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Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

Hold Your Horses: Texas Lawsuit Halts Implementation of FMLA Rule Regarding Same-Sex Spouses

Posted in Family Medical Leave Act, Gay Marriage

19425076_sThis morning I was prepared to draft a post reminding you that as of today the new DOL rule regarding same-sex spouses would go into effect.  Under the old FMLA rule, a spouse was defined as someone lawfully married in the state in which the employee resides.  This rule meant that even with the striking down of the Defense of Marriage Act, a same-sex couple who were lawfully married but lived in a state where same-sex marriage was not recognized, would not be spouses for purposes of the FMLA.

The Department of Labor issued a new “place of celebration” rule that would mean that as long as a couple were lawfully married in a state or foreign country where same-sex marriage was legal, then they would still be spouses for purposes of FMLA even if they resided in a state that did not recognize same-sex marriage.

In an action filed by the Texas Attorney General, a federal court judge has enjoined the application of the rule insofar as it would require employers in those states where same-sex was not legal to choose between violating federal or state law.

So, for now, employers will still need to follow the “place of residence” rule when determining whether a same-sex spouse is a spouse for FMLA purposes.

Taking What You’re Giving ‘Cause They’re Pumping for a Living

Posted in Uncategorized

Today’s post comes to us courtesy of Thomas Basta, an associate in our Roseland office:

Employers are often reluctant to speak with new moms who are breastfeeding or pumping regarding how their nursing will impact the workplace.  But with more than 3 out of 4 new mothers in the U.S. choosing to breastfeed their babies, the failure to engage these employees about their needs when it comes to breastfeeding or pumping can open the employer up to civil and regulatory liability.  So talk with your postpartum employees about how you can accommodate their needs on your own premises during the workday.

The Affordable Care Act amended the Fair Labor Standards Act to require that employers with more than 50 employees provide a “reasonable” break time for an employee to express breast milk for her nursing child for 1 year after the birth.  Note that the affected employee need not be paid during this break time.  What is “reasonable” will be a fact-specific analysis of the employee’s job duties and hours.

37419462_sBut in the context of this requirement, that “when” is often easier to navigate than the “where.” Federal regulations also require that covered employers provide an area, other than a bathroom, that is 1) that is shielded from view, and 2) free from intrusion from coworkers and the public.  The easiest way to satisfy this requirement is to provide a room that locks from the inside. Given the layout of your facility, this may require minor renovations or the relocation of other employees.

But the federal regulations are only a floor of what employers must provide.  Twenty-six states and the District of Columbia have their own laws with respect to breastfeeding in the workplace, though most simply extend the federal regulations to employers of all sizes.

With minimal efforts, you can bring your workplace in to compliance and ensure that the new moms on your payroll can fulfill their responsibilities to both you and their child.

No, the French are Very Nice. Really.

Posted in Employee Training Programs, General Employment Discrimination, Harassment

37639916_sI just returned from a vacation to France.  Upon my return and hearing where I traveled to, a lot of people wanted to know how the trip was.  They also wanted to know something else — were the French rude?  With the exception of one person who worked at the airline ticket counter who was rude, which I attributed to the fact that she was an airline employee and not that she was French, everyone could not have been nicer to me while I was in France.  This is true despite the fact that my knowledge of French consists of being able to say hello, goodbye, please, thank you and where is the bathroom.  Nonetheless, I found the French people to be willing to help and ignore the fact that I was butchering their language.

It seems that it is a rather common stereotype in the United States that the French, particularly the Parisians, are rude.  My experience was so different that it got me thinking about stereotypes and how pervasive those beliefs can become.  It also got me thinking about how employers must be prepared to combat these stereotypes on a daily basis.  In my experience, most employers who have harassment policies do a good job of setting out what is prohibited sexual harassment, but they may forget to focus their policies and training on other types of harassment and discrimination that may occur based upon other protected classes like national origin.

