Ohio Employer Law Blog | Daily Updates | 01CHiring a waitress? Hire a server instead.>01D plus more

Hiring a waitress? Hire a server instead.

"WE'RE HIRING HOSTESSES!"

It's also a problem.

It's illegal to state a preference in a job ad that expresses a preference on one protected characteristic over another. This ad hands any man who isn't hired for the job "Exhibit A" in their sex discrimination lawsuit, and a pretty easy win.

Hostess isn't the only offender. Here are a few more that sound harmless: "Waitress," "busboy," "salesman," and "foreman." Swap in server, busser, salesperson, and supervisor.

"Young," "college student," and "recent college graduate" are all terms that deter older workers. "Digital native" invites the same argument.

"Able-bodied" is an ADA claim waiting for a plaintiff. If the job requires lifting 50 pounds, say so.

"Native English speaker" is also problematic. If the job requires fluent English, write fluent. Demanding a native speaker can read as national origin discrimination.

The fix is simple. Describe the job, not the person you picture doing it. List the duties, the physical demands that are actually essential, and the skills. Then have someone other than the author read the ad before it goes live.

One word won't sink a company. But it hands the EEOC or a plaintiff's lawyer an easy discrimination lawsuit, and it invites a closer look at everything else about how you hire. Cheap to fix. Expensive to explain.

Your job ad should describe the work. Let the applicant pool describe itself.

Why a "BS" email that didn't sink an employer

"We need to terminate her." That's what the Director of Operations at Thomas-Grace Construction wrote the day after an employee complained about her supervisor. She called the complaint "BS."

The employer still won.

In Joseph v. Thomas-Grace Construction, the 8th Circuit affirmed summary judgment on Becky Joseph's Title VII sex discrimination and retaliation claims.

Joseph, a lead installer, complained about three different supervisors in under two months. She apologized in writing for misjudging the first. Her February 22 complaint about the second said he "want[ed] everything his way." It never mentioned sex. She first raised sex discrimination about him and a third supervisor on February 24, writing that "[t]he men are always right in the eyes of the company." That was the day after the "BS" email.

By then the Director had reversed course. She opened a formal investigation, asked Joseph for witnesses and documents, and interviewed four people. The investigation substantiated nothing. TGC offered Joseph a transfer to Connecticut at the same pay and benefits. She resigned and sued.

The court assumed Joseph could make out a prima facie case of retaliation and still found no pretext. TGC had documented reasons: repeated clashes with supervisors, a forklift accident, and screaming at a hotel employee. It wrote incident reports on the last two when they happened. And Title VII doesn't prohibit decisions based on personality conflicts.

As for the "BS" email, Joseph didn't dispute that the Director changed her mind or that she got to present her evidence. The email also responded to a message about a supervisor's leadership style that never mentioned sex or discrimination.

Don't read this as a pass for ugly emails. TGC got lucky on timing. Send that same email after a complaint that actually alleges discrimination, and I'm far less comfortable defending it.

But the response is worth copying. When a complaint lands, stop. Investigate before you decide anything. Let the employee name witnesses and submit evidence. Document problems when they happen, even if you don't discipline. Then decide based on those records.

You can't unsend a bad email. You can follow it with a good investigation.

Workers' comp is a bargain with fine print

In the hospital until 4 a.m. No sleep, because sleep was a risk. Then 40 pass attempts in London.

That's Jalen Hurts before and during the Eagles-Jaguars game, according to NFL Network's Ian Rapoport. The Eagles' own timeline starts with a cleat to the calf in a loss to the Rams. An ultrasound after the flight to London found a superficial clot, doctors cleared him to play, and he did. Days later a follow-up ultrasound showed movement in the clot. More testing found deep vein thrombosis and clots in both lungs, and he's out for the season.

The team hasn't said the cleat caused the clots. But it's a familiar workplace story: an injury at work, treatment, a return to work, and then something far more serious. In most workplaces, that runs through workers' compensation.

Comp is a bargain. The employee gets medical care and wage replacement without proving fault. The employer gets immunity from most lawsuits. In Ohio, comp is the exclusive remedy for almost all workplace injuries.

Almost all. Not all. Two exceptions come up again and again.

The first is the intentional tort. In Ohio, an employee can sue outside the comp system when the employer acted with deliberate intent to injure. Not carelessness. Not recklessness. Not even knowing the job is dangerous. But deliberate intent to injure, the deliberate removal of an equipment safety guard, or the deliberate misrepresentation of a toxic or hazardous substance. And because the claim is for an intentional act, don't count on insurance to pick up the tab.

The second is OSHA. Comp pays the injured worker. It doesn't pay OSHA. The two systems run on separate tracks, and carrying comp coverage doesn't shield you from a citation. And OSHA doesn't require intent. A serious violation needs only a hazard you knew about, or should have known about. For 2026, a serious violation costs up to $16,550. A willful or repeated violation costs up to $165,514, per violation. OSHA has six months from the violation to issue the citation. There's no insurance coverage here, either.

So when an employee gets hurt, the comp claim isn't the end of your analysis. It's the start. Ask what caused the injury. If the answer is a missing guard or a hazard someone already reported, you have bigger problems than the claim.

If you deliberately injure an employee, or ignore a hazard you knew or should have known about, it wont be workers' comp that has the final say. It'll be a plaintiffs lawyer, OSHA, or both.

The complaint came later. The paper trail came first.

A Black employee emails the CEO about racism at work. Nine days later, the company fires her. How did she lose her retaliation claim?

