Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Shoddy harassment investigation comes back to bite employer

Posted in Harassment

Employers, has this ever happened to you?

An employee has accused her boss of sexual harassment. Right now, it’s her word against his, but you might be able to find out the truth if you interview her co-workers.

The only trouble with that is, you don’t want to do anything to undermine the supervisor before you even know whether he’s guilty. So, maybe you do a superficial investigation that doesn’t require you to dig into the dirt, or maybe you don’t do any investigation at all.


Whether you want to or not, you’d still better investigate.

If you ever needed a case study showing why it’s important to do a thorough investigation anyway (and I’ll talk about how to do it in a way that shouldn’t cause any harm to an innocent supervisor), then read this decision, from the Supreme Judicial Court of Massachusetts. (Warning: NSFW, unless you’re an employment lawyer who has seen and heard it all, anyway.)

The Court reinstated a punitive damages award of $500,000 against a Lexus dealership, in part because of its lousy investigation.

The plaintiff was in her termination meeting and made allegations of sexual harassment by her boss. The dealership went ahead with the termination and then investigated.

But just barely, because they didn’t want to “undermine” the accused.

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The EEOC’s defeat in Detroit: Pants, skirts, gender identity, and religion

Posted in Discrimination, Gender Identity Discrimination

Last week, I reported that summary judgment was granted against the Equal Employment Opportunity Commission in its transgender discrimination lawsuit against R.G. and G.R. Harris Funeral Homes, linked to the decision (but here it is again), and then said I’d be back in touch after I’d had a chance to really read it.

Barcelona, Spain --- Businesswoman Using Cellular Phone Outdoors --- Image by © Leslie Richard Jacobs/Corbis

I’ve finally been through the entire decision. As my blogging buddy Jon Hyman did, I think the religious angle to this case is more interesting than anything else, so that’s what I will focus on.

“This isn’t going to work out”

The Detroit-area funeral home chain is a closely-held, for-profit corporation. (Does that ring a bell?) The owner is a sincerely devout Baptist with traditional values, who believes that the sex one was born with is a gift from God and that it’s a sin to dress or behave as if one belonged to the other sex. Anthony Stephens had been a funeral director/embalmer for R.G./G.R. since 2007, and apparently did a fine job. But after about six years on the job, while on vacation, Anthony Stephens sent a letter to his co-workers saying that when he returned from vacation he would be Amiee Stephens, would present as a female for about a year, and then would have gender reassignment surgery. About two weeks after this letter was sent, Amiee Stephens was told by her boss that “this isn’t going to work out.”

In other words, Ms. Stephens was fired.

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Weekly catch-up

Posted in Affirmative Action, Discrimination, ENDA, Gender Identity Discrimination, Sexual Orientation

*The Summer 2016 edition of Preventive Medicine, our health care industry Hot Dog Man.flickrCC.JeleneMorrispublication, is out, featuring an article by Susan Bassford Wilson on the ever-changing law on LGBT discrimination. We also have the EEOC’s latest LGBT charge-filing statistics, and all the latest employment law news of interest to health care employers since our Spring 2016 edition.

*The much-dreaded final rules on President Obama’s Fair Pay and Safe Workplaces Executive Order (which will require federal contractors to report their labor law “violations” to the government for inclusion in a database of “problem” employers) were released this week. Affirmative Action guru Cara Crotty had a quick alert yesterday with links to all the pertinent documents. And, after she’s had a chance to plow through it all, she’ll be back next week with an in-depth analysis.

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

Call the Doctor! Paid sick leave is on the way for (many) federal contractors

Posted in Affirmative Action

The date for the U.S. Secretary of Labor to issue regulations establishing paid sick leave for covered employees of certain federal contractors is fast approaching.

Sarah Phaff

Sarah Phaff

By way of background, on September 7, 2015, President Obama signed Executive Order 13706, “Establishing Paid Sick Leave for Federal Contractors.” The Executive Order requires certain federal contractors to provide their employees with up to 7 days of paid sick leave annually, including paid leave allowing for family care. Proposed regulations were issued this past February, as was a Fact Sheet.

