tinder.jpgI’m often asked, “Eric, where do you find this stuff?”

Why TMZ, of course. Break ‘em off TMZ:

“Whitney Wolfe claims in a new lawsuit — obtained by TMZ — she was mercilessly brutalized by the other execs who wanted to remove her title because no one would take a site like Tinder seriously if they knew it was founded by a 24-year-old chick.

Wolfe says one of the execs made a romantic play for her and she eventually dated him … but it didn’t end well and she claims he then waged a harassment campaign against her.

She says the guy also texted her when he found out she was interested in someone else, saying, ‘I will s**t on him in life. He can enjoy my leftovers.’ She says she was also talking to some Muslim men and he texted her, ‘You prefer to social climb middle-aged Muslim pigs that stand for nothing.’

And Wolfe says the guy referred to one of her girlfriends as ‘a liberal, lying desperate slut.'”

Here is a link to Ms. Wolfe’s complaint against Tinder, and another link (here) to a press release about the complaint from the law firm representing Ms. Wolfe.

For those who don’t know, Tinder describes itself (here) as “the fun way to connect with new and interesting people around you.” More bluntly, TMZ describes Tinder as “an online dating app best known for hooking people up who want to bang.”

It is against this backdrop that I offer a takeaway. To establish sexual harassment, one must show that, among other things, not only was he/she offended, but that a reasonable person in their shoes would have been offended by the same workplace behavior. When measuring what is offensive, the nature of the workplace matters. Indeed, what may be offensive in a law firm environment, may not be, say, in a writing meeting on the set of the television show Friends.

Still, there are limits. And just because someone works at Tinder, which apparently helps users bang, doesn’t mean that she consents to being the target of nasty, insensitive comments.

So, kindly remind your employees that, no matter the environment, sexual harassment won’t fly.

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Mid-morning yesterday, the Internet broke shortly after the Supreme Court issued its 5-4 decision in HHS v. Hobby Lobby Stores, Inc..

Jeez, I’m still cleaning out my Twitter, LinkedIn and Facebook feeds.

In case your wifi, 4G, 3G, dial-up, TV, radio, and other electronics picked the wrong day to quit sniffing glue, the long and short of yesterday’s Supreme Court decision is this: Smaller, closely-held (think: family-owned) companies don’t have to provide Obamacare access to birth control if doing so would conflict with an employer’s religious beliefs.

So, how does yesterday’s decision affect your workplace? I promised you three ways, and here they are:

  1. The court’s opinion creates an Obamacare exception for closely-held business. If your company isn’t closely held, then there’s nothing to see here.
  2. The Hobby Lobby decision does not allow employers (closely-held or otherwise) to discriminate against employees under the guise of a religious practice. In the dissent, Justice Ginsburg pondered, “Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage or according women equal pay for substantially similar work. Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?” Well, no. The majority recognized that “the Government has a compelling interest in providing an equal opportunity to participate in the work force without regard to [a protected class], and prohibitions on [discrimination] are precisely tailored to achieve that critical goal.”
  3. The Court’s opinion is a good reminder about religious accommodations in the workplace. Title VII requires covered employers to make reasonable accommodations for a worker’s sincerely-held religious beliefs unless doing so would impose an undue hardship on business operations. The “sincerity” of an employee’s stated religious belief is usually not in dispute. (More on that here). And, in these situations, an employer should not judge the employee’s religious belief to determine whether it is plausible. Rather, the focus should usually be on whether the accommodation would impose an undue hardship — because the burden there is rather low.

Image Credit: “HobbyLobbyStowOhio” by DangApricot – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons

paintcans.jpgThe Benjamin Moore color gallery contains, among others, Clinton Brown and Tucker Chocolate.

My virgin ears! I mean, how racist can you get?!? Or, so says Clinton Tucker, a former Benjamin Moore employee, who filed a complaint in New Jersey state court in which he alleges that these paint names are hella-racist.

According to Courthouse News Service (here), Tucker says that “being a black man named Clinton Tucker, the plaintiff found this to be extremely racially offensive.”

Incidentally, Benjamin Moore also has paint colors called Tucker Orange and Tucker Gray. However, a brief search I conducted yielded no discrimination lawsuit initiated by older or fake-baking employees.

Which brings me to the point of this post, That is, to prevail on a hostile work environment claim, an employee has to show, among other things, that a reasonable person in his shoes would be offended by the same conduct with which the plaintiff takes offense.

And since no one on the face of the earth would find the paint names Tucker Chocolate and Clinton Brown to be racially offensive, then, absent other facts to support a hostile work environment based on race, I think we have a loser claim here.

And an excuse to play Color Me Badd.

*** ducks tomato ***

Thumbnail image for Thumbnail image for Supreme Court.jpgIn a unanimous opinion delivered yesterday (here) in NLRB v. Noel Canning, the Supreme Court concluded that President Obama’s so-called “recess appointments” of three of the five members of the National Labor Relations Board between the Senate’s January 3 and January 6 pro forma sessions were unconstitutional.

Amy Howe from SCOTUSblog.com summarized the decision “in plain english”:

“[A]ny recess that is shorter than three days is not long enough to make a recess appointment necessary. And a recess that is longer than three days but shorter than ten days will, in the normal case, also be too short to necessitate a recess appointment.”

* * *

“[T]he Senate can prevent the president from making recess appointments even during its longer recesses by holding “pro forma” sessions – that is, sessions at which no work actually gets done – every three days.”

So, there you have it. The net effect of this opinion is that any NLRB decision rendered with the three improperly-appointed NLRB members is void of lack of a quorum. (Previously, the Supreme Court held here that the Board is powerless to rule with less than a quorum of three members). Although, with a full quorum now, you’d expect that those case would eventually be affirmed.