Ebony Kelley, a Black airport customer service agent for Allegiant Air, was accused by a white coworker of calling her a racist during a breakroom spat over a computer.

Kelley denied it to HR, in an interview and in writing. Three witnesses said she did it.

On December 19, 2022, HR suspended her for dishonesty. Five hours later, she emailed Allegiant's CEO. Subject line: "Racism at pie international."

Allegiant read one sentence as a confession. Kelley wrote that she had "addressed a co worker about their racist comments and then I was placed on suspension." Allegiant took that as an admission she'd lied to HR.

The CEO never responded. Allegiant fired her on December 28.

The 11th Circuit just affirmed summary judgment for the airline on her race discrimination and retaliation claims. The reason why is a lesson in how documentation can make or break an employment lawsuit.

The coworker's alleged "jokes" were ugly. But Kelley hadn't reported those particular remarks to HR or a supervisor until HR was investigating her. She said she "preferred peace." The court all but said the result might have been different had she spoken up before she was in the hot seat.

The discrimination claim failed because Kelley couldn't show a comparator or a convincing mosaic. Crediting three witnesses over the accused isn't suspicious.

The retaliation claim failed on but-for causation. The suspension predated the CEO email. And the court treated Kelley's dishonesty as an intervening act that severed the causal chain, so the close timing didn't help her.

Allegiant won because it did the unglamorous work. It investigated the original complaint, collected three witness statements, and suspended Kelley before the CEO email ever landed. And when Kelley raised her own allegations of racism, HR followed up on those, too.

Don't read this case as a license to ignore discrimination complaints that arrive during a disciplinary investigation. A racism complaint arriving the same day as a suspension is exactly the timing plaintiffs' lawyers love. Keep the original investigation on its own track, document the independent reasons for your decision, and investigate the new complaint on its own merits.

The complaint came too late. This employer won because its paper trail came first.

WIRTW #814 (the 'barricade' edition)

"Campus security came pounding on the doors and told us we needed to evacuate."

That's my daughter, Norah, on the newest episode of The Norah and Dad Show, describing how her class in Aix-en-Provence was evacuated. It wasn't a fire or a threat. French students are in the streets.

For the past three weeks, high school and university students across France have been protesting the state of their public schools. Streets are closed. Blockades are going up. Classes are canceled, and Norah is back on Zoom.

Zoom classes are rough, especially in a second language. But I can't stop admiring what's happening around her.

The demands are reasonable. Shorter school days. Permanent teachers instead of a rotating cast of subs. Buildings that don't turn into ovens in a heat wave. That's not a revolution. That's a punch list.

And this is France. Protest isn't a disruption of the civic order here. It is the civic order. The French have been practicing since 1789, and their government knows what happens when it overreaches. Teachers are standing with their students, not against them. And when a student in Paris reportedly lost teeth to a police projectile, the officer who fired it was reportedly arrested.

Norah, meanwhile, is doing the smart thing. Foreign students who get arrested get sent home, so she's supporting from a distance. In the meantime, she's living through an A+ lesson in French culture.

I asked her whether Americans would ever do something like this. She doubts it. Her theory is that people here have stopped expecting those in power to answer to anyone.

That's the part that bothers me. The First Amendment protects the right to assemble and to petition the government for a redress of grievances. We wrote it down. We just seem to have forgotten what it's for.

Sure, we protest. But it's for a day, maybe two. Then people lose interest, or the authorities crack down so hard that people are afraid to continue.

Yes, I know No Kings marches return across the country Saturday. It's the first nationwide one since March. Yet, as the French have continuously demonstrated, civil disobedience can and does work.

Indeed, we could learn from the French. Dissent isn't disloyalty. A government confident in its decisions can survive people objecting to them in public. And accountability isn't optional. In France, the officer who crosses the line can get arrested. Here, far too often, nothing happens.

You can hear all about it on our podcast — available on Apple Podcasts, Spotify, YouTube, Amazon Music, your web browser, and everywhere else you get your podcasts.

UPDATE: Earlier this week I reported on Bloomer v. Adell. In the case, a pastor who hosted a show on the Word Network sued its owner, Adell, for racial harassment, alleging the owner kept sending racially mocking texts after being told in writing to stop. Yesterday, the jury came back with quite the verdict —$62.2 million. WDIV has the details.

Here's what I read this week that you should read, too.

SHRM loses service dog trial, owes former job applicant $400K — HR Dive

Second Circuit Holds Single Harassment Claim Can Keep Employee's Entire Lawsuit Out of Arbitration — Employment Law Letter

Losing your job after age 50 could derail your career — Business Insider

Why Even Your Best Employees Override AI Systems That Work — Harvard Business Review

A Hiring Manager Called a Candidate 'Too Stupid to Work Here.' The Real Failure Wasn't the Candidate — Improve Your HR by Suzanne Lucas, the Evil HR Lady

Ancestry's CEO says a billionaire boss taught him to eat lunch with employees in the break room — Fortune

Suspected FMLA Fraud? The Investigation May Need One More Call. — The Employer Handbook

Companies rushed in on AI. Now some are pulling back — The Guardian

Republicans face midterm backlash from factory workers squeezed out of jobs by Trump's tariffs — Associated Press

Trump Press Secretary Katie Zacharia Speaks For Everyone Who Put 'Attorney' On LinkedIn Before Bar Results — Above the Law

2026 Great American Beer Festival Winners — Great American Beer Festival