Good harassment and discrimination policies should make clear that discrimination based upon membership in any protected class as defined by federal, state or local law, will not be tolerated.  Training should also cover more than sexual harassment and refer to discrimination based upon national origin, marital status, race, religion, etc.  This is not only a good idea from an employee relations standpoint but can have important benefits in a litigation.

I have had plaintiffs try to parse language of discrimination policies that focused almost exclusively on sexual harassment to say that they were unaware that discrimination based on another protected class was prohibited.  They have also parsed policy language to say that they thought the complaint procedure only applied to sexual harassment claims.

So, today I have two suggestions for you:  1) review your harassment and discrimination policies to insure that they cover the protected classes in the jurisdictions in which you operate, and 2) plan a trip to France — the food is amazing, the culture and history interesting, and the people are nice — no really, they are nice.

Fifty and Fabulous

Posted in 5 Minute Laugh, Age Discrimination

We have spoken frequently about age discrimination cases on this blog.  Whether it be “code words” being used or more direct comments on age, these can all be part of a claim of discrimination.  Before anyone questions this post, I just want you to know that the idea for the post came from my assistant Chrissie as she wanted to celebrate reaching her half-century mark, or as our office managing partner described it, her 30th anniversary of her 20th birthday.

Here’s a little video to show that you are never too old to try a new job.


Happy Birthday, Chrissie!  She’s 50 and she likes to kick.


Hey pregnant lady, why don’t you stay home, enjoy some of our doughnuts, and put up your feet?

Posted in Americans with Disabilities Act, Equal Employment Opportunity Commission, Gender Discrimination, Pregnancy Discrimination

36714348_sAlthough the facts alleged in a recent lawsuit entitled EEOC v. D&S Shipley Donuts are not quite as patronizing as the title of this post suggests; they are close.  The EEOC brought suit against a franchisee of Shipley’s Do-Nuts claiming that the franchisee violated Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act.

The Complaint alleges that Brooke Foley was employed by D&S Shipley Donuts until she became pregnant.  However, this is not a simple case of an employee being terminated because she was pregnant.  The complaint alleges that employees who were pregnant were required to provide a written medical release assuring the company that they did not have a “high-risk” pregnancy and that it was safe for the employee to perform the normal job duties.  The EEOC also alleges that this medical release was required even in situations where employees did not request any type of accommodations or disclose that there were any medical issues related to the pregnancy.

When rumors spread that Ms. Foley was pregnant, the owner of the Company confronted her and allegedly demanded to know if she was pregnant.  She refused to confirm that she was in fact pregnant.  Nevertheless, during this confrontation, the owner told her that she was required to provide medical clearance.  Ms. Foley was also allegedly immediately removed from the work schedule until she could provide the note.  Ms. Foley objected to the requirement that she obtain medical clearance and was then terminated the following day.

This case has a rather simple lesson that is one of the basic premises behind the Pregnancy Discrimination Act  — that employers cannot assume that pregnant employees will be unable to work or will not be dedicated to their jobs once they become pregnant or have children.  Even in an environment where the physical demands are much greater than being a cashier in a doughnut shop, employers cannot simply assume that pregnant employees cannot perform the job functions.

A related lesson for employers is that the general rule under the Americans with Disabilities Act regulations is that an employer cannot require an employee to provide medical information unless the request for information is job-related and consistent with business necessity.  In the absence of a request for accommodation or some indication that the employee is actually unable to perform job duties on account of a medical condition, employers may violate the ADA by requiring medical information.

Are Dress Codes in Jeopardy from the Supreme Court?

Posted in 5 Minute Laugh, Equal Employment Opportunity Commission, Religious Discrimination

This week the United States Supreme Court heard arguments in a case that we have previously reported on that was filed against Abercrombie & Fitch.  In that case, a Muslim teenager applied for a job and was denied the job because she wore a head scarf which the hiring manager believed did not coincide with the company’s “look” policy.  It is always dangerous to try to predict how the Supremes are going to rule simply based on the argument.  News outlets have varied in how they believe the Justices’ comments may foreshadow the outcome.  If you want a simple factual retelling of the argument the Christian Science Monitor‘s article is one of your better bets.

