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Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

“Smoke ‘Em, Murray!”

Posted in Age Discrimination in Employment Act

Christina’s post the other day about our 101-year old still-practicing-law colleague Murray Shusterman entitled “Are There Some Professions Where Being An Older Employee Is More Acceptable?” saluted Murray, and asked: “what is the key to establishing an age-blind culture where age is not a factor, young or old, as long as an employee is performing well?”

Comments are pouring in to us wishing Murray well, as exemplified by Johann Scheepers, our trusty South African commissioner and renaissance man with respect to employment law matters:

“This ‘superman’ is not about to ‘hang up his cape’.   Smoke them Murray!”

Norma Ann Dawson, an attorney from the LA area:

“Way to go Murray!  It’s good to know someone appreciates older workers.”

Other comments have taken Christina up on her invitation to a conversation about age.

Carlos Cortes, an 80-year old diversity lecturer and consultant in the LA area, notes that not every generalization about age is necessarily ageist, saying that there are some “age-based generalizations [which] are both valid and useful”:

“For me, at times the article misuses the word, “stereotype,” when at some points it should be using the word “generalization.” There is nothing wrong with generalizations — including age-based generalizations — as long as they are evidence-based and have not developed into the rigidity of stereotyping. That said, there are some specific instances in which age-based generalizations are useful. Here’s one example.

Although lifetime drivers’ licenses are issued in much of Europe, in most (maybe all) U.S. states there comes a time in which older drivers (for example, at age 70), must pass written and eyesight examinations (sometimes also driving exams) in order to renew their licenses, while younger folk can continue to renew them by mail. While this may be an extra burden for such seniors, I think it makes perfect sense considering the tendency of older people to experience a physical decline.

An obvious response to my example could be, “Then everybody should have to be tested at the time of license renewal. We ought to treat everybody alike.” Really? As a taxpayer, I would be opposed to such a profligate waste of scarce public resources, which I would rather see used for things like education. So even while recognizing the arbitrariness of age-based differential treatment involved in such statutes, I support them for the greater good of society, such as making the highways safer.

By the way, I am 80-years-old, continue to be active as a diversity consultant and public lecturer, and have had to jump through these extra hoops three times to renew my license, which I am happy to do. Repeating, there are situations in which age-based generalizations are both valid and useful. That is not stereotyping, merely recognizing generalizable tendencies and taking them into consideration when establishing policies.

This is not a defense of workplace age-based discrimination, merely a caution against jettisoning all age-based policies.”

Anyone else care to weigh in?



Update: Sexual Harassment Class Action v. Royal Canadian Mounted Police

Posted in Sexual Harassment

On February 15, 2013, we wrote a post about the increase in the number of female Royal Canadian Mounted Police (“RCMP”) who are filing sexual harassment lawsuits    

Mounties Vow To Stamp Out Sexual Harassment

We noted that “to their (belated) credit, the Mounties are promising to “stamp out sexual harassment and bullying.”

How have they done?

At the time, the RCMP said that “Harassment has no place in the RCMP. We recognize it may be impossible to prevent entirely, but we will implement a zero tolerance approach. … The RCMP stands little to gain by denying the obvious – and it will not do so. … As long as these cases dominate the public discourse they will undermine public confidence in our institution and consume effort. Where wrong has been committed, it will be made right.”


The suit was filed by a former RCMP officer who alleged “a number of humiliating incidents” of  bullying and harassment throughout her nearly 20 years tenure. “The alleged incidents described in [her] affidavit range from receiving verbal propositions, to facing gender-based comments challenging her ability to perform her duties, to witnessing differences in how male and female officers were accommodated at her workplace.”

The lead plaintiff was quoted as saying “I’m amazed, actually, that for so many years a lot of us thought we were alone and didn’t say anything, Once we did start talking, we realized that there was quite a group of us … I’m just amazed.”

