Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Gender identity not covered by Missouri Human Rights Act, court says

Posted in Discrimination, Gender Identity Discrimination, Sexual Orientation

Last week, the Missouri Court of Appeals issued an opinion holding that gender identity is not covered by the prohibition on sex discrimination in the Missouri Human Rights Act. The opinion builds on a 2015 opinion from the same court, which held that sexual orientation was not covered under the MHRA.

Last week’s opinion arose from a lawsuit filed by a female-to-male high school freshman who alleged that he was not allowed to use the boys’ locker room or bathrooms at his school based on his sex. The MHRA prohibits discrimination on the grounds of sex in places of public accommodation—including schools. But it does not explicitly prohibit discrimination based on gender identity or sexual orientation.

The student’s lawsuit alleged that he had transitioned from female to living as male, had legally changed his name to a “male” name, had his school records amended to reflect his name change, and had legally amended his birth certificate. The lawsuit alleged that he was denied access to the boys’ locker rooms and restrooms because he “is transgender and is alleged to have female genitalia.” The theory of discrimination was that the student had been subjected to “different requirements for accessing the services of the school because of his sex.” The trial court dismissed the lawsuit for failure to state a claim upon which relief could be granted. Continue Reading

Please vote for us for the ABA Web 100: Reason #16

Posted in ABA Blawg 100

Reason No. 16: Our posts are not “engaged to wait” but are always engaging!

Not us!

You don’t have to be a lawyer to vote. Just go to the page here and nominate Employment & Labor Insider, along with a short statement about why you like us. The deadline to submit nominations is Sunday, July 30.

Thank you for your support!

PS – If you add a “social media” vote for our Twitter presence, @RobinEShea or @ConstangyLaw, who are we to complain?

Image Credit: From flickr, Creative Commons license, by Mike Kline.

EEOC sues over – get this – “Spanish-only” policy

Posted in Affirmative Action, Discrimination

Louise Davies is an Affirmative Action Paralegal in Constangy’s Winston-Salem, North Carolina, office. For more than 15 years, she has helped employers develop affirmative action plans and respond to audits and on-site investigations by the Office of Federal Contract Compliance Programs. She also conducts diversity training for employers. Louise is a graduate of Wesleyan College in Macon, Georgia.

You’ve heard of “English-only” policies, but here is a new one.

The Equal Employment Opportunity Commission filed suit last week against a Houston-area company for allegedly requiring applicants to be of Hispanic national origin and to speak Spanish.

The EEOC is claiming race and national origin discrimination based on a “pattern or practice,” as well as disparate impact. The lawsuit alleges that Champion Fiberglass, Inc., a manufacturer of fiberglass conduit, struts, and hangers used in the electrical and mechanical markets, rejected applicants for laborer positions who were not Hispanic and did not speak Spanish. The suit also alleges that the company used word-of-mouth recruiting almost exclusively.

According to the lawsuit, non-Hispanic laborers are significantly underrrepresented in the company, and the Spanish language requirement is not job-related or consistent with business necessity.

The company has not yet responded to the lawsuit, so it is unclear what defenses it will assert. Certainly, there are occasions when the ability to speak multiple languages is job-related, and perhaps this was the basis for the company’s search for Spanish-speaking applicants. It is also possible that the company will deny that it engaged in these practices at all.

The lawsuit began with a charge of discrimination filed by Freddie Foster, who is African-American. Mr. Foster alleged that Champion refused to even give him an application because he did not speak Spanish. The EEOC found reasonable cause and alleges that it tried unsuccessfully to conciliate with Champion before filing suit.

The EEOC seeks an injunction prohibiting the discriminatory practices and is seeking back pay and compensatory and punitive damages on behalf of a class of prospective non-Hispanic laborer applicants.

In the past, the EEOC has challenged the discriminatory effects of English-only policies and practices, but suing on the basis of a “no-English” policy is uncommon.

Please vote for us for the ABA Web 100: Reason #15

Posted in ABA Blawg 100

Reason No. 15: Our posts are pervasive (in a good way), but never severe.

Gentle as a kitten!

You don’t have to be a lawyer to vote. Just go to the page here and nominate Employment & Labor Insider, along with a short statement about why you like us. The deadline to submit nominations is Sunday, July 30.

Thank you for your support!

PS – If you add a “social media” vote for our Twitter presence, @RobinEShea or @ConstangyLaw, who are we to complain?

