Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Speaking of equal pay . . . here’s a “demand-side” solution! *joke*

Posted in Equal Pay

This is too funny, and it ties in so well with my post on Friday about the EEOC’s new “pay survey” proposal. I learned about the video from the Washington Post, but I’m linking to the YouTube version to ensure that no one is blocked by a pay wall. Enjoy!

5 things I don’t like about the EEOC’s “pay survey” proposal

Posted in Discrimination, Equal Pay

You have no doubt heard that the Equal Employment Opportunity Commission proposes to require employers with 100 or more employees to start submitting compensation data with their annual EEO-1 reports.


“I’m against it.”

The proposal was announced by President Obama in a White House ceremony last week celebrating the seventh anniversary of the Lilly Ledbetter Fair Pay Act. Here’s the scoop.

The proposal could certainly have been worse. The EEOC would require the reporting to occur at the same time that employers already do their EEO-1 reporting (efficient!), proposes the use of W-2 earnings data (efficient and easy!), proposes that the survey will replace rather than supplement the proposed pay survey rule issued by the Office of Federal Contract Compliance Programs that would have applied to federal contractors (only one rule to worry about instead of two!), and proposes to delay the effective date until Fiscal Year 2017 (never do today what you can put off until tomorrow!).

All that having been said, I’m against it. Here’s why.

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Friendly reminder: Reverse discrimination is against the law, too

Posted in Discrimination

Negatives.Fabrice_de_Nola_-_Negative_photography.j.jpgPretty obvious, but a decision issued this week serves as a good reminder to employers that all race discrimination is illegal, whether it’s against members of minority groups or whether it’s against Caucasians.

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit reversed summary judgment for a company that allegedly told a white worker that he was being terminated from a Mississippi River bridge construction project and not rehired because the company wasn’t meeting its minority targets for the project.

(The company denies that these statements were made, but the Seventh Circuit — correctly, I think — said that’s for the jury to decide.)

Perhaps more remarkable is the fact that the company got summary judgment at all, considering the alleged statements. Here’s a copy of the lower court decision, in case you’re curious.

Image Credit: From Wikimedia Commons.

EEOC Retaliation Guidance, Part 2: Was your employment action “adverse”?

Posted in Retaliation

What’s a “materially adverse employment action”? This is the second part in what should be a three-part series (it’s possible that we’ll need four) on the proposed Enforcement Guidance on Retaliation and Related Issues recently published by the Equal Employment Opportunity Commission.

Man with Fist.flickrCC.HobviasSudoneighm

“Allow me to inflict some materially adverse employment action on y’all!”

To recap from last week, a plaintiff in a retaliation case has to prove three things:

1. She engaged in “legally protected activity,” and

2. She suffered an “adverse employment action,” and

3. There is a “causal connection” between the legally protected activity and the adverse action.

Part one, “You gotta be protected!,” is here. This week, we’ll talk about No. 2: “Was your employment action adverse?”

What’s “adverse”?

The Supreme Court decided almost 10 years ago that “adverse employment action” was virtually anything that would deter a reasonable person in the plaintiff’s shoes from engaging in protected activity.

In plain English, that means “just about anything bad,” as long as it isn’t really trivial.

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Employers: Concerned about class actions? Look no further!

Posted in Class actions, Constangy News

Our inaugural edition of Class Action Outlook, a quarterly publication for employers on class and collective action litigation, is out, and you will not want to miss it! In order of appearance, we have Naveen Kabir on the Tyson Foods overtime collective action pending at the Supreme Court, Kate Scarbrough on the Supreme Court’s recent Gomez decision, Heidi Wilbur on the Spokeo class action pending at the Supreme Court, Dawn Amos on the California Fair Pay Act amendments and what they’ll mean for employers with employees in the Golden State, Stacy Mueller on EEOC pattern or practice litigation and how employers can best defend themselves, and Susan Bassford Wilson on e-discovery and the amendments to the Federal Rules requiring “proportionality.” Thanks very much to our Class Action Practice Group heads, Maureen Knight and Steve Moore, for creating and overseeing this very ambitious and valuable resource for employers.

