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Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

Snowmageddon is Not a Reason to Use Paid Sick Leave

Posted in Leave Laws, Sick leave

34945942_sAs we approach our first “mega-snow storm” here in New Jersey and New York, we just wanted to clarify when employees can use sick leave under New York City’s Earned Sick Leave Act. I have gotten a few questions about the NYC’s paid sick leave law, especially the sections that allow for leave if an employee’s workplace or child’s school is closed during an emergency.

The law does not allow for the use of sick leave simply because a workplace or an employee’s child’s school is closed.  Rather, sick leave is available if the workplace or school is closed due to a “public health emergency.”  If, for example, the measles outbreak that seems to be hitting parts of California was happening in NYC and schools closed as a result, that would be due to a public health emergency.

The sick leave laws in the  8 municipalities in New Jersey (East Orange, Irvington, Jersey City, Montclair, Newark, Passaic, Paterson, and Trenton) also do not allow for the use of paid sick leave if work or schools are closed due to the snow.

If employees miss work due to the snow, their only available paid time off will be in accordance with their employers’ other paid time off policies.

In the meantime, be careful out there!

Be Careful Before You Disqualify An Applicant with a Criminal Conviction

Posted in EEOC Charge of Discrimination, Employee Hiring

20700998_sA recent case out of Hawaii serves as a reminder to employers to be careful before assuming that a prior conviction and job-related and disqualifying. In Shimose v. Hawaii Health Systems Corporation, the court recently refused to dismiss a claim of discrimination brought by a radiology technician who was denied employment by a hospital based on his felony conviction for possession with intent to distribute meth amphetamine.

Hawaii, like 4 other states (Kansas, New York, Pennsylvania, and Wisconsin), has a law that makes it illegal for an employer to discriminate on the basis of a prior conviction.  Under Hawaii’s  law, employers may only use a criminal conviction to disqualify an applicant if it “bears a rational relationship to the duties and responsibilities of the position.”

Now, I know you are probably thinking this would be easy for the hospital to prove.  I mean, the guy is going to be working in a hospital with lots of access to serious drugs.  Not so, says the Court.  In this case, the plaintiff was able to bring forth enough evidence that he would not be unattended in patient rooms or given access to pharmaceutical storage that would contain narcotics to defeat summary judgment.

In addition, even though federal law does not specifically prohibit discrimination on account of a criminal conviction, the EEOC has been very vocal in recent years about how there might be a disparate impact to minority groups where employers have a policy of disqualifying candidates based on criminal convictions.  Indeed, it reissued updated guidance on the use of arrest and conviction records in 2012.

The important thing for employers to remember is that analyzing whether a conviction is job-related is a highly specific fact question and that they should not have blanket rules that certain convictions will be disqualifying for certain positions.

What Does President Obama’s State of the Union Signal for Employers?

Posted in EEOC Charge of Discrimination, Equal Employment Opportunity Commission, Equal Pay Act

I must confess that I did not watch last night’s State of the Union as I was stuck at the office working on a brief.  I have had time since to sift through the speech and have tried to distill out the employment-related issues.  If you also missed it or just want to relive it, you can find the full transcript here.

So, what does the speech signal?  The short answer is more of the same.

30692800_sPresident Obama did talk at length about the economy and how to strengthen the middle class.  He specifically called for higher wages, paid sick leave, and stronger unions.  Of course, the State of the Union is really just the President’s opportunity to present his “dream list” of initiatives.  Whether there is legislative movement on any of these initiatives is a wholly different story.  However, this State of the Union may signal certain enforcement efforts of the Equal Employment Opportunities Commission.

As part of Mr. Obama’s agenda, he mentioned that we needed to think of child care issue as a national issue and not a “women’s issue.”  Some employers may remember that the EEOC has issued guidance on discrimination against individuals with caregiver responsibilities.  Although having “caregiver” responsibilities does not make a person a member of a protected class, the EEOC notes that what really may be at the heart of mistreatment of people with caregiving responsibilities is gender discrimination.

Mr. Obama’s speech may not have been intended to forebode a shift in enforcement priorities; indeed, he mentioned childcare in the context of making it more affordable.  However, it is certainly true that the President can influence enforcement efforts.  Indeed, under the Obama Administration, the EEOC has repeatedly focused on gender discrimination issues such as Equal Pay.  As the EEOC continues to focus on these issues and test the limits of Title VII (see for example the recent lawsuits involving transgender employees), it is possible that we see more scrutiny of treatment of women with childcare responsibilities.


