Articles Posted in Discrimination and Unlawful Harassment

By The Numbers: Employment laws by total employees

September 12, 2011 | by Eric B. Meyer

With so many employment laws out there, it’s not easy to keep track of what those laws say — let alone under which of them your business may be covered.

Well, who loves ya! After the jump, it’s employment laws by the numbers — number of employees that is — that your business must employ to be covered under certain specific federal employment laws. (I’ll even throw in a few extra state statutes for my PA/NJ/DE readers).

GREAT BIG DISCLAIMER: What you’ll find after the jump are the numerosity requirements for various federal laws. There are a slew of other legal hoops through which your business may need to jump. Be smart. Discuss them with an attorney.

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Uneven discipline can lead to big headaches and bigger lawsuits

September 9, 2011 | by Eric B. Meyer

A longtime employee of the Secretary of State’s office in Illinois claimed that two white managers targeted him for termination because he is black, and two white employees, one of whom was his supervisor, received lesser discipline even though they had engaged in the same alleged misconduct.

Is that right? Can a black employee claiming that he was treated differently because of his race compare himself to a white supervisor for purposes of proving his discrimination claim? Find out, after the jump.

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The Scooter Store … yadda, yadda, yadda … disability bias?

September 8, 2011 | by Eric B. Meyer

https://www.youtube.com/watch?v=csuZHyW-iGI

i·ro·ny (noun) [ahy-ruh-nee]: an outcome of events contrary to what was, or might have been, expected.

The United States Equal Employment Opportunity Commission has sued The Scooter Store, a purveyor of power chairs for the disabled, for disability discrimination.

Fact or Fiction: Pregnancy is a disability under federal employment law

September 1, 2011 | by Eric B. Meyer

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”.

https://www.youtube.com/watch?v=oAY06SYDjH0

The answer to today’s question is fiction. Pregnancy is not a “disability” for purposes of the Americans with Disabilities Act. To be considered a disability under the ADA, covered persons must actually have physical or mental impairments that substantially limit one or more major life activities. Pregnancy is not considered an impairment under the law.

Final score: Pregnant bartender 45,000 – Wild Beaver Saloon 0

August 19, 2011 | by Eric B. Meyer

I can pinpoint the exact moment that this blog transcended to the next level of internet excellence.

It was back in late March, when I blogged here about a female bartender/server who had sued her employer, the Wild Beaver Saloon, for pregnancy discrimination. The retweets that day were off the heezy fo sheezy, yo. (The hyperlink is a courtesy to my NPR listeners).

***Wait. Hold on one sec. I have to take this call from “1993”. They say they want their dated hip-hop lingo back. OK, I’m back.***

When I first wrote about the Wild Beaver Saloon, the question was whether a business could make an employment decision based on the preferences of co-workers, the employer, clients or customers. I concluded, in this instance, that the Beave could not get away with it.

Well, the case ended last week. So was I right? Click past the jump to find out if I know my stuff…

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Third Circuit delivers a cat’s paw gouging to employers

August 18, 2011 | by Eric B. Meyer

Note: The original working title for this post was “Yo! A-Yo! Federal courts in Philly and NYC get all catty and stuff”. I mention this not because it’s a recycled New Yorker headline, but because it puts into context the gratuitous shots I take at NY sports teams sprinkled into this post.

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Back in March of this year, the United States Supreme Court in Staub v. Proctor Hospital recognized that an employee may have a tenable claim for discrimination under USERRA even if the person who fired him did not discriminate. That is, if a supervisor’s bias motivates a firing — even if the firing is carried out by someone else who is both squeaky-clean and higher up in the food chain — then the firing is discriminatory. This is known as the “cat’s paw” theory.

Same goes for the MetsSince March, other courts have weighed in. As you know from reading this blog, on June, the Tenth Circuit held that the Staub decision applies to claims of age bias.

And, this month, we get cat’s paw decisions from the United States District Court for the Eastern District of New York and the Third Circuit Court of Appeals. One of ’em is good for employers. The other, not so much. More on these decisions and what they will mean for local businesses after the jump…

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This is why you document employee workplace issues

August 16, 2011 | by Eric B. Meyer

Management-side employment lawyers preach it until they are blue in the face: companies should always document employee performance and disciplinary issues.

