Recently in Sex Category

December 8, 2014

Two Men + One Purple Nurple = Zero Sex Discrimination

Little known fact: Pythagoras invented the Pythagorean theorem around 500 BC, which he nearly dubbed the  Chicken Pot Pie theorem, because he loved CPPs so much. That same year, Pythagoras's brother, Sarogahtyp, discovered that, when one man tweaks another man's nipple, it's not sex discrimination. But, it will get you a black eye -- especially when the recipient is your brother and he's finalizing his legendary theorem when finishing off a flaky CPP.

Thousands of years later, it still holds true that when a man delivers a purple nurple -- some of you know it by a more boorish synonym -- to a male subordinate, it may be "manifestly inappropriate and obnoxious," as one federal appellate court ruled last week, but it's probably not sex discrimination.

More after the jump...

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December 1, 2014

Federal court permits discrimination against transgender employee

Under federal law (Title VII), employers cannot discriminate because of one's sex. While Title VII does not explicitly coverage transgender employees (i.e., someone born female who presents male, and vice-versa; also known as gender identity), the EEOC's position is that transgender employees are protected too. Indeed, they've begun filing federal lawsuits on behalf of transgender employees who claim to have been discriminated against.

But, Courts have not uniformly accepted the EEOC's position. Indeed, the state of the law here is very much unsettled.

Just before Thanksgiving, a Texas federal court considered whether an employer can discriminate under Title VII based purely on gender identity...and get away with it.

More after the jump...

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November 10, 2014

Sexting, flirting, but no sexual harassment here.

To prove sexual harassment, a plaintiff must have been subjected to pervasive or severe behavior based on the plaintiff's sex. Further, not only would an objective person have to find the behavior offensive, but the plaintiff must be offended as well.

Usually, when a plaintiff claims sexual harassment, a court takes for granted that conduct at issue offended the plaintiff.

But, I just read about a case that bucked the trend. 

More on this wacky case, and some workplace lessons for you guys...after the jump...

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Continue reading "Sexting, flirting, but no sexual harassment here." »

November 6, 2014

Check out the EEOC's playbook for combatting LGBT discrimination

Even without a federal law that specifically bans discrimination in the workplace based on sexual orientation or gender identify, it's no secret that one of the EEOC's top priorities is to protect LGBT workers from discrimination.

And the EEOC is being quite transparent about it, with a new guide for employers and employees.

I've got that for you after the jump...

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October 6, 2014

The importance of having clear employment policies...and following them

Remember that Americans with Disabilities Act case involving Walgreens and the $1.39 bag of chips. In that one, the store appeared to really step in it by firing a diabetic who ate a bag of chips from the store without paying for it. The employee claimed that she needed the chips for her diabetes. The store defended its actions by arguing that the employee violated its no-grazing policy. $180,000 later, that case settled.

I don't know how much the chicken poppers sell for at Wal-Mart. And the case I read over the weekend involving the company's no-grazing policy didn't settle either...

Click for more...

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September 26, 2014

The #EEOC makes history by filing its first ever transgender-discrimination lawsuits

Bending iPhone6's? Derek Jeter's last home game in Yankee pinstripes? Attorney General Eric Holder to resign?

Bah!

The U.S. Equal Employment Opportunity Commission was the one stealing the headlines yesterday -- err, doing something that I decided to be most blogworthy.

Details on two historic lawsuits after the jump...

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Continue reading "The #EEOC makes history by filing its first ever transgender-discrimination lawsuits" »

August 29, 2014

Same-sex training. Ok or discrimination?

According to the EEOC, if men can only train men, and women only women, that may be discrimination. 

But, let's see what a federal court has to say about that after the jump...

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July 30, 2014

Two years ago, no one gave this a second thought.

But, now. Oh boy....

Click through for a copy of the complaint.

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Continue reading "Two years ago, no one gave this a second thought." »

May 9, 2014

Survey shows that working moms earns less, but are satisfied with their jobs

This according to this survey released yesterday from CareerBuilder.com.