Breaking News: Supreme Court Agrees to Rule on Gay Marriage

Posted in Uncategorized

USA Today is reporting that the Supreme Court has announced that it will hear four cases that address bans on same-sex marriage.  (See Order granting Certiorari on same-sex marriage cases). 29050292_s The cases will be consolidated into one case and argument is scheduled for April.  It is expected that a decision will be issued before the Court’s term ends in June.

The Supreme Court sidestepped similar challenges even after the landmark US v. Windsor decision which foreshadowed the several circuit decisions that found that same-sex marriage bans violated the Equal Protection Clause.  There is currently a split in the circuits when the 6th Circuit upheld Michigan, Ohio, Kentucky and Tennessee’s laws banning same-sex marriage.  It is widely anticipated that the decision issued by the Supreme Court will not be a “punt” and instead will decide the issue once and for all.

We’ll keep you posted.

Same-Sex Marriages Are Happening in Florida

Posted in Gay Marriage

13799015_sFlorida has become the latest state to recognize gay marriage.  Same-sex marriages have started after the judge who recently struck down Florida’s gay marriage ban clarified that his order applied to all  couples, not just the plaintiffs in the lawsuit.  As we noted when US v Windsor  invalidated the Defense of Marriage Act, employers would need to review FMLA policies and benefit policies, including healthcare plan documents and handbook provisions that may define spouse.

The dominoes have really been falling on state laws banning same-sex marriage as same-sex marriage is now legal in 36 of the 50 states.  We understand that it may be difficult to keep up, but thought it might be easier to give you a list of states where same-sex marriage is not legal since that list is shorter.

The states still prohibiting same-sex marriage are:

  • Alabama
  • Arkansas
  • Georgia
  • Kentucky
  • Louisiana
  • Michigan
  • Mississippi
  • Missouri
  • Nebraska
  • North Dakota
  • Ohio
  • South Dakota
  • Tennessee
  • Texas

For those of you in the other 36 states here’s another friendly nudge to review your policies

Happy New Year! With a New Year Comes New Laws.

Posted in Uncategorized

18952101_sIf we have all learned something writing and reading this blog, it is that new employment laws seem to crop up more frequently than Bigfoot sightings.  I don’t want to overwhelm you with too many new laws that went into effect on January 1 at once, so today I am just going to focus on the new Ban the Box law in Montgomery County, Maryland.

Ban the Box laws are gaining momentum across the country so that criminal offenders have more opportunities to obtain employment.  The Montgomery County Ban the Box Ordinance provides that employers may not ask about criminal backgrounds until the completion of the first interview.  If, after an making a conditional job offer, the employer decides to rescind the job offer, the employer must:

  1. Give the applicant a copy of the criminal background report;
  2. Notify the applicant of the intention to rescind the conditional offer;
  3. Delay rescinding the offer for 7 days to permit the applicant to dispute the accuracy of the report; and
  4. Notify the applicant of the rescission of the conditional offer in writing.

All in all, the law is one of the less onerous Ban the Box laws, but will require employers to revise applications to delete any questions regarding criminal backgrounds on applications.  As for the notices that must be given to employers, hopefully, employers are already aware that they must provide pre- and post-adverse action notices to applicants under the Fair Credit Reporting Act (“FCRA”).  If you need a brief refresher on FCRA, this joint guidance from the EEOC and the FTC should be helpful.





One Last Post For 2014 …

Posted in Gender Discrimination, General Employment Discrimination, General Employment Matters

To end the year, we were cleaning out our to-be-published posts and noticed two comments which we meant to publish before — but plain forgot, in response to our December 13th post called “In The News … Career Guide For Men About Women And Henry’s Turkey.”

We noted a Wall Street Journal “Review” whose lead article by Joanne Lipman was entitled:  “Women at Work: A Guide for Men: Even the most well-intentioned male managers can be clueless when dealing with women in the workplace.”

She said that men could use a career guide about women — and she provided an eight point guide — because men “are often clueless about the myriad ways in which they misread women in the workplace every day. Not intentionally. But wow. They misunderstand us, they unwittingly belittle us, they do something that they think is nice that instead just makes us mad. And those are the good ones.”


new years : dog toasting new years eve Stock Photo

Our reader comments are below:

 Shannon Eldridge, an attorney in the New Orleans area:

“The article makes interesting points and is a good reminder that all diversity in the work place must be considered as an asset. If we were all the same and all worked in the same manner, there would be little progress or insightful change. The work place should include both genders, a variety of ages and a variety of backgrounds.”

