The Office of Federal Contract Compliance Programs has issued a new directive on gender-identity discrimination, consistent with President Obama’s recent amendment to Executive Order 11246. In essence, the directive says that discrimination based on gender identity is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964, a position that has already been adopted by the Equal Employment Opportunity Commission and many federal courts.
You all know that I love telecommuting, although it works better in some instances than in others.
Before any employer starts a telecommuting program, it should ask itself three questions:
1) Does the job lend itself to a telecommuting arrangement? (You can’t very well assemble Cadillac Escalades from your home office, now can you?)
2) Is the employee’s home worksite conducive to work? Does the employee have proper equipment, or does she have a Commodore 64 with dial-up modem, and a rotary phone? (If the latter, are you willing to provide her with a decent set-up as part of the deal?) Is the home environment free of distractions?
Register here for our webinar, “Labor Board Takes Aim at ‘Joint’ Employers,” which will be from 1 to 2:30 p.m. Eastern Thursday, August 21. If the National Labor Relations Board redefines the test for determining joint employer status, it will affect employers in virtually every industry and segment of the economy. Presenters will be Dan Barker, Tim Davis, Dan Murphy, and Kim Seten. Don’t miss it!
and the big one, which is really the one I want to talk about today . . .
3) Is this particular employee fit to telecommute? Can she work independently? Is the quality of his work satisfactory? Is she reliable and responsible? Is he motivated, even when the supervisor isn’t nearby? Has she demonstrated personal integrity?
Today is the last day to vote for the 2014 ABA Blawg 100. If you have already voted, thank you! If you have not voted and are so inclined, please go here before 5 p.m. Eastern today and briefly tell them why you think Employment & Labor Insider should be on the “A” list of employment law blogs. We very much appreciate your support!
According to statistics collected by the Equal Employment Opportunity Commission, harassment charges have stayed relatively stable over the past three years, and the number of “cause” determinations has actually declined. (Yay!) Yet employers should still be concerned because the monetary relief has increased dramatically – from $82.1 million in fiscal year 2012 to $97.3 in fiscal year 2013. Dollars going up while cause determinations go down? (Boo.)
In other words, it isn’t Miller time for employers just yet.
In my continuing quest to make sure that none of our readers ever get sued — or, if that fails, never lose a lawsuit — here are my “Dirty Dozen” employer harassment mistakes. Are you guilty of any of these? If so, cease and desist!
Public employers often mistakenly believe that they have the same drug testing rights as employers in the private sector. As a recent decision from a federal court in Florida shows, it ain’t necessarily so.
Karen Voss was offered a newly created position of Solid Waste Coordinator with the City of Key West. The job entailed marketing and planning related to the city’s recycling programs, and “overseeing other tasks within the City’s Solid Waste Utility.”
The offer, like most job offers, was contingent on her taking a drug test. Ms. Voss consented in writing to be tested, but instead of going to the collection site for the test, she went to the city attorney’s office and complained that the testing violated her rights. Because she refused to be tested, the city hired another candidate.
Ms. Voss sued the city with the help of the American Civil Liberties Union, contending that the drug test requirement violated her rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. The court granted her motion for summary judgment as to liability.*
*With respect to damages, Ms. Voss has filed a motion seeking a declaration that the City’s drug testing policy is unconstitutional, an injunction, and about $255,000. A hearing is scheduled for September 25.
The Fourth Amendment prohibits unreasonable searches and seizures, and the Fourteenth Amendment makes these and other restrictions applicable to the states. Urinalysis drug tests are generally considered to be “searches and seizures” because they “intrude upon expectations of privacy that society has long recognized as reasonable.”
If the “search” is not based on “individualized suspicion of wrongdoing,” the government has to show that it had a “special need” or that the testing served an “important governmental interest.”
Because this was a standard pre-employment drug test, there was, of course, no individualized suspicion. But the City argued that the need for a drug-free workplace was a “special need,” that the “search” was not unreasonable because it applied only to applicants, and that the job was safety-sensitive, which justified the drug test. The court rejected all of these arguments.