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

Please vote for us for the ABA Web 100: Reason #14

Posted in ABA Blawg 100

Reason No. 14: Anonymous sources say we’re great!

You don’t have to be a lawyer to vote. Just go to the page here and nominate Employment & Labor Insider, along with a short statement about why you like us. The deadline to submit nominations is Sunday, July 30.

Thank you for your support!

PS – If you add a “social media” vote for our Twitter presence, @RobinEShea or @ConstangyLaw, who are we to complain?

Image Credit: From flickr, Creative Commons license, by Liz Welsh.

Please vote for us for the ABA Web 100: Reason #13

Posted in ABA Blawg 100

Reason No. 13: We don’t use a $50 word when a nickel word will do.

“Employment & Labor Insider plus me will buy you a free refill of coffee.”

You don’t have to be a lawyer to vote. Just go to the page here and nominate Employment & Labor Insider, along with a short statement about why you like us. The deadline to submit nominations is Sunday, July 30.

Thank you for your support!

PS – If you add a “social media” vote for our Twitter presence, @RobinEShea or @ConstangyLaw, who are we to complain?

Image Credit: From flickr, Creative Commons license, by Jeff Kalikstein.

Please vote for us for the ABA Web 100: Reason #12

Posted in ABA Blawg 100

Reason No. 12: We are “integral and indispensable” to your employment law news day!

“You’ve become a part of me.”

You don’t have to be a lawyer to vote. Just go to the page here and nominate Employment & Labor Insider, along with a short statement about why you like us. The deadline to submit nominations is Sunday, July 30.

Thank you for your support!

PS – If you add a “social media” vote for our Twitter presence, @RobinEShea or @ConstangyLaw, who are we to complain?

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

“Not my employee, not my problem.” Oh, yeah?

Posted in Contingent Workers

Employers, has this ever happened to you?

A guy (we’ll call him “Ryan”) comes to work for you through a temporary agency. The agency issues the paychecks and generally acts as Ryan’s “HR” representative. Your company pays the agency but does not directly pay Ryan.

But when Ryan comes to work, he is supervised by Michael, who is one of your employees. Michael takes Ryan under his wing, and he monitors Ryan’s performance very closely. If Ryan can’t make it to work, he is directed to notify Michael immediately. If Ryan responds well to Michael, Michael may recommend that Ryan be brought on as a regular employee. If Ryan does not do well, Michael may ask the temp agency to reassign Ryan.

In other words, a pretty typical “temp” arrangement.

One day, after Ryan declines an invitation to go to Benihana’s, Michael tells the representative of the temp agency to remove Ryan from his assignment. A few weeks later, your company gets a charge of discrimination filed by Ryan. Ryan claims that Michael let him go because Ryan would not submit to Michael’s sexual advances.

You immediately call your pal at the temp agency and tell her, “I have bad news for you. Ryan filed an EEOC charge against us. I’ll send you the charge so you and your lawyers can handle it.”

How does your pal respond?

What do you mean, “our lawyers”? We were fine with Ryan. You were the ones who wanted him out of there.

(Of course, your pal will convey this message more tactfully because she doesn’t want to lose your business.)

So you call your company lawyer and tell him about the charge, adding while laughing nervously, “Of course, you can get this thrown out right away without having to bill any time because we weren’t Ryan’s employer. Right? Right?

Continue Reading

Please vote for us for ABA Web 100: Reason #11

Posted in ABA Blawg 100

Reason No. 11: We are prima facie awesome!

You don’t have to be a lawyer to vote. Just go to the page here and nominate Employment & Labor Insider, along with a short statement about why you like us. The deadline to submit nominations is Sunday, July 30.

Thank you for your support!

PS – If you add a “social media” vote for our Twitter presence, @RobinEShea or @ConstangyLaw, who are we to complain?

Image Credit: From flickr, Creative Commons license, by Tom Merton.

NLRB nominees Kaplan, Emanuel advance to Senate vote

Posted in Labor Relations, Politics

Marvin Kaplan and William Emanuel, President Trump’s nominees to fill the two vacant seats on the National Labor Relations Board, cleared another hurdle Wednesday by making it out of the Senate Health, Education, Labor and Pensions Committee. The HELP Committee vote was split along party lines. No date has been set for the full Senate vote, but both Mr. Kaplan and Mr. Emanuel are expected to be confirmed. With Chairman Philip Miscimarra, the confirmations of Mr. Kaplan and Mr. Emanuel would give the Republicans a 3-2 majority on the Board.