Category Archives: Discrimination, Retaliation and Harassment

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Reconsidering Limits on Confidentiality Provisions Where Sexual Misconduct is Involved

Confidentiality
It does not require insightful analysis to conclude that something is broken when it comes to reporting and addressing sexual misconduct in the workplace. One attempt to fix part of the “brokenness” comes from the Pennsylvania legislature – a bill that would place limits on confidentiality restrictions. (New Jersey is considering something similar and other … Continue reading this entry

EEOC Scores Victory in Sexual Orientation Discrimination Lawsuit

EEOC
In recent years, the Equal Employment Opportunity Commission (EEOC) has increasingly focused its enforcement initiatives on prohibiting sexual orientation discrimination in the workplace. Now, the agency has a concrete victory to show for its efforts. A federal district court in Pittsburgh recently awarded more than $55,000, representing the statutory maximum in compensatory and punitive damages, … Continue reading this entry

Tax Reform/Tax Cuts, Who Cares? Tax Gross Up Damages Are Available Under Title VII

Tax
Tax reform legislation is certainly one of the hottest topics in the media. Among others, several of the pressing questions regarding the proposed legislation are: Will it pass? If so, who will receive tax relief (and who won’t)? It goes without saying that many Americans are paying close attention to these questions because it may … Continue reading this entry

Legal Compliance In A Harassment-Conscious Environment

Harassment
As noted in our Legal News Update – Me Too, But Now What? What Board Members Need to Know About Workplace Sexual Harassment – allegations regarding workplace harassment have recently been a major focus of traditional and social media outlets.  From the #MeToo campaign to Susan Fowler’s blog testimony about her experiences involving harassment in … Continue reading this entry

Is Bullying Harassment?

ADA
California is oft thought of as a trailblazer in the arena of sexual harassment law. Because California’s Fair Employment and Housing Act mirrors Title VII, practitioners and employers in other states often look to California cases and laws regarding sexual harassment for guidance.… Continue reading this entry

Arbitrator Awards $40 Million in Gender and Sexual Orientation Case

Arbitration
Employers face several trade-offs when considering the implementation of mandatory arbitration policies. One of the positive attributes of arbitration, from an employer’s perspective, is the avoidance of a runaway jury award.  However, a recent arbitration decision provides a reminder that arbitration does not necessarily foreclose a huge award.… Continue reading this entry

Neo-Nazi in Your Workplace? Tread Carefully Before Taking Action

Neo-Nazi
We live in an unfortunate time in which white nationalists and neo-Nazis are receiving a great amount of publicity. In the aftermath of this month’s events in Charlottesville, Virginia we are likely to see additional rallies, in which designated hate groups participate, as well as counter-protests. What can an employer do if it learns that … Continue reading this entry

A Cautionary Tale That Context Matters

Context
In the shifting landscape of employment law, a recent case illustrates the need to apply context and consider all the circumstances – even when it looks like a general rule applies. In this particular case, involving race and national origin discrimination, the District of Columbia Circuit Court of Appeals changed its mind – reversing its … Continue reading this entry

Multiple Choices: Compliance Considerations in the Shifting Landscape of Pre-Employment Testing

Pre-Employment
In recent years, the landscape of pre-hire employment screening tests has rapidly evolved. Employers throughout the U.S. are facing shrinking applicant pools as the labor market tightens.  As a result, many employers are now looking at personality and psychological tests to find the best fitting applicants. While the individual tests may vary, these tests often … Continue reading this entry

Transgender Employees May Be Entitled To Protection From Discrimination Under The ADA

ADA
Of late, we have recently written quite a bit about the ever-changing legal landscape regarding protections for LGBTQ employees. Most of the authority we explored involved whether or not sexual orientation (as well as gender identity and expression) are protected under Title VII of the Civil Rights Act of 1964 (Title VII).  Now, for the … Continue reading this entry

Fox News Lawsuits Highlight Importance of Workplace Culture

Workplace Culture
Employers should take note of the position Fox News is in due to the proliferation of recent lawsuits against the network by numerous current and former employees. To be clear and fair, the lawsuits only involve allegations at this time – nothing has been proven at trial, or otherwise.  Indeed, Fox News has denied the … Continue reading this entry

Discrimination Based on Sexual Orientation -- The Wave Grows

Back in March we explored the question, “So – Are LGBTQ Rights Protected Under Federal Employment Law or Not?” In that article, which unpacked a recent federal court decision on LGBTQ workplace protections, we concluded that “it depends.”  While the issue is far from settled and the answer still remains “it depends,” two additional federal … Continue reading this entry

