Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

BREAKING: EEOC files first transgender suits against private employers

Posted in Gender Identity Discrimination

Bloomberg BNA reports this afternoon that the Equal Employment Opportunity Commission filed two transgender discrimination lawsuits yesterday, the agency’s first ever against private-sector employers. One is against a Michigan funeral home, and the other is against a medical clinic in Lakeland, Florida. Both cases appear to involve straightforward discrimination allegations: employees who presented as males when hired were terminated after they disclosed that they would be going through the gender reassignment process and began dressing as females. The Michigan lawsuit also alleges that men received clothing allowances, while women did not.

The Bloomberg BNA article notes that Michigan is in the Sixth Circuit and Florida is in the Eleventh, and both of these circuits have already held that gender identity discrimination is a type of sex discrimination prohibited by Title VII. Tommy Eden posted last week about a gender-identity case from Georgia (also in the Eleventh Circuit) in which the employer won summary judgment.

Employment law quiz: You be the judge!

Posted in Americans with Disabilities Act, Class actions, Discrimination, Domestic Violence, Harassment

You be the judge of these real-life employment disputes! (I’ve changed the names to make it harder for you to Google the answers right away, but the answers with links are at the end of the post.)

Judge Judy

“Real cases! Real people!”

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The EEOC has been a busy bee this week. (It stings!)

Posted in Americans with Disabilities Act, Class actions, Discrimination, Employment Law Blog Carnival, Genetic Information Non-Discrimination Act, GINA, Harassment, Pregnancy, Settlements

The Equal Employment Opportunity Commission has been on a tear this week, suing employers right and left, and getting some “wins” including a couple of big settlements . . .

Muhammad Ali.Stango

The EEOC “floats like a butterfly, stings like a bee . . .”

Train-wreck boss. The U.S. Court of Appeals for the Fifth Circuit (Louisiana, Mississippi, and Texas) vacated a summary judgment decision for a Tex-Mex restaurant franchisor that had been sued by the EEOC because its franchisee was sexually harassing two employees. (Robin always says “allegedly” – why didn’t she say “allegedly” this time?) According to the court’s decision, the franchisee admitted that his restaurant was a “grab-assy place,” that he patted one employee so hard on her bottom that she got a bruise, that he hit her, too, that he asked the other employee “to go out of town with him,” and asked her “to have a child with him, but not in a ‘meaningful’ way,” that he sent her an invitation that said, “Pants okay, but not necessary,” and that he posted a sign at his restaurant “to lighten the mood” that said “Notice: sexual harassment in this area will not be reported. However, it will be graded.”

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Yes, employers, you can win a transgender discrimination suit

Posted in Discrimination, Gender Identity Discrimination

A recent decision from a federal court in Georgia provides an excellent illustration about how employers can win summary judgment (dismissal before a jury trial) even in cases as sensitive as those alleging discrimination based on gender identity.

Plaintiff Jennifer Chavez was hired as a mechanic by Credit Nation Auto Sales in Austell, Georgia (a suburb of Atlanta), when she was Luis Chavez, a man. After a little more than a year on the job, then-Mr. Chavez told management that he intended to undergo gender reassignment. (At this point, we will refer to the Plaintiff as “Ms. Chavez.”) According to Ms. Chavez, management and her co-workers were extremely supportive . . . for about two weeks. During that two-week period, Ms. Chavez even sent an email to a reporter from the Atlanta Journal-Constitution, going on and on about how supportive her co-workers had been, “even the crotchety old southern guys who I thought were set in their ways.” Ms. Chavez also said that, after the co-workers were informed, the owner sent an email reminding them of Credit Nation’s policy against harassment.

(We could not find an article about Ms. Chavez in the Journal-Constitution, but we did find some other articles about Ms. Chavez here and here.)

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Off-duty domestic violence — what’s an employer to do?

Posted in Domestic Violence, Violence
Goodell_2009_NFL_Draft

Commissioner Roger Goodell at the 2009 NFL draft.

As NFL Commissioner Roger Goodell can tell you, it isn’t easy for an employer to handle off-duty domestic violence situations.

Sometimes your employee is the victim. If so, you may have someone who is distracted, scared, upset, or frequently absent because of physical injury or psychological trauma, or court appearances. She (or he – men can be victims, too) might be spending too much time commiserating with coworkers and not working. And you always have to worry about the possibility that the abuser will show up, causing this “private matter” to spill over into your workplace. Because of these risks, it isn’t unheard of for an employer to terminate the victim because her abuser’s presence is creating too much disruption in the workplace, or putting customers or students at risk.

Sometimes your employee is the perpetrator. But maybe he (or she) behaves like a choirboy at work, and is great at his (or her) job. If you fire for off-duty conduct that has no noticeable impact on your workplace, could the employee assert a claim against you for discrimination or some other type of wrongful termination?

In this legal environment? Do I really have to ask?

In short, there are no easy answers for employers in these situations. But here are a few ideas.

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Which drug-testing law applies? Who knows?

Posted in Drug Testing

This drug-testing case would make a great law school final exam.

Shawn Olson of Minnesota was offered a job in West Virginia by Push, Inc., a company based in Wisconsin. Mr. Olson was asked to complete a pre-hire drug test, which was originally going to be performed in Push’s state of Wisconsin. However, for Mr. Olson’s convenience, the company allowed Mr. Olson to be tested in Minnesota.

Badger.Wisconsin

Was this a Wisconsin badger drug test? After all, the employer was based in Wisconsin.

The Minnesota Drug and Alcohol Testing in the Workplace Act prohibits employers from terminating employees or refusing to hire based on an initial drug screen unless the initial screen is confirmed by a second test. West Virginia and Wisconsin do not require a confirmation test.