The fact that the Supreme Court may rule in the teen’s favor does not necessarily mean that employers cannot have dress codes.  It will likely mean that employers need to follow existing guidance that accommodations may need to be made for religious beliefs.

Indeed, there are lots of things that employees may wear at work that would make an employer cringe and justify the imposition of a dress code.  If you don’t believe me, check out today’s 5 minute laugh video:




Tell Me More, Tell Me More, Did You Get A Big Raise?

Posted in General Employment Matters

Compensation on the WhisperFor some employees, one of the hottest pieces of gossip is the scuttlebutt on raises and compensation.  Depending on the company and industry, salary information may be considered by an employer to be highly “proprietary” information, which, if disclosed, has the potential to disrupt employee morale and retention.  We periodically review employee handbooks and policies from our clients that contain strict prohibitions on the disclosure or discussion of compensation and/or benefits by employees.  Unfortunately, such policies are highly problematic.

As Amazon.com recently experienced at its warehouses, the National Labor Relations Board (NLRB) is pursuing employers who prohibit salary and benefit discussions amongst employees.  Under the current Board, the National Labor Relations Act (NLRA), in general, allows employees to communicate about pay and working conditions, free from retaliation, so that they can presumably bargain for better wages and/or benefits.  As such, a salary and benefit non-disclosure policy will generally run afoul of the NLRA.  This is not an intuitive concept for many.  Managers and supervisors may require training to ensure “salary gossip” is not discouraged.  Moreover, so called “lawful activities laws” in certain jurisdictions (e.g., New York) afford additional protections to employees who engage in personal and other enumerated activities during non-working hours.

What is an employer to do?  We would, foremost, recommend reviewing your employee handbook and other policies to ensure compliance with federal, state and local labor and employment laws.  In addition, increasing transparency regarding your company’s criteria for salary determinations, or even salary “ranges” if so inclined, can help diffuse gossip about compensation.  Moreover, periodic reviews of salary and benefits during specified times, which are known to employees, may also help minimize or compartmentalize salary discussions.

Faruqi Sexual Harassment Case Is Still a Cautionary Tale

Posted in Employee Termination, Harassment, New York City Human Rights Law, Sexual Harassment

27485319_sLawyers, and I suspect a good deal of employers, watched the Marchuk v. Faruqi & Faruqi case with a great deal of interest.  The allegations after all were quite scandalous — namely that Juan Monteverde, one of Faruqi’s high profile partners, had sexually harassed Marchuk and raped her.  Some of the interest may have been little more than schadenfreude as Faruqi & Faruqi have certainly made their share of enemies trolling for class actions against corporate giants.

Now that the verdict has come in and it was rather non-spectacular given the allegations, defense lawyers may be celebrating that a jury rejected most of the claims and only awarded a total of $140,000. Above the Law has tracked down a juror to explain the verdict, especially given the rape allegations. There is probably a lot of interest in reading the juror’s tale, most notably the rare glimpse inside jury deliberations.

What should be of note to employers is that the mere fact that the jurors did not 100% believe Marchuk did not preclude them from finding liability against the Firm.  Instead, the jurors really delved into the evidence to see if that supported a verdict under the employee-friendly New York City Human Rights Law.  The jurors understood that the law is much more lenient than state or federal law.

However, this case is not only a cautionary tale for New York City employers, but it is a reminder to employers and all of us defense attorneys not to fall in love with only a certain aspect of  their case.  The juror interviewed noted that there were several inconsistencies in Marchuk’s story regarding the rape and that was what led them to come to the conclusion that the sex had been consensual.  However, the defense attorneys also tried to paint a picture of a woman who was only looking for a payday by introducing evidence that she joked she was going to Hawaii with the settlement money.  This evidence was roundly rejected by the jury.

