Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Yes, sexual harassment plaintiff, you can shoot yourself in the foot. Here’s how.

Posted in Harassment

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.)

 

Farrah.Fawcett.256px-Farrah_Fawcett_1977

Ms. Simpson reportedly looked a lot like this.

 

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.

 

Big_Lots

Big win for Big Lots.

 

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.

Sex stereotyping, sexual orientation discrimination, and federal law – crazy-mixed-up right now

Posted in Discrimination, ENDA, Harassment

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.

Under federal law, is there a problem?
pollcode.com free polls 

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Obama’s LGBT Executive Order raises more questions than it answers

Posted in Affirmative Action

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. 

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Cara Crotty

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.

Obama signs LGBT discrimination, affirmative action order

Posted in Affirmative Action

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 Alton Brooks, Jr. (April 5, 1927-July 14, 2014)

Posted in Uncategorized

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 ChurchLovic Brooks Jr. 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.

 

An in-depth look at the EEOC’s new Enforcement Guidance on pregnancy

Posted in Affordable Care Act, Americans with Disabilities Act, Discrimination, Lactation, Pregnancy

As promised on Monday, here is my magnum opus regarding the EEOC’s new Enforcement Guidance on Pregnancy Discrimination and Related Issues. (Next week, I’ll try to get back to spurious sexual harassment lawsuits against Yahoo executives and gift cards to employees who don’t go to the bathroom during the work day . . . all that really important stuff.)Pregnant_woman.jpg

This past Monday, July 14, a divided EEOC issued its new guidance, which supersedes the 1983 chapter on pregnancy discrimination in its Compliance Manual. It also issued a Q&A and a Fact Sheet. A lot has happened since 1983, so it’s no surprise that updates were needed.

But, oh, what updates! This post will be way too long if I try to get into everything, so I’ll focus on what I think is major. I may have one or two follow-up posts later on.

What’s a “pregnancy”? Called it! The EEOC’s definition of “pregnancy and pregnancy-related conditions” is almost exactly what I told you it would be as recently as last week. It encompasses every aspect of the reproductive process, including conception (or decision not to conceive), pregnancy or termination of pregnancy, childbirth, and post-birth including lactation.

Impact of the Americans with Disabilities Act. There was no ADA in 1983. That law wasn’t enacted until 1990, and it didn’t take effect until 1992 (1994 for small employers). Then, as we all know, it was amended in 2009 (the ADA Amendments Act) to drastically broaden the definition of “disability.”

The ADA specifically excludes pregnancy as a disability. But even if it hadn’t, the “old” ADA clearly did not apply to a condition as temporary as a pregnancy. Under the ADAAA, though, short-term conditions can qualify as disabilities.

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EEOC issues guidance on pregnancy discrimination and accommodation

Posted in Discrimination, Pregnancy

I plan to write more about this later in the week, but today the EEOC issued an Enforcement Guidance, Q&A, and Fact Sheet on pregnancy discrimination and accommodation. (This press release has links to all three.) Much of the Guidance reiterated the law as we had always understood it. However, there are some significant expansions of existing law, and it remains to be seen whether the EEOC has the authority to attempt such an expansion.

According to the Enforcement Guidance,

*Pregnant women are entitled to the same reasonable accommodations that are offered to employees with disabilities.

*An employer, in determining who is eligible for light duty, may not engage in so-called “source discrimination” — in other words, the employer cannot distinguish based the way that the impairment was acquired. If an employer offers light duty to employees who suffer work-related injuries or illnesses, the employer MUST offer light duty on the same terms to pregnant employees.

In addition, the Commission appears to be taking the position that certain violations of the Affordable Care Act – such as failure to provide lactation accommodation or to offer insurance coverage for contraceptives – also violate the Pregnancy Discrimination Act.

EEOC Commissioner Chai Feldblum, who favored the changes, was kind enough to tweet me this evening a link to her statement in support:

 

 

And earlier today, Mel Haas, head of my firm’s Macon (GA) Office and vice chairman of the Labor Relations Committee of the U.S. Chamber of Commerce, received from the Chamber this statement in opposition to the Guidance from Commissioner Constance Barker.

Bette Davis said it best:

 

 

More to come later in the week. Don’t go away!

Employment law BELIEVE IT OR NOT!

Posted in Discrimination, Drug Testing, Pregnancy

Oddities, weirdness, and the strange and unusual from the world of employment law.

I thought only elephants had two-year pregnancies. As I’ve discussed here before, “pregnancy” for purposes of the federal Pregnancy Discrimination Act includes a lot of things besides the actual nine months of physical gestation. Arguably, it includes the period that a woman may be receiving in vitro fertilization. It includes miscarriage, or even an elective abortion. At least one court has found that it includes lactation, and the EEOC agrees.Ripleys.256px-Odditorium_Hollywood_0045

Now we have a recent decision from a federal court in New York, which says that “legal pregnancy” (as opposed to biological pregnancy) also encompasses roughly the first four months after the baby is born. If an employer discriminates against the employee during that four-month “grace period,” then a plaintiff may have a valid pregnancy discrimination claim even though she hasn’t been biologically pregnant for a while. (This really makes sense when you think about it, especially since the first three of the four months may be maternity leave.)

