Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Eight takes on sexual harassment and Harvey Weinstein

Posted in Harassment, HR, Sexual Torts

Words fail me. Let’s just say that I hope he is sincere about getting the help he needs to turn his life around.

Which, among other things, should include trying to make some form of restitution to his alleged victims. (None of this ridiculous “atonement by fighting the NRA.”)

There are more Weinstein stories than I can link to, but here are the two original sources: The article by Jodi Kantor and Megan Twohey in The New York Times is here, and Ronan Farrow’s excellent and very disturbing article in The New Yorker is here.

Mr. Weinstein, through a spokesperson, has denied engaging in any non-consensual sexual relations or retaliating against anyone who refused his advances. The full denial is in the video, below.

Here are my eight takes from an employment law and Human Resources perspective:

No. 1: “Quid pro quo” harassment is just a fancy word for extortion — where the prize is sex, instead of money or property. When an employer threatens to terminate (or otherwise punish) an employee for refusing sexual advances, or promises to hire (or otherwise reward) her for participating, then that is extortion. (I’m using “she” and “her” for convenience, but men can be victims, too.) In the ordinary employment context, an employer is strictly (automatically) liable if a supervisor or manager engages in this type of harassment.

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Weekly catch-up

Posted in Immigration

Trump’s travel ban scores one with the SCOTUS. This week, in a victory for the Trump Administration, the U.S. Supreme Court dismissed as moot one of the two pending challenges to the March 6 travel ban issued by the Administration and vacated the lower court decision striking down the ban. (That March 6 travel ban has since been replaced by a September 24 travel ban.) Will Krasnow of our Boston Office has more, with links to the order and the history, in this Immigration Dispatch.

Image Credit: From flickr, Creative Commons license, by Jelene Morris.

Courts uphold law enforcement officer’s discharge for racially insensitive posts

Posted in First Amendment, Public Sector Employment, Social media

The freedom of speech afforded by the First Amendment is remarkably broad. Several categories of speech, including even “hate speech,” are afforded varying degrees of protection.

However, the freedom of speech guaranteed by the First Amendment is not without limits, even for public sector employees. Governmental employees who voice their opinions — even on matters of legitimate public concern – are well served to choose their words, as well as the times and forums in which they communicate those words, very carefully.

Just ask Michael Todd Snipes, a former law enforcement captain for the Beach Safety and Ocean Rescue Department in Volusia County, Florida. Capt. Snipes was fired for making racially insensitive comments on his Facebook page and in group text messages sent to several of his fellow officers.

In freedom of speech cases, the context in which a thought or idea is communicated often matters a great deal. Although there is never a good time to make racially insensitive remarks, Capt. Snipes’ timing was particularly ill-considered.

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The ADA: Four issues to watch in 2018

Posted in Affordable Care Act, Americans with Disabilities Act, Discrimination, Family and Medical Leave Act, GINA, Pregnancy

Last month, I had the pleasure of speaking to the Federal Bar Association about hot topics under the Americans with Disabilities Act with my blogging buddy Bill Goren, proprietor of the Understanding the ADA blog. If you haven’t visited Bill’s blog, you should — he covers all aspects of the ADA, including Titles II and III, as well as the employment provisions (Title I).

Here are four ADA (or ADA-related) areas that employers need to watch in the coming year:

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Title VII does not ban gender identity discrimination, DOJ says

Posted in Discrimination, Gender Identity Discrimination, Politics, Sexual Orientation

Asserting that the U.S. Department of Justice “must interpret Title VII as written by Congress,” the DOJ is reversing the Obama-era interpretation of Title VII, taking the position that Title VII does not prohibit discrimination based on gender identity.

In a memorandum issued this week by Attorney General Jeff Sessions, the DOJ formally withdrew a 2014 memorandum by then-Attorney General Eric Holder taking the contrary position.

Attorney General Sessions contends that transgender individuals are protected from discrimination based on sex, but not based on “gender identity per se.” He noted that Title VII refers only to discrimination based on “sex,” which is “ordinarily defined to mean biologically male or female.” He also noted that Congress had specifically referred to gender identity in other contexts, indicating that it would have done so in Title VII had that been its intent. Finally, he said that Title VII did not prohibit treatment “that [took] account of the sex of employees but [did] not impose different burdens on similarly situated members of each sex,” specifically referencing sex-specific bathrooms.

