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Employee not eligible for FMLA leave still protected by non-discrimination provisions

  • Sherman & Howard LLC
  • -
  • USA
  • -
  • September 6 2012

Many employers offer leave of absence benefits to employees that supplement leaves of absence provided by the Family and Medical Leave Act

Employer directive that employee get unspecified “counseling” treated as unlawful “medical examination”

  • Sherman & Howard LLC
  • -
  • USA
  • -
  • September 6 2012

Heaven help the misguided employer who instructs an employee to go for unspecified "counseling."

The declining value of non-disparagement provisions in separation agreements

  • Sherman & Howard LLC
  • -
  • USA
  • -
  • November 3 2010

When entering into settlements or release agreements with departing employees, some employers want to bargain "hard" for non-disparagement provisions

Employer’s intrusion into employee’s Facebook page may be invasion of privacy

  • Sherman & Howard LLC
  • -
  • USA
  • -
  • July 9 2012

A federal district court in New Jersey recently addressed a question about which employers have long speculated, but had no answer, whether an employee can successfully assert an invasion of privacy tort claim against an employer that makes unauthorized access to the individual's Facebook account

Property owners have no indemnification or other liability-shifting rights against consultants whose advice results in ADA Title III violations

  • Sherman & Howard LLC
  • -
  • USA
  • -
  • November 5 2012

Owners of "public accommodations" covered by Title III of the Americans with Disabilities Act, as well as public entities with facilities governed by Title II of the ADA, often rely on the advice of consultants for compliance with the ADA's accessibility requirements

HR director has no retaliatory discharge claim based on dismissal during her investigation of internal discrimination complaint

  • Sherman & Howard LLC
  • -
  • USA
  • -
  • July 9 2012

In our last newsletter, we observed that courts have increasingly been restricting retaliation claims, by circumscribing recognized employee "participation" in proceedings under the discrimination laws and employee "opposition" to unlawful discrimination

Employee’s opposition to LBGTQ community: protected religious belief or unprotected bigotry?

  • Sherman & Howard LLC
  • -
  • USA
  • -
  • May 1 2012

The lines between employees' protected religious beliefs and employees' unprotected opinions on social issues are often blurry

Is the scope of protected “opposition” shrinking?

  • Sherman & Howard LLC
  • -
  • USA
  • -
  • May 1 2012

Section 704 of Title VII protects an employee from retaliation for "opposing" the employer's illegal discrimination or for "participating" in a proceeding raising a claim of discrimination banned by Title VII

Individual liability recognized in “cat’s paw” race discrimination cases under Section 1981

  • Sherman & Howard LLC
  • -
  • USA
  • -
  • July 9 2012

Last year, the U.S. Supreme Court formally recognized the so-called "cat's paw" theory of discrimination - that an employer is liable for unlawful discrimination if it takes any adverse action against a person based on a recommendation from a biased supervisor, even if the higher-ranking managers who make the decision on the action do so innocently

Inaccurate information given in post-offer, pre-hire exam may not be basis for employee’s later discharge

  • Sherman & Howard LLC
  • -
  • USA
  • -
  • September 1 2011

The Americans with Disabilities Act permits an employer to require an applicant to pass an employment entrance examination, if the applicant has received a conditional job offer, if the examination inquires into the ability of the applicant to perform job-related functions, if all such entering employees are required to undergo an examination, and if the information obtained is retained separate from other records and is treated as a confidential medical record