Contemporary Clothing’s “Look” Collides With Title VII


There is more than a little bit of irony when a clothing company with a target market of teens and young adults has a fashion dilemma. However, a national retailer has just such a dilemma arising from a potential religious accommodation dispute that has just taken a front and center position in the national legal landscape.

All the way back in 2008, a young woman applied to the company to be a “model” (the employer’s term for salesperson) at its Tulsa, Oklahoma store. She arrived at her interview appropriately attired but, in keeping with her Muslim upbringing, wore a traditional hijab. During her interview, the candidate did not mention her religion or that she wore the hijab for religious purposes. Likewise, the interviewer did not mention the hijab or ask about her religion. The company did not hire the job seeker because she lacked the “Look” as set forth in its “Look Policy” which did not include a hijab. Continue reading this entry

When Xs and Os Go Awry: Recent College Coach Lawsuits Emphasize the Importance of Good Contract Language Even for “Intramural” Employers


The recent flurry of scandals in professional sports, particularly those from the NFL that dominated headlines in recent weeks, are not without their counterparts in the college ranks. Indeed, in the past year there have been an increasing number of controversies involving college coaches, which in turn have led to terminations and wrongful termination lawsuits. These lawsuits have exposed some poorly drafted “for cause” termination and morals clauses that have forced the schools to litigate and, at times, left them on the hook for some or all of the remaining contract.

Over the past few years, college coaches, particularly the successful ones, have demanded longer and more lucrative contracts. As the highest paid college football coach, Alabama’s Nick Saban will make more than $6.9 million per year for the next eight years. Issues arise when a successful program struggles to win (the seat of Brady Hoke, head coach of Michigan’s football team, seems to be the hottest right now…) or, as is the case of recent lawsuits, incidents occur that are unrelated to the team’s success which leads to the employer (university or college) to terminate the contract. Continue reading this entry

Hurry Up and Wait: Court Decision Gives No Substantive Guidance on the EEOC’s Challenges to Standard Separation Agreement Provisions


As we noted last month, a federal district court in Illinois announced it was dismissing a controversial lawsuit brought by the EEOC against a nationwide pharmacy chain challenging that employer’s separation agreement containing standard provisions used by many employers. However, at that time, the court had not yet issued its written decision explaining the dismissal. Employers had hoped the court would provide guidance in its written ruling as to the proper content of separation agreements, in light of the EEOC’s attempt to persuade the courts to find that such separation agreements violate Title VII and potentially other federal anti-discrimination laws. Continue reading this entry

ERISA’s “Overlapping Fields of Fire” Preempt Wisconsin’s Family and Medical Leave Act


Wisconsin’s Family and Medical Leave Act (“WFMLA”), requires that employers allow employees six weeks of unpaid leave following “[t]he birth of an employee’s natural child,” and that employers allow an employee to substitute “paid or unpaid leave of any other type provided by the employer” for the unpaid leave provided by the law. However, in a recent decision, the United States Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) held that the WMFLA is preempted to the extent it would require the payment of short-term disability benefits contrary to the terms of an ERISA plan. The Sixth Circuit decided that the WMFLA was directly in the crosshairs of express and implied preemption under ERISA that “are so broad as to overlap, laying down converging fields of fire whose intensity is greatest upon a single point: the one held by a state law that purports to mandate the payment of benefits contrary to the terms of an ERISA plan.” Continue reading this entry

Ban the Ban-the-Box? Proposed Law May Clarify Background Check Dilemma in Regulated Industries


On the heels of the Equal Employment Opportunity Commission’s (EEOC) increased scrutiny regarding criminal history questions during the hiring process and the wave of new state ban-the-box laws, Congress has proposed legislation that actually protects certain employers when they seek to comply with the laws that regulate their industries. The “Certainty in Enforcement Act of 2014” would prevent the EEOC, state agencies and plaintiffs’ attorneys from claiming that certain employers are engaged in an unlawful employment practice when acting in accordance with federal, state or local laws. The proposed legislation notes that covered employers may include, but are not limited to, those engaged in health care, childcare, in-home services, policing, security, education, finance, employee benefits, and fiduciary duties. Continue reading this entry