Saturday, December 22, 2012

Iowa Supreme Court Decides Employers Can Fire Women Who Are "Irresistibly Attractive?"

Normally, I would preface my blogs with a picture, but I would like to keep this post safe for work and I can only imagine that a picture of an "irrestibibly attractive" employee could get some of my readers in trouble...

Just yesterday, the Iowa Supreme Court, which has recently been right on the forefront of civil rights matters, handed down an incredibly confusing and highly illogical opinion regarding gender discrimination. In Nelson v. Knight, the Court upheld summary judgment in favor of the employer.

Yes. You read that right. Summary judgment. Indeed, no facts were at issue in this case. Essentially, what the Court said was what Nelson pleaded did not form a prima facie case of sex discrimination.

Well, let's talk about those pesky facts a bit (and for the time being, let's skip the employment setting). Nelson was a younger women. Knight was a older, married man. Nelson and Knight exchanged innocuous text messages outside of work. Nelson thought of Knight as a father figure. Knight's wife became jealous of their relationship.

But wait there is more. Knight told Nelson that her tight fitting clothing was distracting and revealing, Nelson denies that to be the case. Okay, fine. Then Knight told Nelson that "if she saw his pants bulging, she would know her clothing was too revealing." Umm, what now? Nelson once commented that she had an inactive sex life, Knight said that was like having a Lamborghini and never taking it out of the garage. After some more innocuous texts, Knight's wife demands he fire Nelson as she was a threat to their marriage.

Ok, let's step back a second. Iowa follows Title VII in that it is a motivating factor state. Nelson had to prove that she was a member of a protected class (female), suffered an adverse employment action (termination), and that her being female was the motivating factor for the adverse employment action.

Granted, Title VII's standard is a fairly tough one and notoriously difficult to survive summary judgment, but where is the legitimate business reason for termination here? Was she a bad employee? No, Knight said himself she was the best he ever had. Was she scaring away clients with her tight-fitting clothing? No. I cannot even think of any truly legitimate reasons based off these facts.

So why summary judgment? As the Court so eloquently put it, the decision was motivated by "feelings and emotions" and fear of losing his wife. Moreover, he employed other women and replaced Nelson with a woman--clearly there was no way this man could be gender discrimination.

Fine, say what you will Court. Why was she fired? Because she was an attractive woman and he was a man. If Nelson was Daniel Craig or David Beckham, she would still have a job because Knight's wife would have nothing to be jealous of (and Knight would likely have more female business). But no, Knight was attracted to an employee and fired her because of it.

The Court engages in mental gymnastics to justify the decision, such as stating that civil rights laws are there to protected whole classes and Knight replaced a female with a female so... They cite to some case law that states employees who engage in sexual activities with their bosses can later be fired as support for the idea that she "asked for it" with her clothing.

Most interesting is how the Court addresses the slippery slope concept. Nelson asked, what if he fired multiple women because of attraction or his wife's jealousy? Well, the Court said that those would be different cases, as if the number of people affected has any bearing on the implementation of the civil rights laws.

I could on for days about this decision... Here is the takeaway for our local readers. Fortunately, in Missouri, the court employs a contributing factor standard. This means that if discrimination plays at all into the adverse action it is discrimination. Even if discrimination is one percent of the decision to fire and the remaining ninety-nine percent is legitimate, a prima facie case can be made. Kansas law is more akin to the law in Iowa and Federal law.

One parting shot- the Missouri legislature is looking to gut the Missouri Human Rights Act (yet again) and potential targets could be the contributing factor standard. Please contact your local representative and tell him or her to stand up to discrimination.

If you have any questions about discrimination in the workplace as it applies to you, please do not hesitate to call Jordan Bergus at the Paulus Law Firm- (816)581-4040.


Jordan Bergus
Paulus Law Firm, LLC

Thursday, December 20, 2012

Swope Health Services hit with class action lawsuit for failure to pay overtime to employees

The Paulus Law Firm has filed a class and collective lawsuit against Swope Community Enterprises and Swope Health Services on behalf current and former community support specialists. The class action lawsuit pending in the Western District of Missouri alleges that   Swope Community Enterprises and Swope Health Services misclassified community support specialists and clinical social workers as exempt under the Fair Labor Standards Act (“FLSA”) and failed to pay these workers overtime as required by law.
The former and current employees claim that they were required to work approximately sixty to eighty hours a week without just compensation. The FLSA requires each covered employer to compensate all employees for services performed and to compensate them at a rate of not less than one and one-half times the regular rate of pay for work performed in excess of forty hours in a work week. If you’ve been forced to work off the clock or have been misclassified as exempt, call the Paulus Law Firm at 816-581-4040 to speak to an attorney.

Monday, November 26, 2012

Be Careful When Posting About That Great Night Out On Facebook

Just three weeks ago, the 6th Circuit ruled that an employee's Facebook posts can be used to establish as evidence of an employer's honest belief that there was a fraudulent FMLA claim, even if the claim was real.

