Discrimination is just plain wrong. It is shocking that there is still anywhere in America where it is legal to fire someone for their sexual orientation or gender identity. Americans understand that it's time to make sure our LGBT friends and family are treated fairly and have the same opportunities as all Americans. Now it's time for our laws to catch up. People should be judged at work on their ability to do the job, period.-- Senator Jeff Merkley (D-OR)
Last week, Senator Merkley together with Senators Mark Kirk (R-IL), Tom Harkin (D-IA), Susan Collins (R-ME) and Tammy Baldwin (D-WI), reintroduced the Employment Non-Discrimination Act (ENDA). (The same version of ENDA has bipartisan sponsorship in the House as well).
Title VII of the Civil Rights Act currently makes it unlawful for employers to engage in sexual stereotyping. ENDA, which has been introduced in every session of Congress save one since 1994, would expressly prohibit employers from firing, refusing to hire, or discriminating against those employed or seeking employment, on the basis of their perceived or actual sexual orientation or gender identity.
And while Congress has blown several opportunities to pass ENDA, it's worth noting that, 93% of Fortune 100 companies include sexual orientation and 82% include gender identity in their corporate nondiscrimination policies. Nearly 200 municipalities also have similar laws in place.
Many are optimistic that Congress can get ENDA to the President this time around.
Just another Friday here at the ole Handbook. Oh, get your head out of the gutter! This is a family blog.
(Y'all have families, right?)
For serious, today's lede isn't just gratuitous, there is an employment-law connection here.
*** searching ... searching ... searching ***
Ok, got it!
- Back in 2012, the Iowa Supreme Court held that it's legal to fire a female employee because of her "irresistible attraction". Leave it to Staci Zaretsky at Above the Law to track down the plaintiff. She filmed a hilarious segment on Tosh.0. More from Above The Law here.
- Take one supervisor, add in a consensual relationship (complete with texting, sexting, and you know, I don't know the exact pronunciation, but I believe its ménage à trois) gone bad, a sexual harassment complaint, and what do you have? Why a race-discrimination complaint, of course! Guh?!?!
- And last, we have this month's edition of the Employment Law Blog Carnival: Tips for HR Spring Cleaning. Make sure to check it out. Lorene Schafer at Win-Win HR did a fantastic job with it!
Yesterday, the Supreme Court heard oral argument in University of Texas Southwestern Medical Center v. Nassar. In this case, the Court is being asked to determine what a plaintiff's burden of proof is for a Title VII retaliation claim.
Is it mixed motive? In other words, is it enough that retaliation motivates an adverse employment action?
Or does a plaintiff have to prove that retaliation was the reason that adverse employment action was taken?
You can find a copy of the transcript from yesterday's oral argument here.
But before you pour through it, let's see how well you know your Supreme Court Justices.
Take the quiz and see if you can tell who said what during oral argument.
Last week, the U.S. House of Representatives passed the Cyber Intelligence Sharing and Protection Act, better known as CISPA. CISPA provides for the sharing of certain cyber threat intelligence and cyber threat information between the intelligence community and cybersecurity entities, and for other purposes.
However, the majority vote was not without a speed bump, according to this report from Josh Wolford at WebProNews:
Colorado Democrat Ed Perlmutter attempted to tack on a provision to CISPA that would make it illegal for employers to require prospective employees to hand over their social media passwords as a condition of acquiring or keeping a job.
Perlmutter's amendment was voted down 224-189.
Sara Gates of The Huffington Post reports here that CISPA sponsor Rep. Mike Rogers called Perlmutter's proposal an attempt to kill the bill, and suggested that Perlmutter propose the amendment as standalone legislation.
Currently pending in the House is the Social Networking Online Protection Act (SNOPA). SNOPA would effectively accomplish what Perlmutter attempted to do by amending CISPA. Although six states have passed laws banning employer requests for social media passwords of job applicants, and several others have legislation pending, Congress has done little to push SNOPA along. Indeed, the same version of SNOPA was introduced in 2012, but sat dormant.
Today we have a guest blogger at The Employer Handbook. It's Noah Kovacs. Noah has over ten years experience in the legal field. He has since retired early and enjoys blogging about small-business law, legal marketing, and everything in between. He recently purchased his first cabin and spends his free time remodeling its kitchen for his family. Twitter: @NoahKovacs
(Want to guest blog at The Employer Handbook? Email me).