Working dads who were the sole breadwinners in their household were four times as likely to earn six figures, while working moms who are the sole breadwinners were nearly twice as likely to earn less than $35,000.

However, money may not be everything. That is, 78% of working moms reported they are happy in their current roles at work, with about 2/3rds of working moms having enjoyed the full amount of maternity leave available to them following childbirth.

[How much paternity leave are the new dads taking? According to the survey, half of working dads (49%) took two weeks of paternity leave or less, 21% took five weeks or more while 22% didn't take any time off.]

But let's go back to the $$$, while there may be legitimate business reasons to explain a disparity in pay between men and women, men and women with the same experience and qualifications who perform the same work at the same level should be paid the same amount.

So consider a self-audit to make sure that you're providing equal pay where appropriate.

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If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

April 3, 2014

2 million reasons to avoid the EEOC's same-sex-harassment crosshairs

Thumbnail image for cashpile.jpgLast night, I read this press release from the United States Equal Employment Opportunity Commission, announcing a $2 million recovery for 50 male employees of a New Mexico automobile dealership.

What happened, you say? From the press release:

"In its lawsuit, the EEOC charged a former lot manager, James Gallegos, under the direction of Charles Ratliff, Jr., then general manager, with subjecting a class of men to egregious forms of sexual harassment, including shocking sexual comments, frequent solicitations for oral sex, and regular touching, grabbing, and biting of male workers on their buttocks and genitals. The EEOC also alleged that Pitre retaliated against male employees who objected to the sexually hostile work environment. During the pendency of the lawsuit, the retaliatory actions of Pitre raised such concern that a U.S. District Court judge granted a preliminary injunction against Pitre, prohibiting the dealership and all of its agents from threatening or engaging in retaliatory actions against case participants."

Now, that is some messed up ish.

(Gawd, if I had a nickel for every time I used that line in a court filing...)

So, here's my HR pro-tip of the day: Grab your employee handbook. Turn to the anti-harassment policy. If it doesn't specifically reference same-sex sexual harassment, then update that jawn right away.

Because the EEOC is taking it hella-seriously

(that nickel thing again...)

October 9, 2013

Employee -- a grown man for God's sake -- claims he was fired for being a brony

Readers: A brony is a male fan of the children's television show My Little Pony.

(This is the part where you let everything that you've read thus far sink in, as you watch this clip, close your office door, and laugh hysterically. Go ahead. It's ok).

According to Gawker, the brony posted to Reddit that his co-workers gave him a raft of crap for setting his office computer screensaver to Applejack, a My Little Pony character.

(Go ahead. Really, it's ok to laugh).

After getting called into his boss' office and told to change his screensaver because, you know, it's creepy as all hell when a man in his 30s has a My Little Pony screensaver on his office computer, the former employee relented.

That is, until a few months later when, on Take Your Child to Work Day, the brony saw that the boss's daughter was wearing a Rainbow Dash t-shirt, and commented to her that he likes the shirt. (Rainbow Dash is also a My Li--- yeah, you get the idea).

Eventually, the brony claims he was was fired for being a brony, but not before calling HR to obtain some answers surrounding his termination.

Could you imagine being on the receiving end of that call? I bet there's nothing in that PHR certification of yours to prepare you for that one, is there?

Anyway...

Legal "Brony discrimination" or unlawful sexual stereotyping?

There is a serious point to this post. 

*** searches desperately for serious point to an otherwise gratuitous post ***

As I've noted before, Title VII does make it unlawful to stereotype based on a person's gender non-conforming behavior. So, taking the brony's version of the facts as true, would he have been fired if he were a woman? I'd like to think yes and, therefore, what happened here was perfectly legal. Because, damn, what grown person -- male or female -- would think it professional to have a My Little Pony screensaver at work.

But, then again, what do I know? I have an Allen Iverson fathead in my office and heard about this brony story listening to Howard Stern on the ride back from speaking at an HR conference yesterday. So that, plus this blog, makes me a bit of an enigma and probably the wrong person to ask.