In Jaszczyszyn v. Advantage Health Physician Network, the Plaintiff/Petitioner had worked for the Defendant/Respondent for a year and a half and began taking intermittent FMLA leave due to a back injury sustained ten years earlier. Long story short, Jaszczyszyn attended a local festival, consumed a few adult beverages, and posted photos on Facebook from the event. Jaszczyszyn was friends with several coworkers on Facebook and these "friends" saw the photos and reported the incident to Jaszczyszyn's supervisor. Shortly thereafter, Jaszczyszyn was terminated and later filed suit for retaliation and FMLA interference.

Without getting down into the weeds of the Court's ruling, the Court ultimately found that the Defendant could form the "honest belief" that Jaszczyszyn was not disabled in the way she claimed and was fraudulently taking FMLA leave.

So why does this decision matter? Well, if you are smart about what and when you post, it does not matter at all. But if you are someone who loves to post pictures of drunken escapades on the town and wild dance parties, stop. If you are that person and plan on calling in sick every day after one of those nights out, seriously stop. Unless of course you do not want to keep your job.

While this decision is outside of the 8th Circuit, the reasoning is sound and there is no reason to believe it would not be adopted in-circuit. Take a lesson from Jaszczyszyn: be really careful who your "friends" are and do not think that you are so clever that you can trick your boss into time off, sick leave, or whatever else. Failure to heed this advice means you just might find yourself looking for a new job and probably some new "friends."

If you have any questions about wrongful termination, retaliation for taking FMLA leave, or anything related, please call Jordan Bergus at the Paulus Law Firm for a free consultation.


Jordan Bergus
Paulus Law Fim, LLC
Jaszczyszyn v. Advantage Health Physician Network, (6th Cir. Nov 7, 2012)

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Thursday, October 18, 2012

Second Circuit Strikes Down DOMA

Today, the Second Circuit Court of Appeals struck down the Federal Defense of Marriage Act as unconstitutional. In Windsor v United States, the New York based appellate court decided that DOMA violates the Constitution's Equal Protection Clause.

The Second Circuit joins the First Circuit in finding the law unconstitutional. That said, these decisions are likely only stepping stones to the Supreme Court, as the land's highest court will undoubtedly take up DOMA.

What does this mean in the Employment Law context? Federal law does not consider sexual orientation to be a protected class in the same way race, gender, and religion are---at least not yet.

A telling line from the opinion reads as follows: "Homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public." The Second Circuit seems to be putting this issue on a tee for the Supreme Court to knock out of the park by finding sexual orientation to be a protected class. If and when that happens, those discriminated against or harassed because of their sexual orientation should have the same rights in the workplace as everyone else.

Currently, seventeen states and the District of Columbia consider sexual orientation a protected class. Neither Missouri nor Kansas are included in that number. Ultimately, the decision the Supreme Court makes may very well expedite the process of ensuring that all are entitled to the same protections in Missouri and Kansas. We will just have to wait and see.

Have a question regarding your rights in the workplace or how this decision might affect you? Call the Paulus Law Firm at (816)581-4040 for a free consultation.


Jordan Bergus
Paulus Law Firm, LLC
Ex-CSC Employeee Sues Over Unpaid Wages, OT Pay

by Dan Rivoli

Law360, New York (April 14, 2011)--A former employee at information technology giant Computer Sciences Corp.'s Kansas Operation center hit the defense contractor with a class action Thursday for denying workers wages and overtime pay for work done off the clock.

Jennifer Tommey, a former consultant and account services assistant, accused CSC of denying nonexempt employees who are paid hourly at an Overland Park, Kan., facility wages for work-related activities performed during lunch breaks, and before and after their shift, according to a complaint filed in U.S. District Court in the District of Kansas.

If you believe that you are not being paid for all the hours you work, Please contact the Paulus Law Firm at 816-581-4040.

Appeals Court Overturns Injunction Keeping Lee's Summit Twins in School

Yesterday the 8th Circuit Court of Appeals overturned the Western District Court’s grant of a preliminary injunction that allowed Lee’s Summit twin brothers to stay in School. In the case titled S.J.W., et al. v. Lee’s Summit R-7 School Dist., et al., the brothers challenged their 180 day suspension for creating a bullying website. The twins argued that the suspension was a violation of their rights to free speech. The trial court agreed to halt the suspension until a trial could be had on the merits of the case. The 8th Circuit overturned that decision stating that the district court’s findings did not support the relief granted and that the twins were unlikely to succeed on the merits under the relevant caselaw.
Ryan M. Paulus
Paulus Law Firm L.L.C.

Friday, October 12, 2012

Age Discrimination Summary Judgment Overturned

In Acevedo-Parrilla v. Novartis Ex-Lax, Inc. Docket 10-2276, October 10, 2012, the 1st Circuit Court of Appeals overturned the district court’s grant of summary judgment in an age discrimination in violation of the Age Discrimination in Employment Act claim. On appeal the Appeals court noted that inconsistencies between the Company’s stated reasons for dismissal and the Plaintiff’s performance record together with that fact that the company took no disciplinary action against the Plaintiff’s younger replacement for similar conduct was sufficient to show pretext. The Court held that there was sufficient evidence presented on summary judgment from which a jury could draw the permissible inference that the Company’s claimed reasons for terminating the Plaintiff were pretextual and that the decision was a result of discriminatory animus.
Ryan Paulus
Paulus Law Firm