Why is this so important? A real-world example follows after the jump…

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Sleep with me, or you’re fired!

August 15, 2011 | by Eric B. Meyer

Sex sells.

My most popular posts at The Employer Handbook — that’s based on you reading them (you’re all sick I tells ya, sick!!! And remember, I’m logging IP addresses) — generally involve some element of sexual behavior. You have the Brazilian self-stimulator. Actually, make that sexual behaviour — there’s the Australian hotel sex romp.

One of my readers asked if I’d heard about the recent sexual harassment lawsuit in Utah (the home of sex in a supply closet), in which a woman alleged, among other things, that her supervisor distributed a work schedule that included included “Mini-skirt Monday,” “Tube-top Tuesday,” “Wet T-shirt Wednesday,” “No bra Thursday,” and “Bikini top Friday.” Come on, now. You know me! Just this week, I read five articles (here, here, here, here, here) about it. You can find 23 more articles about “No bra Thursday” here.

“Guess my high score in Leisure Suit Larry.”

Then there’s the NY Post story (naturally) about a 23-year-old lesbian who claims that seven staff members in her real estate office groped, slapped, flashed, fondled and subjected her to racial abuse and death threats. One of the staffers allegedly offered her $60 for oral sex and told her all Puerto Rican girls are good at it.

Me? I like writing about these cases because it’s a good excuse to use stock sexual harassment photos from Google Images — like the one on the right, which, given the size of the shoulder pads in the lady’s jacket and the dimensions of that desktop computer — no doubt housing a 5.25 inch floppy disk drive — is a screencap from L.A. Law.

How about one more sexual harassment case for ya? This time, the Fourth Circuit Court of Appeals gets in on the act and reverses summary judgment in favor of an employer where the plaintiff alleged sexual harassment and retaliation when her boss forcibly kissed her, fondled her leg, propositioned her, asked her sexually explicit questions, described sexual activities he wished to perform, and then, after she spurned the advances and filed a harassment complaint, fired her (on the day she complained).

More on this and, of course, lessons for employers, after the jump…

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Fact or Fiction: Retaliation requires job-related action (e.g., firing)

August 10, 2011 | by Eric B. Meyer

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”.

Until about five years ago, a plaintiff had to prove a materially adverse employment action in order to recover for retaliation. (I addressed the complete three-part test for retaliation in yesterday’s post).

Not so anymore. As explained briefly after the jump, the rules for retaliation have changed.

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Apparently, sex in a supply closet is not sexual harassment

August 9, 2011 | by Eric B. Meyer

At least that’s what a federal court in Utah opined.

I promise that this is not a prurient post gratuitously conceived to drive internet traffic to The Employer Handbook.

And this case has nothing directly to do with Pennsylvania, New Jersey or Delaware employers

(Ok, that last line was shameless. Google, please do not index this post).

Oh, what the heck, index away. After the jump, I’ll even throw in some good employer takeaways for all employers, including those in Pennsylvania, New Jersey and Delaware.

Darn it. I did it again…

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You know that scientist in the action movie who has all the right answers if only the government would just pay attention? If you want a nerdy employment-lawyer brain to help you solve HR-compliance issues proactively before the action sequence, I’m here to help. I'm not only an EEOC-approved trainer, I offer day-to-day employment counseling, workplace audits and investigations, and other prophylactic measures to keep your workplace working while you focus on running your business. And for those employers in the midst of conflict, I bring all of my know-how to bear as your zealous advocate. I’m a trial-tested, experienced litigator that has represented companies of all sizes in a veritable alphabet soup of employment law claims, such as the ADA, ADEA, CEPA, FMLA, FLSA, NJLAD, PHRA, Title VII, and USERRA. I also help clients litigate disputes involving restrictive covenants such as non-competition and non-solicitation agreements, as well as conflicts over use of trade secrets and other confidential information. For more about me, my practice, and my firm, click on my full bio.