300 Women Joined The Class In 2013

Four months after our first post, June 12, 2013, we said that “We surmise that the Mounties are not doing such a good job of rooting out sexual harassment since we read today that ‘almost 300 current and former female Mounties have come forward to join a class-action lawsuit alleging harassment within the ranks of the RCMP.’”  

More Women Are Joining The Class

That post is now way out of date – we read today in The Globe and Mail that a senior RCMP communications adviser has joined the 336 complainants who have sued alleging sexual harassment.

The class action attorney representing claimants said that “When we hit 100 I was surprised.  As we hit 200, I was less surprised, and then 300 even less, because we were beginning to have a sense of the magnitude of the internal problem at the RCMP with women in the force.”


“One’s Natural-Born Features, Alone, Ought Not Be Barriers To Employment”

Posted in Americans with Disabilities Act

We read a great comment in response to our post “Weight Bias Is Alive And Well.”    Maria Hanna Joseph, an attorney/mediator in the Boston area, addressing the issue of weight and appearance bias, has carefully written a very succinct and balanced statement of the very purposes of employment anti-discrimination laws.  

But you be the judge.   

“Employment law is generally based on safeguarding the right to earn a living, provide for and take care of oneself, balanced against employers’ rights to business viability.   At the root of employment protections are things individuals can’t control yet pose barriers to being part of the workforce and a significant part of society.

Attractiveness seems to be one such quality, and I see weight bias falling under the umbrella of “attractiveness bias” or “appearance bias” (see, Unattractiveness – The Next Workplace Protected Class? at http://employmentdiscrimination.foxrothschild.com/2012/07/articles/another-category/unattractiveness-the-next-workplace-protected-class/).

I’m a firm believer that places of employment – be it from the viewpoint of the employee or patron – are at the forefront of determining social norms, positive and negative. This is because workplaces make up the hub of human interaction.   Standards established at the level of the workforce, therefore, tend to radiate more quickly and pervasively than through any other portal I can think of.

To the extent a bias affects a large enough demographic (admittedly hard to qualify or quantify), I like to see protections extended, such as to features that go beyond what may be considered subjectively or stereotypically “attractive” and are immutable (available surgery not withstanding), though have no appearance-based relevance to work performance.

The qualities that are deemed attractive are not necessarily the same as qualities pertaining to hygiene, neatness, or even workplace-appropriate wardrobe/cosmetic choices, for example.   For the most part these are not immutable and one can envision their potential for having a negative impact on work and market environments in terms of workforce interaction and productivity and/or customer attraction.  I also think they’re things over which an employer could fairly render an employment-based decision and have a balanced right of protection.

In short, one’s natural-born features, alone, ought not be barriers to attaining or retaining employment.”


Are There Some Professions Where Being An Older Employee Is More Acceptable?

Posted in Age Discrimination in Employment Act

We have written a lot about age discrimination, whether it is employers who use code words such as “long in the tooth” or recent enforcement actions by the EEOC.  In our posts, we have also cautioned against employers using outdated stereotypes about older employees, the most common of which is the employer not wanting to invest in an older employee because they are only going to retire soon.

We’re wondering if certain professions have a positive stereotype with regard to willingness to retain and hire older employees.  Perhaps our Firm is unique, or perhaps it is the legal profession in general, but we have multiple attorneys who are still actively practicing well into their late sixties and early seventies; ages at which it may be assumed a person will retire.  Take for example, one of our Senior Counsel’s, Murray Shusterman, who is lately at the young age of 101 taking social media by storm.  Yes, you read that right.  We meant 101 years old.

27844219_sMurray was recently profiled in the Philadelphia Inquirer and his story has gone viral.  Murray began his distinguished career as a lawyer in 1936 and still comes to work in our Philadelphia office every day.  We wanted to salute Murray as he approaches his 102nd birthday and take the opportunity to solicit feedback from readers about something positive since we spend a lot of time talking about what employers did wrong.

Are there any industries or professions where being an older employee is a positive?  Or is it a bad idea to make even positive generalizations?  Maybe we should practice what we preach and not resort to any stereotypes and ask this question instead: what is the key to establishing an age-blind culture where age is not a factor, young or old, as long as an employee is performing well?


