting a few stitches for slicing a finger while cutting an avocado or bagel is not a serious medical condition, there are many other instances that are, and many people experience these conditions, which include:
Heart attack;
Stroke;
Traumatic brain injury (TBI);
Cancer;
Multiple broken bones;
Organ failure; and
Hundreds of other types of diseases and injuries.
When your family member gets injured or becomes ill, they may require a period of home care. Because the average person cannot afford an in-home nurse, family members take on this role. And, when an employer fires such a family member for taking time off work to care for their loved one, they may have violated an employment law such as the Family Medical Leave Act, and must be held accountable.
Family Medical Leave Act
The Family Medical Leave Act (FMLA) prohibits employers from firing or retaliating against employees who leave work for up to 12 weeks in order to care for a loved one having a serious health condition. A family member is considered to be a parent, spouse, or child. During these 12 weeks, the employee is entitled to unpaid time off as well as staying on their group health insurance. When they return to work, they are entitled to the same wages and position that they left. These same benefits are provided to the employee themselves if they suffer an injury or illness, as well as if they are a mother or father caring for a newborn child or newly adopted child during the child’s placement (within one year) with the family.
Eligibility of FMLA Employees
Unfortunately, not all employees are eligible for FMLA rights. According to the U.S. Department of Labor, only employees who meet the following criteria are eligible for 12 weeks of job and health insurance protected unpaid leave:
Have worked a minimum of 1,250 hours in previous 12 months (a different set of criteria applies to airline flight crews);
Employer has at least 50 employees within a 75-mile radius; and
Have worked for employer at least 12 months, though the time does not need to be consecutive;
A Chicago Attorney is Here to Help
You may have a valid wrongful termination claim against your employer if they have violated the Family Medical Leave Act. To find out more, you need to call an experienced Chicago employment lawyer at Goldman & Ehrlich as soon as possible.
America has long prided itself on diversity, freedom of religion, and equality. However, our country is still fighting its roots of slavery, Native American eradication, and subjugation of women. America’s past continues to haunt us to this day, particularly in respect to the workplace. Workplace discrimination occurs in many forms, such as refusing to hire a certain individual because of their race, not promoting an employee because of their gender, and making fun of an employee because of his or her disability or religion. Harassment and unfavorable employment decision, such as not providing a deserved raise, affect thousands of Chicago employees on a daily basis. Another form of discrimination that many are faced with is the employer’s failure to provide a reasonable accommodation that the employee’s protected characteristics or religion may demand.
For example, a prior case ruled that a clothing chain could not bar a Muslim employee from wearing a Hijab and had to accommodate that religious practice.
Examples of Common Reasonable Accommodations
A reasonable accommodation is when an employer acknowledges the employee’s need for some adjustment to his/her job duties or a policy that the employer would ordinarily want the employee to follow, while balancing that accommodation with the employer’s legitimate business needs, which fall under their protected status. Reasonable accommodations can include something tangible such as a hand railing in the bathroom, as well as something like freedom to adjust their work schedule to meet a medical need or religious practice. For example, the following are types of reasonable accommodations.
Allowing a female employee who has recently given birth reasonable break time to breastfeed or express milk (other laws under the Patient Protection and Affordable Care Act also mandate this right according to the Equal Employment Opportunity Commission);
Providing a religious employee certain days off from work in order for them to practice their religion;
Putting in a wheelchair ramp or widening a door frame;
Purchasing software for a blind employee.
Employer’s Claim of Undue Hardship
Not all requests for accommodation will be considered reasonable where the request, such as an adjustment to a work schedule/routine or purchase of an expensive device or remodel will cause the employer undue hardship. For example, an employer may make the claim that they did not hire a disabled person because the cost of training, or eliminating essential duties of that position would cause them undue hardship, according to the City of Chicago Commission on Human Relations.
Reach Out to a Chicago Workplace Discrimination Lawyer Today
Employment discrimination against those who ask for or demand a reasonable accommodation happens all the time in Chicago. To ensure that your rights as an employee or applicant are not trampled by your employer, you need to contact the Chicago employment discrimination attorneys of Goldman & Ehrlich today.
Some states have adopted or contemplated adopting so-called “religious freedom” laws. These laws create a risk of allowing religious groups, or businesses, to discriminate against others when their religions call for it. For example, many Christian groups look down upon the lesbian, gay, bisexual, transsexual (LGBT) community, and may refuse clientele that are gay. Even if a particular state does not have a religious freedom act, discrimination may go unpunished if cloaked behind a religious belief. For example, a few years ago a baker in Colorado refused to make a wedding cake for a gay couple. The couple took their case all the way to the Supreme Court, and the decision is still pending on whether there was wrongdoing, according to NBC News.
Religious Freedom Laws Can Trace Their Heritage to Jim Crow
The same logic of religious freedom laws or arguments that some business owners may use to discriminate against the LGBT community was applied to race during the early years of the civil rights movement. Laws were written in favor of the majority (whites) in order to continue their prejudices against blacks, all in the name of religious freedom. According to Judge Leon M. Bazile, “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. . . The fact that he separated the races shows that he did not intend for the races to mix (1959),” as reported by ThinkProgress.