When you add up the period that might be required to conceive a child, the biological pregnancy, and the first four months of the child’s life, I figure you end up with about a two-year period of “legal pregnancy.” If not more, especially if lactation is included.

Believe it or not!

If marijuana is legal, then how can you get fired for buying marijuana? The day before marijuana sales became legal in the state of Washington, Spokane security guard Michael Kelly Boyer put on his tie-dyed tee, went to the Green Leaf with his sleeping bag, and camped out in front of the store so that he’d be first in the city to purchase the newly-legal weed. While he waited, he was interviewed by a local TV station. His employers saw his interview and allegedly fired him. (They deny it – one employer said he was still employed, and the other said they’d only asked him to have a drug test the next day. Probably knew he wouldn’t pass.)

Constangy’s award-winning employment law app is now available for Android devices! Find out what the  iPhone users have been shouting about — employment law checklists, wage-hour and workers’ comp calculators, contact information, and of course all of our firms’s publications, including this blog. Best of all, the app is free.

Even if state law allows marijuana use, federal law still prohibits it. In fact, federal law prohibits even the use of medical marijuana (and there was no indication that Mr. Boyer wanted his pot for medical reasons). So, if Mr. Boyer was fired, the firing was probably legal. But this is a very hot issue right now – keep particular watch on the case of Coats v. Dish Network, which is pending at the Colorado Supreme Court. In that case, the plaintiff was terminated for using medical marijuana, which was legal under Colorado state law. His termination was upheld at the trial court and at the state Court of Appeals. According to one news source, oral argument at the state Supreme Court is expected to take place later this summer, with a decision in the autumn.

In some states marijuana use is legal, and termination of an employee for marijuana use is also legal.

Believe it or not!

Weird Tales.page1-324px-Weird_Tales_volume_36_number_01.djvu

“These stories are too crazy for us.”

 

If we have a lot of minority employees, how can we be guilty of discrimination? Finally, we have Green Bay-area-based Wisconsin Plastics, which has been sued by the EEOC for national origin discrimination. The company laid off some employees who were assessed in a number of criteria, including English fluency. Almost all of the individuals who were selected for layoff were Hmong, and a few were Hispanic. The company, which has reportedly received diversity awards in the past, says that the lawsuit is “completely without merit” and added, “The twelve positions affected by the layoff were from a pool that was comprised of 91 percent of racial and ethnic minorities, including Hmong, Hispanic, African-American and American Indian employees.”

Is it that time of year already? The American Bar Association is 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. Eastern Friday, August 8. We very much appreciate your support, as always!

Well, heck, then, the company ought to win, shouldn’t it?

Not necessarily. I suspect that, among the Hmong, Hispanic, African-American, and American Indian employees, the Hmong (the overwhelming majority of those laid off) had the fewest fluent English speakers. On the other hand, I would assume that all of the African-Americans and all of the American Indians spoke English fluently. If I’m right, then this type of diversity probably won’t get the company very far in a lawsuit alleging discrimination based on language. If the company made layoff selections based on English fluency, it will have to prove that there was a legitimate safety-related or other compelling reason to require employees to communicate in English. (The EEOC alleges that there wasn’t one.)

Not all minority groups are the same.

Believe it or not! 

DOT updates guidance on substance abuse test collections

Posted in Drug Testing, Transportation Industry

The U.S. Department of Transportation’s Office of Drug and Alcohol Policy and Compliance, with the Office of General Counsel, has recently issued new guidance governing the collection process for substance abuse testing. Collections are sometimes considered a “weak link” in DOT drug testing programs because collectors are usually third parties, making it difficult for employers to monitor and ensure their compliance.

A new “Q & A” for 49 CFR Part 40, which will take effect this Monday, July 14, discusses the following issues:

*When may a collector give an employee permission to leave a collection site?

*What happens if an employee leaves the collection site before the testing process is complete?

Also, effective July 3, the DOT issued a revised version of its Urine Specimen Collector Guidelines. (The Guidelines’ last update was on October 1, 2010.) Many of the revisions are not substantive (for example, the DOT has provided updated links to websites and removed effective dates that have already passed). Substantive changes, intended mainly to clarify what actions are “required” as opposed to simply “authorized,” are in italics in the new Guidelines.

Constangy’s award-winning employment law app is now available for Android devices! Find out what the  iPhone users have been shouting about — employment law checklists, wage-hour and workers’ comp calculators, contact information, and of course all of our firms’s publications, including this blog. Best of all, the app is free!

