Discrimination and Unlawful Harassment

The most blunt same-sex sexual harassment judicial opinion…evah!

November 27, 2012 | by Eric B. Meyer

So captivating that, at 35 pages long, it held my attention for 24 of them. Winning!

I’ll whet your whistle with the opening paragraph of EEOC v. The McPherson Cos., Inc.:

This Title VII case revolves around repeated churlish, childish, gross, sordid, vulgar, foul, disgusting, profane utterances in the workplace. The question in the case, however, is not how vile and obnoxious this workplace language was. It was vile and obnoxious enough to score nine on a scale of ten. This will become apparent as the story unfolds. The question for the court is rather whether this verbal mayhem morphed from a competition to see who could beat whom in the foul-mouth game into a cause of action under Title VII by an offended employee for same-sex sexual harassment.

After jump, I’ll keep my babbling to a minimum and, instead, highlight the matter-of-fact prose of Judge William M. Acker, Jr. from the Northern District of Alabama. And we’ll answer the question: Does the reach of Title VII preclude same-sex sexual harassment where offensive workplace language is not directed at a man because he’s a man?

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Racially hostile work environment? Depends on which “n”-word.

November 19, 2012 | by Eric B. Meyer

Helene Tyrrell worked as a line chef at a jockey club in Arkansas during the Winter of 2010. She claimed that immediately after she started working, and pretty much throughout her employment, the n-word was bandied about like you and I would say “hello” and “goodbye.” However, only once was the “n”-word hurled in her direction.

But it wasn’t the n-word. No, that’s discriminatory.

Rather, according to the court in Tyrell v. Oaklawn Jockey Club, the “comment directed at Plaintiff and one other co-worker happened after the kitchen crew nearly mused getting breakfast out one Sunday. The comment, was according to Plaintiff, ‘I told you niggas we could get this done. I told you we could do this. Y’all my niggas.'”

Employment Law Blog Carnival: Hollywood Casting Call Edition

November 14, 2012 | by Eric B. Meyer

Welcome 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 Note: I’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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Obama’s re-election evokes ugly Facebook-racism from some employees

November 12, 2012 | by Eric B. Meyer

To all the haters of social-media policies:

If nothing less, the social-media policy reminds employees that if they act the fool online, it may impact their standing in the workplace, and, ultimately, cost them their jobs.

Some employees, however, are just so ignorant. Thus, I doubt that any employer policy will impact how they behave online.

Two despicable examples from this past week follow after the jump…

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Guest Post: 5 Basics Every Employer Should Know about the ADA

November 9, 2012 | by Eric B. Meyer

Today we have a guest blogger at The Employer Handbook. It’s Mary Ellen Ellis. May Ellen writes for Paralegal 411, a career resource for individuals interested in starting a career in the paralegal field.

(Want to guest blog at The Employer Handbook? Email me).

2 tips to help your social media policy withstand NLRB scrutiny

November 6, 2012 | by Eric B. Meyer

Notwithstanding three social media advice memoranda, and another ruling from the National Labor Relations Board slamming Costco’s social media policy, you’d think employers would have a better idea how to revise their social media policies so as not to risk violating the National Labor Relations Act.

Well, not so much.

Except, the Board has recently issued guidance which attempts to clarify certain policy issues for employers. Does it? Well, sort of. It’s worth a read. Click through…

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It’s not disability discrimination when you don’t know about the disability.

November 2, 2012 | by Eric B. Meyer

William Wengert is HIV-positive. He worked as a certified nursing assistant for Phoebe Ministries, until he was terminated last year following an incident in which a resident suffered a broken leg. The company claimed that the incident with the resident precipitated the firing. Conversely, Wengert alleged that the company violated the Americans with Disabilities Act by terminating him because of his HIV-positive status.

Now, let’s pause there for a second. I think we can all agree that just because a disabled employee — unquestionably, being HIV-positive is an ADA-disability — is fired, does not mean that the employer has violated the ADA. There could be many legitimate business reasons that could trigger an adverse employment actions (e.g., $$$, performance, discipline, etc.).

Legitimate business reasons aside, the Wengert Court (opinion here) highlighted that “disabilities are often unknown to the employer.” Therefore, “the requirement that plaintiff show he is disabled implies a requirement that the plaintiff show employer knew of employee’s disability.” In Wengert, the plaintiff could not demonstrate that anyone involved in his firing knew that he was HIV-positive. Therefore, Wengert’s disability could not have motivated his termination. Thus, no disability discrimination.

You be the judge: Can this employer enforce its general release?

October 31, 2012 | by Eric B. Meyer

Alright folks. Kindly remove your lawyer and HR hats for a moment and don the judicial robe and gavel.

Your Honor, what you must decide, based on the facts that I will lay out below for you after the jump, is whether the release that the Plaintiff-employee signed is enforceable, such that she is precluded from pursuing discrimination claims against her former employer, the Defendant.

Click through if you’re up to the task…

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GUEST POST: 5 Disability-Discrimination-Law Basics for Employers

October 26, 2012 | by Eric B. Meyer

Today we have a guest blogger at The Employer Handbook. It’s one of my readers, Joseph Ginarte. Joseph is an employment lawyer with Ginarte, O’Dwyer, Gonzalez, Gallardo Winograd.

Like his post? Feel free to email him some comments!

(Want to guest blog at The Employer Handbook? Email me).

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New equal-rights rules for NJ employers take effect next month

October 25, 2012 | by Eric B. Meyer

I’d better remember to post this now before I get bitten and turn into a zombie and munch on your face..

[Note to self: Less of “The Walking Dead,” more sleep].

On November 19, 2012, this new law will take effect in NJ, which will require employers of 50 or more employees (zombies not included) to notify their workforce about “the right to be free of gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment under the ‘Law Against Discrimination.”