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

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.

Monday, January 21, 2019

Ohio amends its employment laws to limit joint employment for franchisors


As the debate over the meaning of "joint employer" continues to rage at both the NLRB and in the federal courts, Ohio has jumped into the debate by passing legislation to limit this definition under various Ohio employment laws.

Effective yesterday, franchisors will not be deemed joint employers with their franchisees unless:

  • the franchisor agrees to assume that role in writing or a court of competent; or
  • a court of competent jurisdiction determines that the franchisor exercises a type or degree of control over the franchisee or the franchisee's employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor's trademark, brand.

Tuesday, September 4, 2018

Training won't fix stupid


A fast-food restaurant fired a recently hired employee after its manager learned she was pregnant.

How do we know this was the manager's reason for the termination? Because he texted it to the employee (which she later posted on Facebook).

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.

Tuesday, March 13, 2018

Tattoos at work: more acceptance, yet still some legal risk


By ABC TV [Public domain],
via Wikimedia Commons
I am not a tattoo person. Yet, a whole lot of people are. And the numbers are increasing.

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.

Monday, February 19, 2018

NLRB dismisses James Damore charge against Google—complaints about too much diversity are not protected


It is lawful for an employer to fire an employee who complains that his workplace is too diverse

According to the NLRB, the answer, at least under federal labor law, is yes, the termination is legal.

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.

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.


We should strive to take these words to heart.

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.

Thursday, February 9, 2017

“It’s not fair”


Watch this, and then let’s talk about the word fair.


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.)

Monday, December 12, 2016

Common sense (sort of) prevails in Ohio over gun-owner discrimination law


Last week, I reported on Ohio Senate Bill 199 / Sub. House Bill 48, which would have elevated “concealed handgun licensure” to a protected class under Ohio’s employment discrimination law, on par with race, color, religion, sex, military status, national origin, disability, age, and ancestry.

My Twitter feed absolutely exploded with confusion and outrage. Some of the better replies:

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.

Believe it or not, the right to conceal carry is about to join race, sex, age, religion, national origin, and disability as a class against which employers cannot discriminate against their employees. Really. I’m not making this up. Senate Bill 199 and Sub. House Bill 48 would make it illegal for an employer to fire, refuse to hire or discriminate against someone who has a concealed-carry permit and keeps a gun within a vehicle that may be parked on the employer’s property.

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.

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.

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.

It has existed for the past 43 years, until (maybe) last week.