Discrimination and Unlawful Harassment

Two Men + One Purple Nurple = Zero Sex Discrimination

December 8, 2014 | by Eric B. Meyer

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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Federal court permits discrimination against transgender employee

December 1, 2014 | by Eric B. Meyer

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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Black Friday HR-Dorkbuster!!! Silent ADA accommodation requests

November 28, 2014 | by Eric B. Meyer

[Because “The one about the guy who got fired and then requested a reasonable accommodation” isn’t clickbait enough].

More on the timing of ADA accommodation requests after the jump…

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What the EEOC plans to tell employers about wellness programs

November 26, 2014 | by Eric B. Meyer

The U.S. Equal Employment Opportunity Commission is obsessed with wellness programs.

Or, as the EEOC likes to describe them “‘so-called’ wellness programs.” And not in a “yay, so-called wellness programs are super” kinda way.

No, in recent months, the EEOC has initiated litigation against companies (example, example, example) claiming that they violate the Americans with Disabilities Act and the Genetic Information Non-Disclosure Act by both requiring medical examination and penalizing employees who decline to participate.

EEOC: Complaints of discrimination down big in FY14; Mediation rules!

November 19, 2014 | by Eric B. Meyer

Yesterday, the EEOC issued its FY 2014 Performance Report. Here is a link to the press release.

Now, I’ll admit it. I didn’t read the whole report. Blogging has got me all messed up. I can’t read anything that’s more than 250 words. So, I just stopped at the part in the report where it said that total charges dropped by 5,000 in FY14. So, I didn’t get to the part of the report that credits this blog, in particular, for the drop in charges. But, I assume it’s in there somewhere.

I also wanted to give a nice shout-out to the EEOC’s national mediation program, in which I participate as a pro-bono mediator. Of the 10,221 mediations conducted in FY14, 7,846 of ’em settled. Based on the math I just did in my head, that’s a success rate of 97%. Ok, 77%. But, that’s still pretty darn good. Shaq’s free throw percentage is jealous.

Train your supervisors not to shoot at those who complain about discrimination

November 14, 2014 | by Eric B. Meyer

Just another HR Pro Tip from your old buddy, Meyer. Hey, what would you guys do without me?

Sage advice for American businesses coming up after the jump…

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In the County of Yolo, 100 hugs and a painfully awkward kiss aren’t sexual harassment #YOLO

November 13, 2014 | by Eric B. Meyer

What else is there to blog about after reading a federal court opinion about Yolo (You Only Live Once) and sexual harassment?

Geez. Last night, I could have peed plutonium while flaming monkeys sprang forth from my word hole, and I still would have blogged Yolo.

More on Yolo after the jump…

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Can you fire an employee who posts Nazi propaganda on Facebook?

November 12, 2014 | by Eric B. Meyer

Maybe you’ve heard about it. I’m giving a little spiel today on social media in the workplace with a few friends at an event in Philadelphia. If I play my cards right, I’ll do as little speaking as possible on the dais.

Which means I’ll get my two cents in after the jump and discuss on a hockey coach who was recently fired for posting pictures of Nazi propaganda on Facebook.

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Sexting, flirting, but no sexual harassment here.

November 10, 2014 | by Eric B. Meyer

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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Accommodating a disabled employee generally does not require displacing another

November 7, 2014 | by Eric B. Meyer

The Americans with Disabilities Act requires that companies provide a reasonable accommodation to an employee with a disability, if doing so will allow the employee to perform the essential functions of the job.

The ADA contemplates a number of different types of reasonable accommodations. One such accommodation is a transfer into an open position for which the disabled employee is qualified. But what happens when there is no vacancy. Must an employer bump another non-disabled employee to accommodate the one with the disability?

As an Ohio federal court reminds us in this recent opinion that the answer is no, unless special circumstances exist: