Employee Can Sue For Constructive Wrongful Discharge

An employee fired for refusing to do an illegal act in the course of his or her employment may sue for wrongful discharge.  An employee faced with intolerable conditions of employment and thereby compelled to quit is constructively discharged.  The Indiana Court of Appeals recently combined the two concepts and ruled in Baker v. Tremco, Inc. (No. 29A02-0711-Cv-1001 July 16, 2008)

that an employee constructively discharged because he refused to commit an illegal act in the course of employment may sue for damages.  “It makes little sense,” the court observed, “to allow an employer to accomplish constructively what the law will not allow it to do directly.” 

Robert L. Abell
www.RobertAbellLaw.com

Employee Fired For Reporting Co-Employee’s Illegal Acts May Sue

An employee fired for reporting a co-employee’s illegal acts relating to their employment may sue for wrongful termination and retaliatory discharge, the Mississippi Supreme Court ruled recently in DeCarlo v. Bonus Stores, Inc. (No. 2007-FC-02287-SCT).

DeCarlo learned that the company CEO was defrauding the company.  He reported this information to the company’s CFO and several members of the company’s board of directors.  He was fired and filed a wrongful termination lawsuit for retaliatory discharge.  The court ruled that his claim presented an exception to the employment-at-will doctrine and that a wrongful termination claim arose from a “discharge in retaliation for reporting a co-employee’s illegal acts that relate to the employer’s business.” 

Robert L. Abell
www.RobertAbellLaw.com

Pregnancy Discrimination Act Prohibits Firing Woman For Absences Related to Receipt Of In Vitro Fertilization Treatments

    The Pregnancy Discrimination Act would be violated if a woman was fired because of absences caused by her receipt of in vitro fertilization treatments, so ruled the federal Seventh Circuit Court of Appeals in Hall v. Nalco Company (No. 06-3684 decided 7/16/08).  This is the first federal appeals court to decide this issue.
    The plaintiff, Hall, worked as a sales secretary.  She twice took leaves of absence to receive in vitro fertilization treatment.  The employer elected to reduce its secretarial staff and decided to let Hall go because she had “missed a lot of work due to health” and, most significantly, was cited for “absenteeism – infertility treatments.” 
    The court ruled that her firing implicated the Pregnancy Discrimination Act (PDA) because the PDA prohibited discrimination based on a woman’s pregnancy, which will always be sex discrimination, as well as based on childbirth and medical conditions related to pregnancy or childbirth.  While both men and women can receive fertility treatments, the court observed, employees “terminated for taking time off to undergo IVF — just like those terminated for taking time off to give birth or receive other pregnancy-related care — will always be women.”  Therefore, the court concluded that Hall had presented a viable claim that she was unlawfully discriminated against based on her female sex in violation of Title VII and the Pregnancy Discrimination Act.

Robert L. Abell
www.RobertAbellLaw.com

Age Discrimination Verdict Upheld by Kentucky Supreme Court

    A jury verdict finding age discrimination and awarding damages was upheld by the Kentucky Supreme Court in Childers Oil Company, Inc. v. Adkins (No. 2007-SC-000032 and available at the Kentucky Court of Justice website here). 
    Adkins was hired as a cashier and later moved to a kitchen position when food operations were started.  The kitchen was later shut down and Adkins fired, although she requested that she be returned to her cashier’s job.  She, who was age 47, presented evidence that a much younger cashier had been hired only 11 days before she was fired, that management had commented that it wanted “young, pretty, and skinny” girls working as cashiers so as to attract truckdriver business.  There was also evidence that the store posted a “Now Hiring” sign in its window after Adkins was fired.   Adkins was awarded by the jury $50,000 for emotional distress damages and  $11,922 for lost wages. 

Robert L. Abell
www.robertabelllaw.com