What do you think? Did the brony's former employer break the law? Or was the employer justified in firing the brony? Let me know in the comments below.

October 7, 2013

Court destroys my "Ravishing Rick Rude" theory of same-sex harassment

Cut the music.

A little over a year ago, I wrote here about a steel worker named Kerry Woods. Unfortunately for Mr. Woods, he was on the receiving end of a constant barrage of "raw homophobic epithets and lewd gestures" from his supervisor. Notwithstanding, the Fifth Circuit Court of Appeals tossed out a $500K jury award for Mr. Woods, holding that Mr. Woods's same-sex sexual harassment claims failed because he failed to satisfy the Supreme Court's test in Oncale v. Sundowner Offshore Services, Inc.

Oncale was another same-sex harassment case involving employees at an oil rig. In Oncale, the high court held that a jury may infer that same-sex harassment occurred because of sex when the plaintiff can produce:

  1. credible evidence that the harasser was homosexual;

  2. evidence that makes it clear that the harasser is motivated by general hostility to the presence of the same sex in the workplace; or

  3. comparative evidence about how the alleged harasser treated members of both sexes in the mixed-sex workplace.

As Mr. Woods failed to satisfy any of the three Oncale elements, the Fifth Circuit overturned the jury award in his favor. This led me to dork out by likening employment law to wrestling develop the Ravishing Rick Rude / Adorable Adrian Adonis test: "Put simply, if the plaintiff is stereotypically masculine, like Rick Rude, a theory of sexual stereotyping will fail and so will a claim under Title VII."

Last week, the Fifth Circuit Court of Appeals (here) reconsidered, reversed itself and, in doing so, gave my theory the rude awakening. First, it held that a plaintiff may establish a sexual harassment claim with evidence of sex-stereotyping. Further, it recognized that the Supreme Court did not intend for its Oncale three-part test to be exclusive; but rather, illustrative. That is, to prevail on a same-sex sexual harassment claim, a plaintiff need only show that his harasser stereotyped him as "insufficiently masculine."

The recent opinion provides further reason for employers not to tolerate offensive remarks of any sort in the workplace.

Now, hit the music.

.
July 15, 2013

Iowa S. Ct.: Upon review, firing the attractive female was not sex discrimination

So, by now, all of you must be familiar with the case in Iowa -- I've blogged the heck out of it here and here -- where the male dentist fired the attractive female hygienist, ostensibly because his wife was concerned that the hygienist's continued employment might affect their marriage and because the dentist was concerned that he may eventually shag her.

Late last year, the Iowa Supreme Court unanimously held (here) that there is no sex discrimination if a male employer terminates a long-time female employee because the employer's wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee.

Then, a few weeks ago, and after a lot of public scrutiny, the high court agreed to reconsider its unanimous ruling, which it did with this new opinion issued on Friday. 

Second verse same as the first.

The reissued opinion, which replaces the original, looks very similar. Indeed, it too concludes that there was no sex discrimination. But this time around, it underscores that the plaintiff only brought a claim for sex discrimination, rather than one for sexual harassment, implying that the latter may have presented a more viable claim -- provided of course that the plaintiff found the defendant's behavior to be unwanted or offensive, which, apparently, she didn't.

Except for the addition of a head-scratching concurring opinion.

Another difference this time around is the addition of a concurring opinion in which three of the Iowa justices joined. This concurrence, which is nearly as long as the 18-page opinion of the majority of the court, ultimately concludes that that "[w]hat has emerged from this complex area of the law is the general legal principle that an adverse employment consequence experienced by an employee because of a voluntary, romantic relationship does not form the basis of a sex-discrimination suit."

I agree with this conclusion. Yet, I struggle with how it fits with the facts of this case.

On the one have you have the defendant who admits texting the plaintiff lewd comments about her tight clothing, the relative infrequency of her sexual activity, and an inquiry about how often she experienced orgasms. The concurrence acknowledged that defendant's comments that would "commonly be viewed as inappropriate in most any setting and, for sure, beyond the reasonable parameters of workplace interaction."