The Executive Order directed that final regulations be issued by September 30, to take effect in 2017.

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BREAKING: Detroit-area funeral home wins in EEOC transgender case

Posted in Discrimination, Gender Identity Discrimination
Stove fire.flickrCC.StateFarmIns

This is HOT!!!

Remember EEOC v. R.G. & G.R. Harris Funeral Homes? This was the transgender discrimination case brought by the Equal Employment Opportunity Commission against a suburban Detroit funeral home chain for allegedly discriminating against an employee after she began presenting as a female. It’s one of the few cases where the employer actually fought back, with the help of the Alliance Defense Fund, a traditional-values public interest firm.

Yesterday, U.S. District Court Judge Sean Cox granted the funeral home’s motion for summary judgment and denied a cross-motion by the EEOC. The decision is 57 pages long, and I’m out today, so I haven’t had a chance to read it thoroughly.

It appears that the judge found the following:

(1) discrimination based solely on transgender status does not violate Title VII,

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Spa day! Let’s do an FLSA white-collar exemption makeover!

Posted in Wage-Hour

Employers, when was the last time you had a real makeover? Let’s do one now!

Makeover 1.flickrCC.CourtneyRhodes

“I’m not sure this will be an improvement . . .”

The new white-collar exemptions under the Fair Labor Standards Act will go into effect December 1, but it’s a good idea for employers to prepare now because there are a lot of changes that will have to be made, communicated, and taught to employees before then.

The salary threshold for most white-collar exemptions is currently $455 a week, and the minimum for highly compensated employees is $100,000. (To qualify for the highly compensated employee exemption, the employee must also receive at least $455 a week on a salary basis.)

Starting December 1, the salary threshold for most white-collar exemptions will jump to $913 a week, or $47,476 annualized. (There is no salary threshold for teachers, lawyers, or doctors, or for hourly paid computer professionals.) The highly compensated employee minimum will increase to $134,004.

Both thresholds are indexed to census wage rates, which means that automatic increases could kick in every three years.

The U.S. Department of Labor says that more than 4 million U.S. workers will benefit from the new thresholds, either by becoming non-exempt and entitled to overtime or by getting salary increases to keep them in the “exempt” camp. It is unclear whether this is correct, as noted by my law partner and co-chair of our Wage-Hour Practice Group, Jim Coleman, because many employers will either reduce salaries to achieve a “cost-neutral” outcome even with overtime, or will prohibit overtime work altogether. (Both of these solutions are lawful.)

But there is no doubt that the new thresholds will result in a “made-over” world for employers and employees. With that in mind, here’s some “before and after.” If we don’t laugh, we’ll cry.

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OFCCP takes contractors back to school on pre-employment testing

Posted in Affirmative Action, Discrimination, Settlements

Kristine Sims

Federal contractors, be warned: If you have not properly reviewed (and validated!) any testing used as part of your hiring process, the Office of Federal Contract Compliance Programs may take issue . . . and seek to collect big dollars.

In May, the OFCCP announced that it reached a $1.85 million settlement with Gordon Food Services after determining that GFS used a discriminatory “strength test” that adversely affected female applicants for laborer jobs. GFS agreed to stop using the test and to hire 37 women to work in its warehouse. Interestingly, the Agency learned of the alleged discriminatory test not because of a complaint by one of the women who failed the test, but through a routine review of the company’s Functional Affirmative Action Program.

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Can’t we all just get along? Bridging the generation gap at work

Posted in Discrimination

What a week for aging. According to one study, people age 65 and older will outnumber people age 15 and younger worldwide by the year 2030. This is referred to as a “population plague.”

Elderly Crossing.flickrCC.EthanPrater

“Who you callin’ a plague?”

In more bad news for younger older people, Lydia DePillis, writing for The Washington Post, had an article titled “Baby boomers are taking on ageism — and losing.” From what I could tell, her article revolved around one guy, Dale Kleber, a 60-year-old “Chief Legal Officer/Chief Executive Officer/Senior Executive” who quit a CEO position without having another job lined up . . . while he had two kids in private college and didn’t have enough money saved for a “comfortable” retirement.

