At Work: Solutions for Employers & Employees

by Tiffanie C. Benfer, Esquire
On January 24, 2011, a unanimous Supreme Court (with the exception of Justice Kang who took no part in the consideration or decision) held that Title VII creates a cause of action for a third party who themselves did not engage in protective activity but were the subject of employer’s retaliation. Thompson v. North American Stainless, LP, 562 U.S. _____ (2011). This employee-friendly decision by this conservative court should not come as a complete surprise given the Court’s 2006 unanimous decision in Burlington Northern & Santa Fe v. White, 126 S.Ct. 2405 ( 2006).

Continue reading "ONCE AGAIN THE SCOPE OF RETALIATION IS BROADENED BY A UNANIMOUS SUPREME COURT" »

Posted by Tiffanie Benfer at 10:57 AM | Permalink | Comments (0) | TrackBacks (0)

Has your employee asked for time off under the FMLA? The Third Circuit has made clear that firing that employee after the leave is requested but before it begins constitutes unlawful “retaliation” under the FMLA.

Last week’s decision in Erdman v. Nationwide Insurance Co., clarifies confusing and nonsensical language in an earlier Third Circuit decision (Conoshenti v. PSE&G) which stated that the first requirement of a retaliation claim is that the employee took an FMLA leave. Employers have used the Conoshenti decision to argue that there is no retaliation under the FMLA if an employee is fired before actually taking leave.

The Third Circuit recognized that “it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave began.” The court made clear that firing under these circumstances constitutes “retaliation” as well as “interference” with the FMLA.

On the question of “associational discrimination” under the Americans with Disabilities Act, the court in Erdman cut the baby in half, leaving both employers and employees dissatisfied.

Continue reading "Employers: Take Care Before Firing an Employee who Has Requested FMLA Leave" »

Posted by Tiffanie Benfer at 12:28 PM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer

Just this morning, the Court issued a decision that sets forth a broad interpretation of the anti-retaliation provision of Title VII, and concluded it applies to employees participating in an internal investigation of Title VII violations. The decision in Crawford v. Metropolitan Government of Nashville will make it easier for employees to bring retaliation claims. It serves as a caution to employers, who should be aware that they may be liable for retaliation even if a court finds that there is no merit to the underlying discrimination claim.

Continue reading "The Supreme Court Recognizes a Broad Interpretation of the Anti-retaliation Provision of Title VII " »

Posted by Tiffanie Benfer at 12:44 PM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer, Esq.

January is National Stalking Awareness Month. I think it is quite poetic that on January 9, 2009, the Supreme Court considered Ms. Dawn Martin’s Petition for rehearing, which asks the Court to reconsider whether her termination for reporting a stalker in the workplace falls within the scope of the anti-retaliation provision of Title VII. Ms. Martin was stalked in her workplace, and then was subsequently fired for asking her employer to implement existing security procedures to keep the stalker out of the workplace. If the lower court’s decision is not reversed, women like Ms. Martin will be forced to choose between their safety and their job. The Court previously denied Ms. Martin’s Petition for Certiorari in 2008.

Ms. Martin asks that the Court reconsider her work place stalking case in light of the Court’s consideration of Crawford v. Metropolitan Government of Nashville and Davidson County. http://www.oyez.org/cases/2000-2009/2008/2008_06_1595/ Oral argument in the Crawford matter took place on October 8, 2008, the Court considered: “Does the anti-retaliation provision of Title VII of the Civil Rights Act apply to employees fired for participating in an internal investigation of sexual harassment?”

Continue reading "The Supreme Court Considers Again the Scope of Title VII's Anti-Retaliation Provision" »

Posted by Tiffanie Benfer at 10:24 AM | Permalink | Comments (0) | TrackBacks (0)