New USDOL Whistleblower Procedures

The United States Department of Labor and OSHA enforce the whistleblower provisions of the Occupational Safety and Health Act, along with some 18 other laws which protect employee who report violations in industries such as commercial motor carriers, airlines, nuclear power and health care. New procedures for handling whistleblower complaints were published for public comment and will be finalized after November 1. Among other things, the new regulations will allow filing of complaints by phone as well as in writing, and in languages other than English. You can view the new regs at http://www.osha.gov

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Federal Employee's Request for Reasonable Accommodation is a Protected Activity - Agency May Not Retaliate

The Rehabilitation Act of 1973, 29 U.S.C. §701 et seq., protects a federal worker from discrimination because he or she has a disability. The Act requires agencies to provide reasonable accommodation to an individual's physical or mental disabilities unless the agency can prove that the requested accommodation will create an undue hardship. In this regard the Act incorporates the protections afforded under the Americans with Disabilities Act, as amended, which includes more recent and more detailed requirements. Accommodation may involve the removal of physical barriers. It may also include job restructuring and part-time or modified work schedules. Thus, a flexible work schedule may qualify as a reasonable accommodation. Both laws expressly prohibit employers from taking retaliatory actions against employees who oppose acts or practices which are made unlawful, for making charges and/or for participating in related investigations or proceedings. It is also unlawful to c

Circumstantial Evidence of Age and Race Discrimination

The U.S. Court of Appeals for the Eleventh Circuit vacated a district court’s order granting summary judgment to the employer in a case alleging age and race discrimination, Kilgore v. Trussville Development, LLC dab Hilton Garden, Inc., 2016 U.S.app. LEXIS 5464; 646 Fed. Apps. 765 (11th Cir. 2016). The text of the decision can be found at https://www.courtlistener.com/opinion/3188580/valarie-kay-kilgore-v-trussville-development-llc/ Ms. Kilgore presented circumstantial evidence which supported an inference that the employer’s claim that she was fired for being rude to guests was a pretext. She presented evidence that she was replaced by two newly hired employees who were younger and African-American - Ms. Kilgore was a Caucasian woman in her sixties. In addition, her superiors had made derogatory statements about her age (that she was “a stubborn old woman” and “too old”) and also about her race (that she was “the wrong color.” Such comments are circumstantial evidence of d

Indirect Proof of Discrimination

Title VII cases often are resolved without a trial. Whether the District Court properly entered summary judgment for the employer is the subject of many Eleventh Circuit appeals. A significant decision, Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011) held that a triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents "a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decision maker." And it is well-settled that if a plaintiff presents a prima facie case together with evidence tending to discredit the employer's proffered reasons for the alleged discriminatory action the trier of fact may reasonably conclude that the employer intentionally discriminated. See Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000) in which the U.S. Supreme Court so held, stating specifically that no additional evidence of discrimination is needed to create a

Worker Rights and Remedies

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