5th Circuit rejects the “ultimate employment decision” test for workplace discrimination claims

"Female employees are not given full weekends off and can only receive weekdays or partial weekends off."

Is this policy legal or illegal? 

Despite what SCOTUS said about collegiate affirmative action, corporate DEI efforts are still legal

Last week, a federal court judge dismissed a lawsuit filed by a conservative shareholder against Starbucks challenging the company's diversity, equity, and inclusion policies. He called the lawsuit "frivolous."

In 2020, Starbucks decided that it needed a greater representation of BIPOC (Black, Indigenous, People of Color) employees. As a result, it announced a policy that aimed to increase company-wide BIPOC representation to at least 30% in five years. Its efforts included implementing a leadership accelerator program for BIPOC employees, linking executive compensation to meeting DEI goals, and granting funds to community nonprofits.

National Center for Public Policy Research, which owns around $6,000 in Starbucks stock, sued, claiming those policies require the company to make race-based decisions in violation of state and federal civil rights laws. Explaining the lawsuit, the NCPPR said that setting "goals for the number of 'diverse'—meaning not-white—employees it hires … is outright racial discrimination."

The No Robot Bosses Act

"I, for one, welcome our robot overlords." 🙃

Consider this scenario. "You're a delivery driver and your employer's tracking algorithm determines you’re not performing up to its standards — and then sends you an email to let you know you've been fired without any warning or opportunity to speak to a human being." According to Senator Bob Casey, it is this example, along with others, that caused him to draft the the "No Robot Bosses Act."

If enacted, it would add protections for job applicants and employees related to automated decision systems and would require employers to disclose when and how these systems are being used.

We need to talk about “wokeness”

"When I grow up, I want to be hired based on what I look like rather than my skills.… I want to get promoted based on my chromosomes.… I want to be offended by my coworkers and walk around of the office on eggshells."

Those are just a few of the quotes from some child actors in a viral YouTube ad for a company called RedBalloon.

RedBalloon is a job board to match anti-woke employees with like-minded employers.

Here are 11.25 million reasons to settle a lawsuit

Before I will bless a client's decision to terminate an employee, I always ask this question: "Tell me about the demographics — race, sex, age, known disability, etc. Did they complain about something at work and when? If I go through your personnel records, will I find someone outside of the to-be-terminated employee's protected class whom you've treated better?"

Here's why I ask that question.

My privilege is NOT a superpower

I am currently in Nashville, at the Craft Brewers Conference. I'm spending my time split between networking at the Start A Brewery lounge that my firm is co-sponsoring, and attending educational sessions. One such session, which I attended yesterday, was titled, Privilege as Your Superpower. 

Here's the session description:

In these turbulent times, so many know they want to do something about inequity, but don't know where to start. Unfortunately, concerns about saying the wrong thing or not having the power to create change lead many to do nothing. It is essential for leaders to understand the concepts of both systemic and individual privilege, because when they do, they will find that their privileges are actually their superpowers.

It is a laudable goal to promote the understanding of "privilege" so that we can do better with DEI issues in our organizations.

But here's the problem — the presenter was a white, female leadership consultant. 

When you offer a reason for something, you better be really, really sure it’s correct

It is with great sadness that we announce that the Founders Detroit Taproom will be permanently closing its doors today.

Unfortunately, our Detroit location has not been immune to the struggle to regain foot traffic after temporary Covid closures that have impacted restaurants and bars across the nation.

That was the message that Founders Brewing Company posted across its social media channels earlier this week.

There is no doubt that the bar and restaurant industry has struggled throughout the pandemic and, in pockets, continues to struggle. Consider, however, that less than three hours before Founders announced its Detroit taproom closure, it was sued by a Black employee claiming that the brewery promoted her "purely for optic reasons" and subjected her to "egregious racial harassment" that was "so objectively racially hostile that she had no choice but to resign" last week.

Please don’t use “fit” to justify an employment decision, no matter what the 4th Circuit just said

"You're not a good fit." 

This statement could mean a lot of things. 

It could be innocuous description of a host of performance issues. 

But it could also mean—

"You're not white."

"You're not male."

"You're not Christian enough." 

"You're too Brown. 

"You're too old."

"You're too disabled." 