The memorandum concludes as follows:

The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals. Nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity, or to express a policy view on whether Congress should amend Title VII to provide different or additional protections. Nor does this memorandum remove or reduce the protections against discrimination on the basis of sex that Congress has provided all individuals, including transgender individuals, under Title VII. . . . The Department of Justice has vigorously enforced [federal laws specifically protecting transgender individuals], and will continue to do so, on behalf of all Americans, including transgender Americans.

The DOJ position is not a surprise, given that it recently submitted a “friend of the court” brief making roughly the same arguments in a sexual orientation discrimination case.

Catholic priest is (allegedly) an equal opportunity offender, court says, dismissing bias suit

Posted in Defamation, Discrimination, Harassment, HR, Sexual Orientation

Father, you kiss your mother with that mouth?

“Father, I’m appalled!”

The recent dismissal of a lawsuit in New York — involving a priest who is principal at a Catholic high school —  illustrates why an (alleged) “equal opportunity offender” is better than a discriminatory one.

But that’s not to say it’s good.

Father Michael Reilly — as well as his school, the Archdiocese of New York, Cardinal Timothy Dolan, and Father Reilly’s two alleged “henchmen” — were sued by a guidance counselor and two teachers for harassment and discrimination based on age and sex under the New York Human Rights Law, and for defamation.

(WARNING: If you expect priests to conduct themselves a certain way, you may be unpleasantly surprised at what follows.)

Among other things, the lawsuit alleged that Fr. Reilly did the following:

*Used the “F” word — all the flippin’ time.

*Referred to individual women as “bi*ches” and “tw*ts,” and to women collectively as a “tw*teria.”

*Said that he would kick an African-American teacher “back to the jungle.”

*Said that he would kick an employee with cancer “to the f***ing curb.”

*Said about an older employee who was ill and later died, “F*** crusty, she’s a vodka-shi**ing bi*ch that we don’t need.”

*Called an administrator a “fat fa**ot.”

There is a change.org petition signed by 2,192 people asking the Archdiocese to remove Father Reilly from his position.

Father Reilly denies having said any of these things.

Because the motion to dismiss was filed at the very beginning of the lawsuit, the court had to assume that everything alleged by the plaintiffs was true.

The defamation claim — based on Fr. Reilly’s loudly asking the guidance counselor whether he was a pedophile — was not valid, the judge said, because the priest was not saying the guidance counselor was a pedophile but only asking. (Long story, but it makes sense in context.)

As far as the harassment and discrimination claims, the court found that there was no evidence that Fr. Reilly discriminated against women or older employees — if the allegations in the lawsuit were to be believed, he treated everybody equally badly. The court said,

Although plaintiffs’ main allegations may demonstrate that Father Reilly has made numerous crude, vulgar, insensitive and prejudiced remarks against all types of people and that he may not always demonstrate the morals and principles aligned with a well-respected Catholic institution [EDITOR’S NOTE: Ya think?], the law does not impose liability upon him based on the allegations set forth in the plaintiffs’ complaints.

Since the defendants won dismissal of the lawsuit, that means Father’s alleged behavior is A-OK, right? Wrong. First, I would hope that employers wouldn’t want anyone in a position of authority conducting himself or herself the way that the plaintiffs alleged. Not so hot for employee morale, and it could make it very difficult for the school to attract and retain good faculty and staff. Second, it’s not good from a purely legal or economic standpoint, either. The alleged behavior dragged Father, his school, his bosses, and two employees who reported to him, through the embarrassment, stress, and expense of a lawsuit. And the plaintiffs say they will appeal the court’s decision, so it may not be over.

In short, “equal opportunity offender” is a good legal defense, but it’s no way to run a workplace.

Image Credit: From flickr, Creative Commons license, by Jussi.

Extended medical leave not a “reasonable” accommodation under ADA, court says

Posted in Americans with Disabilities Act, Discrimination, Family and Medical Leave Act, HR

This week, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit held that a “multimonth leave of absence is beyond the scope of a reasonable accommodation” under the Americans with Disabilities Act.

In doing so, the court rejected longstanding guidance from the Equal Employment Opportunity Commission that a long-term medical leave is a reasonable accommodation when the leave is (1) definite and time-limited (not open ended); (2) requested in advance; and (3) likely to enable the employee to perform the essential job functions on return. Noting that under the EEOC’s position “the length of leave does not matter,” the court characterized it as an “open-ended extension” of leave under the Family and Medical Leave Act.

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