The National Labor Relations Board (NLRB or Board) invited interested parties to submit feedback about when an employee’s offensive or inappropriate workplace comments should lose the protection of the National Labor Relations Act (NLRA). Specifically, the NLRB is inviting employers and other parties to submit briefing about whether it should reconsider its standards for determining whether Section 7 of the NLRA protects employees who make “profane outbursts and offensive statements of a racial or sexual nature…during the course of otherwise protected activity.” By way of background, Section 7 of the NLRA gives employees the right to engage in “concerted activities …
Tag Archives: discrimination
Sixth Circuit: Employer can’t enforce shorter contractual statute of limitations period to bar Title VII action
A federal lawsuit alleging discrimination under Title VII must be filed within ninety days after the EEOC has completed its handling of the related discrimination charge and issued its Notice of Right To Sue. Some employers attempt to shorten the time for filing discrimination charges by getting employee or applicants to sign agreements to that effect. On Sept. 25, 2019, in Logan v. MGM Grand Detroit Casino, the 6th Circuit Court of Appeals ruled that efforts to shorten the statute of limitations for Title VII cases are not enforceable.
The Circuit Court overturned a district court decision that …
New York’s new discrimination law—Aberration or the start of a trend?
Employers with facilities in New York are probably aware of the significant piece of anti-discrimination legislation Gov. Cuomo signed recently. The new law:
- expands coverage to all employers regardless of size;
- expands protections against discrimination to certain non-employees;
- increases the statute of limitations for sexual harassment claims from one to three years;
- adds punitive damages and mandatory attorneys’ fees as potential remedies;
- prohibits mandatory arbitration of discrimination claims;
- adds to the notice requirements an employer must provide regarding its sexual harassment policy, including in the language identified by any employee as their primary language; and
- places significant specific restrictions upon
EEO-1 reporting: Pay data filing begins July 15, 2019
The Equal Employment Opportunity Commission (EEOC) has announced the filing window for the newly required Component 2 pay data opens July 15, 2019. Private employers with at least 100 employees are required to submit pay data for calendar years 2017 and 2018 by Sept. 30, 2019. This new requirement is ordered by the court decision in the National Women’s Law Center v. Office of Management and Budget case.
The EEOC has taken a number of steps to assist employers with this new filing requirement.
…#MeToo: Looking to best teaching practices for effective training
When did canned web-based presentations become the norm for harassment, discrimination and other inappropriate workplace conduct training? Companies who rely on pre-prepared, generic materials often find those trainings for HR, management, supervisors and employees to be ineffective, particularly now that #MeToo is a part of our vocabulary. For the employer who has the goal of efficient and effective HR trainings, it is helpful to look to best teaching practices. Educators know that teaching a lesson in a memorable and engaging way will help student retention…algebra or workplace harassment alike. Simply put, face-to-face, interactive training is the most effective way to …
UPDATE: EEO-1 reporting; Now open for business
Pay Data Required by September 30, 2019
Further action has occurred in the National Women’s Law Center v. Office of Management and Budget case, about which we reported here. Employers will need to report 2018 pay data to the Equal Employment Opportunity Commission (EEOC) by September 30, 2019. While it is clear that employers will be required to report 2018 pay data later this year, it is unclear whether pay data for 2017 will also be required at that time. The EEOC has until May 3, 2019 to decide what time period must be reported on September 30, 2019.…
EEO-1 reporting; Now open for business
UPDATE – Pay Data Required by September 30, 2019
Further action has occurred in the National Women’s Law Center v. Office of Management and Budget case, about which we reported here. Employers will need to report 2018 pay data to the Equal Employment Opportunity Commission (EEOC) by September 30, 2019. While it is clear that employers will be required to report 2018 pay data later this year, it is unclear whether pay data for 2017 will also be required at that time. The EEOC has until May 3, 2019 to decide what time period must be reported on September …
Sixth Circuit decision shows similarly situated employees must truly be similarly situated in discrimination cases
Employers facing workplace discrimination claims in the 6th Circuit should find some comfort in the court’s recent decision in DeBra v. JP Morgan Chase & Co., which endorses a heightened standard for plaintiffs to demonstrate that they were treated less favorably than similarly situated employees outside their protected class.
The plaintiff worked as a bank teller for Chase until she was terminated for on-the-job errors, such as overpaying customers, leaving bank funds unsecured on counters and accidentally failing to return bank cards to several customers. She alleged, however, that the bank’s reliance on these errors for her termination …
Sixth Circuit upholds termination of human resources employee for employment application misrepresentations and performance deficiencies
Agreeing with the district court’s assessment that “résumé misrepresentations by a senior human resources professional represent an infraction so egregious as to defy correction by mere counseling or other lesser discipline,” the 6th Circuit on April 23, 2018, rejected an appeal from a summary judgment order on claims of pregnancy, race, and age discrimination and retaliation in Bailey v. Oakwood Healthcare, Inc..