I have been involved in many investigations and lawsuits where clients have discovered that perhaps an employee was not truthful on one minor issue.  Clients begin to convince themselves that this one misstep means that no one will ever believe the rest of the story.  This may be true, but it may not be when you look at the totality of the circumstances.  After all, jurors are human beings, most of whom have told partial truths about minor incidents, whether intentionally or not, but still expect people to believe them when they raise serious complaints.  To borrow from the title of a much-ballyhooed movie currently in theaters, there are 50 shades of gray.

When evaluating risk of exposure in a lawsuit, employers need to look at the big picture.

It’s An Unvaccinated World After All

Posted in Americans with Disabilities Act, Disability Discrimination, Employee Hiring, Family Medical Leave Act, Leave Laws, Religious Discrimination, Sick Leave

Small WorldThe recent measles outbreak making headlines at Disney properties in California has been unnerving, to say the least. As any parent can attest, a visit to Disney is likely to be on someone’s wishlist at some point (as my two small children have already made clear!). Beyond planning a visit to see Mickey and Minnie, managers and HR professionals should also be cognizant of the disease’s spread, recently to New York, and be savvy to their obligations and restrictions vis-à-vis vaccinations and medical leave.

Must an employer require their employees to be vaccinated against measles? Generally, no, absent some specific health or safety regulation that may govern a particular industry in a particular jurisdiction (e.g. healthcare workers/first responders). For most employers, this is not an issue.

May an employer require employees to be vaccinated against measles? This is where things get tricky. There is nothing that would per se prevent requiring employees to be vaccinated against measles in order to work. However, dangers abound. Federal, state and local anti-discrimination provisions may require exceptions, primarily for religious and/or medical reasons. If the employee is in a high risk occupation, such as emergency medical services, the law provides more leeway, however each employer’s situation needs to be analyzed on a case-by-case basis.

A concerned employer could, alternatively, offer voluntary measles vaccinations, free of cost, which would provide employees some level of so called “herd immunity.” However, remember, you generally cannot ask about or disclose an employee’s vaccination status due to various privacy laws, such as the Health Insurance Portability and Accountability Act (HIPAA) and the Americans with Disabilities Act (ADA). Proper consent forms should also be obtained through an authorized vaccination provider.

If an employee does contract measles, it may be reasonable and/or required to force an employee to stay home (preferably on paid leave) until they are healthy to avoid its spread in the workplace. Depending on the employer’s size, Family and Medical Leave Act (FMLA) protected leave must also be offered and appropriate FMLA notices given. Confidentiality regarding the employee’s medical status must also be maintained and any discriminatory employment actions avoided.

As always, we recommend giving your friendly local labor and employment attorney a call to discuss the complexities of any particular issues you may have.

The EEOC Is Not Feeling the Love

Posted in Equal Employment Opportunity Commission, Religious Discrimination, Retaliation

We previously reported that the EEOC had filed suit against United Health Programs of America Inc. after workers alleged that they were forced to say “I love you” to co-workers on account of their employers’ beliefs in “Onionhead.”  The suit also alleges that employees were forced to engage in prayer, wear Onionhead-related pins, and burn candles in the workplace.  (Just in case any of you were confused, we really meant Onionhead; this is not a fake news post from the Onion.)

35103496_sUnited Health Programs of America Inc. asked for permission to file a motion in federal court to bar the EEOC from contacting its employees.  The motion alleges that employees were sent a letter that laid out “skewed facts” and seemed to imply that a response to the letter was mandatory.  According to the motion, if employees did not respond to the letter, they were called by the EEOC and sent a follow-up letter.

It will be interesting to see how the Court rules on the motion.  If the allegations in the motion are true, then employers should be aware that the EEOC may employ aggressive solicitation methods.  Of perhaps bigger concern for employers is how to respond to employees who complain about being contacted by the EEOC.

Employers cannot tell employees that they must not cooperate with the EEOC lest they face claims that they interfered with the employees’ rights to report discrimination.  Employers can, however, tell employees that they do not have to cooperate with the EEOC if they do not wish to do so.  It is also fine to tell employees that if they do speak with the EEOC, that they should tell the truth.  Employers should be careful to also let employees know that no action will be taken against the employee if the employee chooses to speak with the EEOC.