Recently in Discrimination and Unlawful Harassment Category

April 17, 2014

Employment Law Blog Carnival - Pick Your Holiday Edition

The third week of April ushers in several holidays: Passover, Good Friday, Easter.

But no matter what your religion or god -- even a sacrilicious ceiling waffle -- we can all agree that the Employment Law Blog Carnival, which you can find this month at Tim Eavenson's blog: Current Employment, is the workplace glory. 

This month, Tim has more posts about HR-compliance than you can count on your ten fingers. So raise your hands up to the sky and shout Hosanna! The power of the #ELBC compels you! 

Or, just forget my blasphemy and enjoy the carnival.

Whatever.

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P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group. Almost as fun as a carnival. I'm still working on getting a Tilt-A-Whirl*

(*By Tilt-A-Whirl, I mean life.)

April 14, 2014

This is one badass labor and employment law roundtable

Recently, several local lawyers and I participated in a labor and employment law roundtable for The Legal Intelligencer.

Actually, the table was rectangular. But, the coffee and muffins were free, so I didn't complain.

Well, not until I dropped my pants and mooned the employee-rights lawyers on the panel. Trust me, they had it coming. 

Actually, they were quite polite and articulate. So, fortunately, they edited my butt-cheeks out.

I'm a real peach.

What were we talking about again?

Right, the roundtable. We debated several topics:

  • background checks
  • social media in the workplace
  • employee leave issues
  • dating in the workplace
  • BYOD
  • my 28 inch blog pythons

Here is the transcript.

April 10, 2014

What's hot at the EEOC? Plus, a legal roadmap for managing the aging workforce.

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Whatcha doin' two weeks from today?

Want to grab some breakfast with me? Maybe hear about what's hot at the EEOC and get a legal roadmap for managing the aging workforce?

In you're in the Philadelphia area and would like to learn more about these topics, then come on down to our offices on Thursday, April 24 at 8:30 AM for a free presentation with a complimentary continental breakfast. Lawyers can get CLE. HR credits will also be offered.

The only bad news is that you'll have to hear me flap my gums for an hour about best practices to avoid becoming an EEOC target. And since I can't seem to blog my way out of a paper bag, you can imagine how (in)articulate I'll be. Fortunately, my co-presenter from the EEOC, Mary Tiernan, will rock thy world.

Plus, my Dilworth Paxson colleagues will school you on the legal issues of which you should be aware when dealing with your older employees.

If you are interested in attending, click here for more details and to RSVP.

Mention this blog and I'll get you an extra pat of butter to go with your continental breakfast.

After all, I take care of my VIPs.

March 21, 2014

This may just be the greatest union-avoidance banner evah!

Yesterday, I read with interest Jon Hyman's post at the Ohio Employer's Law Blog about how Target has employed a 14-minute training video to help keep its workplace union free. Gawker has posted a copy of the video here. Like a bear crapping in the woods, Gawker pokes fun of the Target video. Cheesiness aside, I find it to be pretty effective.

But Target ain't got nothing on Subaru of Wichita. (h/t Jeff Nowak)

Subaru of Wichita - 1
Local Carpenters Union - 0 

Amirite?

And before I tell you to have a nice weekend, I'm going to ask you to save April 24 for me. On that date, along with Mary M. Tiernan of the U.S. Equal Employment Opportunity Commission, I'll be headlining a breakfast briefing at Dilworth Paxson in Philadelphia. After a few of my colleagues offer a legal roadmap for managing your aging workforce, Mary and I will address what's hot right now at the EEOC, and offer up some best practices to stay out of the crosshairs of employment litigation. 

For more information about the event, click here.

Now, go on and have a nice weekend!

March 18, 2014

Democrats seek to undo 2013 Supreme Court ruling defining workplace "supervisor"

Thumbnail image for CapitolHill.jpgHas the Supreme Court's 5-4 decision in Vance v. Ball State been keeping you up at night?

*** logs IP numbers; obtains restraining orders ***

Well, ok. I can see why some of you are sour on the 2013 Supreme Court decision holding that an employee is a "supervisor" for purposes of vicarious liability under Title VII of the Civil Rights Act of 1964 only if he or she is empowered by the employer to take tangible employment actions against the victim. 

(See my post on Vance here).

Whether a harasser is a supervisor matters because if the harassing supervisor fires, suspends, or takes some other similar action against the victim, the employer ends up writing a huge check. Otherwise, the employer has some outs arising from the same affirmative defense discussed in yesterday's post.