Michelle Bailey, a 40 year old African-American woman, was fired from her position as a senior staffing professional at Oakwood Healthcare, Inc. (Oakwood) on the day she returned from a three-month maternity leave. During her maternity …
Pro se litigant sets off Title VII avalanche: Seventh Circuit holds that Title VII prohibits sexual orientation discrimination
Never underestimate the power of a pro se litigant. That’s one lesson to take away from the Seventh Circuit’s en banc opinion in Hively v. Ivy Tech Community College, which is the first appellate decision to hold that Title VII bars employment discrimination on the basis of a person’s sexual orientation. Because Ivy Tech has stated that it does not plan to seek Supreme Court review (despite a Circuit split on the issue), employers subject to Title VII, particularly in Illinois, Wisconsin and Indiana, should know about this opinion and consider how and whether it may apply to them.…
EEOC issues new guidance on national origin discrimination
On Nov. 21, 2016, the Equal Employment Opportunity Commission (EEOC) issued its new and updated Enforcement Guidance on National Origin Discrimination, replacing its 2002 guidance on the subject.
In the guidance, the EEOC defines national origin discrimination as “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural or linguistic characteristics of a particular national origin group.” This includes discrimination because of an individual’s “place of origin” such as a country, a former country (e.g., Yugoslavia) or a geographic region closely associated with a particular national origin group (e.g., Kurdistan). …
Ohio federal court rejects perceived national origin discrimination claim
A special thanks to Adam Bennett for his assistance with this article.
An Ohio federal court in Longoria v. Autoneum N. Am., Inc. has held that a Mexican-American production supervisor who was born in Texas could not pursue a claim that he was discriminated against based on his belief that his employer perceived him to be of Mexican national origin. Noting the “widespread failure” of similar claims under Title VII and the fact that Ohio courts generally follow Title VII when evaluating the analogous Ohio law, the court held that claims of perceived national origin discrimination are not cognizable under …
OFCCP publishes final rules on sex discrimination for federal contractors
As we reported last year, the Office of Federal Contract Compliance Programs (OFCCP) planned to issue a Final Rule updating its sex discrimination regulations for federal contractors and subcontractors for the first time since the 1970s. In doing so, sex discrimination prohibitions for federal contractors have been modernized to include discrimination on the bases of sex, pregnancy, childbirth, pregnancy-related medical conditions, gender identity, transgender status and sex stereotyping. Notably, sexual orientation was excluded from the definition.
The Final Rule amends regulations implementing Executive Order 11246, which prohibits discrimination by federal contractors on sever bases, including sex. The Final Rule …
EEOC issues new guidance on employer-provided leaves as a reasonable accommodation
Earlier this week, the EEOC issued new guidance addressing what it described as common issues it continues to see in discrimination charges filed under the Americans with Disabilities Act. This new guidance provides nothing new that has not already been included in its Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, but does highlight, among other issues, the EEOC’s view that the ADA requires employers to:…
EEOC issues fact sheet in response to state bathroom laws
Likely in response to laws recently passed in North Carolina and Mississippi (and being considered in other states, including Ohio), the EEOC has issued a fact sheet regarding bathroom access for transgender employees under federal anti-discrimination law. In the fact sheet, the EEOC takes the position that transgender status is protected under Title VII and, accordingly, employers may not:
- Deny an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination
- Condition this right on the employee undergoing or providing proof of surgery or any other medical procedure
- Avoid the requirement to provide equal
University gets it right when it says, “enough is enough”: Tenth Circuit upholds inflexible leave policy under Rehabilitation Act
Employers who have been concerned about the EEOC’s stance on inflexible maximum leave policies can find some comfort in the Tenth Circuit’s decision in Hwang v. Kansas State University, wherein the court held a six month leave of absence was a reasonable accommodation, and the University’s denial of additional time was not a violation of the Rehabilitation Act.
Facts
Grace Hwang was employed as a professor at Kansas State University from 1994 until February 2012, on a year-to-year contract. Ms. Hwang served as an assistant professor in KSU’s School of Leadership Studies. In 2005, Hwang was diagnosed with breast …
Court Holds That Employer Did Not Have “Possession, Custody or Control” of Text Messages Sent or Received on its Employees’ Personal Cell Phones
In an employment race discrimination case, a federal court recently held that the defendant-employer did not have “possession, custody, or control” over text messages sent or received by its employees on their personal cell phones. The court denied the plaintiff’s motion to compel the production of these text messages because there was no evidence that:
- the employer issued the cell phones to the employees;
- the employees used the cell phones for any work-related purpose; or
- the employer otherwise had any legal right to obtain employee text messages on demand.