EEOC Orientation-Bias Guidance Stirs Controversy among Commentators

EEOC
The public comment period for the U.S. Equal Employment Opportunity Commission’s (EEOC) proposed workplace harassment guidance closed last week. The EEOC’s broad definition of sexual orientation bias drew attention from practitioners and advocacy groups alike. Amidst the uncertain legal landscape surrounding harassment based on sex, the EEOC’s proposed guidance takes a progressive stance on the … Continue reading this entry

EEOC Issues New Harassment Guidance

The Equal Employment Opportunity Commission (EEOC) recently issued proposed guidance crystallizing the agency’s expectation that employers be proactive in eliminating workplace harassment.  The Proposed Enforcement Guidance on Unlawful Harassment, which was published on January 10th, requires that employers implement programs to combat “known or obvious risks of harassment,” and states that a failure to do … Continue reading this entry

Mandatory Flu Vaccinations? Immunize Yourself Against Religious Discrimination Claims

Discrimination
You are an HR generalist at a 300-bed community hospital. Your boss has instructed you to make sure that all personnel files document that the employee received the hospital’s annual mandatory flu vaccination. However, you notice that seven employees still have not gotten their vaccinations, two weeks after the deadline. When you email them to … Continue reading this entry

Uncle Sam Wants You! (to Provide Employee Compensation Data)

harassment
A new lawsuit filed by the U.S. Department of Labor (DOL) demonstrates how dogged the government can be in trying to obtain and review employers’ compensation data. The lawsuit, filed against Google with the DOL’s Office of Administrative Law Judges, alleges that Google failed to comply with its obligations to provide compensation data to the … Continue reading this entry

Seventh Circuit Could Up-End Approach to Sexual Orientation Discrimination

EEOC Developments
On November 30, 2016, all of the judges of the Seventh Circuit Court of Appeals (covering Illinois, Indiana, and Wisconsin) reheard a case that could change the way federal courts treat sexual orientation-based discrimination claims. As is typical for the federal appeals courts, the case (Hivey v. Ivy Tech Community College) had already been decided … Continue reading this entry

Decision 2016: A Refresher on Politics in Your Workplace

Employer
Over the next few weeks, millions of Americans will cast their votes, concluding what has been a particularly contentious election cycle. Until then, as Election Day approaches and employees’ political passions continue to rise, employers should be mindful of their rights and obligations when it comes to voting and politics in the workplace.… Continue reading this entry

Limit Your Pre-Employment Inquiries to Job-Related Questions

Employer
As most employers know, it is unlawful to ask an employment or promotion candidate questions which reflect bias based on race, color, age, gender, religion, or any other protected status. For example, a candidate cannot be asked about their race, age/date of birth, religion, marital status, pregnancy, children, or plans for a family. Hiring decisions … Continue reading this entry

EEOC Issues New Retaliation Guidance

EEOC
For the first time since 1998, the Equal Employment Opportunity Commission (EEOC) has issued new enforcement guidance on retaliation. Retaliation claims have been a growth industry over the last 18 years. Back in 1998 retaliation claims constituted 24 percent of all EEOC claims, behind both race and sex charges. Since then, however, retaliation has become … Continue reading this entry

Watch Out for the Cat’s Paw - Employers May Be Accountable for Low-Level Employee Actions

In the world of employment law, there is something called the “Cat’s Paw” theory of liability. The name comes from a fable dating back to the 17th century in which a clever monkey persuades a naïve cat to pull roasting chestnuts from a fire for the pair to eat. However, as the cat removes the … Continue reading this entry

ABA Seeks to Combat Discrimination, But Clients May Hold the Keys to Progress

We normally devote our small corner of the internet to updating you on the latest developments with the goal of helping employers do the right thing, most often from a legal compliance standpoint, but occasionally from a broader social perspective. In short, we are here to help you. From time to time, we look to … Continue reading this entry

Getting Past “Not Horrible”: Addressing Office Bullies is Good for the Bottom Line

A Dallas jury recently awarded a verdict of more than a million dollars to a vocational nurse based upon her claims of sexual harassment and intentional infliction of emotional distress. While it appears that verdict will not ultimately be enforced — following a post-verdict settlement reached between the parties just minutes before the jury’s ruling … Continue reading this entry

EEOC’s Revised Proposal to Collect Pay Data Keeps Focus on Pay Discrimination Agenda

As we reported previously, enforcement of equal pay laws and remedying of pay disparities continue to be top priorities for the U.S.Equal Employment Opportunity Commission (EEOC) and U.S. Office of Federal Contract Compliance Programs (OFCCP). The EEOC again highlighted this ongoing focus this past week when it announced revisions to its February 2016 proposal to … Continue reading this entry