Employee of Staffing Agency Unable to Pursue Discrimination Claim Against Client Company

A district court ruled that an employee hired by a staffing agency was unable to pursue a religious discrimination claim against the medical facility where she was assigned to work. The staffing agency that employed her and paid her salary retained sufficient control over its workers that the court declined to confer employer status to the medical facility, despite the fact that the employee physically worked on its premises. As a result, the staffing agency employee was unable to pursue her claim that she had been religiously discriminated against when the medical facility refused to allow her to wear a headscarf. 

Protection for Caregivers

The Equal Employment Opportunity Commission (EEOC) has imparted a strong message to home health agencies and other health care facilities: do not allow your paying customers to harass your caregivers. While that might seem obvious, the difficulty lies in balancing the protection of employees with the treatment of customers. Clearly, Title VII protects caregivers from sexual harassment in the workplace when it is perpetrated by other employees. The question is, to what extent is the employer responsible when the harassment comes from a customer?
The EEOC has warned health care facilities about failing to take action if they have knowledge that a customer has been harassing one of their caregivers. While the facility may view the behavior of its customers as a “clinical” issue due to the fact patients may be on medication that causes them to behave erratically, the duty to protect its caregivers cannot be explained away. Accordingly, patient care entities should take certain steps to protect both their employees from harassment, and themselves from liability, by (1) ensuring there is a policy in place which explains that harassment by customers is taken seriously, and communicates a complaint method to employees; (2) emphasizing that any employee lodging a complaint will not be retaliated against; and (3) providing training to demonstrate how an employee should react to a customer if he or she displays such behavior. In addition, there may be limited circumstances necessitating the presence of two caregivers when attending to a patient.

Male worker unable to pursue same-sex harassment claim

A male worker was unable to pursue his “same-sex” harassment claim because he could not show that the treatment he received was based on his gender. The employee, who worked on an oil rig, alleged that a male co-worker would frequently use sexually charged language when speaking to him, and told him that he had a “pretty mouth and pretty lips.” However, the employee did not establish that his co-worker’s conduct was triggered by his gender. Instead, it appeared that the co-worker was a bully who “enjoyed mentally and physically tormenting weaker people around him.” Without evidence that he was targeted because of his gender, the employee could not pursue his claim of harassment.

FMLA Documentation Requests Must Warn Employee of Consequences for Non-Compliance

A recent Texas case highlights both the importance of warning employees of the consequences of non-submission of requested FMLA documentation and of ensuring that the reasons behind an employee’s termination pass muster under close examination. In this case, anemployee was denied a Family and Medical Leave Act (“FMLA”) extension for failure to turn in a requested medical certification form by a specified deadline, and was thereafter terminated for excessive absenteeism.
The employee had been initially granted a one month FMLA leave after submitting supporting documentation, including a doctor’s certificate. She thereafter requested additional FMLA leave and was told to submit a renewed medical certification to justify the extension. When the required certification was not received by the employer by the specified deadline (which was approximately 17 days after the expiration of her approved leave), the employee was terminated for excessive absenteeism, retroactive to the date her approved FMLA leave had expired. 
Despite the employee’s failure to submit the medical certification, the court found that the employer’s failure to warn her of the consequences (i.e., termination) of not submitting the documentation was fatal to its summary judgment motion and mandated that the case proceed to trial. Additionally, the employee had presented enough evidence to indicate that her termination could have been a consequence of her FMLA request, suggesting retaliatory motives on the employer’s part. In reaching this conclusion, the court noted that the employer had failed to submit an attendance policy to support its stated reason for termination (excessive absenteeism). 

Health-Care Worker’s Right to a Non-Discriminatory Workplace Takes Precedence Over Patients’ Demand for White-Only Health Care Provider

A federal appellate court recently held that a racial preference policy violated Title VII by creating a hostile work environment. In this case, the nursing home housed one resident who completely refused assistance from black certified nursing assistants, as well as a few other residents who objected to help from black workers in specified situations (such as showering). The nursing home acquiesced to the patients’ demands to the point that a black nursing assistant was told on a daily basis that “no black” assistants should enter the room of the specified resident or otherwise provide care to her. Additionally, co-workers would constantly remind this employee that she was “not allowed” to assist certain residents because she was black. The policy was enforced to such a degree that on at least one occasion, when the resident with the “no-blacks” prohibition had fallen on the ground and was too weak to stand, the employee had to search the building for a white CNA. Distinguishing the racial prohibition from bona fide gender-based requests by residents, the court held that the “reminders” to employee Chaney about patients’ racial preferences and the nursing home’s policy of consenting to “white-only” patient demands created a hostile work environment.