Circuit Split Created on ADEA and Section 1983

Darrell VanDeusen
Darrell VanDeusen
08/28/2012
The Seventh Circuit has split from all of the other federal appellate courts that have addressed the issue to hold that the Age Discrimination in Employment Act (ADEA) does not preclude the bringing of a Constitutional equal protection claim under 42 U.S.C. § 1983. Levin v Madigan, 2012 U.S. App. LEXIS 17291 (7th Cir. August 17, 2012). Every other appellate court has followed the Fourth Circuit’s decision in Zombro v. Baltimore City Police Dept.,...
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Telling an Employee to Attend Psychological Counseling May Violate the ADA

Darrell VanDeusen
Darrell VanDeusen
08/24/2012
Emily Kroll was working as an EMT for White Lake Ambulance (WLA) when her supervisor began to get reports from employees about concerns over Kroll’s well being. The supervisor also  received a complaint that Kroll had screamed at a “male acquaintance” on the phone while driving a vehicle with a patient in emergency status. The supervisor told Kroll to attend counseling if she wanted to continue working at WLA.  She said “no” and left the...
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What’s That Smell? ADA Requires Fragrance Accommodation

Randi Klein Hyatt
Randi Klein Hyatt
08/02/2012
By Randi Klein HyattAn Ohio county government employee had asthma and a severe chemical sensitivity to certain perfumes and fragrances.  In 2008, she began to experience problems breathing at work when working near co-workers wearing Japanese Cherry Blossom perfume.  She asked her employer to ask the co-workers to stop wearing fragrances.  The county did not and the employee’s symptoms and reactions worsened.  In February 2010, she actually had...
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Title VII is Not Exclusive Remedy for Discrimination Claims by Public Employees

By Eric Paltell  Unlike private sector employees, persons employed by state and local governments have workplace rights conferred upon them by the United States Constitution. A recent court decision from the United States Court of Appeals for the Eighth Circuit held that these Constitutional rights allow public sector employees to pursue discrimination claims even if they have not filed claims under Title VII of the Civil Rights Act of 1964. Henley...
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Court Finds No Accommodation Possible for Deaf Employee, So Employer Wins

Darrell VanDeusen
Darrell VanDeusen
07/17/2012
By Darrell R. VanDeusen Jessica Chrysler is a congenitally and profoundly deaf individual who communicates with hearing individuals by writing notes, gesturing, pointing, and miming. She can also type, text message, and use body language. Chrysler was hired to take pictures at a photography store, usually of young children. She also was required to sell photo packages. When working with other employees who could hear, Chrysler could perform just...
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“Cat’s Paw” Theory Applied in Title VII Case

Darrell VanDeusen
Darrell VanDeusen
07/16/2012
By Darrell R. VanDeusen Last year, in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), the Supreme Court held that the “cat’s paw” theory of liability could be used in a USERRA case. While the statutory language is different, most commentators expected that it would not be long until the theory was adopted for use under Title VII and other anti-discrimination laws. They were right. In Chattman v. Toho Tenax Am. Inc., 2012 U.S. App....
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I Won’t Take That Sitting Down

Randi Klein Hyatt
Randi Klein Hyatt
07/06/2012
By Randi Klein Hyatt The EEOC decided to file suit against a Rite Aid store who would not permit one of its cashiers with bad knees to sit for half of her shift. The store ultimately fired the cashier for being unable to perform the essential functions of her position. The EEOC and the cashier had suggested that the cashier be permitted to sit for 30 minutes of every hour that she worked. The trial court disagreed, finding such a request “per...
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