Rampant Sexual Misconduct in Indiana Prison Shows Pitfalls for Employers

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“Connie J. Orton-Bell was employed as a substance abuse counselor at a maximum security prison in Indiana. An investigator, who had been looking for security breaches, discovered that night-shift employees were having sex on Orton-Bell’s desk and informed her. That investigator told her that he was not concerned about night-shift staff having sex but suggested she should probably wash off her desk every morning.”

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Believe it or not, this is not a scene from the new season of Orange is the New Black. It’s actually the opening lines from Orton-Bell v. Indiana, No. 13-1235 (7th Cir. July 21, 2014), an opinion authored by Judge Manion, and one of the more entertaining Seventh Circuit opinions in recent memory. Continue reading this entry

EEOC Effectively Declares Pregnancy a "Disability" Requiring Reasonable Accommodation — Even When the Pregnant Employee Is Not Disabled

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The Equal Employment Opportunity Commission has recently declared that pregnancy alone, even without other underlying medical conditions, may require employer accommodations according to recent guidance released July 14, 2014. In a controversial decision splitting the commissioners 3-2, the EEOC broadcast a specific focus on pregnancy-related discrimination due to a continued uptick in charges and complaints over the past several years. With this in mind, employers should consider taking a closer look at pregnancy-related requests for accommodation before deciding on a course of action. Continue reading this entry

It’s All "Just Paperwork" Until Somebody Gets Hurt: Be Proactive in Preventing Workplace Violence

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“Help, there is an angry man waving a gun around in the lobby!” These are the kinds of words no employer wants to hear and can make all other concerns seem trivial in comparison. Sadly, the statistics confirm what we regularly see on the cable news networks – workplace violence is one of the most common causes of on-the-job injuries. For example, the last time OSHA conducted a broad survey on the issue, more than half of all large employers reported at least one incident of violence over the prior year. Likewise, a 2012 Department of Labor survey demonstrated that 17% of all workplace fatalities are the result of violence.

In addition to the purely humanitarian concerns for preventing workplace violence, employers face potentially significant liability when acts of workplace violence occur. Section 5(a) of the Occupational Safety And Health Act, also known as the General Duty Clause, obligates every employer to provide employees with a workplace free from recognized hazards likely to cause death or serious physical harm. In the event of violence in the workplace, OSHA or similar state agencies may rely on the General Duty Clause to cite an employer, claiming there was a recognized hazard of violence in the workplace and the employer did nothing to prevent or abate it. Continue reading this entry

NLRB Fallout From President’s Unconstitutional Recess Appointments Continues

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As we noted when the decision was released, the Supreme Court ruled unanimously that the President’s 2012 recess appointments to the National Labor Relations Board were unconstitutional. Two weeks later, the developments from the decision continue to come in.

Officially, the Board has been largely silent. After litigating hard for two and a half years and insisting that the appointments were constitutional, the Board’s official response was a four-sentence press release stating only that it was “analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated.” (Note that this was a far cry from the defiant press release that the Board issued after the D.C. Circuit issued its original opinion in 2013, insisting that the decision “applies to only one specific case” and promising to “continue to perform our statutory duties and issue decisions” despite the ruling that there was no lawful quorum.) Continue reading this entry

Take Care to Avoid Reverse Discrimination Claims

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Most discrimination cases involve claims that an employer discriminated against a minority employee on account of race, against a foreign employee based on national origin, or against a woman on account of gender. A recent case from the Second Circuit Court of Appeals (covering New York, Connecticut and Vermont) is a good reminder, however, that discrimination against U.S. employees based on national origin, or against white employees based on race, or against male employees based on gender, is also prohibited. Continue reading this entry