Last month, the Birmingham City Council passed an ordinance criminalizing discrimination in education, housing, employment, and public accommodations. The ordinance not only prohibits discrimination based on the federally protected categories of race, sex, national origin, and disability, but it also recognizes familial status (i.e., having minor children), sexual orientation, and gender identity as protected categories. Additionally, … Continue Reading
Does an employee’s protection under the Pregnancy Discrimination Act (PDA) stop when the employee ceases to be pregnant? The 11th Circuit Court of Appeals was confronted with this question in Stephanie Hicks v. City of Tuscaloosa, in which Ms. Hicks, a police officer who returned from maternity leave and unsuccessfully sought some accommodation related to … Continue Reading
If you require your employees to get a flu shot, what do you do with the ones who refuse on religious grounds? As with so much in employment law, it depends. In Equal Employment Opportunity Commission v. Mission Hospital, a federal district court in North Carolina denied the hospital’s motion for summary judgment, finding that … Continue Reading
Can the EEOC keep investigating a claim after it has issued a right to sue letter? What about after the charging party has already filed a lawsuit and lost at the summary judgment stage? The U.S. Court of Appeals for the Seventh Circuit says it can. Adding to the circuit split already created by the … Continue Reading
Employers need to be on the lookout for instances of offensive employee speech, which may put them between a rock and a hard place as they navigate potential claims under either anti-discrimination laws or federal labor laws. You have probably heard that Google terminated an employee earlier this month for saying (among other things) that … Continue Reading
When is it safe to take action against an employee (or a former employee) who filed an EEOC charge against you? As the 7th Circuit just found in Baines v. Walgreen Co., you can never –REPEAT, NEVER – take action because an employee filed a claim. In Baines, the court ruled that even though the … Continue Reading
Before the Americans with Disabilities Act (and there was a time before the ADA), it was not uncommon to require employees to have a doctor’s note returning them to work “with no restrictions.” That won’t work in today’s ADA world, and the EEOC’s recent complaint against M&T Bank Corporation in New York provides a clear reminder. … Continue Reading
There has been a lot of discussion over the last year about whether transgender employees are protected against sex discrimination under Title VII—but what about against disability discrimination under the Americans with Disabilities Act (ADA)? Maybe. In Kate Lynn Blatt v. Cabela’s Retails, Inc., a federal district court in Pennsylvania has ruled that a transgender … Continue Reading
Last week, the 5th Circuit Court of Appeals overturned a lower court’s injunction of the enactment of Mississippi’s “Protecting Freedom of Conscience from Government Discrimination Act” (HB 1523). As written about in a blog post from July 2016 and one from April 2016, this law was touted as only dealing with state action against individuals … Continue Reading
Can an employer force an employee to agree that his complaints have been adequately addressed? On April 26, the EEOC announced that Downhole Technology LLC will pay a former employee $120,000 and provide other relief after it terminated an employee who refused to do just that. In Equal Opportunity Equal Employment Opportunity Commission v. Downhole … Continue Reading
Is a single incident enough for a hostile work environment claim? It is in the Second Circuit. In Daniel v. T&M Protection Resources, Inc., the court held that one racial epithet was sufficiently severe, by itself, to create a hostile work environment under Title VII. The Facts Otis Daniel, a 34-year-old black male from St. Vincent … Continue Reading
Sexual harassment—we have policies against it, we train people on how to prevent and report it, and yet still we have big news stories about it. In the last year, Fox News hit the headlines on this front multiple times–not only did the Chairman and CEO leave following a sexual harassment lawsuit, but now Bill … Continue Reading
New York City will soon become the third jurisdiction to enact laws barring employers from asking a job applicant about former salaries. The goal? To eliminate one of the alleged sources of wage disparities between men and women in the workforce. NYC’s actions come on the heels of legislation in Massachusetts and Philadelphia. The new … Continue Reading
On Tuesday, the Seventh Circuit jumped into the Title VII sexual orientation discussion with both feet. In Hively v. Ivy Tech Community College of Indiana, a full-court reversed an earlier three judge panel decision, finding that discrimination based solely upon the employee’s sexual orientation is sex discrimination prohibited by Title VII. As the opinion recognizes, this finding … Continue Reading
Is there a difference between being discriminated against because of your sexual orientation versus being discriminated against for not conforming to a gender stereotype? In most areas of the country, there most certainly is according to the Second Circuit in Christiansen v. Omnicom Group, Inc., et al. Matthew Christiansen, an openly gay man and creative director at … Continue Reading
If you weren’t sure what it meant to discriminate against someone because of their national origin, the EEOC wants to help. The newly revised Section 13 of the EEOC Field Manual provides guidance on how the EEOC defines national origin (which is more than just what nation in which you originated) and gives examples of … Continue Reading
Just how broad is the EEOC’s subpoena power and are we likely to get some guidance soon? We’ve said before that the McLane v. EEOC case (which is about the EEOC’s subpoena power and is currently before the Supreme Court) is uncertain given President Trump’s election. Since then, we have had two developments: first, President … Continue Reading
When does workplace hugging go too far? The Ninth Circuit Court of Appeals recently weighed in with an opinion. Victoria Zetwick, a county correctional officer, based her Title VII hostile work environment suit almost entirely upon her supervisor’s practice of hugging her and the rest of the female staff. Just How Much Hugging? By her count, … Continue Reading
Can a plaintiff get pain and suffering or punitive damages in a retaliation claim under the Age Discrimination in Employment Act (ADEA)? In Vaughan v. Anderson Regional Medical Center, the Fifth Circuit, denying both an interlocutory appeal and a petition for rehearing, says “no”. Legal Framework. As we all know, the ADEA explicitly limits a … Continue Reading
Dress codes—a helpful workplace rule or a trap for the unwary? A recent Forbes article (High Heels and Workplace Dress Codes: Urgent Action Needed, Say U.K. MPs) relates the story of Nicola Thorp, who was sent home from her receptionist job at an accounting firm in London because she was not wearing at least a … Continue Reading
As accommodating and flexible as the Americans with Disabilities Act (ADA) compels employers to be, the harsh reality is that there are some jobs that a person with certain disabilities simply cannot do. When an employee suffering from a disability can no longer perform the essential functions of her job with or without a reasonable … Continue Reading
Over the weekend several media outlets reported that a draft executive order was being circulated that overturned President Obama’s 2014 directive prohibiting federal employers and contractors from discriminating on the basis of sexual orientation and gender identity in the federal workforce and by federal contractors. Executive Order 13672, which was signed on July 21, 2014, … Continue Reading
Setting a new employee’s pay based on what he or she made at a prior job is a fairly common practice—but now an illegal one in Philadelphia, PA. You heard right, Philadelphia has banned questions about salary history. This local law follows a Massachusetts law (similar but not identical) aimed at closing the pay gap … Continue Reading
If you thought it would be safer to require every new hire to be an American citizen—think again. The U.S. Department of Justice (DOJ) has a new rule revising its prior regulations on Section 274B of the Immigration and Nationality Act (INA), which prohibits unfair immigration-related employment practices. This new rule, effective January 18, 2017, … Continue Reading