You guessed it. Mr. Olson took the test in Minnesota, and while the results were pending, he started work for Push in West Virginia. (Big mistake here. Employers should never allow new hires to start work before they have the drug test results back.) After he had already started work, Mr. Olson’s test results came back as too “diluted.” Some employers treat “dilute” samples as worse than a “positive” – they treat it as dishonesty – an attempt to falsify or tamper with the test results. Push wasn’t that tough, but it treated a “dilute” sample as a positive result, which still resulted in Mr. Olson’s termination.

West_Virginia_Mountaineer

. . . or was it a West Virginia Mountaineer drug test?

Mr. Olson sued Push under the Minnesota DATWA. Push removed the lawsuit from Minnesota state court to federal court, and moved to dismiss. The issue was whether Minnesota law applied to a drug test that was performed in Minnesota, when both the employer and the job were in other states. Mr. Olson argued that, under Minnesota law, the employer was “doing business” in Minnesota and therefore was subject to Minnesota drug testing laws.

If a urine sample is too dilute, the drug test may not detect sufficient amounts of an illegal drug in the individual’s system. It is possible to dilute a urine sample by drinking a large amount of water before the test.

A federal judge in Minnesota disagreed. Although she did not decide which state’s laws did apply to this test, she found that Minnesota law did not. First, she found that the Minnesota statute did not apply to employment relationships outside Minnesota. She also found that the approach advocated by Mr. Olson would probably violate the Commerce Clause of the U.S. Constitution because of the chaos that could result if “not one, but many or every, State adopted similar legislation” that applied to testing in other states.

gophers.U-Minn

Whatever law applies, it isn’t Minnesota law!

So, when push came to shove, Push won. But here are some preventive steps that may help employers avoid even the hassle of eventually winning in federal court:

*Be nice, but don’t be too nice. Make sure you fully understand the laws in other states before you allow new hires (not to mention employees) to take significant actions in those other states. That includes, but is not limited to, drug testing. I wonder if Push will ever let another employee be tested in his home state for convenience instead of coming to Wisconsin. It’s too bad that Mr. Olson had to ruin it for everybody.

*Don’t let a new hire start work until after you receive the drug test result. You never know, but if Push had just withdrawn its offer of hire rather than firing Mr. Olson after he’d started work, maybe Mr. Olson would not have become angry enough to sue.

On a more positive note, Push did a lot that was right. Push was smart to check for “diluteness” and to take appropriate action because this is a well-recognized method for cheating on a drug test. The company was also smart to have removed the case to federal court, where the judges are more likely to see the Constitutional implications of extraterritorial application of state laws.

Employers, don’t commit these 5 firing faux pas!

Posted in Americans with Disabilities Act, Discrimination, Employment at Will, Family and Medical Leave Act, Pregnancy

Do you think you have that employee termination all buttoned up, and no one will be able to challenge you? Defending that EEOC charge will be a slam dunk? No plaintiff’s lawyer in his right mind would represent your soon-to-be-ex employee?

Are you sure about that? Can we talk?tp-shoe

Don’t commit these five firing faux pas*.**

*This is not an all-inclusive list. There are probably more than five.

**I realize that a “faux pas” is a social blunder, and these are actually employer misconceptions. But I started thinking about the late Joan Rivers, and one thing led to another . . . language people, I apologize!

Faux Pas 1: “Our case is air-tight. She had documented performance problems.” Documented performance problems are certainly a good start toward defending a termination, but they may not be enough. Were the standards communicated clearly in advance? In what way? Were they applied the same way to all similarly situated employees (for example, to all employees in the same job, or reporting to the same supervisor)? Did you warn this employee of any deficiencies and give her a chance to improve before you started talking about pulling the plug? Are all of those prior warnings and the employee’s failure to shape up also documented? Are you sure that none of the decision makers had motivations that might have unfairly affected their perceptions of the employee’s performance?

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BREAKING: 6th Circuit will rehear Ford telecommuting/reasonable accommodation case

Posted in Americans with Disabilities Act, Telecommuting

Law 360 reports this morning that the U.S. Court of Appeals for the Sixth Circuit has agreed to rehear the EEOC v. Ford Motor Co. case, which I reported on (and disagreed with) in April. The original decision, holding that Ford should have allowed an employee with severe and unpredictable irritable bowel syndrome to telecommute as a reasonable accommodation under the Americans with Disabilities Act, was issued by a three-judge panel of the Sixth Circuit.

(My problem was not with telecommuting as a reasonable accommodation in general, but with the fact that the panel was mandating it in a job that required significant “face time” and entailed other obstacles to performing the duties remotely.)

The panel decision has been vacated, and the appeal will be reheard en banc (that is, by all of the Sixth Circuit judges). This is very encouraging news for Ford, and we will keep you informed as this case progresses.

Some Labor Day eye candy

Posted in Labor Relations

Last spring, I was in the Detroit area for a deposition. I’m originally from that area, so I stayed over the weekend to visit family, and we made a trip to the Detroit Institute of Arts. In honor of Labor Day, here are some photos I took of Diego Rivera’s Detroit Industry murals. If you’ve never seen these in person, you really should – the scale and detail is much more than I can capture.

The murals were commissioned by Edsel Ford, and include depictions of Edsel as well as his father, Henry. (You can enlarge these by clicking on the photos.) Enjoy, and happy Labor Day!

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This the South Wall of the Rivera Court at the museum.

And a detail from that wall:

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Here is the North wall:

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The “small” pictures in this mural are gems, too.

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Workers eating lunch.

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Henry Ford talking to his engineers.

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Henry Ford at his desk.

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A worker at his desk – maybe the union shop steward?

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End of shift.