Seeking to deliver a proverbial football to the Vance decision groin undo the Court's decision in Vance, last week, Democrats in both the U.S. Senate and House of Representatives proposed legislation (Senate - here; House here), which would define "supervisor" to include those with authority to direct people's day-to-day work. And, according to this fact sheet, the bills would extend coverage to all federal anti-discrimination statutes.

Whether this legislation passes, take the opportunity to remind supervisors and non-supervisors alike that violations of your respect-in-the workplace will result in discipline, up to and including termination of employment.

December 30, 2013

The most clicked, hella-best HR-compliance updates from 2013!!!

Ah, it was a good year at the ole Handbook.

Total web traffic was up over fifty percent from 2012. And average time per visit was down over 20%, which is fine by me. I pad my important stats, while discouraging loitering.

five.pngAnd we got our first visitor from Uzbekistan. And the fifth most common search phrase that brought visitors to the site was "Kenny Powers."

Swish!

(6th was "excuses for missing work" -- yikes!)

And, thankfully, our servers have recovered from the beating you pervs HR/Lawyer laureates administered on the recent Facebook groping photo post. Yeah, don't worry. A little hair of the dog, and the blog is back in business.

And, to think, that post didn't even make the Top 5 from 2013. Here's what did:

5. "Feeling 'maybe overworked' is not an FMLA 'serious health condition'"

4. "Court holds that anxiety from possibly getting fired is an ADA disability."

3. "New federal bill would expand FMLA to cover part-time employees"

2. "Employee gets fired for tweeting complaints about discrimination"

1. "When a hostile work environment isn't a hostile work environment"

Dudes, thank you for making 2013 a banner year for The Employer Handbook.

Wishing you all a happy and prosperous 2014!

Eric

P.S. - No post tomorrow, but this Vine of my 1-year-old and I doing "Lollipop" should hold you over until we return in 2014:

December 11, 2013

FACT OR FICTION: Employers may discriminate based on family status

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."

Yesterday, I read this opinion about a white man who claimed that he lost out on a middle school boys basketball coaching job because the school didn't like the fact that he was married to an Asian ethnic Chinese woman and they have seven mixed race children.

The plaintiff claimed that the school violated Title VII of the Civil Rights Act of 1964. The school filed a motion to dismiss, claiming that the man could not state a claim under Title VII. The school prevailed because, well, I'll let the court tell you:

The plaintiff alleges that he was discriminated against, not because of his own race, but because of the race or his wife and children. He is basing his discrimination claims on his family status. Viewing the allegations in the light most-favorable to the plaintiff, it is possible that he was treated differently from white males who did not have mixed race families. However, discrimination based on family status alone is not actionable under Title VII. Simply stated, Mr. Blasi is not a member of a protected class for Title VII purposes. Because he is not a member of a protected class, he cannot establish a prima facie case of direct discrimination under Title VII. His claims under this legal theory have no merit.

Therefore, the answer to today's QATQQ is fact.

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It's also a fact that this blog -- the one you read religiously for the compliance content, humor and hidden satanic messages is hella-awesome! So, please vote for it today in the ABA Journal's Blawg 100 Amici contest. You can cast your vote for The Employer Handbook here, by clicking the banner to the right, or tweeting your support.

Thank you.

November 20, 2013

Welcome to the Employment Law Blog Carnival: Hollywood Villains Edition

Welcome everyone to the Employment Law Blog Carnival. What you'll find after the jump is the best, recent posts from around the employment-law blogosphere all organized around a common theme.

So, yeah, we need a theme.

[Lousy blog rules]

Two years ago, we spun some tunes with the "Employment Law Blog Carnival: Jukebox Edition." That featured such hits like "If You Love HIPAA, Let Me See You Twerk It" and a Sex Pistols B-side hidden track about social media policies.

Last year, I went with the "Employment Law Blog Carnival: Hollywood Casting Call Edition." To the casual internet user, my writing in that post may have seemed, oh, what's the word, "deranged"? Here is an actual quote:

Stuart Rudner blogs "When trust has been destroyed: Just cause for dismissal." The Canadian adaptation, "Haste Makes Waste," is set for release next year and stars Dustin Diamond as Wayne Gretzky. No, not that Wayne Gretzky. Just some guy who plays a total screw-up and happens to have the same name as the "Great One," which, in turn, helps him to keep his job.

But, to you, my fans, you recognize it as something more than the product of some bad salmon I ingested just before a marathon two-finger typing session. It's gold!

So, mainly since my brain is fried from churning out this drivel -- free drivel -- every weekday, let's stick with the Hollywood theme. How about the Employment Law Blog Carnival: Hollywood Villains Edition? Hannibal Lechter would approve, I'm sure. You may even see him after the jump.

