My Twitter feed absolutely exploded with confusion and outrage. Some of the better replies:
Monday, December 12, 2016
Common sense (sort of) prevails in Ohio over gun-owner discrimination law
My Twitter feed absolutely exploded with confusion and outrage. Some of the better replies:
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Thursday, December 8, 2016
Ohio set to elevate gun ownership to a protected employment class #TerribleIdea
How do you get conservative lawmakers to agree to add a protected class to an employment discrimination law? Focus on protecting on gun ownership, apparently.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, October 20, 2016
Is social recruiting discriminatory?
Yesterday, I noted that the EEOC is examining the impact of “big data” on how employers reach employment decisions.
Looking at an issue and doing something about it, however, are two entirely different animals. I wonder what business the EEOC has looking at this issue at all. The EEOC’s mission is to eliminate discrimination from the workplace. Certainly, there is no claim that neutral data points intentionally or invidiously discriminate based on protected classes.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, September 13, 2016
Our employment discrimination laws are not a pretense
Last week, the 6th Circuit decided Richardson v. Wal-Mart Stores [pdf], a fairly run of the mill age discrimination lawsuit. The court decided that Richardson had failed to establish that Wal-Mart’s reason for firing her—a two-year history of disciplinary warnings—was pretext for age discrimination.
What caught my interest was not the decision itself, but instead the following statement made by the plaintiff’s attorney to Employment Law 360 about the decision:
The unfortunate reality is that anti-employment discrimination laws have largely become a pretense in the U.S. These laws remain on the books; but many courts rarely enforce them.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, August 23, 2016
Did the 7th Circuit finally kill McDonnell Douglas?
If you are an employment lawyer, the words “McDonnell Douglas” will bring a sentimental tear to your eye.
For the unfamiliar, the McDonnell Douglas is an evidentiary framework used in discrimination cases, which lack direct evidence of discrimination, to determine whether an employee’s claim should survive summary judgment and proceed to trial. It first asks whether the plaintiff can establish a prima facie case of discrimination—(i) s/he belongs to a protected class; (ii) s/he was qualified for the position; (iii) though qualified, s/he suffered some adverse action; and (iv) the employer treated similarly situated people outside of his/her protected class differently. If the plaintiff satisfies this minimal showing, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse action. Once the employer makes this articulation, the burden shifts again, back to the plaintiff to show that the employer’s reason is a pretext for discrimination.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, August 15, 2016
ABA amends model professional conduct rules to prohibit discrimination. What took it so long?
Last week, during its annual meeting, the American Bar Association amended its model rules of professional conduct to incorporate employment discrimination into attorneys’ ethical mandates.
Model Rule 8.4 now reads as follows:
(g) It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, July 5, 2016
Employment at-will is dead
Last week, I suggested that the “FMLA is not a personnel-file eraser.”
One does not return from an FMLA leave with a clean performance slate. Instead, one returns with the same warts with which they left. And, if those warts merit discipline, or (gasp) even termination, then so be it.In response, one commenter cautioned about being too cavalier with discipline or termination in the wake of an FMLA leave.
http://dilbert.com/strip/2015-09-08 |
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, June 13, 2016
6th Circuit says illegal retaliation doesn’t meet threshold for constructive discharge. Wait, what?!
Henry v. Abbott Laboratories (6/10/16) [pdf] is what I would call a curious case, and one that I plan to liberally use any time I’m defending a case in which claims both of discrimination/retaliation and constructive discharge are asserted.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, June 8, 2016
Are ban-the-box laws actually causing more racial discrimination?
I read with great interest an article on vox.com, entitled, “Ban the box” might just replace one kind of discrimination with another. The article discusses two recent studies, one by The Brookings Institution and the other by the University of Chicago, both of which concluded that ban-the-box laws have the unintended consequence of causing more discrimination against minorities, not less:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, May 24, 2016
#SCOTUS extends time limits for constructive discharge claims
Yesterday, in Green v. Brennan [pdf] (background here), the Supreme Court considered when the statute of limitations begins to run for a constructive discharge claim—when the employee resigns or at the time of an employer’s last allegedly discriminatory act allegedly causing the resignation.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, May 19, 2016
Mom cannot sue employer for discrimination against her son, court says
Brittany Tovar claimed that her employer, Essentia Health, discriminated against her when her employer-sponsored medical insurance denied her son gender reassignment services and surgery.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, April 28, 2016
Let’s not forget about damages when litigating our cases
When employers are sued, they do not put enough thought into damages. The typical response is, “We didn’t discriminate; we aren't liable.” But, the reality is, unless you win a case on summary judgment (sadly, an unlikely result), you need to think about what a case is potentially worth and how much a plaintiff can potentially cover. For starters, it will drive settlement discussions. Moreover, and more importantly, if a case does not settle, you will want to whittle that number down as low as possible to limit the potential exposure at (gasp) trial.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, March 8, 2016
The EEOC says, “Preventing Discrimination is Good Business”
Are you a small-business owner? Do you have problems understanding your obligations under the federal employment-discrimination laws? Then the EEOC is here for you.
Last week, the agency published a one-page face sheet, entitled, “Preventing Discrimination is Good Business” (available in English and 29 other languages, such as Amharic, Marshallese, or Tagalog … really).
