The Employer Handbook Blog

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". So, let's get right to today's question:

Let's say I have a former employee who files a charge of discrimination with the EEOC. If a potential new employer comes calling from a job reference and I...

1. give my former employee a bad reference;
2. to get back at the employee for filing the charge; and,
3. because of my bad reference, the former employee is not hired...

Have I engaged in actionable post-employment retaliation?

You bet I have! So, the answer to today's QATQQ is "FACT".

Consistent with the U.S. Supreme Court's decision in Robinson v. Shell Oil Co., here in the Third Circuit (PA, NJ, DE, USVI) post-employment retaliation is bad, bad, bad. In this Third Circuit decision, the court held that "an ex-employee may file a retaliation action against a previous employer for retaliatory conduct occurring after the end of the employment relationship when the retaliatory act is in reprisal for a protected act and arises out of or is related to the employment relationship."  Many state courts are on boards with this too (For example, check out this case from the NJ Supreme Court). A former employer engages in retaliation where its action results in discharge from a later job, a refusal to hire the plaintiff, or other professional or occupational harm. In essence, post-employment retaliation must involve some harm to an employee's employment opportunities.

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". So, let's get right to today's question:

If a former employee sues for discrimination, claiming to have been subjected to a hostile work environment, must the employee prove that the harasser acted with bad intentions? Put another way, if the harasser was just joking around, does the plaintiff lose the case?

No way! FICTION!!!

An employer is liable for a hostile-work-environment discrimination if the employee can prove five elements:

1. the employee was subjected to certain conduct because of the employee's particular protected class (e.g., race, religion, national origin, gender, sex),
2. the discrimination was severe or pervasive,
3. the discrimination detrimentally affected the employee,
4. the discrimination would detrimentally affect a reasonable person in like circumstances, and
5. a basis for employer liability is present.

It does not matter whether the harasser intended to harm the victim. It only matters how the harasser's action's impacted the victim (and how someone in the victim's shoes would feel). This nuance, which many employees do not appreciate, is a crucial point to stress when conducting anti-harassment training -- before a lawsuit is ever filed.

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".

The answer to today's question is fact.

In 1991, the Supreme Court decided, in the companion cases of EEOC v. Arabian American Oil Co. and Boureslan v. Arabian American Oil Co., that Title VII of the Civil Rights Act of 1964, the federal statute which makes it illegal for employers to discriminate on the basis of race, color, religion, sex, and national origin, did not apply extraterritorially to regulate the employment practices of United States employers that discriminate against United States citizens abroad.

However, as the The U.S. Equal Employment Opportunity Commission notes in this Enforcement Guidance memorandum, Congress subsequently amended both Title VII and the Americans with Disabilities Act in 1993 to permit American citizens employed outside of the United States by an American employer or a foreign corporation controlled by an American employer to pursue legal claims. Note, however, that the 1993 amendment provides a defense for violations of Title VII or the ADA if compliance with those statutes, "with respect to an employee in a workplace in a foreign country," would "cause" a covered entity to "violate the law of the foreign country in which such workplace is located."

h/t ContractorPerspective.com

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".

The answer to today's question is fiction. Pregnancy is not a "disability" for purposes of the Americans with Disabilities Act. To be considered a disability under the ADA, covered persons must actually have physical or mental impairments that substantially limit one or more major life activities. Pregnancy is not considered an impairment under the law.

However, when it comes to pregnant employees, keep three things in mind:

1. The Pregnancy Discrimination Act prohibits pregnancy-related discrimination. It requires that employers treat pregnant employees in the same manner as male and non-pregnant female employees in determining their ability to work.
2. If an employer offers temporary or short-term disability leave, Title VII requires the employer to treat pregnancy and related conditions the same as non-pregnancy conditions.
3. Last week, a federal appeals court ruled, for the first time, that pregnancy-related health complications can render an employee "disabled" under the ADA.

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".

Until about five years ago, a plaintiff had to prove a materially adverse employment action in order to recover for retaliation. (I addressed the complete three-part test for retaliation in yesterday's post).

Not so anymore. As explained briefly after the jump, the rules for retaliation have changed.

Continue reading "Fact or Fiction: Retaliation requires job-related action (e.g., firing)" »

Welcome back to "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".

So, is a miniature horse a reasonable accommodation under the Americans with Disabilities Act? Maybe.

Title I of the ADA covers employers discriminating against qualified individuals with disabilities in terms, conditions, and privileges of employment. There is nothing explicit in Title I or its supporting regulations that suggests that a miniature horse is or is not a reasonable accommodation for an employee. (Miniature horses generally range in height from 24 inches to 34 inches measured to the shoulders and generally weigh between 70 and 100 pounds.) That said, if the request is reasonable (i.e., would not cause the employer undue hardship) and there is no other reasonable alternative, then giddy-up.

The final regulations implementing the ADA for title II (State and local government services) and title III (public accommodations and commercial facilities), which went into effect earlier this year, have a new, separate provision about miniature horses that have been individually trained to do work or perform tasks for people with disabilities.

Entities covered by title II and III of the ADA must modify their policies to permit miniature horses where reasonable, subject to a four-factor test found here.

Welcome back to "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".

As you know, if you read yesterday's post, the Worker Adjustment and Retraining Notification Act (WARN), a federal law, protects workers by requiring most employers with 100 or more employees to notify them 60 calendar days in advance of plant closings and mass layoffs. But did you know that many states have their own mini-WARN acts? New Jersey is one of them. Here is a chart comparing the difference between the federal and NJ WARN laws.

So, does NJ's mini-WARN apply to parent and affiliated companies? The answer is yes, if they satisfy the U.S. Department of Labor's five-factor test: 

1. common ownership;


2. common directors and/or officers;


3. de facto exercise of control;


4. unity of personnel policies emanating from a common source; and


5. the dependency of operations.

This is the same test applied under the federal WARN law. For more on this test, and how it may apply in NJ, check out DeRosa v. Accredited Home Lenders, Inc.

Welcome to the inaugural 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".

So, I was recently asked whether a younger employee may have a federal age-discrimination claim against his employer if the company treats a similarly-situated older employee better.

The answer is no. In 2004, the U.S. Supreme Court in General Dynamics Land Systems, Inc. v. Cline held that the Age Discrimination in Employment Act of 1967 (ADEA) does not forbid discriminatory preference for the old over the young.

Update: Some readers on LinkedIn wisely noted that, notwithstanding the federal position on "reverse age discrimination," some states and municipalities have laws on the books that do recognize claims based on discriminatory preference for the old over the young. New Jersey is one of those states.

Image Credit: HollywoodRepublican.net