So grab some liver, fava beans and nice chianti and click through to read the carnival offerings...

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Continue reading "Welcome to the Employment Law Blog Carnival: Hollywood Villains Edition" »

March 7, 2013

In 77 tweets, what employers can learn about EEOC enforcement #EEOCHR

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I had two topics on the brain to blog about:

  1. Whether, under the Americans with Disabilities Act, being on time is an essential function of the job. Fortunately, Daniel Schwartz addressed that yesterday here at the Connecticut Employment Law Blog.

  2. As a follow-up to yesterday's wage-and-hour / Daylight Savings Time post, exploring how DST impacts tracking intermittent leave taken under the Family and Medical Leave Act.

{Go take a bath right now to cleanse yourself of the employment-law dorkness that hit you from reading No. 2}

Instead, after the jump, I have, well, you read the title to this post. These are my tweets (and several retweets) from the "EEOC Overview and HR Mixer" I attended yesterday -- hashtag #ubernerd #EEOCHR

{Better grab the soap and turn on that bath again. You've been warned.}

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Continue reading "In 77 tweets, what employers can learn about EEOC enforcement #EEOCHR" »

March 1, 2013

How can the EEOC improve? Tweet your feedback with hashtag #QCP

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Earlier this month, the U.S. Equal Employment Opportunity Commission issued this press release in which it sought your feedback to improve its internal processes for investigating and conciliating charges of discrimination.

Well, the deadline is today.

Eek! Sorry, I got distracted remastering goat remixes should have reminded you earlier.

Geez. How can we fix this? Harlem shaking clothes dryer. Yeah, boy. Slapping together a big email isn't going to work. No time for that.

But, hey, we can work with this. And for my people, I went right to EEOC Commissioner Chai Feldblum for help.

So, if you have quality control suggestions for the EEOC, tweet them today before 5 PM EST with the hashtag #QCP. Commissioner Feldblum will read them. And, if you can spare a few of your 140 characters, toss me quick shout out, would ya?

Have a nice weekend.

January 29, 2013

Discrimination claims drop in '12; The Employer Handbook go BOOM!

Thumbnail image for ebmpuzzle.jpgKudos to this blog for the drop in discrimination claims. Yeah, I'm giving this blog credit, and so is my mother -- probably.

{Mom couldn't be reached for comment and, strangely, the EEOC press release touting the new FY12 charge statistics is silent about this blog}

The year-end data shows that retaliation (37,836), race (33,512) and sex discrimination (30,356), which includes allegations of sexual harassment and pregnancy were, respectively, still the most frequently filed charges. However, the total number of claims in FY12 dipped below FY10 levels.

And did I mention that I started blogging just after FY10 ended? 

Coincidence? {Lets' just say that my writting has neevr ben bedder}

In the immortal words of Big Pun...

January 2, 2013

With employers like THIS, it's gonna be a busy 2013 for the lawyers.

System Failure, WhoaSame s**t; different year.

In 2010, an Ohio temp agency paid $650K as part of a Consent Agreement with the EEOC to settle claims that it had used code words in considering and assigning (or declining) job applicants. The code include words such as "chocolate cupcake" for young African American women, "hockey player" for young white males, "figure skater" for white females, "basketball player" for black males, and "small hands" for women in general.

Fast forward...

Cameron Langford at Courthouse News reports (here) that a Human Resources Manager just sued her former employer, a Texas temp agency, for what she claims was a wrongful discharge. Specifically, she alleges that she was fired after opposing the use of code words to fill placements. According to the article, the code words used included:

  • "blue eyes" and "no sunscreen" = African-American
  • "work all day" = Hispanic
  • "Heavy lifting" = men (i.e., not women)
  • "Energetic" = young (i.e., not old)

Eek!

It's no wonder that the EEOC will emphasize addressing discrimination in hiring over the next several years. Assuming that your business isn't using code words -- because you're not total scumbags -- now is the time to review other hiring criteria to make sure they do not disparately impact a particular protected class and are otherwise truly business-related.

Or, you can just wait until the EEOC comes knocking at your door. Your choice.

December 21, 2012

6 EEOC priorities over the next 4 years and the impact on your business

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Thus far, you've managed to keep your equal-employment-opportunity nose clean. Good for you. In fact, with the economy the way it is, combined with the dwindling resources available to our federal agencies -- including the U.S. Equal Employment Opportunity Commission -- your odds of facing a federal investigation based on a complaint of discrimination or harassment are fairly slim.

But...

