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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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Continue reading "Same-sex training. Ok or discrimination?" »

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.]

May 13, 2013

Horniest boss ever? His employee still can't prove sexual harassment.

I've been searching for gold recently. So, I knew I was on to something good when I started reading this opinion last week, and wasn't sure whether what I was reading was a sexual harassment case or a porno script.

What can I say? I like the plots.

Folks, if you click through, I promise you a great read after the jump...

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Highway-Sign-Crazy.jpg

Continue reading "Horniest boss ever? His employee still can't prove sexual harassment." »

April 26, 2013

Irresistible attraction, three-ways, and more fun and games

Carnivalphoto © 2010 Paul Newtron | more info (via: Wylio)

Just another Friday here at the ole Handbook. Oh, get your head out of the gutter! This is a family blog.

(Y'all have families, right?)

For serious, today's lede isn't just gratuitous, there is an employment-law connection here.

*** searching ... searching ... searching ***

Ok, got it!

  1. Back in 2012, the Iowa Supreme Court held that it's legal to fire a female employee because of her "irresistible attraction". Leave it to Staci Zaretsky at Above the Law to track down the plaintiff. She filmed a hilarious segment on Tosh.0. More from Above The Law here.

  2. Take one supervisor, add in a consensual relationship (complete with texting, sexting, and you know, I don't know the exact pronunciation, but I believe its ménage à trois) gone bad, a sexual harassment complaint, and what do you have? Why a race-discrimination complaint, of course! Guh?!?!

  3. And last, we have this month's edition of the Employment Law Blog Carnival: Tips for HR Spring Cleaning. Make sure to check it out. Lorene Schafer at Win-Win HR did a fantastic job with it!

April 15, 2013

Four ways to successfully defend an Equal Pay Act claim

This blog is nearly 2 1/2 years old and we have our first Equal Pay Act post. The Equal Pay Act requires equal pay for equal work on jobs the performance of which require equal skill, effort, and responsibility, and which are performed under similar working conditions. Any wage discrimination on the basis of sex violates the Act.

The EEOC celebrated "Equal Pay Day" last week. So, now is as good a time as any to address the Act through this recent case from the Third Circuit Court of Appeals.

In Puchakjian v. Township of Winslow, Deborah Puchakjian filled a Municipal Clerk vacancy within the Township of Winslow which came about a result of the retirement of the male incumbent. His salary at retirement was $85,515; Ms. Puchakijan's salary to replace him was $55,000.

She sued.

She lost.

You see, there are four exceptions to the Act's general rule of equal pay for equal work:

  1. a bona fide seniority system,
  2. a merit system,
  3. a system which measures earnings by quantity or quality of production, or
  4. any factor other than gender

The Third Circuit agreed with the lower court that the retired Municipal Clerk's yearly salary increases over his 29-year tenure in the position "both explained and motivated the wage disparity." Consequently, the wage disparity was based on a factor other than gender.

Given these four Equal Pay Act exceptions, claims under the Act are tough to prove. That said, a priority in the EEOC's Strategic Enforcement Plan (FY 2013-2016), is the enforcement of equal pay laws. Indeed, in 2012, the EEOC received over 4,100 charges of gender-based wage discrimination, and obtained over $24 million in relief for victims of gender-based wage discrimination through administrative enforcement efforts and litigation.

So, now is as good a time as any to conduct a wage audit and make sure that any disparity in pay for equal work is attributable to one of the Act's exceptions.

April 8, 2013

The importance of addressing sex stereotyping in the workplace

stereotype.jpgMany states and localities have laws forbidding discrimination on the basis of sexual orientation (LGBT). 

But Title VII of the Civil Rights Act, one of the federal laws barring discrimination in the workplace, law does not prohibit it.

What Title VII does make unlawful, however, is stereotyping based on a person's gender non-conforming behavior (i.e., a man who appears effeminate, or a "manly" woman). As a Virginia federal court (here) re-emphasized last week, sex stereotyping is central to all discrimination:

Discrimination involves generalizing from the characteristics of a group to those of an individual, making assumptions about an individual because of that person's gender, assumptions that may or may not be true.

Recognizing that the line between unlawful sex stereotyping and lawful (yet despicable) discrimination on the basis of sexual orientation can be tough to draw, the Virginia court denied a defendant's motion to dismiss a pro se plaintiff's sex stereotyping claims because he alleged that he was given crappy assignments based on the company's position that his failure to conform to gender norms reflected poorly upon the company and would displease its clients. This was enough, at the pleading the stage, to spell out plausible claims for sex stereotyping. Whether the plaintiff can ultimately prevail is another story.

The takeaway here is this: there are certain incendiary words that, when used in workplaces -- especially blue-collar workplaces -- may create immediate animosity and, ultimately, lead to lawsuits from male or female employees. Take, for example, the word "bitch." Courts recognize that calling a woman a bitch is intentional discrimination based on gender. But, calling a man a "bitch" (or "faggot" or "woman") can also give rise to a sex stereotyping claim based on a failure to conform to gender norms.

So, when conducting respect-in-the-workplace training, don't give same-sex harassment short shrift. Instead, explain it, give examples, and remind employees that they don't have to endure that kind of crap at work. Encourage anyone who experiences or witnesses sex stereotyping to complain about it so that it may be addressed and dealt with immediately.

Also, if you're one of the few employers that hasn't progressed beyond the confines of Title VII to preclude discrimination based on sexual orientation, get out of the stone ages and join us here in the 21st century.


March 28, 2013

POLL RESULTS: Here's what you said about the #Donglegate firing

dongle_scrapyard_00For much of the week, I've blogged about Adria Richards, the employee who got fired for tweeting complaints about discrimination. On Monday, I offered my legal analysis (here).

On Tuesday, I followed that up with this simple poll that purported to remove the law from the equation: Was the decision of Ms. Richards's employer, SendGrid, to fire her "fair" or "unfair"? "Fair" and "unfair" were the only two answers and they were randomized such that either one could have appeared as the top choice when taking the poll.

Now the results are in. 129 of you responded and 70 of you (54%) said that the firing was fair. 59 respondents indicated that the firing was unfair (46%). 

I'm assuming that most of my readers and, therefore, most of the respondents have an HR or legal background. Therefore, I will further assume that, while the results here are quite balanced, had I asked the question whether the firing was "lawful" or "unlawful," the results would not have been nearly as close.

Thank you to everyone who participated.