Sysco Fires an Employee Days After He Tells Them of Plan for Kidney Transplant

I consider the Americans with Disabilities Act, which prohibits employment discrimination against people with serious health conditions, one of the most important laws we have in employee rights. Cases of disability discrimination are often the most compelling cases I come across. Don Boswell, an attorney and good friend of mine, represents Mr. Cupid. Sysco, Mr. Cupid’s former employer, terminated his employment just days after Mr. Cupid discovered he needed and was qualified for a kidney transplant, as reported by The Palm Beach Post wrote an article regarding this matter. Here is a link to the story:

source of information

The impact of the termination in this case is extreme. Not only did Mr. Cupid lose his economic stability, he lost his health insurance and was taken off the transplant list as a result.

If Mr. Cupid proves his claim, the ADA can restore him to his position at Sysco and provide compensation for his lost wages and non-economic harms. It cannot, however, restore the injury to his health in the meantime.

For more information about discrimination in employment and your rights under Federal and Wisconsin law, visit our page here at

Lower-level Supervisor’s Discriminatory Motive Can Violate Civil Rights

On March 1st, 2011, the U.S. Supreme Court decided that a lower-level supervisor’s discriminatory motive in proposing disciplinary measures against an employee can form the basis for liability under the anti-discrimination laws in employment like Title VII of the Civil Rights Act of 1964 and the Uniformed Services Employment and Reemployment Act of 1994 ( USERRA ). This is known as a Cat’s Paw theory of liability for employment discrimination, as the lower-level supervisor proposes disciplinary action against an employee for an improper motive but the decision-maker may not have a discriminatory motive but relies upon the lower-level supervisor’s recommendation. While the actual decision-maker lacks a discriminatory motive, the decision is still tainted by the lower-level supervisor’s discriminatory motive. As long as the lower-level supervisor’s act, which was motivated by an unlawful discriminatory motive, is the proximate cause of the adverse action, like termination or a suspension, then the employer may be held liable for a violation.

This analysis can also apply to make discriminatory performance reviews that result in adverse action like termination, suspension, failing to promote, actionable where the reviewing supervisor gives negative remarks out of an unlawful discriminatory motive.

In Staub, the issue was related to an employee’s military leave, and the decision was made under the USERRA law, but the Supreme Court also discussed how the law would be applied in other areas of employment discrimination claims.

New Whistle-blower Protection in Food Safety Bill S 510

The U.S. Senate passed a bill on November 30, 2010, that passed into law will impose stricter food safety standards and more authority to the Food & Drug Administration to regulate tainted food. Included in the Food Safety Modernization Act, Senate Bill 510, at Section 402, are protections for employees of an entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding or importation of food. The protections of the proposed law will protect an employee that has:

  1. Provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this Act or any order, rule, regulation, standard, or ban under this Act, or any order, rule, regulation, standard, or ban under this Act;
  2. Testified or is about to testify in a proceeding concerning such violation;
  3. Assisted or participated or is about to assist or participate in such a proceeding; or
  4. Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this Act, or any order, rule, regulation, standard, or ban under this Act.

Where the employee has made one of the protected disclosures, the employer may not in any manner discriminate against the employee with respect to the compensation, terms, conditions or other privileges of employment. This provision will likely include protection against adverse actions similar to other non-retaliation laws which prohibit termination of employment, suspension, demotion, pay cuts, denial of promotion, rejection of employment upon application, and the like when such actions are motivated in substantial part by the protected disclosure.

The remedies provided include injunctive relief (an order to stop the unlawful retaliation), reinstatement, back pay with interest, special damages, attorney’s fees, litigation costs, and expert witness fees.

The procedure to file a complaint for a violation of this proposed law requires filing with the Occupational Safety and Health Administration (OSHA) within 180 days of the retaliatory act. OSHA must then conduct an investigation and can order relief. The OSHA order is then subject to appeal by either party to an administrative law judge with the Department of Labor, whose order can then be appealed to an appeals review board, whose order can then be appealed to the federal district courts.

The House of Representatives passed a similar bill earlier this year, H.R. 2749. The two bills must now be reconciled and voted on again. The consolidated bill should pass in 2011.

