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.
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.
Many 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:
For 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%).
Whew!
Got a little carried away with yesterday’s post about the employee who got fired for tweeting complaints about discrimination, didn’t I?
Then again, I’m not the one who came up with the hashtag #donglegate.
Is this Retaliation 2.0?
Two weeks ago, Adria Richards attended an industry conference at which she overheard sexual jokes from two attendees sitting behind her during a session. So, she complained…on Twitter:
Not cool.Jokes about forking repo’s in a sexual way and “big” dongles.Right behind me #pycon twitter.com/adriarichards/…
— Adria Richards (@adriarichards) March 17, 2013
And then she blogged about it here. The social-media complaints resulted in one of the joke tellers getting fired. And, last Wednesday, Ms. Richards tweeted that her employer supported her.
Hey @mundanematt, it’s clear from the last 24 hours you’re a bully.@sendgrid supports me.Stop trolling.
— Adria Richards (@adriarichards) March 20, 2013
That same day, SendGrid, Ms. Richards’s employer, fired her.
(Jon Brodkin at arstechnica.com has the full story here).
We can argue about the propriety of using social media to publicize a harassment complaint, especially when a private complaint could have sufficed. Still, the SendGrid response certainly seems harsh and unfair.
But did SendGrid go so far as to retaliate (as a matter of law) against Ms. Richards?
Find out, after the jump…
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?
A federal court described Charles “Chuck” Wolfe, a crew superintendent in of an all-male construction crew, as a “world-class trash talker” and a “master of vulgarity.” One of the members of Wolfe’s crew was Kerry Woods, a straight male. Woods claimed that his supervisor, Wolfe another straight man, had engaged in unlawful “same sex” harassment, in violation of Title VII of the Civil Rights Act of 1964, by referring to him in “raw homophobic epithets and lewd gestures.”
A jury heard Woods’s claims and awarded him nearly $500,000. The Fifth Circuit Court of Appeals heard the employer’s appeal, threw out the jury award, and dismissed the complaint (in this opinion).
Why? Find out after the jump…
When Harold Wasek signed on to work at an oil rig in Pennsylvania, he had no idea what lay in store for him, especially when one of his co-workers discovered that Wasek would get easily riled with sexually explicit stories, jokes, fantasies, and names.
- “You’ve got such a pretty mouth.”
- “Boy you have pretty lips.”
- “You know you like it, sweetheart.”
Wasek complained to his supervisor. But the harassment worsened. He was touched in a sexual manner: grabbing his buttocks, poking him in the rear with a hammer handle and something described as a long sucker rod.
So Wasek sued claiming sex discrimination. And he lost. Why? Because his harasser was a straight man.
Seriously.
I’ll explain after the jump…
* * *
Yesterday, the US Equal Employment Opportunity Commission issued updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. (Title VII is the federal statute that prohibits discrimination in the workplace based on race, color, religion, sex and national origin). You can read a full press release on the updated Enforcement Guidance here.
The press release includes a link to questions and answers about the EEOC’s Enforcement Guidance. However, I will summarize the most important points for employers after the jump…
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