Susan Arth, an HR Expert in Cardiff by the Sea, CA:

“The article was interesting, but the comments were incredible.

Men really don’t like working with women, and have no patience with our different communication style. I thought we were further ahead…. it is sad and the disconnect can be diminished with female traits: inclusion, listening, collaborating and believing that diversity makes us stronger not weaker. Competition only divides us.”

Have a happy!



UK EAT Fees: “Simple Cost Cutting And Revenue Raising” Or “Massively Adverse Impact On Access To Justice”

Posted in General Employment Discrimination, General Employment Matters

Employment Tribunal Fees: Latest Survey Shows 4 of 5 Deterred From Filing Claim” was the title of our post on December 24th, and it described the tribunal fees required to open the door to the tribunal to have an employment dispute adjudicated, and a survey which found that the fee was a major deterrent to a vast majority of would-be charging parties.

entrance : isolated medieval closed gate vector illustration Illustration

UK readers expressed very strong opinions — on both sides of the fee issue.  A sample is published below.

Prof. Stephen Whittle, UK:

“I have been teaching for 20 years that the Tribunal system is stacked against the disadvantaged – the less articulate, the poor, the unrepresented- and to lose your job and income, and then be told to find hard cash to fight an employer who for example; has not paid your final wages is a complete travesty of justice.

One of the people featured in the Citizen’s Advice Bureau report lost her job, and then was underpaid £320 in her final wages, but was required to pay out £430 in order to take a claim to court. We have a government made up of multi-millionaires, who have no idea what it is like to struggle to pay the gas bill, never mind fight for Justice.”

Adrian Clarke, an employment relations advisor in Peterborough, UK:

“An interesting article but I have to say doesn’t reflect my past experience of the tribunal. Whenever I represented as a lay union official or in an individual capacity helping friends at tribunal I found the tribunal member/s extremely helpful and accommodating to allow the truth to be heard.

They often rebuked professional legal representatives where they tried to “play” with the law to win their case.

A structured approach and plenty of preparation was key and also showing respect to the tribunal and how you presented and also disputed the other side’s version of events/evidence was also important.

There is no doubt now in the UK that the introduction of fees had nothing to do with stopping vexatious or fictitious claims as in reality very few of these would have got to tribunal but was about cost cutting and revenue raising and also a barrier to justice based on the ability to pay.

One positive does seem to be that the introduction of the requirement to go to the ACAS Early Conciliation Service before tribunal appears to be working although probably too early for any meaningful data to show how successful.

Tribunals are stressful and difficult for someone with no experience to represent themselves but not impossible. What would worry me is this previous Tribunal Board Member seems to be saying that the odds were against an employee. Well surely that was part of what the board were there for to ensure an equal and fair playfield?

By the way I won every case I represented. Some of this was down to being realistic on the merits of the case but also being an experienced trade union official used to conflict/debate and investigation alongside representation. Also a lay understanding of the law is a great help.”

 David Sorenson, attorney in Leeds, UK:

“Hi . . . thanks for posting this – I’m afraid that I can’t disagree with the overall analysis.

As Claimant lawyers for private individuals and union members across the UK, we are experiencing exactly this – the outcome of the introduction of the Employment Tribunal/Employment Appeal Tribunal fees and other employment law/practice & procedure changes since 2012 is that those individuals who are the most disadvantaged in UK workplaces (who are likely to be the least well paid, such as those on zero hours contracts and who do casual work) are the ones who are most deterred by the extortionate ET/EAT fees.

Whatever your political viewpoint, the massively adverse impact on access to justice cannot be overstated. I’m personally saddened by the fact that what was once a pretty effective and fair ET system in the UK is now very hard to reach for many individuals who deserve access – hampered by the hurdles of having to (1) complete the grievance or appeal process (or risk losing up to 25% of compensation), (2) comply with mandatory ACAS early conciliation and then (3) pay high ET fee/s which may not be recovered (or never recovered if the employer is insolvent, such as Phones 4U and recently, City Link).

Whilst steps (1) and (2) may help resolve disputes pre-ET (which cannot be a bad thing), ET fees are becoming an insurmountable obstacle for many. The ET fee remission process is extraordinarily complex and applications for remission mostly fail, meaning that individuals who have been dismissed, are owed wages and have no work, are still expected to be able to pay fees of as much as £1,200.

This simply cannot, in my opinion, be right or fair. I only hope things change for the better in 2015…”

Sean Reynolds, attorney in Bolton, Greater Manchester, UK:

“I can’t see reducing ET fees being on any of the mainstream partys’ political agendas either during the run up to or after the general election in May 2015.

