Employment Law Alert

Disability did not have to be the "sole cause" of an adverse employment action in order for a Plaintiff to recover. In a recent decision (McNealy v. Ocala Star–Banner Corp.), the U. S. Court of Appeals for the 11 th Circuit, whose jurisdiction includes Florida, held that under the Americans With Disabilities Act it is improper to only impose liability against an employer when the disability is the sole basis for an adverse action taken against an employee. The Court reasoned that to allow this standard would improperly tolerate discrimination as long as the employer's action against the employee was based "if ever so slightly" on at least one other factor.

Practical Implication. Be sure that you have a legitimate and well-documented business reason when an employee who is subject to coverage under the ADA is terminated.

Sexual Harassment Policy will not always protect an employer from liability. A female supermarket employee was repeatedly sexually harassed by a male co-employee. The harassment included grabbing the female employee's breasts. The victim reported each incident to the store manager, but the manager mechanically told the employee that the company's policy required her to report the incident to the Human Resources Department. The employee never reported the behavior. The Eighth Circuit Court of Appeals held that this failure to follow exactly the company's harassment policy does not prevent liability against the employer because the employer had actual notice of the harassment and failed to take immediate remedial action (Vaner v. National Supermarkets).

Practical Implication. All supervisory and management personnel of an employer should be trained with regard to sexual harassment and told to immediately follow up on complaints of harassment, even if the official policy is for the employee to contact another supervisor or department concerning the alleged harassment.