With this background, consider Lashley v. Spartanburg Methodist College, which involved a teacher suing her former employer after it did not renew her contact because they "were not a good fit for each other." The teacher claimed "good fit" was pretext for retaliation based on her prior request for a disability reasonable accommodation.

Class action lawsuit highlights the risk of AI in hiring and other employment decisions

Yesterday, news broke of a class action lawsuit filed against HRIS provider Workday claiming that its artificial intelligence systems and screening tools disproportionately and discriminatorily disqualify Black, older, and disabled job applicants. 

The named plaintiff, Derek Mobley, is a Black man over the age of 40 who suffers from anxiety and depression. He alleges that he applied for 80-100 positions since 2018 that use Workday as a screening tool and has been denied every time despite his qualifications. 

Mobley claims that Workday's artificial intelligence unlawfully favors applicants outside of protected classes through its reliance on algorithms and inputs created by humans conscious and unconscious biases. 

Unlike ordering at Chick-Fil-A, legal compliance isn’t chosen from a menu.

"We are looking for volunteers for our new Drive Thru Express!🚘 Earn 5 free entrees per shift (1 hr) worked. Message us for details"

Anyone see anything wrong with this (since deleted) post? I sure do, as does my friend Suzanne Lucas (aka the Evil HR Lady), who correctly points out: "You cannot do this. Even if you want to declare yourself the Lord's chicken, you are still a for-profit business, and for-profit businesses cannot have volunteers. Not ever. Paying in sandwiches does not count."

To put in more succinctly, In a for-profit business, volunteer labor is illegal. Hard stop. 

If you want to get yourself into discrimination hot water, stereotype your protected-class employees

To cases recently settled by the EEOC illustrate the point that stereotypes of protected-class employees are a quick path an expensive lesson.

• Ranew's Management Company agreed to pay $250,000 to settle a disability discrimination claim after it fired an employee based on a "lack of trust" instead of permitting her to return from a leave of absence resulting from severe depression.

• American Freight Furniture and Mattress agreed to pay $5,000,000 to settle a sex discrimination lawsuit based on allegations that managers made hiring decisions based on bias and stereotypes, including that women would not "do as great a job at selling furniture as men," could not work in the warehouse because "women can’t lift," and that female employees would be " distraction" to their male coworkers. 

An employee can’t sue over a job never applied for

Staci Russell, a dean at Cornerstone Health High School, sued her employer for sex discrimination after she was passed over for the open principal position. Her problem? She never applied for the position.

Based on that fact alone, the 6th Circuit had little difficulty affirming the dismissal of her lawsuit.

Russell concedes she did not apply for the vacant principal position. … Russell never applied or interviewed for the position, nor did she indicate interest. While Cornerstone named Price principal of the combined high school on January 24, 2020, after Russell filed her EEOC charge, Russell does not provide evidence showing that Cornerstone’s decision to combine two high schools and name Price principal of the combined school occurred as a result of her filing an EEOC charge. Russell thus did not establish a prima facie case of discriminatory failure to promote.

Thank God for common sense judicial decisions. If an employee fails to apply for a job, it's really hard to claim discrimination when that job goes to someone else who actually did apply.

Brian Flores burns down the house in his lawsuit against the NFL … and makes himself unemployable in the process

If you haven't read the lawsuit Brian Flores filed against the NFL and three of its franchises, you should. It reads like a law school employment law exam question. It has allegations of systemic and endemic racial discrimination, fraud, bribery, and Bill Belichek inadvertently providing the smoking gun text message.

This lawsuit will likely bring much-needed change to the NFL's hiring practices. It will also likely mark the end of Flores' coaching career. I'd be shocked if he ever coaches again.

The customer isn’t always right, especially when the customer wants you to discriminate

"I'm afraid we can't hire you because you won't mix well with our customers."

That's what the EEOC alleges a northern Minnesota furniture retailer told a transgender job applicant. It's also the reason that company has agreed to pay a $60,000 settlement. "Title VII does not permit discriminatory employment decisions based on customer preference," says the EEOC.

The top 11 things you need to know about being sued by an (ex) employee

Because of the impending changes to Ohio's workplace discrimination law that take effect in two days, the filing of employment discrimination lawsuits in my state is seeing record numbers.

