Race/Sex/Religion Discrimination  Articles

Clear and Consistent Reasons for Termination Essential in Defending Discrimination Suits

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            In most discrimination cases employers are required to articulate a legitimate, non-discriminatory reason for taking an adverse action against an employee. When an employer is able to do so, and the employee is unable to prove the offered reason is false, the employee will normally lose the case. For this reason it is important that employers carefully determine the reason for any adverse decision, clearly communicate it to the employee, and not deviate from it in subsequent communications or litigation proceedings.

Genetic Information Discrimination

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            Effective November 21, 2009 employers will be subject to a new set of federal rules regarding the use of genetic information. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from making employment decisions based on genetic information. The law covers all private employers with 15 or more employees as well as all public sector employees. Under the law, employers may not request employees to undergo genetic testing, use information from such tests taken by an employee or family member, or consider family medical histories. Family members are defined as all relatives to the fourth degree, whether by blood or marriage, or adoption.

Employers Have Duty to Prevent Sexual Orientation Harassment

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            In a case of first impression, the Connecticut Superior Court held the Connecticut Fair Employment Practices Act imposes liability on employers who fail to prevent the creation of a hostile work environment based on sexual orientation. Patino v. Birken Manuf. Co., CV 05 4016120 S, (Conn. Super. Ct. May 15, 2009).

New Haven Firefighters Win Reverse Discrimination Claim

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            In a widely anticipated case the U.S. Supreme Court held that New Haven discriminated against a group of white and Hispanic firefighters when it threw out the results of a promotional test that African Americans did poorly on. Ricci v. DeStefano, Nos. 07-1428 and 08-328 (June 29, 2009). In its highly technical 5-4 decision, the Court attempted to balance two requirements of discrimination law; (1) that employers not intentionally discriminate (“disparate treatment”), and (2) that even in the absence of intentional discrimination, employment policies cannot statistically impact any one race adversely (“disparate impact”). By throwing out the tests to avoid being sued for disparate impact by the African American firefighters, New Haven was found to have engaged in disparate treatment discrimination against the white and Hispanic firefighters.

Pay Based Discrimination to be Treated as a Continuing Violation

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            On January 29, 2009 President Obama signed his first piece of legislation, the Lilly Ledbetter Fair Pay Restoration Act of 2009. The new law reverses the U.S. Supreme Court’s decision in Ledbetter v. Goodyear, which held the deadline for filing a pay discrimination charge is measured from the date of the initial discriminatory pay decision. Now the deadline will be measured from the date of any subsequent paycheck received following such discriminatory decision. In effect, the Act recognizes a continuing violation theory that resets the deadline for filing a claim each time an employee receives a paycheck affected by a prior discriminatory decision. This makes it much easier for employees to bring pay discrimination claims.


 

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