Showing posts with label discrimination. Show all posts
Showing posts with label discrimination. Show all posts

Tuesday, April 13, 2021

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).

Thursday, April 1, 2021

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. 

Thursday, January 14, 2021

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]

Monday, January 11, 2021

“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.

Friday, January 8, 2021

When you discover that you employ a seditious rebel #TraitorsGettingFired


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


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


Or Paul Davis?


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


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?

Thursday, February 27, 2020

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.

Thursday, November 21, 2019

“Hairstyle discrimination” laws: a solution in search of a problem


I fully embrace the irony of a local news broadcast holding me out as the expert on hair discrimination. 👨🏻‍🦲

Irony notwithstanding, here I am on last night’s 6 o’clock news discussing why we don’t need to ban workplace hairstyle discrimination. (Big thank you to WEWS’s Mike Brookbank for reaching out and for the interview.)


Tuesday, November 19, 2019

It’s not realistic to expect employees not to discuss politics at work, but it is to require them to do so professionally


According to a recent survey conducted by SHRM [pdf], American workers cannot hide from politics at work.
  • 42% of U.S. employees say they have personally experienced political disagreements at work
  • 44% say they have witnessed political disagreements at work
  • 34% believe that their workplace is not inclusive of differing political perspectives
  • 12% report they have personally experienced political affiliation bias or discrimination based on their political views
  • 56% state that political discussions at work have become more common over the past four years

Thursday, October 3, 2019

If at first you don’t succeed … Ohio will again try to fix its broken employment discrimination law


For lack of more artful description, Ohio’s employment discrimination law is an awful mess.

Among other problems, it exposes employers to claims for six(!) years; contains no less than four different ways for employees to file age discrimination claims (each with different remedies and filing deadlines); renders managers and supervisors personally liable for statutory discrimination; omits any filing prerequisites with the state’s civil rights agency; and contains no affirmative defenses for an employer’s good faith efforts to stop workplace harassment.

There have been several prior attempts to fix this law and harmonize it with its federal counterparts. All have died on the legislative vine.

Welcome House Bill 352 [pdf], introduced on October 1. It’s yet another business-friendly attempt at comprehensive reform of Ohio’s employment discrimination statute.

Thursday, September 26, 2019

6th Circuit holds that an employee cannot contractually shorten Title VII’s statute of limitations


In Thurman v. Daimler Chrysler, the 6th Circuit agreed that the following agreement between an employer and an employee shortening the time in which an employee has to file a lawsuit was lawful.

READ CAREFULLY BEFORE SIGNING I agree that any claim or lawsuit relating to my service with Chrysler Corporation or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.

I’ve long argued that because of Thurman, employers should consider having all employees agree to a shortened statute of limitations to limit the duration of their potential exposure to employment claims. Yesterday, however, the same court punched big hole in this litigation avoidance strategy.

Monday, August 19, 2019

Is it legal to dock the pay of employees who skip a political rally being held in the workplace?


Has an employer violated the law if it docks the pay of an employee who skips a speech being given by Donald Trump in their place of employment?

Over the weekend news broke of a Pennsylvania employer who had an interesting way to influence its employees attendance at a rally Donald Trump was holding at their place of employment during the work day. Only pay those employees who show up.

“NO SCAN, NO PAY,” a supervisor wrote to his employees.

Thursday, August 15, 2019

Government sanctioned discrimination is abhorrent and we, as a nation, should be ashamed


Trigger warning: today’s post is not for everyone. If, however, you are offended by what I am about to say, then today’s post is specifically for you.

Yesterday, the Department of Labor’s Office of Federal Contract Compliance Programs, the federal agency that regulates and governs federal contractors and subcontractors, proposed regulations to clarify the scope and application of the religious exemption contained in section 204(c) of Executive Order 11246.

Tuesday, August 6, 2019

It is an inexcusable sin for an employer NOT to have an anti-discrimination policy


There are some employment policies that you can get away with not having. An anti-discrimination policy is not one of them.

In Hubbell v. FedEx SmartPost (decided yesterday by the 6th Circuit), FedEx learned this lesson the hard way.

Tuesday, July 30, 2019

Labor and employment lessons from the world’s most combative stripper


Different type of stripper
Meet Brandi Campbell, a stripper and self-proclaimed labor activist for other strippers nationwide. She maintains stripperlaborrights.com, where she provides dancers with information about their legal rights, including their rights under the National Labor Relations Act. She’s filed (and won) unfair labor practice charges against clubs in Nevada, Minnesota, and Wisconsin, alleging that they discriminated/retaliated against her for engaging in statutorily protected activities and deprived dancers of their statutory rights by misclassifying them as independent contractors.

Monday, June 17, 2019

How long of a leash must you give an employee before firing?


When a client calls me to ask for advice about firing an employee, the first question I always ask is, “What does the employee’s file look like?” I want to know if there exists a documented history of performance issues to justify the termination, and whether said issues are known and understood by the employee.

I ask these questions for two reasons:

  1. Can the employer objectively prove the misconduct to a judge or jury? Fact-finders want to see documentation, and if it’s lacking, they are more likely to believe that the misconduct was not bad enough to warrant documentation, or worse, that it did not occur. In either case, a judge or jury reaching this conclusion is bad news for an employer defending the termination in a lawsuit.

  2. Surprises cause bad feelings, which lead to lawsuits. If an employee has notice of the reasons causing the discharge, the employee is much less likely to sue. Sandbagged employees become angry ex-employees. You do not want angry ex-employees going to lawyers, especially when you lack the documentation to support the termination.

So what does quality documentation to support a termination look like? Consider Anderson v. Greater Cleveland Regional Transit Authority (N.D. Ohio May 29, 2019).

Thursday, June 6, 2019

An obituary for employment at-will


Over at her employee-rights blog, Screw You Guys, I’m Going Home, attorney Donna Ballman asks, “Is is time to terminate at-will employment laws?

Well, Donna, there’s no need to terminate these laws; they are already dead.

Wednesday, June 5, 2019

SCOTUS decides whether Title VII’s charge-filing precondition to suit is jurisdictional or non-jurisdictional


If the U.S. Supreme Court decided an employment case, I’m contractually obligated to blog about it. Yet, Ford Bend County, Texas v. Davis, which it decided earlier this week, is of little practical import.

To file a private employment discrimination lawsuit under one of the federal employment discrimination statutes, a plaintiff must first exhaust his or her remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission.

What happens, however, if the employee skips over the EEOC and proceeds straight to court? Does that court even have jurisdiction over the claim, or is the omitted EEOC filing merely an affirmative defense for an employer to raise in seeking dismissal of the lawsuit?

Tuesday, June 4, 2019

Proposed law wants to convert “anti-vaxxer” into a protected class


With a couple of important exceptions, an employer can require that employees be up to date on their vaccinations.

The exceptions?

     1/ An employee with an ADA disability that prevents him or her from receiving a vaccine may be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.

     2/ An employee with a sincerely held religious belief, practice, or observance that prevents him or her from receiving a vaccine may also be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.

Monday, June 3, 2019

Thorough internal investigation saves employer from discrimination claim


A bank fires two female employees for violating its vault-access policy. They claim sex discrimination, pointing their fingers squarely at three male employees who they say violated the same policy, but only received performance counseling.

Open and shut discrimination case? Not quite.

Thursday, April 11, 2019

The three things you need to know from the EEOC's 2018 charge data


Yesterday, the EEOC released its charge statistics for 2018. There are three big things you need to know.