Do you know what to do when an employee sues your company? 

Here are the top 4 issues you to think about ASAYS (as soon as you're sued).

No foolin': the most meaningful changes to Ohio's employment discrimination law take effect in two weeks

Two weeks from today, H.B. 352 takes effect and brings the most significant changes to Ohio's workplace discrimination statute since its passage decades ago. What are these changes?

• Creates a universal two-year statute of limitations for all employment discrimination claims.
• Requires individuals to file an administrative charge with the Ohio Civil Rights Commission as a prerequisite to filing a lawsuit.
• Unifies the filing of age discrimination claims to the same procedures and remedies as all other protected classes.
• Eliminates individual statutory liability for managers and supervisors.
• Caps non-economic and punitive damages based on the size of the employer.
• Establishes an affirmative defense to hostile workplace sexual harassment claims not alleging that did not result in an adverse, tangible employment action, when 1) the employer exercised reasonable care to prevent or promptly correct the alleged unlawful discriminatory practice or harassing behavior, and 2) the employee failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid the alleged harm. 

H.B. 352 finally fixes Ohio’s broken employment discrimination statute for employers

For lack of more artful description, Ohio's employment discrimination law was a mess. It exposed employers to claims for up to six years (the longest such statute of limitations in the country), contained no less than three different ways for employees to file age discrimination claims (each with different remedies and filing deadlines), rendered managers and supervisors personally liable for discrimination, and omitted any filing prerequisites with the state civil rights agency.

The start of 2021, however, provides Ohio businesses much-needed reform of this previously broken law. Earlier this week, Governor DeWine signed House Bill 352 [pdf]. 

“Beware systemic discrimination,” says EEOC to employers

Systemic discrimination has multiple meanings, according to the EEOC:

• A "pattern or practice, policy, and/or class cases where the discrimination has a broad impact on an industry, profession, company, or geographic location."
• "Bias that is built into systems, originating in the way work is organized," referring to "structures that shape the work environment or employment prospects differently for different types of workers."
• "Patterns of behavior that develop within organizations that disadvantage certain employees and become harmful to productivity."

Regardless of you define it, in a report published last Friday, the EEOC says that it pursuing systemic discrimination as an enforcement priority to dismantle the pattern, practice, or policy that results in or facilitates discriminatory decisions.

When you discover that you employ a seditious rebel #TraitorsGettingFired

Imagine you discover that Elizabeth from Knoxville is one of your employees.

Elizabeth wasn’t ready for the revolution to be televised😂 pic.twitter.com/LibeNAuE6h

— xy467chr (@xy467chr) January 6, 2021

Or what about Jake Angeli (the self-proclaimed QAnon shamen)?

Why is Jake Angeli walking free? If he can be named in this article, and he was part of the insurrectionist movement yesterday, he committed a crime by invading the Capitol and he should be arrested. https://t.co/5hUbek57nc

— Dr. HawaiiDelilah™ (@HawaiiDelilah) January 7, 2021

Or Paul Davis?

This is Paul Davis. Paul is a lawyer. He’s also associate general counsel & director of human resources at Goosehead Insurance. Today he stormed the capitol building in an attempt to stage a coup against the US government and documented it (!) on Instagram. @followgoosehead pic.twitter.com/eTkoK92ujL

— Roger Sollenberger (@SollenbergerRC) January 7, 2021

Or this guy, who actually wore his work badge to the protest?

NEW: A Maryland company has terminated one of its employees after he was apparently captured in a picture during the mob riot in the Capitol yesterday. @wbaltv11 pic.twitter.com/flxRhdmP3P

— Tre Ward (@TreWardWBAL) January 7, 2021

Or any of the others amid the hoard of seditious rebels who stormed the Capitol on Wednesday in an act of open rebellion against the United States and its government?

Question: Should these people be fired from their jobs?

PLEASE, I’m freaking begging you, DO NOT use social media to determine applicants’ race and gender

Almost as long as social media has existed, employers have searched social media to dig up dirt on prospective employees. There is nothing illegal about these searches … provided you don’t use the information unlawfully. For example, to discriminate on the basis of a protected class.

If Lisa McCarrick, a former Amazon manager, wins her lawsuit against the online retailer, Amazon is going to learn this lesson the hard way.