As I would tell my kids, “Don’t ever do that!!!!!”

Not surprisingly, Mr. Kleber reportedly had a hard time finding another “Chief Legal Officer/Chief Executive Officer/Senior Executive” job. So he applied for a relatively mundane job with a company seeking a lawyer with seven years’ experience. When he didn’t get the job, he sued the employer. (Or maybe he just filed an EEOC charge. It’s hard to tell from the article.) But, anyway, yeah, I can’t imagine why this employer would reject for this particular job an applicant who has at least 32 years’  legal experience and, since 1988, has been a Vice President, Secretary and General Counsel, a Principal and General Counsel, a President, and a CEO.

I am sure it was just his age. The fact that he would, in all likelihood, be miserable and bored to death, and be bossing around his bosses all the time, had nothing to do with it.

I have no doubt that age discrimination exists. But I’m more simpatico with the Baby Boomers in this article from last year — from  Rob Walker, “the Workologist” of The New York Times — about successful older employees and how they continue to thrive in the workplace.


“Who you callin’ an entitled special snowflake?”

In the hope of bringing peace and harmony to Millennials and Baby Boomers, here are some tips for each group. (Gen X and Gen Y, you can stand in the middle and keep them from each other’s throats.)

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Weekly catch-up

Posted in Constangy News, Corporate Culture, FOCUS, Wage-Hour, WARN

Hot dawg! Constangy, Brooks, Smith & Prophete has been named by Vault.com as the best law firm in the country for women lawyers and the best law firm in the country for minority lawyers. Heather Owen has the whole wonderful story at FOCUS, our women’s leadership blog. This latest honor comes on the heels of our having been named by the National Law Hot Dog Man.flickrCC.JeleneMorrisJournal as fourth best law firm for women attorneys, and having been named by Law360 as being in the top 10 for African-American attorneys, top 25 for women partners, and top 100 for women attorneys and minority attorneys, all of which which Heather wrote about in June. Woo-hoo!

The Summer 2016 Retailer is out, and this edition is dedicated to the impact on retail employers of the Fair Labor Standards Act white-collar exemption rule that will take effect on December 1. Our Wage and Hour Practice Group co-chair Jim Coleman discusses exactly what retail employers think about this rule and what they need to do to prepare. We also have graphics contrasting the rosy outlook of the U.S. Department of Labor with the decidedly less-rosy outlook of the National Retail Federation. And a ton of other good stuff. There’s a lot to do – don’t wait until Black Friday to get ready!

Employers, do you think you can contract away your WARN obligations? (Answer below.Tamara Jones of our Dallas Office, featured in this month’s Appellate Spotlight, analyzes the decision of the U.S. Court of Appeals for the Eighth Circuit in Day v. Celadon Trucking, interpreting an employer’s obligations under the Worker Adjustment and Retraining Notification Act in the context of the sale of a business. (Answer: You can try, but if the other party defaults, you’ll be left holding the bag.)

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

Massachusetts expands protections to transgender individuals

Posted in Discrimination, Gender Identity Discrimination

As of October 1, “places of public accommodation” in Massachusetts will be prohibited from discriminating based on gender identity. That is, persons accessing a “place of public accommodation” must be permitted to use gender-segregated locations (such as restrooms and locker rooms) consistent with their gender identity. Any place that is open to and accepts or solicits the patronage of the general public qualifies as a “place of public accommodation,” including restaurants, hotels, retail establishments, service establishments, and healthcare facilities.

Mass Postcard.flickrCC.BostonPublicLibrary

Some opponents of the House and Senate bills expressed concern that individuals would access segregated facilities for improper purposes. The law requires that the Attorney General’s office issue regulations or guidance regarding consequences for individuals who do so.  The Massachusetts Commission Against Discrimination is also required to issue rules and regulations, or other guidance.

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