Regarding the need for a drug-free workplace, the court found that there was no evidence showing that drug abuse was a problem with city employees or with applicants for city jobs. The court found that the job was not safety-sensitive because it did not require exposure to dangerous machinery and for the most part was a “desk job.” Perhaps the most damaging fact for the city’s case was that it did not require employees in this position or in related positions to be tested randomly for drug use.
Finally, the court rejected the city’s argument that applicants could “reasonably” be tested even if employees could not.
If Key West had been a private sector employer, its drug testing program probably would have been fine, but public employers do not have the freedom of private sector employers. Public employers should carefully evaluate their drug-testing policies and the manner in which they apply those policies to make sure that the testing is not prohibited by the Fourth Amendment.
You can’t fix stupid.
Homo sapiens is fired for teaching about homophones (and his sister is a known thespian rumored to have dramaturgical aspirations). A teacher at a private language school in Utah says that he was fired by the director for posting about homophones on an educational blog, which the director allegedly believed was promoting a gay agenda.
Homophones, as we all know, are words that sound the same but are spelled differently and mean different things. Like, “bear” and “bare,” or “red” and “read” (past tense). There’s nothing sexual about homophones. Well, except for “sex” and “sects.” Maybe the director has a point, after all.
This is the last week to vote for the American Bar Association’s 8th Annual Blawg 100. If you enjoy Employment & Labor Insider and are so inclined, please go to this link and briefly explain why we should be on the “A” list of legal blogs. The deadline for nominations is 5 p.m. EDT Friday, August 8. Thank you for your support!
This article has a picture of the teacher, manifestly displaying his epidermis.
P.P.S. – Read this. I am in awe.
“Don’t hate me because I’m white.” A police officer in the town of Moultrie, Georgia, who made Barney Fife look competent, was forced to resign and was sure it was because he was white. The fact that he’d left his squad car with the engine running and his window down, backed the car into a light pole, left the car while it wasn’t in “park,” ran a red light, didn’t tell the dispatchers where he was, caused a wreck when he used his cell phone while driving, drove 20 miles over the speed limit, wrecked his car and couldn’t remember how he’d done it, accidentally shot himself with his firearm, lost the notebook that contained his incident reports, left his shotgun on the steps of the entrance to the police department, lost a pager and a gas card, lost a $100 counterfeit bill that was evidence, failed to put documents into evidence, “failed to immediately confiscate a firearm with an altered serial number that somebody was attempting to pawn,” failed to use a voice recorder in an interview, found a knife in the trunk of his car and had no idea how it got there or whether it was evidence, lost a suspect’s cell phone, was late for court, frequently missed training sessions, arrested the wrong person, spoke rudely to a fellow officer in the presence of a witness, and failed to get the police dog he was in charge of recertified as a K-9 dog, had nothing to do with it.
(Summary judgment for police department on race discrimination and retaliation claims, and the Town of Moultrie, Georgia, is sleeping better tonight. However, “Barney’s” claims for unpaid wages related to time he spent caring for the police dog will go to trial.)
Hmmm . . . maybe you’d be happier in another line of work, d’ya think? Suburban Philadelphia honors English teacher Natalie Munroe was doing fine in her career until she decided to start venting on her blog about her students. On Where are we going, and why are we in this handbasket?, Ms. Munroe reportedly used words to describe her charges like “jerk,” “rat-like,” “dunderhead,” “frightfully dim,” and “whiny simpering grade-grubber with an unrealistically high perception of own ability level.”*
*Impressive verbiage. You can tell she’s an honors English teacher.
She also said “that parents ‘were breeding a disgusting brood of insolent, unappreciative, selfish brats.’”
The school was not thrilled when word got out through students’ social media postings, which then drew the attention of mainstream media like . . . “The Huffington Post, CBS, ABC, NBC, CNN, Fox News, Reuters, the Associated Press, and the Philadelphia Inquirer.” Ms. Munroe was initially suspended, and when she returned, students were allowed to opt out of her classes, which they did, leaving her classes too small to be viable. Then the school system fired her, and she sued, claiming retaliation for exercising her First Amendment rights.