Following these five tips will help you ensure that your collector is complying with DOT requirements:

• Use only collectors who can produce a current collector training certificate from a nationally recognized industry association.

• Make sure that your contract with the collector spells out the terms of your relationship, including procedures that will ensure the integrity of the specimens and the testing process, and an indemnification clause that protects your company in the event of a collector error.

• Conduct occasional surprise visits to your collection site, and use an audit checklist to catch any errors in site preparation or specimen collection.

• Make sure that your Medical Review Officer knows to promptly notify you of any collector errors and to order collector retraining when necessary.

• Periodically engage an independent auditor to test the integrity of your collectors and the processes they follow. In the (hopefully rare) event of serious misconduct – such as a collector’s accepting bribes to ignore positive test results, substitutions, or adulterations – have the auditor gather the evidence that will allow you to make a decision regarding whether to report the collector to the DOT.

And That’s All She Wrote (Why I write)

Posted in Uncategorized

Dan Schwartz of the outstanding Connecticut Employment Law Blog tagged me (among others) last week to participate in a “blog hop,” where we all talk about ourselves – what we do, and why.

I have decided to do this in the form of a micro-novel.

“Here is why I write what I write,” she wrote.

What am I working on?

“I always wanted to write a great novel,” Robin said, listlessly munching the last shards of crushed ice in her Diet Coke.

“Really?” He was surprised; she did not seem the type. “What about?”

 

The Thinker

“I have no clue.”

 

She gazed thoughtfully out the window. “That’s the problem. I don’t know,” she said. “So I guess I’ll have to keep blogging about employment law topics, with special emphasis on the Americans with Disabilities Act, sexual harassment, and celebrity employment law scandals and how we can all learn from their bad example.”

“Well, that’s better than nothing, I guess,” he said, trying to keep things light.

“It’ll have to do,” she sighed.

How does my writing differ from others of its genre?

Robin liked to think that she was pithy and witty, but her bravado masked the fear that she was nothing special and that all of the other employment law bloggers were better.

 

Genius_Bar,_SoHo_Apple_Store,_September_2003

She feared that the other employment law bloggers were smarter and better than she.

 

Why do I write what I write?

“Why do I write what I write?” she pondered. That was the question. Well, she was an employment lawyer, so there was that. She had neither the profundity required to be a novelist, nor the attention span required to be the author of a great legal treatise. On the other hand, Anthony Weiner’s compulsive need to tweet his intimate parts, or Lady Gaga crashing and burning in an FLSA deposition – the power of these stories impelled her. As if an alien force had taken possession of her, blog posts about such topics seemed to write themselves.

How does my process work?

That entire week, Robin scoured Bloomberg BNA’s Daily Labor Report, Employment Law360, the London Daily Mail, TMZ, and the New York Post.

 

Genius.Maud,_by_Julia_Margaret_Cameron

“Oh, what on earth shall I write about this week?”

 

“Eureka!” she exclaimed at 3:14 p.m. Thursday, seeing that an employer who had fired an hourly employee for pilfering a $1.37 bag of potato chips had settled its Americans with Disabilities Act lawsuit with the EEOC for $180,000. Joyfully slamming her laptop shut, she skipped out to her car and drove the seven minutes to her home, where she could work in solitude. At 10 p.m., her fingertips were sore from her frenetic typing, linking, and searching Wikimedia Commons for uncopyrighted photos to which she could append humorous captions that complemented her post. Her eyelids were lead weights. Calling it a night, she put the laptop to sleep and went to bed with her faithful cat, Spot*, curled up by her side.

*Name has been changed to protect his privacy.

She awoke before the alarm and daylight, her mind aroil in an eddy of edits that had occurred to her during her fitful sleep. She quickly brewed a pot of coffee (strong and black, like the Abadi MT Condensed Bold font that she wished WordPress would allow her to use). She cleaned out Spot’s litter box, and then was back at the laptop, cleaning up the mess that she’d written the night before.

By 8:30, she was hungry. She gratefully ate the previous night’s leftovers, which soaked up the black coffee that had been sloshing in her stomach since 5 a.m.

One last review. No typos? “Publish.”

Then a tweet and a LinkedIn post, and she was done with blogging for another week. Back to work. Her clients awaited.

FIN

Epilogue: Please check out my blogging friends

I tag Jason Shinn of the Michigan Employment Law Advisor, who provides excellent and readable coverage of employment law matters, both inside and out of Michigan.

And Heather Bussing of HRExaminer, who provides always-insightful discussion of the legal and philosophical side of Human Resources.

Finally, but not least, I tag Mark Toth of The Employment Blawg. (“Even though Mark was on hiatus for the summer, Robin hoped that he might cut his break short to explain why he writes, or at least give her something to look forward to when he returned in the fall.”)