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When I first began drafting social media policies and offering social media training for clients, I preached that friending the boss was a bad idea. The lawyer in me was concerned for two reasons: (1) Facebook's informality would facilitate behavior from a supervisor that a company would not otherwise tolerate in the workplace; (2) if a supervisor knew about, but failed to report, employee actions on Facebook that would violate an anti-harassment policy, the company could lose a valuable discrimination defense.
What do non-lawyers have to say about friending the boss on Facebook? Find out after the jump...
No way, Heisenberg is gonna be cool with this. Not a chance.
Earlier this month, New Mexico joined Maryland, Illinois, California, Michigan, and Utah, by becoming the sixth state to pass a law, which makes it unlawful for an employer to request or require that a prospective employee fork over a social media password as a condition of gaining employment. However, this New Mexico's law is unique in that it only covers prospective employees, and not the existing workforce.
Lest anyone get the wrong idea, I am not in favor of employers asking candidates or current employees for social media passwords. Instead, as I've noted before, there is no empirical evidence that employers asking for social media passwords is a common practice. Therefore, these laws seek to regulate a "problem" that rarely, if ever, exists.
picks up phone dorks out in his bluetooth VOIP-compatible headset **
The Employer Handbook: "Nyello."
Two Weeks Ago: "Hi Handbook. This is "Two Weeks Ago" calling. I wanted to let you know that Philadelphia Mayor Michael Nutter vetoed the "Promoting Healthy Families and Workplaces" Bill, also known as the paid sick leave legislation. I read about that legislation on your blog back in February, and I was wondering when you were going to get around to updating your readers."
Handbook: "Yeah, I meant to write about ---. Hold please. I have another call coming in. Hello?"
Last Week: "Hi there. It's "Last Week." Is now a good time? I tried to contact you -- well -- last week, to find out why you hadn't told your readers that Councilman Greenlee didn't have the votes to override Mayor Nutter's veto of Philly's paid sick leave bill. You ok? I'm concerned."
Handbook: "I'm fine. Just been busy, I guess."
LW: "Because now paid sick leave is done in Philly. And I know you target local readers. Look, if you need some help over there..."
Handbook: "I'm cool. It's all good."
LW: "You sure? I mean --"
Handbook: "Hey, Last Week. I'm fine. How's your employment-law blog, the one that gets thousands of hits going? Oh wait, you don't have one, do you?"
LW: "Hey, no need to get testy, nerd."
Handbook: "I got your nerd right here. ** grimaces at crappiness of that lame comeback ** And why don't you come say that ish to my face? Oh wait, you can't, can you? Last. Week." ** swish **
LW: "Hey, I'm not one who is going to blog about a made-up conversation with "Two Weeks Ago" and "Last Week." You're going to blog about this, aren't you? You're going to blog about this..."
** sigh **
Fine, I'll play a quick encore.
In a case decided yesterday, the U.S. Supreme Court in Genesis Healthcare Corp. v. Symczyk (opinion here) held that if a plaintiff who brings a claim under the Fair Labor Standards Act on behalf of herself and her co-workers rejects an offer of judgment from the defendant that would fully satisfy the plaintiff's own personal claim, then the entire case gets dismissed unless the plaintiff can demonstrate a personal interest in representing the unnamed claimants.
They call this a "pick off" of the lead plaintiff and, yeah, I shouldn't have played that encore. I told my manager. I says, "Charlie, I don't do these FLSA collective action cases. But no....."
Charlie's gonna get an earful from me...
This blog is nearly 2 1/2 years old and we have our first Equal Pay Act post. The Equal Pay Act requires equal pay for equal work on jobs the performance of which require equal skill, effort, and responsibility, and which are performed under similar working conditions. Any wage discrimination on the basis of sex violates the Act.
In Puchakjian v. Township of Winslow, Deborah Puchakjian filled a Municipal Clerk vacancy within the Township of Winslow which came about a result of the retirement of the male incumbent. His salary at retirement was $85,515; Ms. Puchakijan's salary to replace him was $55,000.
You see, there are four exceptions to the Act's general rule of equal pay for equal work:
- a bona fide seniority system,
- a merit system,
- a system which measures earnings by quantity or quality of production, or
- any factor other than gender
The Third Circuit agreed with the lower court that the retired Municipal Clerk's yearly salary increases over his 29-year tenure in the position "both explained and motivated the wage disparity." Consequently, the wage disparity was based on a factor other than gender.
