Tuesday, August 7, 2018
Despite what one court held, workplace discrimination laws DO protect employees from non-employees
Pop quiz: Can an employer ignore harassment or other discriminatory behavior directed at employees by non-employees?
If your answer is "yes," you'd be in agreement with the court in Shaw v. Access Ohio (Ohio Ct. App. 7/27/18).
You'd also be dead wrong.
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Tuesday, March 13, 2018
Tattoos at work: more acceptance, yet still some legal risk
By ABC TV [Public domain], via Wikimedia Commons |
In fact, according to one recent survey, 3 in 10 Americans have at least one tattoo, up 50% in just four years. And, the younger you are, the more likely you are to sport a tattoo: 47% of millennials have a tattoo, as compared to 36% of gen Xers and only 13% of baby boomers.
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Monday, February 19, 2018
NLRB dismisses James Damore charge against Google—complaints about too much diversity are not protected
According to the NLRB, the answer, at least under federal labor law, is yes, the termination is legal.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, January 18, 2018
Employee’s refusal to take drug test dooms discrimination claim
Can an employee, terminated for refusing to submit to a “reasonable suspicion” drug test, sue the employer for discrimination?
According to one recent federal district court opinion (and good ol’ common sense), the answer is no.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, January 15, 2018
Today’s America would deeply disturb Dr. MLK
A date appropriate reminder that our nation works better when our leaders seek to unite rather than divide.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, August 9, 2017
Diversity is not an ideology
By now, you’ve likely heard about the male Google employee (James Damore) who circulated within the company a 10-page memo entitled, “Google’s Ideological Echo Chamber.” In this memo, he critiqued Google’s efforts at maintaining gender diversity within the ranks of its employees, arguing that women are underrepresented in tech not because of workplaces biases and discrimination, but because of inherent psychological differences between the sexes.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, February 9, 2017
“It’s not fair”
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Thursday, February 2, 2017
Ohio again tries to restore sanity to its bonkers employment discrimination law
It was almost one year ago to the day that I penned, Now is the time to restore balance to Ohio’s employment discrimination law: Endorsing the Employment Law Uniformity Act. I wrote:
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.Last year’s attempt at this sanity restoration, Senate Bill 268, died at the end of 2016 with the expiration of the last legislative session.
Thankfully, however, House Bill 2 has resurrected this attempt. (And, yes, the irony that today is Groundhog Day is not lost on me.)
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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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 |
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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.
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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:
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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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