Employer Use of Credit Reports in Hiring Under Review by States

The Wall Street Journal reports today, October 21, 2010, that the use of credit reports or credit histories of job applicants, "a common practice among employers– is coming under fire." Employer Credit Checks on Job Seekers Draw Scrutiny, by Sarah Murray, WSJ_Article_Link. Employers claim that the use of credit reports in hiring is necessary to "evaluate candidates and protect against fraud." One of the underlying concerns in the use of credit reports for job applicants, the Journal reports, "is that poor credit could become a barrier to landing a job." Another concern is that the use of credit reports has the potential for discriminatory impact on hiring such that the Equal Employment Opportunity Commission held a hearing on October 20, 2010, to listen to testimony from advocates on both sides of this issue. Chi Chi Wu, counsel for the National Consumer Law Center, testified that the practice "is both harmful and unfair to American workers."

Although proponents of using credit reports for employment contend that these reports "are an important screening tool for employers intend to be used sparingly," the Journal reports that a study conducted by the Society for Human Resource Management "showed 60% of employers used credit checks to that job candidates. Of those, 13% use them for all candidates."

My own comments on the issue raised in this article is that whether or not you think credit history should be used for evaluating job applicants, it is important for all of us to ensure our credit reports are accurate. Inaccurate, negative information on credit reports can impact you in so many ways, we should all take advantage of the federal law that requires national consumer reporting agencies such as Equifax, Experian and Trans Union to provide a consumer his or her own credit report upon request for free. We are all entitled to this free report from each agency once in every 12 month period. You can order your free report for the website established by order of the Federal Trade Commission act

I would also note that in the 2009-2010 legislative session for Wisconsin, a bill was proposed to prohibit discrimination in employment based on one’s credit history with limited exceptions for certain types of jobs. Unfortunately, the bill never made it to the legislative floor. Hopefully, the building reintroduced in the 2010-2011 session.

What You Can Do If You Suspect Your Employment Rights as a Servicemember or Veteran are Violated

If a servicemember’s or a veteran’s rights under the USERRA law are violated, remedies may flow from two different processes. The first is the administrative route (handled by the United States Department of Labor, VETS). The second is the litigation route (handled by private litigation initiated by the servicemember/veteran or his or her attorney in the courts. Alternatively, the U.S. Attorney General or the Office of Special Counsel may file litigation on behalf of the servicemember or veteran. Remedies may differ depending on which route is chosen.

Remedies available through the administrative route can include:

  • Return to a job
  • Back pay
  • Lost benefits
  • Corrected personnel files
  • Lost promotional opportunities
  • Retroactive seniority
  • Pension adjustments
  • Restored vacation

If an individual is claiming entitlement to employment rights or benefits or reemployment rights or benefits and alleges that an employer has failed or refused, or is about to fail or refuse, to comply with the Act, the individual may file a complaint with VETS or initiate a private legal action in a court of law (see § 1002.303). A complaint may be filed with VETS either in writing, using VETS Form 1010, or electronically, using VETS Form e1010 (instructions and the forms can be accessed at A complaint must include the name and address of the employer, a summary of the basis for the complaint, and a request for relief.

Filing a complaint with VETS is not required before pursuing a claim in the courts.

The courts can require the employer to comply with the law and restore all compensation referred to above. Where violation is considered willful the court may double any amount due as liquidated damages. The court may NOT, however, impose any punitive damages under USERRA. See 20 CFR Part 1002.312 and 20 CFR Part 1002.313.

While the USERRA itself does not state a time limit in which one must file an administrative complaint or file a lawsuit to enforce these rights, some courts impose limitations based on other laws. One court has said that the claim must be filed within 4 years, while others have considered whether the delay in time has caused such prejudice to the employer that the claim must be dismissed. The point taken should be that you should not delay in taking action to enforce your rights or you could lose these important rights and remedies.

U.S. Congress Passes Anti-Wage Discrimination Act for Veterans and Servicemembers

The Federal Congress passed important amendments to the Uniformed Services Employment and Restoration Rights Act (“USERRA”) that will benefit veterans and current servicemembers in private and public employment outside the armed forces. The Veterans’ Benefits Act of 2010 (H.R. 3219) ("VBA"), among other things, would clarify that USERRA prohibits wage discrimination against veterans and current servicemembers. The measure passed the U.S. Senate on September 28th, 2010, and the U.S. House of Representatives on September 29th. President Obama, who co-sponsored bills containing these amendments when he was a senator, is expected to sign the measure.