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, February 3, 2016
Now is the time to restore balance to Ohio’s employment discrimination law: Endorsing the Employment Law Uniformity Act
For lack of more artful description, Ohio’s employment discrimination law is a mess. It exposes employers to claims for up to six years, renders managers and supervisors personally liable for discrimination, contains no less than four different ways for employees to file age discrimination claims (each with different remedies and filing deadlines), and omits any filing prerequisites with the state civil rights agency.
Monday, State Senator Bill Seitz introduced Senate Bill 268 [pdf], the Employment Law Uniformity Act. It is a business-friendly attempt at comprehensive reform of Ohio’s employment discrimination statute.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, February 1, 2016
EEOC proposed significant pay equality changes to EEO-1
If your company has 100 or more employees, you should be very familiar with the federal government’s EEO-1 survey. The EEOC requires that you annually complete and file this form, which requests demographic on your employees, broken down by protected classes and job categories.
Last Friday, the White House made a game changing announcement about the information it proposes you submit in your EEO-1 filings.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, December 21, 2015
7th Circuit delivers employers an early Christmas gift in EEOC severance agreement case
In EEOC v. CVS Pharmacy, Inc., the EEOC challenged what I have previously described as several garden-variety, boilerplate provisions in a severance agreement. I’ve also previously predicted that a win for the EEOC in this case would be ruinous for employers.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, November 18, 2015
The cost to defend a discrimination lawsuit (and can you do anything about it)
Two and a half years ago I asked, How much does it cost to defend an employment lawsuit? My answer:
The reality is that defending a discrimination or other employment lawsuit is expensive. Defending a case through discovery and a ruling on a motion for summary judgment can cost an employer between $75,000 and $125,000.
Oh, how I love to be right.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, October 22, 2015
More on marijuana and off-duty conduct laws
The Browns still can’t beat the Broncos, and, it appears that Ohio’s proposed off-duty conduct law is a whole lot worse for employers than Colorado’s similar (but very different) statute.
I received an email from a long-standing reader, asking if I could reconcile my opinion that Ohio’s proposed off-duty conduct law would prohibit an Ohio employer from terminating an employee for off-duty marijuana use if Issue 3 [pdf] passes, with the decision of the Colorado Supreme Court in Coates v Dish Network [pdf], which held that Colorado’s off-duty conduct law did not prohibit such a termination despite that state’s legalization of pot.
It all comes down to statutory language.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, October 20, 2015
Ohio’s attempt at an off-duty conduct law creates many more problems than it solves
It has become increasingly difficult to separate our private lives from our professional lives. Technology bleeds into every nook and cranny of our existence, and allows the workplace to stretch beyond the traditional 9-to-5 into a 24/7 relationship. Partly for this reason, 29 states have what are known as off-duty conduct laws — laws that protect employees’ jobs from adverse actions based on their exercise of lawful conduct outside of the workplace. Think smoking, for example. In these 29 states, it is illegal for an employer to fire an employee who smokes away from work. The employer can still prohibit smoking at the workplace, but when the employee is on his or her own private time, the conduct is off limits to the employer.
Ohio is not one of these 29 states. Senate Bill 180, however, is looking to change that.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, September 1, 2015
Don’t forget to check social networks during your workplace investigations
Cleveland.com reports that a former bi-racial employee has sued a Steak ‘n Shake restaurant for race and disability discrimination:
A discrimination lawsuit contends that two employees of a Steak ‘n Shake restaurant in Aurora used racial slurs, including n-----, to refer to a black co-worker.
Brandon Waters’ suit also accuses the Indiana-based restaurant chain of failing to provide a harassment-free work environment, resulting in his firing in 2011 for being too afraid to show up for work….
Waters is biracial, and he was born with a viral infection that affects his motor and speech skills. His lawsuit names the restaurant chain, Timothy Schoeffler, a former co-worker, and Nick Karl, a former manager at the restaurant.
According to the complaint, Waters was called racial slurs at the store and on Twitter, and Karl and Schoeffler referred to him by the nickname “Radio,” a reference to the 2003 film in which Cuba Gooding Jr. plays a mentally disabled student. Karl is also accused of creating a “Radio” name tag that Waters refused to wear.
Schoeffler also dumped a milkshake on Waters’ head in front of Karl, who laughed, the lawsuit states. The two then discussed the incident on Twitter, the lawsuit says.
Screen shots of a collection of tweets between the two men is attached to the lawsuit, and includes references to “Radio” and messages such as “the white way is the right way.”
Screen shots? Here you go:
Two thoughts to leave you with:
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Yes, employees are still ignorant enough about social media to engage in very public online conversation about the (alleged) systematic harassment of a co-worker. If you are not checking Twitter, Instagram, Facebook, and other social networks as part of your internal workplace investigations, there is a good chance you are missing key evidence, and maybe even the smoking gun.
- The restaurant fired the accused employees in response to the plaintiff’s complaint to management about the alleged harassment. The plaintiff, however, just stopped going to work after their termination, claiming that he felt “unsafe as other employees and managers either tolerated or participated in the harassment.” If this employer had an anti-harassment policy, trained all of its employees about the policy, conducted a prompt investigation after the internal complaint, and took prompt remedial action after the complaint, I think that this plaintiff is going to have a difficult time establishing his claim against the employer.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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