It is Not Legal for a Religious Business Owner to Discriminate Against Employees or Applicants
Illinois has a religious freedom law, along with 20 other states, according to WQAD 8 News. These laws give business owners the right to pick and choose whom they serve to a large degree. While they do not give an employer the right to deny employment to any particular group of people, such as someone who identifies with the LGBT community, such discrimination does happen frequently.
The Employment Discrimination Attorneys of Goldman & Ehrlich are Here to Help
Whether you have faced employment discrimination based on your race, color, national origin, sexual orientation, gender, religion, disability, or age, you need to call a lawyer now. Under no circumstances is it legal for an employer to fire, refuse to hire, harass, or otherwise mistreat an employee or job applicant because of a protected characteristic. To learn more about your legal options, call the experienced Chicago employment lawyers with Goldman & Ehrlich today for immediate assistance.
Being pregnant should be a time of joy, anticipation, and excitement, not of frustration and despair. Unfortunately for some mothers, they experience the latter due to an employer who refuses to keep them on the payroll simply because they are pregnant, are expecting to become pregnant, or have given birth to a child. If you have been wrongfully terminated, a Chicago employment attorney can help.
Pregnant Employee and Applicant Rights in Illinois
Under Illinois Public Act 98-1050, it is unlawful for an employer to act in any of the following ways when the action is based on an employee’s or applicant’s pregnancy status:
Refuse to hire or promote;
Discipline, discharge, demote, or reduce pay;
Refuse to reinstate an employee at their former position and pay after they have taken time off from pregnancy;
Retaliate or harass in any way;
Refuse reasonable accommodations for the pregnant employee, such as a safe place to express milk, unless those accommodations would cause undue hardship for the employer;
Require the employee to accept accommodations that they do not wish for; and
Fail to post or keep employees informed of these rights.
Reasonable Accommodations
If a pregnant employee asks for a reasonable accommodation to be made, such as being allowed to take longer bathroom breaks or be moved to light duty, it is the burden of the employer to deliver these accommodations unless the employer can prove that it would cause them undue hardship, such as exorbitant costs. However, instead of making accommodations, some employers turn around and fire the employee for simply asking. If this has happened to you, your employer has violated state and federal laws.
Family and Medical Leave Act
Under the federal Family and Medical Leave Act, employees who have given birth to children (fathers are included too) are allowed at least 12 weeks of unpaid time off work to care for their child or recently adopted child. The time frame that a parent can use these 12 weeks is within one year of the child’s birth or adoption. During this time, the employee is allowed to stay on their group healthcare as well. Employers must allow the employee to return to their position at their original pay and status after these 12 weeks.
Contact a Chicago Employment Lawyer Today
Some employers view pregnancy as an expense that they have to bear due to loss of productivity, and fire employees for becoming pregnant or taking time off after they give birth. In both of these situations, the employer has acted unlawfully, and needs to be held accountable by a wrongful termination lawsuit. Call the wrongful termination attorneys at the Chicago law offices of Goldman & Ehrlich today for assistance.
Hate crimes against Muslims have never been higher in the U.S. than now. Even in 2001 after the September 11th attack on the Twin Towers, hate crimes against Muslims were fewer, according to the Pew Research Center. Hate crimes are not always easy to prove, and only a fraction of hate crimes are even treated or reported as such. Under the Trump Administration, hate crimes and discrimination against Muslims will undoubtedly continue to rise, as the preliminary numbers for 2017 in many areas show. One of the most devastating ways in which Muslims are discriminated against is in the workplace. Illinois and federal laws protect people of all races and religions from harassment and other forms of discrimination at work, but the first step is up to you. Contact a Chicago employment attorney at the first sign of discrimination.
Unlawful Acts
The Illinois Human Rights Act, along with the federal Equal Employment Opportunity Commission (EEOC), prohibit an employer from retaliating or discriminating against employees of any type of religion or faith, or lack of a religion. The nationalistic attack on Muslims that Donald Trump and others have embraced and emboldened has caused serious harm to Muslim families throughout the Chicago metropolitan area. Examples of discriminating against a Muslim employee, or a person that an employer believes to be Muslim, include the following:
Refusal to hire;
Refusal to promote;
Denying promotions and equal pay;
Not allowing traditional clothing, such as hijabs. The EEOC also grants clothing freedom to other religions, such as the Sikh turban, the Christian cross, and the right for female employees to not wear pants or shirt skirts (Muslim, Pentecostal Christian, and Orthodox Jewish);
Enforcing grooming practices that go against Islam, such as requiring beards to be shaved. Again, the EEOC grants similar rights to other religious groups, such as allowing Rastafarian dreadlocks and Sikh uncut beards and hair; and
Much more, such as harassment, allowing harassment to happen in the workplace by not taking reasonable steps to stop it, or retaliating against the employee for filing a discrimination claim or asking for a reasonable accommodation to be made for their religious practices.
Call a Chicago Attorney Today
Unfortunately, discrimination against Muslim employees happens on a daily basis in Chicago, which hurts the Muslim community’s chances to make a living, receive promotions, work in peace, and to feel accepted by their coworkers. If you have been discriminated against in any way, you need to contact a Chicago employment lawyer with Goldman & Ehrlich today for help.