What we need now is a root and branch reform of the whole process, not just a facile focus on fees. This should include simplification of the remission process, introducing fee parity with the county courts and the introduction of a merits-based costs system with caps for both parties. Weekend or evening hearings would also be a good way of quickly progressing simple claims.

When we have a system that works properly, fairly and efficiently we can expect insurance-backed legal services to become more widely available to provide support and/representation to level the playing field, including on an after the event basis.”



UK Employment Tribunal Member: “Deck Is Stacked”

Posted in General Employment Discrimination

Our post on December 24th was entitled “Employment Tribunal Fees: Latest Survey Shows 4 of 5 Deterred From Filing Claim.”   It was about the fees required to have an employment dispute adjudicated in the UK and the survey which found it a major deterrence resonated with a lot of folks.

We noted that the UK’s The Independent reported that “Employment tribunal fees have been branded ‘a barrier to justice’, and that survey the charity Citizens Advice has found that “the fees made more than four out of five workers less likely to claim, or deterred them from claiming at all. Over four in 10 of those with employment troubles had a household income of less than £46 a week after essential bills, highlighting the gulf between the high fees and working wages.”

One US reader told us the US had its own problems and since he knew little of the UK system, the article was not “relevant” to him.

However, another reader from the UK had strong feelings:  “The judicial system as a whole is institutionally biased against disadvantaged groups in society.”  His comment has some gravitas to it since he was an EAT member for more than 30 years.

Jim Thakoordin,a training and management consultant in Luton, UK:

“Thank you for this information Richard.   As a past member of Employment Tribunals for over 30 years, I have always felt that the employees were always at a disadvantage, even when they are represented by either their trade union or by legally qualifies representatives. For those who represent themselves the outcome is invariably worse for them.

It is very rarely the case that the applicant wins entirely on the merit of their case, as so much depends on the actual presentation by the claimant or their representative; their ability to cross examine the employer and their witnesses; understand of the tribunal procedures and the legal system of what constitutes evidence and also personal characteristics.

inequality : An old school bronze justice scale with stacks of japanese yen money on one side and a few crumpled notes on the other Stock Photo

Remember, the Tribunal and indeed the legal system is managed and adjudicated mainly by white men from a middle class background whose personal knowledge of the world of work outside the legal profession is very limited. The judicial system as a whole is institutionally biased against disadvantaged groups in society.”


Family Friendly Policies: Is Europe Ahead Of The US?

Posted in General Employment Discrimination, General Employment Matters

Family friendly policies — is it true that they are rare in the US, but common in Europe?

Two more readers have different opinions:  one attorney touts the childcare services of one US company very highly, while a diversity specialist in the UK is less than enthusiastic about family friendly practices in Europe.

childcare : Children playing on the floor. Educational games for kids  Stock Photo

Curtiss Jameson, an attorney in the NYC area:

“I cannot comment directly on women not returning to employment after having a child, but I can comment on lack of family friendly policies as a disincentive to transferring jobs/filling employer’s lateral needs.

My wife left employment at a prominent, large pharma company to obtain employment at a competing (albeit also prominent and large) pharma company because the first did not provide any childcare, whether onsite or through an external partnership with a childcare center, but the second provided onsite childcare. She is well credentialed and always receives the highest rating on reviews.

She has stuck with that “second” pharma company through 3 children because of the onsite child care (and other family friendly efforts) despite numerous head-hunters looking to poach her for other pharmas in the area. We’ve had to forgo opportunities for markedly increased pay (and double title promotions) at these other potential employers – - but it has been worth it. The transactional costs of switching employers which do not have any provisions for childcare are too great.

I wonder how much other talent is locked-up due to such issues?  Plus, she feels a genuine loyalty to her employer for providing a family friendly environment while also permitting her career to grow in terms of promotions and raises where most of the competitors simply do not care about family issues other than what the FMLA requires.”

Anthony Wilkes, Chair and Chief Assessor at United Kingdom Investor Equality and Diversity, Twickenham, UK:

“Interesting article. My experience working as an equality, diversity and inclusion training consultant and dispute resolution adviser in the UK and mainland Europe would caution against the US benchmarking itself against Europe regarding family friendly policies.

Whilst it is correct that some European countries notably France and the Scandinavian countries have enshrined in law proactive measures to promote gender equality in the workplace, the overall position across Europe regarding prospective returning mothers to the workplace is very poor indeed; with the number of discrimination claims in this area increasing.”