Cotton v. Costco Wholesale Corp., Case No. 12-2731, slip op. …
Be Careful What You Dismiss as Not a “Real” Religion When Employees Seek Religious Accommodation: Court Holds Veganism Could Plausibly Be a “Religious Belief”
In a recent decision in Chenzira v. Cincinnati Children’s Hospital Medical Center, Case No. 1:11-cv-00917, the U.S. District Court for the Southern District of Ohio in Cincinnati held that sincerely held beliefs in veganism could plausibly be considered religious beliefs protected against religious discrimination under Title VII of the Civil Rights Act of 1964 and Ohio state law. The Court rejected the argument that veganism was merely a social philosophy or dietary preference.
Sakile Chenzira was a customer service representative for Cincinnati Children’s Hospital for over 10 years. In 2010, the Hospital terminated Chenzira for her refusal to be …
Sometimes It Is Best to Bite Your Tongue! Sixth Circuit Holds University’s Diversity Interests Outweighed First Amendment Right to Freedom of Speech
In Dixon v. Univ. of Toledo et al., the Sixth Circuit Court of Appeals has held that a high-level human resources official who writes publicly against the policies her government employer charges her with creating, promoting and enforcing, is not engaging in protected speech. Crystal Dixon, an African-American woman, who was the acting Interim Associate Vice President for Human Resources at the University of Toledo ("the University") when she penned a riveting op-ed column rebuking comparisons between the civil-rights and gay-rights movements. The piece ultimately led to her termination.
On April 4, 2008, Toledo Free Press Editor-in-Chief Michael Miller …
‘Tis the Season for Holiday Workplace Issues. Day 2 – Being Inclusive Without Being A Grinch
Religion is also a hot-button workplace issue in December because so many different religious groups celebrate different holidays in December. For example: Christians commemorate the birth of Jesus at Christmas; Buddhists celebrate Buddha’s Enlightenment with Bodhi Day; Jewish people celebrate Hanukkah, the Festival of Lights; African-Americans celebrate Kwanzaa, Muslims celebrate Eid al-Adha, or the Feast of Sacrifice; Seinfeld enthusiasts celebrate Festivus, and there are many others.
Federal and state laws prohibit discrimination and/or harassment on the basis of religion. This means that an employer cannot treat persons of different religions differently or appear to favor one religion over another. …
EEOC Permits Title VII Sex Discrimination Claim Based On Transgender Status To Proceed
The Equal Employment Opportunity Commission (EEOC) decided on April 20, 2012 that discrimination against an employee on the basis that they are transgender was the equivalent of sex discrimination under Title VII of the Civil Rights Act of 1964. Macy v. Holder, EEOC Case No. 0120120821. Title VII protects employees against discrimination on the basis of a several protected classes, including sex. While many states and municipalities include transgender and sexual orientation as protected classes, Title VII has not been interpreted to protect these individuals on this basis alone. Individuals must show that the discrimination was based on their …
Sixth Circuit Orders Reinstatement and Overturns $4.4 Million Front Pay Award In Vet’s Disability Discrimination Case
The recent Sixth Circuit case of McKelvey v. Secretary of United States Army highlights the plight of many disabled veterans returning to the civilian work force and presents a lesson for employers on how not to address those issues.
James McKelvey, an Army veteran who lost his right hand and suffered other serious injuries while trying to defuse a roadside bomb in Iraq in February 2004, returned to work at the Detroit Arsenal where he claimed his supervisors and co-workers at the armory constantly harassed him by calling him "cripple," and "worthless," and not assigning him an equal workload. McKelvey …
EEOC’s Informal Discussion Letter Merits Re-Evaluation of High School Diploma Requirements
Employers frequently require a high school diploma as a condition of employment. Employers not only look to hire individuals who possess basic skills in reading, writing and math, but also believe that having a high school diploma demonstrates a level of maturity and perseverance.
That requirement seems reasonable — except when it "screens out" individuals based on their protected status. For instance, the EEOC has long taken the position, upheld by the courts, that high school diploma requirements have an adverse impact on minorities and therefore can be used only when a high school diploma can be shown to be …
EEOC Charges Rise Significantly in 2010
According to statistics released by the Equal Employment Opportunity Commission (“EEOC”) earlier this week, the Agency received over 7% more charges in 2010 than it did the previous year—99,922 as compared to 93,277. Indeed, the number of charges filed were up in every category. The FY 2010 enforcement and litigation statistics, which include trend data, are available online here.
Such statistics are not surprising in light of the large number of layoffs that occurred in 2010, coupled with the difficulties terminated employees had in finding new employment in a down economy. What is more interesting, however, is that, for the first …
