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Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

Hey Boss, Stop Harassing Me

Posted in Employee Termination, Equal Employment Opportunity Commission, Sexual Harassment

1991649_sGenerally, if an employee is going to complain of harassment by a supervisor, in my experience, the complaint is raised to another person, such as another manager or Human Resources.  A lot of employees simply do not feel comfortable having that conversation with their bosses.

Of course, if an employee does have that conversation with his or her boss, the boss needs to be aware that the complaint cannot simply be pushed under the rug.  As a recent 6th Circuit case makes clear, this is where it is crucial that employers provide training and other guidance to supervisors in how to handle such complaints.  In EEOC v. New Breed Logistics, the 6th Circuit recently held as a matter of first impression that an oral complaint about harassing supervisor to that harassing supervisor is “protected activity” under Title VII for which an employee cannot be retaliated against.  In so finding, the Court upheld a $1.5 million award for the EEOC where the EEOC raised claims of retaliation on behalf of two female workers and a male worker who complained of a supervisor’s harassing behavior.

Although the case is headline news in the legal community since it is the first time the 6th Circuit has confronted the issue, the decision itself is not surprising.  This is because courts have routinely applied broad definitions of “protected activity” to insure that employees are not being intimidated from filing complaints of harassment.

Managers who hide complaints of harassment may think that they are protecting themselves, but they could be exposing themselves to greater liability.  In the New Breed case, the defense was that the plaintiffs had performance issues. However, where a complaint of discrimination is not investigated and then an employee is terminated very close in time to that complaint, the failure to investigate the claims muddies the issue of whether there was a legitimate reason to terminate the employee.

It is certainly possible that, had the complaint been investigated, it would have been found to be unsubstantiated and the manager would not have been in any trouble.  On the other hand, hiding the complaint clearly did not help the manager. It’s an expensive lesson to learn and is why companies should make clear that all complaints of harassment must be reported to human resources or whoever is else responsible for investigating complaints.

The Supreme Court Argument Date for Gay Marriage Cases is Around the Corner

Posted in Equal Employment Opportunity Commission, Gay Marriage, Sexual Orientation Discrimination

For those people who may have been living under a rock or enjoying an extended Tom Hanks-like vacation on a desert island a la Cast Away, the Supreme Court is set to hear argument in four petitions that challenge state laws in the 6th Circuit banning gay marriage.  It is widely anticipated that the Justices will finally squarely confront whether banning gay marriage violates the Equal Protection Clause.

17951947_sThe road to the Supreme Court was paved largely by US v Windsor, which struck down the Defense of Marriage Act as a violation of the Fifth Amendment.  The decision opened the door for many  courts to strike down gay marriage bans. However, states promoting the bans have argued that the Windsor decision makes clear that it is up to states to decide what is a valid marriage and those states could choose to define marriage as only being between a man and a woman.  Adding to the confusion is the fact that several states, in an effort to get around the Full Faith and Credit Clause which generally requires states to recognize the legal actions of other states, passed constitutional amendments defining marriage as being only between a man and a woman.  A “my constitution trumps yours” argument.

Without a decision based on the Equal Protection Clause, it is likely that there will remain conflicts over the issue.  As of today, there are still 13 states in the U.S. where gay marriage is illegal.  One of the states where it is legal, Alabama, has become a bit of a constitutional battle ground with a federal court declaring the ban on gay marriage illegal and the state’s Supreme Court issuing an order prohibiting clerks from issuing marriage licenses to same-sex couples.

It is widely anticipated that the Supreme Court’s decision will be in favor of gay marriage.  Although the plaintiffs in the case are taking no chances and have pulled out the big legal guns.  Lawyers for gay and lesbian plaintiffs have chosen Mary Bonauto, the movement’s pioneer, to argue the case.

Employers should be aware that if the decision is in favor of gay marriage, it may have an immediate impact on policies and benefits.  For example, under the FMLA, a spouse would be defined as including same-sex spouses.  The Supreme Court’s decision is not expected until June.  We will let you know as soon as it is decided.

I’m Not a Doctor, but I Play One on TV

Posted in Employee Hiring, Retaliation

36823178_sI was reading an article today about a former partner of a law firm who worked for the firm for a decade before the Attorney General charged her with practicing law without a license.  It turns out, at least according to the AG, that this attorney not only never passed the bar, she never even went to law school.

The article got me thinking about employers’ practices of checking references.  Some employers may never check references.  Other employers may have gotten lax about checking references in light of the fact that many former employers will not disclose anything besides “name, rank, and serial number.”  In fact, this has become the norm as former employers do not want to give more information than dates of employment and job title for fear that a former employee will raise a claim against them if they are honest about the former employee.  This is especially true as plaintiff’s attorneys attempt to stretch legal theories of retaliation to include post-termination conduct such as providing a reference.

So, what is an employer to do?  Even if you don’t think that you are going to get much useful information from a former employer, at the least, you will be able to verify that the employee did in fact work there.  Falsifications on resumes may not be limited to educational history; they could include lying about job histories.  Employers should also contact any schools listed to verify degrees were obtained.

If a prospective employee is required to be licensed, i.e., a doctor or lawyer, employers should also verify that the person is currently in good standing with the applicable  licensing authority.  In many states, this information, including any disciplinary history is available online.  The effort of tracking down the references and verifying a candidate’s educational history is well worth it when you consider that the alternative is that your company name could be in a headline similar to this one in the ABA Law Journal: “Was law firm duped? “Lawyer” practiced there a decade and won partnership; was she licensed?”

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.