Given these four Equal Pay Act exceptions, claims under the Act are tough to prove. That said, a priority in the EEOC's Strategic Enforcement Plan (FY 2013-2016), is the enforcement of equal pay laws. Indeed, in 2012, the EEOC received over 4,100 charges of gender-based wage discrimination, and obtained over $24 million in relief for victims of gender-based wage discrimination through administrative enforcement efforts and litigation.
So, now is as good a time as any to conduct a wage audit and make sure that any disparity in pay for equal work is attributable to one of the Act's exceptions.
Yesterday, CareerBuilder.com released its list of 15 of the most unusual things that bosses have asked employees to do. I've had a lot of rough, odd jobs in my lifetime --
*** Hey silver spoon! Quit giving me the stink eye over there. If I write it, my readers believe it. Sheep... ***
I consider myself lucky, requests made of me only made the list twice.
*** Re-checks list for "Quick! Flush the yeyo*." ***
Yep, seven. Here they are:
- Boss asked employee to be prepared to delete all emails and computer files at a moment's notice
- Boss asked employee to be a surrogate mother for her - more than once
- Boss asked employee to spy on senior management
- Boss asked employee to buy a rifle for him, and he would reimburse the employee
- Boss asked employee if she knew of anyone who could "hook him up" with illegal substances
- Boss asked employee to go online and post false good comments about him
- Boss asked employee to come up with a science fair project for her daughter
- Boss asked employee to fire his (the boss's) brother
- Boss asked employee to lend him $400 for a down payment on a car
- Boss asked employee to remove her stitches
- Boss asked employee to be better friends with him
- Boss asked employee to scour an abandoned office building for furniture and supplies they could use
- Boss asked employee to bail another coworker out of jail
- Boss asked employee to clip her dog's nails
- Boss asked employee to help plan her wedding
What's the weirdest thing that your boss has asked you to do? Let me know in the comments below.
* That never happened and The Employer Handbook does not condone drug use in the workplace. Scarface-esque references to "yeyo"; however, are ok if cleverly executed. Swish!
From the blog that brought you the classy September 2011 post, "This old mother****** may just have an age discrimination claim," comes a story of a woman whom her former employer **cough** affectionately **cough** referred to as "Old Rose."
On other occasions, the plaintiff Rosemary Marsh was told, "you're slipping, you're getting old." Another time, she was asked if she was "too old to get down there" when she bent down to replace paper in the photocopier. And when the company eventually fired Ms. Marsh -- you had to figure that was coming, right? -- she was allegedly told, "I think you're just getting a little too old for your job."
Sounds like the makings of a good age discrimination claim. Well, not in the Sixth Circuit Court of Appeals. No ma'am:
The first three alleged statements were not made in connection with a decision to fire Marsh. At the most, these statements show only that Horn felt that Marsh was an elderly individual and that some stage of old age was correlated with a decrease in job performance. To hold that age was the but-for cause of Marsh's termination, a factfinder would still have to infer from these statements that Horn's supposed disdain for the elderly led her to fire Marsh. Thus, these statements do not constitute direct evidence of age discrimination.
Hold up there one sec. I read in the opinion that the defendant claimed that Ms. Marsh was a poor performer. But, Ms. Marsh claims they freaking told her, "I think you're just getting a little too old for your job." I'm sensing pretext here, amirite?
Finally, Marsh asserts that Horn's alleged age-related statements, discussed above, demonstrate that AERC of Michigan's proposed reasons for her termination are a mere pretext used to mask age discrimination....Marsh cannot demonstrate that these alleged comments were made by a decision-maker or that the individuals with the power to fire her harbored any discriminatory animus. Thus, the alleged statements of an individual with no authority to fire Marsh cannot demonstrate that AERC of Michigan considered Marsh's age when firing her, much less that AERC of Michigan's espoused reasons were pretextual and that age was actually the but-for cause of Marsh's termination.
The case is Marsh v. Associated Estates Realty Corp.
To defend against a claim of discrimination, an employer can argue that it fired an employee because it honestly believed that the employee did "X." And, as long as "X" isn't discriminatory, the employer prevails. This is the honest belief doctrine.
So, can an employee flip the "honest belief doctrine" on its head to show that an employer's purported legitimate business reason for disciplining an employee was actually pretext for discrimination?
Find out after the jump...
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