NYS Follows NYC In Enacting Law Protecting Unpaid Interns From Sexual Harassment

Posted in Sexual Harassment

In response to a NY federal court decision which held that an unpaid female intern who alleged sexually harassment by a company higher-up was not an employee for purposes of the anti-discrimination laws (which we discussed on October 15, 2013), the New York City Council voted 50-0 last March to prohibit employers from discriminating against unpaid interns on the basis of age, race, creed, color, national origin, sex, disability, marital status, partnership status, sexual orientation, citizenship status or status as a victim of domestic violence, sex offenses or stalking.   The bill was signed into law, and claimants are now permitted to either sue or make a complaint to the NYC Commission on Human Rights.

On October 29, 2013 we reported that “Indiana University Law professor Deborah Widiss said that the federal decision ‘reveals a very important gap [in the harassment laws] that I think needs to be addressed.’   We noted that this “loophole” was cited by city and state politicians who promised remedial legislation.

State legislators thereafter introduced a bill which would “fill the gap,” but that bill was bottled up in committee.   So the City acted.


It has now been reported in Law360, that Gov. Cuomo just signed into law a bill which gives New York state interns workplace protections, “expanding across the state a similar move made in spring by New York City leaders.”   The law states that “case law in this state has long held that unpaid volunteers are not protected,” and overrules those cases.


“Weight Bias Is Alive And Well”

Posted in Americans with Disabilities Act

We note the passing of the “destigmatizer of fat,” Dr. Albert J. Stunkard, who died at the age of 92.  The NYT obituary this week called him “a pioneer of eating-disorder research who proved that some people are genetically predisposed to getting fat,” whose “early work ignited an explosion of interest in the study of eating-related problems. … His work was widely credited with helping define a field of research that today is near the forefront of the public health agenda.”

While paying tribute, we also note Madasyn Cze­bi­n­iak’s article in The Pittsburgh Post-Gazette which reported on a 2008 study by The Rudd Center for Food Pol­icy & Obe­s­ity at Yale Univer­sity which “found over­weight adults were 12 times more likely to re­port hav­ing ex­pe­ri­enced weight-based em­ploy­ment dis­crim­i­na­tion than thin­ner per­sons. Of the study’‍s par­tic­i­pants, 60 per­cent ex­pe­ri­enced at least one oc­cur­rence of em­ploy­ment-based dis­crim­i­na­tion due to weight is­sues.” 

Said Rebecca Puhl, dep­uty di­rec­tor at the Rudd Center:

“I think what’s safe to con­clude is that weight dis­crim­i­na­tion oc­curs at ev­ery stage of the em­ploy­ment cy­cle from get­ting hired to get­ting fired.  What we see in ex­per­i­men­tal stud­ies, for ex­am­ple, is that hir­ing pro­fes­sion­als are less likely to hire an over­weight can­di­date as op­posed to a thin­ner can­di­date with the ex­act same qual­i­fi­ca­tions.” 

“Un­for­tu­nately, weight bias is alive and well,” according to the di­rec­tor of com­mu­ni­ca­tions for the Obe­s­ity Ac­tion Co­a­li­tion. According to its website:   “The Obesity Action Coalition (OAC) is a nearly 50,000 member-strong 501(c)(3) national non-profit organization dedicated to giving a voice to the individual affected by the disease of obesity and helping individuals along their journey toward better health through education, advocacy and support.”


On July 9, 2012 we posted a piece entitled: Unattractiveness – The Next Workplace Protected Class? and said that “A lot has been written lately (in legal blogs, at least) about what some call “beauty bias” – but which we have recently called “appearance bias” — workplace bias based upon appearance. Obesity bias seems to be the most frequently observed manifestation of this.”