EEOC Retaliation Guidance, Part 1: You gotta be “protected”!

Posted in Retaliation

The Equal Employment Opportunity Commission issued last week a proposed Enforcement Guidance on Retaliation and Related Issues that would update guidance issued in 1998. If you’re an in-house attorney or a Human Resources professional, I recommend that you read the whole thing. But to keep things digestible on this blog, I’m going to do a series of posts (three in all, I think, but I might need four) on the highlights.

Before we dig in, a plaintiff in a retaliation case has to prove three things:

  1. She engaged in “legally protected activity,” and
  2. She suffered an “adverse employment action,” and
  3. There is a “causal connection” between the legally protected activity and the adverse action.

This week, I want to talk about No. 1: “legally protected activity.”


“I’m protected. Are you?”

Most employers know that just about everything can be considered “legally protected activity” these days. There isn’t much in the EEOC’s proposed guidance that will change your mind, but for the most part I think the agency’s position is consistent with court decisions and the statutes.

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Transgender roadmap: 10 steps the EEOC thinks employers should take

Posted in Discrimination, Gender Identity Discrimination, Harassment

Road Map.flickrCC.Britt-Knee

Law360 reported yesterday morning that the Equal Employment Opportunity Commission settled a transgender discrimination and harassment lawsuit (not our Detroit-area funeral home case). Although the employer entered into the consent decree voluntarily, we now have a pretty good idea of what the EEOC thinks employers should do in dealing with employees who are transgender or have other gender identity variances.

Here are the 10 things the EEOC apparently would like to see employers do:

1) Include gender identity in your non-discrimination and no-harassment policies. If you’re a federal contractor, you should have done this a long time ago. If you’re not, then you should seriously consider adding it now.

2) Make sure your policies provide that discrimination against or harassment of individuals because of their transgender (and related) status will not be tolerated, whether the behavior comes from “employees, customers, agents, contractors, sub-contractors, clients,” or anyone else.

3) Make sure that employees understand that deliberately referring to a transgender person by his or her “biological” gender, or by his or her original name, is considered discrimination and harassment by the EEOC. Continue Reading

Struggling as a lawyer? Then be more like a stripper! Yeah, that’s the ticket.

Posted in Lawyers!

“Lawyers, be like me!”

Above The Law is, for the most part, a trash legal-gossip blog with the funniest, nastiest bunch of commenters anywhere. I read the comments it every business day.

But whatever you do, be careful if you read it for the blog posts, especially if you just got out of law school and need help getting your career started.

Here’s Exhibit A, from “Shannon Achimalbe” (a pseudonym):

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Employment Law Blog Carnival: Iowa Caucus Edition

Posted in Employment Law Blog Carnival

We are non-partisan here at Employment & Labor Insider, but that doesn’t mean we can’t look forward to the Iowa Caucus. (DISCLAIMER: This Employment Law Blog Carnival is guaranteed obsolete in two weeks, if not sooner.)

Iowa Postcard.flickrCC.Cas

Ring in the Old!

On February 1, Hawkeyes will gather at their precincts, hear inspiring speeches from the candidates’ pitch men and women, and (if Republican) mark their old-fashioned paper ballots or (if Democrat) gather to be counted, bodily, in the corner of the room designated for their preferred candidate.

(It’s a good thing “body counting” is the Democrat method – the Republicans would need an 11-cornered room. And that’s not even counting the fringe candidates.)

Iowa Capitol.DesMoines.flickrCC.Katie Haugland

Ah – nothing like Des Moines in February!

And it’s a good thing that we can “look back” at 2015! Donna Ballman of Screw You Guys, I’m Going Home tells us how her 2015 prognostications panned out. Stuart Rudner tells us about Canada’s top 10 employment cases for 2015. Mike McClory of Bullard Employment Law Edge gives us his favorite blog posts for 2015, and Lorene Schaefer of Win-Win HR tells us how California Institute of Technology pulled off a “textbook” handling of a Title IX complaint.

Hillary Clinton Iowa.flickrCC.Phil Roeder

“Vote for me! It’s my turn!”

It wouldn’t be a “Caucus edition” without some voting. Here’s a poll:

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