Discrimination and Unlawful Harassment

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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New federal bill would greater protect breastfeeding employees

August 8, 2011 | by Eric B. Meyer

Rep. Carolyn Maloney [D-NY14] is at it again.

A sponsor of a bill that would greatly expand the scope and reach of the FMLA, Rep. Maloney has co-sponsored another bill, the Breastfeeding Promotion Act of 2011, which would amend both the Fair Labor Standards Act and Title VII of the Civil Rights Act of 1964 to protect breastfeeding by nursing new mothers.

Under the Pregnancy Discrimination Act, which is part of Title VII, it is already illegal to discriminate in the workplace “because of sex” or “on the basis of sex,” which includes, but is not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions. The Breastfeeding Promotion Act of 2011 would amend Title VII to explicitly include “lactation.”

Inquiring about retirement plans = age discrimination?

August 5, 2011 | by Eric B. Meyer

Let’s say that a company holds a meeting for older employees (all are over 49 years old). And the purpose of the meeting is to discuss the future expectations of the employees in attendance, including retirement options at the company. Then throw in a stray remark from the company, something like, “When people get older, they tend to slow down.”

What if one of the meeting attendees is later laid off? Is that age discrimination?

If the employer has any non-age-related reason for the layoff, then the answer is no, according to

Pottymouths don’t usually win sexual harassment lawsuits

August 4, 2011 | by Eric B. Meyer

A federal court has bounced a woman’s sexual harassment claims against her former employer because the court believed that the woman was not offended by the conduct about which she complained.

Some analysis and employer lessons after the jump…

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When hiring: Just because you can ask it, doesn’t mean you should

July 26, 2011 | by Eric B. Meyer

I received a comment to yesterday’s post about 29 questions you should never ask a candidate in a job interview.

Laurie Ruettimann, who blogs at The Cynical Girl, questioned the real-world ramifications of making one of my 29 no-no’s:

“Hey, Eric. Great list. I once had an employment lawyer tell me that you can ask any question — you just can’t make an employment decision based on the answers. Can you blog about that distinction? Asking versus action? I would love to get your thoughts on that!”

Ask and ye shall receive. Or is it, ye shall receive, yo? (If you don’t read Laurie’s blog, that last sentence flew right over your head).

Either way, I’ll share my thoughts after the jump…

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What would Kenny Powers do? Interview questions to avoid

July 25, 2011 | by Eric B. Meyer

HBO Go may just be the best app ever.

Over the past two weeks, I’ve gotten current on Entourage and Game of Thrones, and begun watching Eastbound and Down. Watching characters like Ari Gold, Kenny Powers and Tyrion Lannister got me thinking. If these guys were in HR, what kind of questions would they ask potential hires in a job interview?

***You know, this all sounded so much better in my head.***

Whatevs.

After the jump, I have 29 questions you should never ask a candidate in a job interview.

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Fact or Fiction: Miniature horse = reasonable ADA accommodation

July 21, 2011 | by Eric B. Meyer

Welcome back to “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=UFLJFl7ws_0

So, is a miniature horse a reasonable accommodation under the Americans with Disabilities Act? Maybe.

Welcome to the Employment Law Blog Carnival: Jukebox edition!

July 20, 2011 | by Eric B. Meyer

The Employment Law Blog Carnival has finally rolled into town.

What is a blog carnival? It is a collection of links on a particular topic — here, employment law — that bloggers have submitted to me, which I then arrange around a particular theme.

For this edition of the Carnival, it’s DJ-ESkeelz on the one and two, with a music-themed employment-law blog carnival. I’ve got 13 hot joints (read: 13 links to employment-law articles from some of the blogosphere’s best…)

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