USERRA is intended to encourage non-career uniformed service so that America can enjoy the protection of those services, staffed by qualified people, while maintaining a balance with the needs of private and public employers who also depend on these same individuals.

Federal Court Over Wisconsin Rejects Claim that Employee Had To Quit Because of Discrimination Because Workplace Was Not Unbearable

The Seventh Circuit Court of Appeals, a Federal court, threw out a jury verdict in favor of an employee on a discrimination claim because the court found that the workplace conduct was not so unbearable or intolerable that a reasonable person would be forced to quit. Chapin quit his job after the employer threatened to fire him if he did not withdraw a complaint of discrimination that the had pending against a former employer (related to his current employer). Chapin said he quit because of the threat. Subsequently, other representatives of the employer contacted the employee to say he could still have his job and that he would not be fired. The employee decided not to go back to the job because of the threat. The employee claimed that his resignation was really a “constructive termination,” meaning that he quit due to the employer’s conduct—the threat. “Constructive discharge” is is a recognized theory of recovery under the law, and it occurs when the employee shows that he or she was forced to resign because his or her working conditions, from the standpoint of the reasonable employee, had become unbearable. The Seventh Circuit threw out the jury’s finding because it said that the threat, which was essentially withdrawn, did not satisfy either of the two tests for a claim of constructive discharge.

Under the first test for constructive discharge, an employee must have resigned due to discriminatory harassment that rises to some degree above that which is required to have a hostile work environment. It must essentially be extra hostile, so to speak (my words, not the court’s). This is meant to encourage employers to fix the problem without making it liable for a constructive discharge before it has the opportunity to fix it.

The second test for constructive discharge is when an employer acts in a manner so as to have communicated to a reasonable employee that he or she will be terminated. Here, the employee is simply quitting before the axe falls. The court still requires the employee to show that the working conditions were intolerable at the time for reasons other than the looming termination.

In both tests, the court is looking for a hostile environment based on a protected characteristic like age, race, religion, gender, etc., or conduct in retaliation for having opposed discrimination or participated in some procedure of enforcing the non-discrimination laws. This is the key connection to the discrimination laws that makes the conduct actionable in the first place.

In Chapin’s case, the Seventh Circuit found that Chapin did not show that the workplace was so intolerable that a reasonable person would not continue working there. The Court found significant that the threat was withdrawn, the employer did not indicate that the threat would be carried out imminently, and that the employee then chose not to return to work when the threat no longer existed.

Wisconsin Legislature Does Not Pass Credit Discrimination in Employment Law

The 2009 Wisconsin legislature did not vote on AB-367, a bill that would have prohibited discrimination in employment based on credit history. The bill just did not get to the floor in time for a vote. It made it out of the Assembly, but not the Senate. This bill would have made Wisconsin one of a handful of states across the country that recognized the need for credit discrimination laws due to the recession we are in and the impact the recession has on many people that lost their jobs, and as a result, suffered severe financial losses and harm to their credit.

Wisconsin Conviction Record Bill Does Not Pass 2009 Legislative Session

The bills proposed in both the Senate and the Assembly for the State legislature in Wisconsin to prohibit employers from asking about conviction records before selecting a person for interview did not make it to the floor for vote this 2009 legislative session. The bills failed due mostly to timing. Wisconsin law still prohibits discrimination in employment based on both arrest records and conviction records, but the law does not prohibit an employer from requiring disclosure of conviction records in an employment application.

Gordon Leech Testifies to Wisconsin Senate on Conviction Record Discrimination

On April 8, 2010, Gordon Leech testified on behalf of the Individual Rights and Responsibilities Committee of the Wisconsin Bar, the Wisconsin Employment Lawyers Association and for the thousands of Wisconsin citizens that are subject to unfair and unlawful discrimination in the hiring process because they have to disclose the existence and nature of any prior convictions when applying for employment. The Senate Committee on Labor, Elections and Urban Affairs held a hearing to consider Senate Bill SB-612, which if passed into law, would prohibit employers in Wisconsin from asking about convictions prior to selecting a job applicant for interview. Unfortunately, the 2009 session of the Wisconsin legislature is coming to a close, so the prospect of this bill passing into law this session is doubtful.

Posted in Background Checks in Employment, Conviction Record, Employment Discrimination | Tagged conviction record, employment discrimination