Then you have the plaintiff, to whom the concurrence attributes what appears to be an out-of-context statement about how the defendant was the reason she continued to work at the office. Then, she "also acknowledged she maintained a closer relationship with Dr. Knight than he maintained with the other employees in the office." Indeed, the only evidence of any reciprocation from the plaintiff is another employee's opinion that the plaintiff was flirting with the defendant. The plaintiff, herself, argued that the sexual attraction her employer developed for her, which was the reason for her termination, was his creation and not the result of a personal relationship she maintained with him.

So, let's call a spade a spade and just say that Dr. Knight fired the plaintiff, not because of anything she did to lead him on, but because he and his wife were concerned that he would end up trying to screw her.

Yet, somehow the concurrence construes the facts as "an undeniable part of the consensual personal relationship enjoyed by Nelson and Dr. Knight." 

Consensual relationship or not, the firing was not based on any animus that Dr. Knight had against women generally. 

Indeed, he replaced the plaintiff with another woman. And there was nothing to suggest a pattern of mistreating women. Therefore, I agree with the court's conclusion that the plaintiff's sex discrimination claims should fail here.

What do you think? Did the court ultimately get it right? Let me know in the comments below...


July 3, 2013

YYYOUCH! Employee fired for refusing Brazilian wax claims sex discrimination.

Brazilian

You know, maybe I should have gone with the porta-potty-harassment post that I originally had planned for today. Nah. My analytics tell me that my best-received posts have a common theme: crotch and Brazil. Besides, everyone knows that nothing says Friday like a porta-potty post. Just wait 'til Friday.

So today, after the jump, let's wax poetic, shall we?

(Ouch, again).

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Continue reading "YYYOUCH! Employee fired for refusing Brazilian wax claims sex discrimination." »

June 4, 2013

Firing a woman for lactating at work is against the law

Allow me to be serious for a moment...

Moment's passed, eh? Ok. Let me bring it back...

Last week, the Fifth Circuit Court of Appeals ruled (here) that discharging a female employee because she is lactating or expressing breast milk is sex discrimination and, therefore, violates Title VII of the Civil Rights Act of 1964 (Title VII).

In EEOC v. Houston Funding II, Ltd., Dominica Venters, who was recovering from a C-Section, alleged that she requested that her supervisor ask the boss if it would be possible for her to use a breast pump at work. The supervisor stated that when he posed this question to the boss, the boss "responded with a strong 'NO. Maybe she needs to stay home longer.'"

Ms. Venters alleged that she was later told that her spot had been filled. Houston Funding alleged that Ms. Venters had abandoned her job. So, Ms. Venters alleged sex discrimination, and the U.S. Equal Employment Opportunity Commission took up the case on her behalf.

'Expressed breast milk' photo (c) 2007, Hamish Darby - license: http://creativecommons.org/licenses/by/2.0/In defending, Houston Funding argued Title VII does not cover "breast pump discrimination" and moved for summary judgment. The district court granted the motion, finding that, even if Venters' allegations were true, "[f]iring someone because of lactation or breast-pumping is not sex discrimination," because neither is a related medical condition of pregnancy. The EEOC timely appealed.

On appeal, the Fifth Circuit began its analysis by noting that the Pregnancy Discrimination Act (PDA), which is part of Title VII, provides that "[t]he terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions[.]" Therefore, Title VII must "cover a far wider range of employment decisions entailing female physiology," of which lactation is one of them. Consequently, the court easily concluded that the lower court was wrong and Ms. Venters stated a possible claim for Title VII sex discrimination.

Takeaway: Not only must employers consider their obligations under the Fair Labor Standards Act to provide nursing moms time and space to express breast milk at work, but taking action against a mom who requests to pump at work may get you discrimination lawsuit. (Although, the PDA does not require employers to affirmatively provide accommodations).

So, educate supervisors and management about these areas to avoid possible legal issues and, more importantly, treat new moms with the respect and dignity they deserve.

[Yes, I realize the irony of that last statement juxtaposed against the soundtrack for this blog post.]