Later, on April 7, 2014 we noted a lot of comments on our post “‘Appearance DOES MATTER’ (at least in some jobs),” in which we quoted Sylvia Dahlby of Hawaii:   “In my opinion age and weight, and overall appearance are always a factor in hiring decisions – and maybe sometimes they need to be. Let’s face it, humans bring their personal prejudices into EVERY situation.”  Readers from all over, and from all professions, weighed in (sorry about that) — take a look at this earlier post, it was a good discussion.


ALERT! Pres To Sign LGBT Executive Order Today

Posted in Employment Discrimination Based Upon Sexual Orientation, Gender Identity or Expression

On June 16th we issued an “Alert!” when Reuters reported that “President Barack Obama will sign an executive order barring federal contractors from discriminating on the basis of sexual orientation or gender identity.”

It has finally been announced that the President will sign such an order today as tweeted by Valerie Jarrett, senior adviser to the President:  “This Monday, Pres Obama will sign an Executive Order protecting #LGBT workers from employment discrimination #OpportunityForAll.”


This comes in the midst of the furor over the effect of the Hobby Lobby decision of the Supreme Court on the support for ENDA by LGBT groups.   More is sure to follow – soon.

 12:30 pm — The New York Times reported this morning that the President indeed signed the executive order.     “But Mr. Obama rebuffed requests by religious groups to exempt them.   Religious groups argued that they should not be forced to go against their beliefs in order to win or keep federal contracts available to others.   Advocates for religion said the order would lead to a court fight.”


Is Obesity A Disability? We May Soon Know

Posted in Americans with Disabilities Act

The issue of whether the law forbids obesity discrimination and/or if morbid obesity should be considered a disability may soon be decided.  At least in the EU –  we have just learned that the European Court of Justice’s advocate has issued a non-binding opinion which is likely to be a key factor in the decision.    And the US might not be far behind.

The EU May Soon Have A Decision On Obesity As A Disability

Recently we recommended a new set of articles put out in the Didlaw Ltd. newsletter, the first of which briefly described disability under the Equality Act of 2010.   We commended the article to our US readers, who continue to comment on our discussion about obesity, who may be interested to know that this UK post declares that “[t]he most pressing issue around definition of disability right now is whether obesity is a disability.”

“With 64% of the UK workforce said to be obese a finding by the European Court that obesity is a disability could have wide-reaching implications. The EAT recently held in Walker v Sita that obesity is not a disability in itself but might be capable of being one if there is a significant degree of functional impairment.”   See also an article on the subject on the Bristows’ website.

This issue has been taken up by the European Court of Justice, in the case of Kaltoft v Billund Kommune, which will decide soon whether EU law forbids obesity discrimination and/or if morbid obesity is a disability.


We have just learned from the Irish Independent that the Court’s advocate general, Niilo Jääskinen, who is an adviser to the Court, has issued a non-binding opinion that EU law sets forth “no general, stand-alone prohibition on discrimination on grounds of obesity,” but that “extreme” obesity, classified as having a body mass index (BMI) of more than 40, may be a disability.

Workplace Savings and Benefits quotes the advocate as saying: “If obesity has reached such a degree that it plainly hinders participation in professional life, then this can be a disability.  The notion of disability is objective and does not depend on whether the applicant has contributed causally to the acquisition of his disability through self-inflicted excessive energy intake.  Otherwise physical disability resulting from reckless risk-taking in traffic or sports would be excluded from the meaning of disability.”

The State of US Law

All of this sounds a little like a summary of the law in the US.

In our post of April 25th, however, we discussed a recent US court decision which said that obesity may very well be a disability.

We noted in our blog on April 28th that “[t]he issue of obesity and employment discrimination seems to sit on a fault line of sorts, eliciting strong views about the meaning of “disability,” “disease,” and “personal responsibilty.”  And on May 5th, we published a number of reader comments on this issue.


Last year we discussed whether for ADA purposes obesity is a disease — as was held by a new decisison by the American Medical Association. We posted that the AMA declaration that obesity is a disease would likely spur lawsuits under the Americans with Disabilities Act, and may push the courts to rule that obesity is a disability.

