Supplemental materials for LEAP 2025 session You’ve Been Sued: How to Prepare and Prevail
Memo
Re: Employee Lawsuit Risks
When it comes to employment law, it’s always easier—and less expensive—to learn from others’ mistakes rather than your own. Here are five recent court cases that serve up good lessons for any manager:
1. Nix the nicknames: ‘Grandma’ and ‘Hank’ will get even
The case: Soon after a 54-year-old employee who’d worked at an electronics store for 17 years was demoted, she sued for age discrimination. Her evidence? A new supervisor had the habit of calling her “Grandma” and suggesting that she retire to spend time with her grandchildren. The court agreed, saying, “Calling someone ‘Grandma’ does suggest ageism.” (McDonald v. Best Buy, DC IL)
In another case, a supervisor insisted on referring to employee Mamdouh El-Hakem as “Manny,” saying the name would help him do better with clients. The employee protested, so the supervisor started calling him “Hank.” As you can guess, the employee sued for racial discrimination and the court agreed. (El-Hakem v. BJY Inc., 9th Cir.)
The lesson: Avoid attaching to employees nicknames that carry even the perception of being tied to a protected characteristic, such as race, age, gender, religion, national origin or disability.
2. Inconsistent discipline: A sure loser in court
The case: An employee of Indian descent felt she was criticized for her work mistakes far more harshly than her white co-workers. So she set out to prove her thesis. She kept a notebook and tracked when she was critiqued compared with her colleagues.
When she was fired for insubordination, she sued, saying that the real reason was national-origin discrimination. The court sent the case—and the woman’s notebook—to a jury trial. (Reddy v. The Salvation Army, SD NY)
The lesson: Trouble will come to supervisors who issue oral and written rebukes to certain employees yet overlook the same actions by co-workers. Such inconsistency will kill you in court, as this case shows.
3. Never bad-talk employees who take FMLA leave
The case: A railroad employee was in a 26-week training program to become a train engineer. Because of his medical condition, he had to take unpaid, job-protected leave during the program. The leave was covered under the Family and Medical Leave Act, which prohibits employers for punishing employees from taking such leave. But his supervisor made comments about his absence, asking whether he was “finally done with FMLA,” and saying the leave was a “distraction.”
When the employee missed the final training day, he was booted from the program. He sued, alleging he’d been punished for taking FMLA leave. The court agreed, citing the supervisor’s resentful comments. (Erickson v. Canadian Pacific Railway, DC MN)
The lesson: Never retaliate against employees because they take FMLA leave or are involved in any other “protected” activity.
4. Avoid strict ‘English-only’ language rules for employees
The case: A supervisor at a mall department store told six Somali workers who sorted clothes in a basement office that they’d be fired if they spoke “even one word of Somali” to each other at work.
Luckily for the store, the case didn’t make it to court. After some bad publicity and threats of a lawsuit, the store stepped in, apologized to the workers and disciplined the manager.
The lesson: You can require employees to speak English only for clear business reasons, such as customer service (talking to customers in English) or safety (talking to each other in one language at risky jobs).
Never mandate that English be spoken in break rooms or during off-duty hours. And make sure any language rules don’t carry any hint of discrimination.
5. Porn on computers can count as sexual harassment
The case: A female office employee claimed that her co-workers on three occasions had exposed her to pornographic images on their computer screens. She sued for sexual harassment, saying the company did nothing to protect her. The court sided with her, saying the images “were severe enough to have altered the terms” of her employment. (Criswell v. Intellirisk, 11th Cir.)
The lesson: Don’t take a casual attitude toward employees viewing inappropriate websites on their computers. As this case shows, courts are clamping down on companies that don’t do enough to protect employees from their co-workers’ online pornography.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