For more on the Court’s decision on NLRB v. Noel Canning check out:

I remember a high school classmate of mine who had his mom send in a permission slip to excuse him from missing school for the Philadelphia Phillies’ home opener. Mom’s note indicated that her son was suffering from “Vernal Flu.” 

Get it? Vernal Flu = Spring Fever.

Pretty creative, huh?

The US Men’s Soccer team is not impressed.

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Image Credit: @USSoccer on Twitter

UPDATE: Daniel Schwartz scooped me on this last night with “A Note from the U.S. Coach is a Great Idea, But Not a Good Excuse.” NEWMAN!

Sorry for the late past today, gang. I had planned on putting something together last night, but, two words: sushi coma.

So, here for your enjoyment, whether you’re attending the 2014 SHRM Annual Conference and Expo this year, like I am, or whether you’ve been following along online, is a collection of recent blog posts tracking the event:

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Over the weekend, I read this opinion in a race-discrimination with facts so egregious, they’d make David Duke blush.

Let me set the scene for you. This is a workplace where, allegedly, several of the white employees displayed Confederate flag paraphernalia. I’ll spare you a verbatim review of the racial graffiti and epithets — you can view it here — but, it was pretty darn bad. And what about multiple nooses in the workplace — eight in total.

[Sidebar: I once attended a deposition of an Ivy League-educated HR Manager who testified that there was a time when she did not understand how a hangman’s noose in the workplace would offend a black employee. Hubba-what?!? Folks, just so we’re clear here, a hangman’s noose is the single worst symbol of racial hate. Period. So eight of ‘em is hella-bad!]

All that hate, but no discrimination.

There is no question that nooses, n-words, graffiti and Confederate flags are symbols of racial animus and violence. But that was not enough to convince the Eleventh Circuit Court of Appeals to reinstate several of the race-discrimination claims that the lower court had dismissed.

Dismissed?!? Why? Because many of the plaintiffs lacked firsthand knowledge of the bad stuff.

As the Eleventh Circuit Court of Appeals reasoned: “an employee alleging a hostile work environment cannot complain about conduct of which he was oblivious for the purpose of proving that his work environment was objectively hostile.”

In other words, an employee cannot rely on evidence of racial harassment of which he is not personally aware to prove that his work environment was objectively hostile. And while some of the plaintiffs were able to show that they were personally exposed to acts of race discrimination, the ones who relied on “me too” evidence about those incidents had their cases dismissed.

Employer wins.

Employer takeaway.

But, not really. Because, well, it probably spent hundreds of thousands of dollars defending these legal actions (without factoring in the cost of paying judgments). So, for the love of God, if your workplace at all resembles the allegations presented here…

Well, you’re probably not reading this blog anyway.

Thumbnail image for fmla.jpegFolks, I get the feeling you may be inundated with extra blog posts over the next few days.

That is, I’m punching this post out from the airport, as I await my flight to Orlando, where I’ll be attending the Gathering of the Juggalos 2014 SHRM Annual Conference and Expo.

Two speaking gigs for me and lot of other conference time to listen, learn, and blog.

My first session is Tuesday, where I’ll present “Meeting the Challenges That Leaves of Absence and Attendance Issues Present Under the FMLA and ADA.”

So, the timing of last week’s announcement from the U.S. Department of Labor couldn’t have come at a better time.

(Thanks for holding off on the announcement. Let me know what you think of that bottle of 12-year I sent you).

Same-sex couple will enjoy the same FMLA rights.

The Family and Medical Leave Act permits eligible employees to take leave to care for a family member with a serious health condition. The FMLA defines family member as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides.” So, if your employee resides in a state where same-sex marriage is legal, then that employee can take leave under the FMLA to care for a spouse with a serious health condition.

The Department proposes to define spouse as follows:

“Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.”

Here’s the long and short of it, under the proposed rule, all legally married couples (opposite-sex, same-sex, common-law) would have the same FMLA rights, regardless of residence.

Be heard on this proposed rule.

If you have comments on the proposed rule, you can leave them below. But, until the Department recognizes this blog as an official forum for public comment — mailing second bottle of scotch shortly — you can leave comments for the rule officially the the Department here.

shrm.jpgAnd by coffee, I mean turkey legs and frozen blueberry-mango rum lemonade.

Whoa, whoa, whoa, slow down…

You see that badge over there? You know what I had to do to get that badge?
Buy the full version of Photoshop
Spike the Kool-Aid of everyone on the SHRM Annual Conference Speaker Selection Committee
I beat out thousands (trillions?) of other speaker submissions to be selected as a SHRM 2014 Annual Conference & Exposition speaker.

And, crew, I got selected to speak not once, but twice. Know what that means? ***Ducks Lucifer’s pitchfork***  Say, is it just me, or do any of you smell sulfur?

It means that SHRM trusts me to speak intelligently about: (1) social media in the workplace; and (2) tackling leave issues under the FMLA/ADA.

That’s a lot of pressure. Let’s just hope I remember to wear pants. Pretty sure I can pull it off. (The pants and the presentations).

But otherwise, when I’m not speaking, Your Blogness is up for whatever; not in a Bud Light “Up for Whatever” kinda way. See, turkey legs, et al, supra. Rather, I’d like to meet some of my readers — the ones that aren’t crazy stalkers.

So, if you’re not a crazy stalker, and you like this blog, and you’re gonna be at SHRM14, then drop me a line, and let’s plan some time to meet. I look forward to catching up.

See you in Orlando.