Tag Archives: Discrimination

Is Being Overweight an Impairment?

overweight
According to the Centers for Disease Control and Prevention (CDC), approximately 40 percent of U.S. adults are obese. The CDC uses the Body Mass Index (BMI) as the benchmark for obesity. BMI is a calculation based on height, weight and age. A BMI of 30 or more, applying the CDC standards, constitutes obesity. The question … Continue reading this entry

Potential #MeToo-Motivated Laws Address More Than Just Sexual Harassment

#MeToo
The #MeToo movement has spawned several bills, many of which are aimed at prohibiting private arbitration of sexual harassment claims or outlawing confidentiality provisions in settlement agreements addressing sexual harassment claims.… Continue reading this entry

Employee Need Not Give Severance Back Before Moving Forward

Severance
An employee signs a separation agreement and receives severance pay. The employee then has second thoughts, alleges she was coerced into signing the agreement, and wants to pursue her discrimination claims in court. Must the employee give back the severance before suing? On August 13, 2018, in McClellan v. Midwest Machining, the Sixth U.S. Circuit … Continue reading this entry

OFCCP Signals Emphasis on “Religious Liberty” in Federal Contractor Compliance

OFCCP
On August 10, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a new policy directive aimed at protecting the religious freedom of employees and ensuring a “level playing field” for religious organizations to compete for federal contracts. While the 2014 Obama administration rule prohibiting discrimination based on sexual orientation and gender … Continue reading this entry

So What’s it Going to Cost Me?

cost
When faced with an employment discrimination, harassment or retaliation claim, often the immediate response is, “We are going to defend ourselves and prove we are right,” followed by, “So what will it cost us if we lose?” This article describes the damages available to a prevailing party under the primary federal employment statutes.… Continue reading this entry

Sixth Circuit Confirms Title VII Protection for Transgender Status and Rejects Religious Belief Defense

cost
Earlier this month, we discussed the Second Circuit Court of Appeals’ decision concluding that Title VII prohibits discrimination on the basis of sexual orientation. Days later, the Sixth Circuit Court of Appeals (covering Kentucky, Michigan, Ohio, and Tennessee) issued a significant Title VII decision of its own when it concluded that a funeral home’s discharge … Continue reading this entry

Avoiding Investigation Mistakes in the 'Me Too' Era

#MeToo
Workplace investigations have always been a key part of the human resources function and employment law compliance. However, the need for such investigations, and the consequences of conducting them poorly, have grown exponentially in the “Me Too” era. Obviously, more employees are aware of their rights and feel emboldened to exercise them. Additionally, complaints not … Continue reading this entry

The Saga Continues: Second Circuit Court of Appeals Holds that Sexual Orientation Discrimination is Sex Discrimination Under Title VII

VII
We have steadily followed the evolving legal landscape, including the emerging circuit court split, surrounding whether the federal anti-discrimination law, Title VII, prohibits discrimination based on sexual orientation or gender identity. On February 26, 2018, all of the judges of the Second Circuit Court of Appeals (covering Connecticut, New York, and Vermont) heard an appeal … Continue reading this entry

Even If Sexual Orientation And Gender Identity Are Not Covered By Title VII -- Very Much an Open Question -- LGBTQ Employees May Find a Way to Sue You

LGBTQ
Some pretty horrifying facts about workplace conduct at the Providence, R.I., Fire Department involving co-workers: calling a female lieutenant firefighter “bitch” “c—t,” “lesbian lover,” and “lesbo”; telling her, “I don’t normally like to work with women, but, you know, we like the same thing, so I think we’re going to get along”; spitting on and … Continue reading this entry

EEOC Scores Victory in Sexual Orientation Discrimination Lawsuit

overweight
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

Legal Compliance In A Harassment-Conscious Environment

cost
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

When Firing A Sympathetic Employee – Circumstances Matter A Lot

Firing
The recent case of Carroll v. Comprehensive Women’s Health illustrates the importance of circumstances and perception when terminating a “sympathetic” employee. Indeed the opinion reads like a case study of facts and circumstances that are unfavorable for the employer. And those “bad” facts are what the court focused in on – rather than evidence 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

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

How Will the EEOC Change Under the Trump Administration?

EEOC Developments
Employers, human resource professionals, and employment attorneys all have the same burning question on their minds – what is the Trump administration’s Equal Employment Opportunity Commission (EEOC), with newly appointed Acting Chair Victoria A. Lipnic, going to do? An important part of this conversation is understanding the ways in which the EEOC is able to … Continue reading this entry

Texas Legislator Proposes Bill to Protect Workers' "Political Beliefs"

Last week, Representative James White, a Republican representing District 19 (Hardin, Jasper, Newton, Polk, and Tyler Counties), proposed a new state law that would protect Texas workers from adverse actions for expressing their political opinions and views away from the job.  The key provision of the proposed legislation defines “political beliefs” to include “only” those beliefs … 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

Top 5 Mistakes Employers Make with Their Employee Handbooks

As 2016 winds down and a new year approaches, now is a great time for employers to think about their employee handbooks and employment policies in general.  As employers go about that thought-process, here are a few common mistakes employers should try to avoid: (1) Self-Regulation:  Employers often include items in handbooks that are not … 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

OSHA Update—OSHA Issues Enforcement Guidance on New Reporting and Anti-Retaliation Provisions

The Occupational Safety and Health Administration (“OSHA”) has issued a memorandum to its Regional Administrators and published a new webpage outlining its planned enforcement of the new reporting and anti-retaliation provisions.  The agency’s guidance does little more than restate and expound upon what it has already provided in previous documents, such as in the 2012 … 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