Category Archives: Discrimination, Retaliation and Harassment

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EEOC Issues New Harassment Guidance

discrimination
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

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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

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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

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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

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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

discrimination
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

discrimination
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

discrimination
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

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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

EEOC's Select Task Force Study of Harassment Provides Robust Training Guidance

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Last month the EEOC’s Select Task Force on the Study of Harassment in the Workplace issued a long-awaited report. That report is a four-part, 88-page document — meaning digesting the report is a hefty task. Fortunately, the Task Force also issued an Executive Summary that provides an excellent overview and makes wading through the findings … Continue reading this entry

Moving Away From The “Mad Men” Era: The OFCCP Updates Its Sex Discrimination Guidelines

discrimination
For the first time since 1970, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is updating its sex discrimination guidelines for federal contractors. These updates, announced last week, will become effective on August 15, 2016. Most companies subject to the OFFCP’s oversight – including businesses that perform work for the federal government … Continue reading this entry

Expanding the Timer: Supreme Court Gives Employees More Time to File Claims

discrimination
They say that timing is everything — or at least now it is for so-called “constructive discharge” claims. Last month, the United States Supreme Court, in a 7-1 decision, solidified the rule that the time within which an employee can file such a claim against his or her employer starts with the employee’s resignation from … Continue reading this entry

Top Five Best Practices for Workplace Investigations

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A well-conducted investigation can reduce workplace conflict, promote job satisfaction and inclusion, and can also help shield you from legal liability. However, the converse is also true — a botched investigation can have enormous implications, both from a business and legal perspective. Fortunately, there are a number of simple steps you can take to ensure … Continue reading this entry

NYC Lays Down Law (And The Wave Of The Future?) On Gender Identity Discrimination

Discrimination
We have seen a veritable maelstrom of controversy surrounding transgender rights and other gender identity issues in the past year, and especially in the last several weeks, with everyone weighing in on the subject from Donald Trump to President Obama. While in some ways it is difficult to predict precisely how federal, state and local … Continue reading this entry

EEOC Serves Notice Regarding Transgender Employees Bathroom Access Rights

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In the midst of all the media coverage surrounding transgender bathroom policies, the Equal Employment Opportunity Commission (EEOC) has recently put employers on notice of its position that denying an employee access to a restroom corresponding to the employee’s gender identity is sex discrimination in violation of Title VII of the Civil Rights act of … Continue reading this entry

Connection to Someone With a Disability is Nearly Identical to an Actual Disability

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As disability discrimination and accommodation claims continue to rise across the country, an appellate court in California may have just helped significantly expand such claims in the future by finding that an employee can maintain a suit for “associational” disability discrimination based on the disability of his son.… Continue reading this entry

Gender-Based Sales Promotions: Good Business or Unlawful Discrimination?

Discrimination
At the risk of sounding crass and overgeneralizing, social establishments – particularly those catering to the non-married crowd – like having more women at their establishments, and so they offer free items to women on the assumption that doing so will attract more women. Theoretically, having more women present attracts more men. More men means … Continue reading this entry

Hostile Work Environments and Sexual Orientation: EEOC Files First Federal Suits

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Normally in this space we write about court decisions that have already occurred and are likely to impact employers. This week, we focus on cases that have just been filed and could have far reaching implications. In a March 1, 2016 press release, the Equal Employment Opportunity Commission (EEOC) announced in two separate lawsuits that … Continue reading this entry

Just Like Hollywood, Big Pictures are Best in Termination Decisions

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A federal appeals court recently revived a former employee’s gender discriminatory discharge claim even though there appeared to be legitimate reasons for her termination. The decision suggests that employers take a big picture look at termination decisions based on a specific instance of misconduct rather than a more narrow view assessing the misconduct at issue … Continue reading this entry

Proposed EEO-1 Pay Data Requirement Will Increase Risks and Burdens

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The United States Equal Employment Opportunity Commission (EEOC) just announced a proposal to require large employers to provide pay data in the EEO-1 reports submitted annually to the government. While the proposal is completely consistent with the administration’s aggressive labor and employment agenda (and, therefore, should not come as a surprise), there is significant reason … Continue reading this entry

EEOC’s Proposed Retaliation “Guidance” Muddies the Waters for Employers

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For the first time in 18 years, the Equal Employment Opportunity Commission (EEOC) has offered proposed revisions to its official guidelines on workplace retaliation. In its proposed revisions, the agency expresses a very broad view of what constitutes actionable retaliation under the applicable equal employment laws. One of the most noteworthy revisions is that the … Continue reading this entry

When Seemingly Indefinite Leave and Non-Cooperation Makes a Leave of Absence Unreasonable

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A recent decision from the Court of Appeals for the District of Columbia provides a result that employers may often think they do not see enough in labor and employment law: a common sense solution to a situation that confronts them often – what to do under federal (and potentially state) statutes requiring reasonable accommodation … Continue reading this entry