On Tuesday, the EEOC announced its Strategic Enforcement Plan. And within that plan, you'll find six areas of EEOC focus over the next four years:

  1. Eliminating barriers in recruitment and hiring;

  2. Protecting immigrant, migrant and other vulnerable workers;

  3. Addressing emerging and developing employment discrimination issues;

  4. Enforcing equal pay laws;

  5. Preserving access to the legal system; and

  6. Preventing harassment through systemic enforcement and targeted outreach.

My read on the plan is this: If one of your employees has a "typical" discrimination or sexual-harassment claim, the EEOC may investigate and not do much more (e.g., litigate the matter in federal court). This is true, especially if your employee has an attorney. The EEOC will view that situation as one in which your employee has access to the courts.

However, if an unrepresented employee (or better yet, employees plural) shows up at the EEOC complaining about you, the EEOC is likely to take an interest. This is especially true if the complaints involve more unique issues like: (a) Americans with Disabilities Act coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat); (b) pregnancy accommodation; or 3) LGBT rights (anything that could form the basis for a sex-stereotyping case).

So what are some ways in which you can remain compliant in 2013 and beyond?

  • Double check to see that similarly-situated employees are being treated equally, especially when it comes to compensation;

  • Update job descriptions and review hiring tests to make sure that everything is job-related; and

  • Schedule some anti-harassment training for your employees, making sure that they know how to alert you to problems in the workplace -- before going to the EEOC -- to allow you to fix them.
December 5, 2012

I can't believe you missed these workplace blockbusters, you guys!

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Translation: Recent HR / employment law developments that Meyer missed a/k/a Meyer needs to clear out his folder of bookmarked employment-law items to make room for his dork dorkier Fantasy Baseball bookmarks. Pitchers and catchers report in just over two months.

  1. More courts weigh in on social-media discovery issues. "Good news. My doctor says that the itching and redness should subside in a few days." Recent court decisions (here and here) roadmap how you can access this and other Facebook status updates from your former employee who is now suing you. Have fun with that.

  2. Other social-media-related litigation. A firefighter, allegedly terminated for critical Facebook comments, has settled his wrongful discharge claim (here). Facebook posts doom another employee's FMLA claims (here). The National Labor Relations Board crapped all over another employer's social-media policy (here). Choking back laughter (at least that's how I envision it), a Massachusetts Court denied another (the first ever?) hair salon's claim that a former stylist's job posting on Facebook violated a non-solicitation agreement agreement (here).

  3. New study released on how companies are addressing employee social media use. Hey, as long as no one cuts me off from The Superficial, it's all good. Wait, that's not in the Proskauer report (here), is it?

  4. And in non-social-media-related news, the EEOC releases its Performance and Accountability Report. You can either spend hours reading it (here), or, like me, just use Stephanie Thomas's killer infographic (here). Stephanie - You need to show me how to make those things! Love it!

  5. Got questions about ADA confidentiality (who doesn't)? The Seventh Circuit has answers (here). 

Image credit: atom.smasher.org, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

November 14, 2012

Employment Law Blog Carnival: Hollywood Casting Call Edition

Casting CatsWelcome everyone to the Employment Law Blog Carnival: Hollywood Casting Call Edition.

[Editor's Note: The original theme for this post was the "Employment Law Blog Carnival: Sex, Drugs, and Rock & Roll Edition." I had this bright idea to begin by cutting and pasting the lyrics to Guns N' Roses' "My Michelle," and, let's just say I bailed after the first line.]

So that leaves us with Plan B, where, after the jump, I have aggregated some of the best, recent posts from around the employment-law blogosphere and fit them together into a single theme: an open casting call.

Because just the other day, this theme came to me after waking from a Codeine/Claritin-D/Mucinex DM-induced slumber, in which I dreamt about casting a recent post of mine -- the one where an employee lost out on an FMLA retaliation claim when her employer fired her after finding Facebook photos of her drinking at a local festival -- while on FMLA. My movie will star Kim Kardashian, in her silver screen debut, as the employee. And Alan Thicke, who played Dr. Jason Seaver on "Growing Pains," could play the company decision-maker. We'll call it "FML Aye Yai Yai!"

[Editor's NoteI'm throwing Thicke a bone here. Don't you think? According to IMDB.com, he just finished production on "Fugget About It", in which ex New York mobster Jimmy Falcone joins the Witness Protection Program and is relocated, with his family, to Regina, Saskatchewan, Canada. Fugget about it, indeed.]

So that's the idea. More great posts and imaginative casting decisions, after the jump...

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Continue reading "Employment Law Blog Carnival: Hollywood Casting Call Edition" »