A federal judge in Philadelphia ruled last week that her blog was primarily personal, and that her statements about the kids and parents were not protected because the blog contained “gratuitously demeaning and insulting language inextricably intertwined with her occasional discussions of public issues.” The Honorable Cynthia Rufe apparently has a way with words, too. English major?
(Summary judgment for the school system.)
Even an air-tight case of sexual harassment can be sabotaged if (1) the employer has a policy banning it and an effective mechanism for handling complaints, and (2) the victim refuses to cooperate in the investigation.
Rhonda Simpson was hired to work at a Big Lots store somewhere in Alabama, after a manager saw her at a fast food restaurant and thought she looked like Farrah Fawcett. She went to work at Big Lots, starting as a cashier, and working her way up to Assistant Manager. For most of the time she was there, she did not report to the manager who recruited her initially, but that didn’t stop him (allegedly) from being extremely crude and disgusting on a regular basis. (You can read it all in the court’s decision, but make sure there are no children around when you do.)
Big Lots had a policy prohibiting sexual harassment and a hotline number for employees to use to make complaints. Ms. Simpson called the hotline in 2006 and made an anonymous tip about the sleazy manager. The company sent a representative to investigate, but Ms. Simpson was not at work when he came, and because her tip was anonymous, nobody knew to contact her. Meanwhile, Ms. Simpson knew that the representative was investigating her complaint and made no effort to get in touch with him.
At the end of the investigation, even without Ms. Simpson’s help, the manager was reprimanded.
Ms. Simpson also claimed that she had complained to her boss about the manager, and in response the manager brought a district manager in to conduct another investigation. However, when the district manager was on site, Ms. Simpson was on medical leave and did not contact him. To make matters worse, Ms. Simpson advised a female co-worker, who had a notebook documenting the manager’s alleged harassment, not to share her notebook with the district manager.
Ms. Simpson was later injured on the job, and was eventually administratively terminated for failing to return from a leave of absence. (This did not appear to have any connection with her sexual harassment complaints.)
According to the U.S. Supreme Court, an employer will not be liable for harassment by a supervisor under Title VII if the harassment does not result in a “tangible job detriment,” and (1) the employer has effective measures in place to prevent harassment and correct it if it occurs, and (2) the employee unreasonably fails to make use of the employer’s remedial measures.
The federal court in Alabama granted summary judgment to Big Lots, finding that Big Lots was entitled to this Faragher/Ellerth defense. First, the court found that the manager’s conduct could very well be considered sexually harassing. However, the court found that Big Lots had both a policy prohibiting workplace harassment and an effective mechanism for making complaints. The court also found that the company had conducted “reasonable” follow-up on Ms. Simpson’s complaints.
Finally, the court found that Ms. Simpson had failed to avail herself of the employer’s remedial measures by failing to present herself for interviews during the two investigations and instructing her co-worker not to provide her notes to the investigator.
What could have been a big loss for Big Lots ended up being a big win, thanks to the store’s policy and response, coupled with an uncooperative victim.
The Employment Non-Discrimination Act is dead again. Is there any federal law on same-sex harassment or discrimination? If so, what is it? Here are some scenarios that may be helpful in picking through this
crazy extremely complex and rapidly transitioning area of the law. (Answers are provided after Scenario 6, below.)
The American Bar Association is still accepting nominations for its 8th Annual Blawg 100. If you enjoy Employment & Labor Insider and are so inclined, please go to this link and briefly explain why we should be on the “A” list of legal blogs. The deadline for nominations is 5 p.m. EDT Friday, August 8. Thank you for your support!
Scenario 1. Joe has a huge crush on John. Joe makes lewd and unwelcome comments to John, and tries to corner him to make sexual advances to him. John has made it clear to Joe that he is not interested, but Joe doesn’t listen.
ROBIN’S NOTE: Thanks very much to Cara Crotty, head of our Affirmative Action practice group, who allowed me to share her insights about the President’s Executive Order here on the blog. This will also be going out today via email as a Constangy Affirmative Action Alert.
More than two years after expressly declining to do so, this past Monday, President Obama signed an Executive Order prohibiting federal contractors from discriminating against individuals on the basis of sexual orientation or gender identity. The Executive Order is short on substance and long on unanswered questions. Some of the questions that are not addressed in the Executive Order will probably be answered in proposed regulations, which the Department of Labor must publish in 90 days.