We may only need wait a short while to find out what will happen.



Tired of Trying to Interpret Legalese? Perhaps Lawyers and Judges Need a Refresher on Word Crimes

Posted in 5 Minute Laugh

Lawyers, judges, and legislators have long been accused of not writing clearly, employing using big words when short ones will do and inventing words not otherwise used in the English language such as aforementioned and hitherto.  We are also not known for having the simplest of grammatically correct sentences, despite the fact that writing well is often the key to being a successful lawyer.

I am sure that I violate some grammar rules everyday, even though I am conscious of trying to write correctly.  (For example, I had to rewrite that sentence three times to avoid ending the sentence with a preposition).

We all have pet peeves when it comes to language mistakes.  Here’s one of mine:

AXE is a tool used to chop down a tree.

ASK is something you do when you want to pose a question.

They do not mean the same thing.

What’s your pet peeve? Maybe it will be in today’s 5-minute laugh video.


I apologize in advance for the fact that this song will be stuck in your head for days, but Al Yankovic’s parody of “Blurred Lines,” which is entitled “Word Crimes”, was too genius not to pass along.  For those of you who think you’re too old to go back to grammar school, it’s never too late to teach an old dog new tricks!


Two More ADA Lawsuits Filed By The EEOC: Guess Which Companies Got Sued?

Posted in Americans with Disabilities Act

Here we go again – another couple of heath care facilities sued by the EEOC under the ADA.   Do you think it is merely a coincidence that such a large number of the EEOC’s ADA cases are against such companies?  If so, read our many posts on the subject.

What is it about health and medical care facilities and personnel that brings down the heavy hand of the EEOC so often alleging ADA and pregnancy discrimination?  Is it that they have an innate bias against the disabled and pregnant women, and discriminate more than other employers?

We asked, again, as recently as April:  “Do Health Care People Violate the ADA and Pregnancy Act More Often Than Others?”

“Could it be?” we asked, ”could it be that the EEOC sees such health care folks as a target as big as a house?  You know, can the helping profession, there to treat the sick, disabled and pregnant, stand up to the negative PR that a discrimination suit typically brings if it is alleged that they discriminated against the very folks that they are there to minister to?”

If faithful readers are not bored stiff with our repeated words of caution to health care providers, read on!

The First New Case

In the first case the defendant is a company which operates a North Carolina nursing home which allegedly hired a woman as a cook and dietary aide ”who has a physical impairment that limits her use of the left side of her body.”

As the EEOC alleges, she was quickly asked about her left arm by her supervisor and told the supervisor that “that she did not have the full use of her left arm, but that she was still able to perform her job duties.”   Not long after she was told that the supervisor did not believe that she could perform her job duties without the full use of both arms, and she was fired

An EEOC attorney said that “An employer cannot terminate an employee based solely on uninformed assumptions about her ability to work simply because of a disability.”


Second Lawsuit 

In the second EEOC lawsuit, a leading dialysis clinic in Sacramento run by a Nashville-based non-profit fired a nurse who had worked there for 14 years after she was diagnosed with breast cancer.

The company allegedly “had a policy of firing employees who are unable to return to work 30 days after they have exhausted their 12 week leave under the Family and Medical Leave Act,” and made no exception for plaintiff, who had taken medical leave in order to have mastectomy surgery and chemotherapy treatments.

Moreover, the company allegedly did not “explore any accommodations for [her] regarding a possible extension of her leave but instead told her that she would have to reapply for her job.”

Although she did reapply, she was never rehired.

An EEOC attorney was quoted as saying that “Given the ADA’s mandate, I would urge employers to be flexible concerning leave extensions if it causes no undue hardship.  [Plaintiff] had over 30 years’ experience in dialysis treatment and really wanted to work. Our investigation showed that she only needed two more months to return to work. Why sacrifice a valuable employee with a good record over an arbitrary time limit?”


Takeaway:  Better wake up medical and healthcare folks — the EEOC is licking its chops!