Monthly Archives: January 2010

Discrimination Against Federal Air Marshals? Really…?

January 30th, 2010

Plane image.jpgAccording to a newly filed lawsuit, the federal air marshals that protect against terrorist acts in the sky are subject to a racially insensitive and hostile work environment. There are over 3,000 federal air marshals but apparently the friendly skies are not as friendly as you might think. Many air marshals – including several based in Miami and Orlando – are claiming to have been the victim of employment discrimination and of being forced to work in a hostile environment.
One would think that the federal government does a fantastic job at preventing workplace disrimination, but all too often government officials and agencies look the other way and allow a hostile environment to foster and linger. Most federal anti-discrimination and anti-retaliation laws protect government and public-section employees just as strongly as they protect private employees. If you work for the State of Florida, a municipality within Florida, or a federal agency, it is imperitive that you contact an experienced employment attorney as soon as possible, and preferably while you remain employed.

Posted in Government Workers, Racial Discrimination, Retaliation | Comments Off

Posted in Government Workers, Racial Discrimination, Retaliation | Comments Off

Federal and Florida Law Prohibit Discrimination Based on HIV Status

January 26th, 2010

Although the major federal employment discrimination statute, Title VII of the 1964 Civil Rights Act, and the major Florida employment discrimination statute, the Florida Civil Rights Act, do not prohibit discrimination based on sexual orientation, both state and federal law prohibit discrimination on the basis of a person’s HIV status.
HIV positive Floridians are protected under the federal Americans with Disabilities Act. In a landmark settlement, the Equal Employment Opportunity Commission settled an HIV discrimination lawsuit against Cirque de Soleil for a staggering $600,000.
Two state laws also protect HIV positive Floridians. First, the Florida Civil Rights Act contains the same disability discrimination prohibitions as the federal Americans with Disabiltiies Act, and thus HIV status is a qualifying disability under state law. Second, Florida has a specific HIV status disrimination statute, section 760.50 of the Florida Statutes, that prohibits discrimination in employment, housing and public accomodations based upon a person’s HIV status, and importantly, the perception of a person’s HIV status. Thus, an employee (gay or not) fired because the employer suspects or fears that the employee is HIV positive, even when the employee is not HIV positive, is still protected under Florida law.
These are sensitive matters and it is important that you confidentially consult an experienced HIV discrimination employment attorney as soon as you suspect the discrimination. If you wait, it may be too late.

Posted in Disability Discrimination, HIV Status Discrimination, Sex Discrimination | Comments Off

Posted in Disability Discrimination, HIV Status Discrimination, Sex Discrimination | Comments Off

Returning to Work After Taking Family and Medical Leave Act Leave

January 25th, 2010

The Family and Medical Leave Act gives certain employees the right to take up to twelve weeks of unpaid leave to care for a new baby, to fight a serious medical condition or to care for a dependant family member. It was President Clinton’s very first piece of legislation and is considered groundbreaking for its acknowledgment that many families are one medical condition away from bankruptcy and that women, more so than men, are subtly punished for having a child. But unlike most employment statutes that require intentional misconduct by the employer, the FMLA is a “strict liability” statute. The company has an affirmative obligation to compy with the FMLA, and when it fails to do so, even unintentionally, it could face serious monetary penalties.
The biggest problem area facing both employees and employers is the “right to return to work” provision. Employers must return a person on FMLA leave to the same or equivalent position, except in the rare circumstance where the position is no longer available due to reasons “wholly unrelated” to the FMLA leave. Two recent cases filed in federal court in Miami highlight the potential danger for employers. First, in Marks v. Orion Medical Enterprises, the employee was denied reinstatement after taking FMLA leave, purportedly because the employee was not physically capable of returning to work. (In the interest of full disclosure, the case against Orion was brought by the author of this blog). Second, in Guzman v. Royal Caribbean Cruises, the employee was returned to work after taking FMLA leave, but according to the complaint, the employee’s temporary replacement assumed the employee’s responsibiltiies and the employee who took leave was essentially shunned by the company upon returning to work.
It is common for employers to use an employee’s FMLA leave to try out new or temporary employees or to “shake things up.” But this is illegal and it frequently gets employers in trouble. Even if the employer did not intend to discriminate against the employee who took FMLA, the company is still violating the FMLA by failing to reinstatement the employee to the same or equivalent position.
If you are contemplating taking FMLA leave, you should contact an experienced FMLA employment attorney before you take leave to make sure that your rights are protected ahead of time.

Posted in Family and Medical Leave Act, Pregnancy Discrimination, Retaliation, Sex Discrimination | Comments Off

Posted in Family and Medical Leave Act, Pregnancy Discrimination, Retaliation, Sex Discrimination | Comments Off