Fact or Fiction?That’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post.”

Oh, if I had a nickel for every time I got this question from an employer, “Hey Eric. We have this pregnant employee and she is very close to term. We’re concerned that if she continues working all the way up to childbirth, she may harm herself or the fetus. Can we require her to stay home?”

Eek! Check out this recent press release from the EEOC in which the agency announced that it is suing an employer, which allegedly required a pregnant employee to take unpaid leave until she was cleared by a doctor indicating that she could work despite her pregnancy. The EEOC further alleges, when the employee failed to provide a release, and after she and her mother disputed the legality of the requirement, the employee was fired in retaliation.

So, under federal anti-discrimination law, the answer to today’s QATQQ is, generally, fiction.

NoteA United States Supreme Court majority opinion predicted that Title VII, which contains the Pregnancy Discrimination Act, would preempt state law, thereby absolving employers that complied with Title VII from liability for any fetal injury. (Although the concurrence was more skeptical). Further, that same case recognized a narrow safety exception that would allow an employer to remove a pregnant employee from the workplace; namely, in instances in which pregnancy actually interferes with the employee’s ability to perform the job.

//www.youtube.com/watch?v=R0IUR4gkPIE

Oyez oyez.

The New Joisy Supreme Court just fashioned a test to determine whether a worker is an employee or an independent contractor for purposes of resolving a wage-payment or wage-and-hour claim. And, shockingly, it doesn’t involve jughandles, diners, or Taylor Ham.

(I live in NJ now, so I can say that stuff and get away with it).

I’ve got all the details after the jump…

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In an announcement made late in the day yesterday on LinkedIn, Valerie Jarrett, Senior Advisor to President Barack Obama, posted that President Obama will call upon Congress today to pass the Healthy Families Act.

More on this push from the President and what it will mean for American business, after the jump…

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About a year ago, I blogged here about a dreadful Sixth Circuit opinion, in which the court concluded that the plaintiff may have a discrimination claim for receiving the specific transfer he requested (after having interviewed for the position).

Now, if you read the comments on my post, you’ll see that some of my readers took issue with my analysis of the case.

Well, I see your comments and raise you a scathing Justice Alito dissent from the United States Supreme Court’s denial of certiorari:

The decision of the Sixth Circuit in this case–holding that respondent suffered an adverse employment action when his employer transferred him to a position for which he had applied–qualifies for review under that standard. Indeed, the holding of the court below is so clearly wrong that summary reversal is warranted. The strangeness of the Court of Appeals’ holding may lead this Court to believe that the holding is unlikely to figure in future cases, but the decision, if left undisturbed, will stand as a binding precedent within the Sixth Circuit….The decision of the court below is unprecedented and clearly contrary to the statutes on which respondent’s claims are based.

#TeamAlito

Over the weekend, I joined a Facebook thread discussing a recent federal court complaint filed in Texas by a former Saks employee, Leyth O. Jamal. Ms. Jamal claims that Saks violated Title VII of the Civil Rights Act by discriminating against her because she is transsexual.

Saks claims (here) that the complaint lacks merit because Title VII doesn’t prohibit discrimination against transgender employees.

Writing for Slate.com, Mark Joseph Stern calls out Saks’ “trans-bashing legal strategy” as “legally untenable.” Underscoring the Supreme Court’s decision in Price Waterhouse v. Hopkins, Mr. Stern notes that Title VII forbids sexual stereotyping. For example, in Price Waterhouse, the company allegedly treated Ms. Hopkins differently because she was “macho,” was “tough talking” and used “foul language.” That is, she didn’t conform to the company’s expectations of how a woman should act in the workplace.

So, Mr. Stern is correct that sex stereotyping is unlawful. But, he also concedes that the Supreme Court has not gone the next step and banned discrimination based on transgender status. Still, he implies that, even without the Supreme Court’s imprimatur, the law overwhelmingly favors Ms. Jamal.

It doesn’t. (Well, many local and state laws do, but not federally…)

Indeed, in its motion to dismiss, Saks cites cases from three federal circuits, plus a recent decision from a Texas federal court — where the Saks case is now pending — which held that Title VII does not prohibit transgender discrimination. So, if this case is viewed as one of pure transgender discrimination, Ms. Jamal will lose.

[Note: the Complaint does contain allegations of sex stereotyping (Ms. Jamal was allegedly asked “to change her appearance to a more masculine one”) and a hostile work environment (allegations of violence based on gender)] 

At some point, either the Supreme Court is going to rule on this issue, or Congress will amend the law to clarify that transgender discrimination is (or is not) covered under Title VII.

In the meantime, a few notes about the Saks case:

  1. Companies, like Saks, are free to employ rules and policies prohibiting transgender discrimination. In this BuzzFeed article, Saks claims that it “maintains a long history of policies and practices that are fully supportive of the LGBT community and our LGBT Associates.”
  2. Don’t fault Saks for raising a good-faith legal argument that Title VII doesn’t prohibit transgender discrimination. Indeed, as noted above, several courts have reached the same conclusion.
  3. The Complaint is a series of allegations, not necessarily facts. Saks may not have done anything wrong, including treating Ms. Jamal differently because she is transsexual.

DeweyTruman.jpg

Over the past few days, there’s been a lot of buzz going around the HR-interwebz a/k/a the hella-best part of the ‘net. The buzz was that The Employer Handbook went back-to-back and claimed the 2014 ABA Blawg100 honors by getting the most readers votes as top labor and employment law blog. For example…

Friends, I appreciate the love. However, let’s congratulate this year’s winner: Seyfarth Shaw’s California Peculiarities Employment Law Blog. Well done, dudes!

Besides, it’s an honor just to be nominated.

Another bartender decided to liken beer to domestic violence. It was all captured on social media. [CBS Chicago]

An employee’s caustic Facebook post about a police shooting earned her a termination…and unemployment compensation benefits. [Technology & Marketing Law Blog]

Social media users did not respond well to the Undercover Boss episode about the owner who fired a bikini bartender for not wearing a bikini. [Jezebel]

Next time you run out of toilet paper in a train bathroom, try Twitter. [Huffington Post].

And by bearded dragon, I mean, well, bearded dragon.

This warning holds true even if you operate a reptile store. Chris Joseph of the Broward/Palm Beach New Times reports (here) that a Florida reptile store owner was “arrested on battery and cruelty to animal charges on Friday after he allegedly hit some of his employees with a live lizard multiple times.”

It’s all in this police report. Additionally, according to Joseph article, the same store previously had “hosted a roach-eating contest that ended up killing contestant after he choked on the dozens of roaches and worms during the contest.”

So the clear takeaway here is use bunny rabbits because they don’t hurt as much scrap those progressive discipline policies. Like the infamous “probationary period” when at-will employment begins — they’re at-will, silly — progressive discipline is a throwback to days when unions had more power in the workplace and could negotiate progressive discipline into a collective bargaining agreement. 

I’m not saying don’t give warnings and such before termination, but why restrict yourself that way?

And to those of you who say, “Silly, Meyer. We have an exception to our progressive discipline policy that allows the company to bypass progressive discipline, when deemed fit in the company’s discretion.” Well, ok, great. Just know that, when you create exceptions by deviating from the policy, you create disparate treatment claims.

Don’t handcuff yourself, consider ditching the progressive discipline policy. Instead, just treat employees fairly and equally.