What the EO Says
The new Executive Order amends Executive Order 11246 (first issued by President Johnson in 1965) by adding the following bold language to the existing provisions in all government contracts:
• The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.
• The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin.
• The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
These new provisions will apply to federal contracts and subcontracts entered into on or after the effective date of the regulations to be issued by the DOL.
The EO also prohibits the federal government from discriminating against applicants and employees on the basis of gender identity; sexual orientation was already a protected characteristic for federal public sector employees.
What the EO Doesn’t Say
President Obama has left much to the DOL to implement in its regulations. Here are just some of the basic questions that the regulations will need to address:
• What is the definition of “sexual orientation” and “gender identity”? We all know generally what these terms mean, but we will need a technical, legal definition. Presumably, the definition of “gender identity” will go beyond the sexual-stereotyping theory that the Equal Employment Opportunity Commission and some courts have used to find that such discrimination is already prohibited by Title VII.
• What is the “affirmative action” that contractors will be required to take with respect to LGBT applicants?
• Will the DOL interpret this “affirmative action” obligation to require outreach toward the LGBT community? What about tracking the LGBT demographics of applicants and employees? Will contractors be required to analyze selection decisions to ensure there is no adverse impact against LGBT individuals?
• Will contractors have to develop written affirmative action plans or set goals for LGBT representation in their workforces as required for females, minorities, individuals with a disability, and protected veterans?
• Will contractors be required to submit a report on LGBT data, similar to the EEO-1 or VETS-100A Reports?
• How will contractors satisfy the requirement that job advertisements sufficiently notify applicants that they will be considered without regard to their LGBT status? Will the addition of “LGBT” to the current EOE tagline suffice?
• Will there be any exemption for small contractors, or will the existing thresholds for coverage under EO 11246 apply?
• How does the current religious exemption in EO 11246 apply to these new obligations? Currently, the non-discrimination and affirmative action provisions do not apply to a contractor that is a “religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [entity] of its activities.” However, such religious entities are not excused from complying with the other provisions of the EO. Presumably, because the new EO did not include any special exemption for religious organizations – despite significant pressure on President Obama to do so – the DOL is likely to provide that even religious entities are prohibited from discriminating against LGBT individuals because they are not “individuals of a particular religion.”
This is just one more in a series of executive actions in which the President uses the nation’s federal contractors as a vehicle for measures that he cannot get passed through Congress. The additional administrative burden placed on federal contractors of all sizes puts these companies at a competitive disadvantage and is a disincentive to doing business with the federal government.
If past experience holds, contractors can expect the current DOL to issue expansive and burdensome regulations. We’ll keep you informed of all developments on this topic.
This morning President Obama signed an Executive Order amending the 1965 Executive Order 11246. President Obama’s EO prohibits discrimination and requires affirmative action by federal contractors based on sexual orientation and gender identity. (It isn’t clear what the affirmative action obligation will mean.)
The President’s EO also makes corresponding amendments to Executive Order 11478, which pertains to the federal civilian workforce. EO 11478 was amended in 1998 by President Clinton to prohibit sexual orientation discrimination, so President Obama’s order merely adds “gender identity” as a new protected status.
Cara Crotty, co-chair of our Affirmative Action practice group, will have a more comprehensive discussion of the new Executive Order later this week.
Lovic Brooks, Jr., who for 20 years was the managing partner of Constangy, Brooks & Smith (and the “Brooks” in the firm name) passed away this Monday at his home in Roswell, Georgia. He was only the second managing partner after our founder, Frank Constangy. A memorial service will be held today at 11 a.m. at the Roswell United Methodist Church Chapel.
“Much of what we do today is to follow the path Lovic established and his vision for the firm’s future,” said Neil Wasser, current Managing Chairman of the firm. “We owe him a great deal and will miss him.”
Lovic’s full obituary is here. We offer our condolences and prayers to his wife of 66 years, Carrie Alice, and to his children including our former partner Lovic Brooks, III, and to his grandchildren and the rest of his family and loved ones.