Thursday, August 31, 2017
That time Justin Bieber’s “L’il Biebers” caused a sex discrimination lawsuit
File this one under the category of I can’t make this stuff up. Apparently, Justin Bieber’s testicles are at the center of a recently filed sex discrimination lawsuit.
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, May 25, 2017
When equal pay is not “equal” pay
The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work. The jobs need not be identical, but they must be substantially equal, and substantial equality is measured by job content, not job titles. This Act is a strict liability law, which means that intent does not matter. If a women is paid less than male for substantially similar work, then the law has been violated, regardless of the employer’s intent.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, April 5, 2017
7th Circuit historically holds that Title VII expressly bans LGBT discrimination
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, March 7, 2017
SCOTUS reverses decision to review transgender bathroom case
Yesterday, the Supreme Court reversed an earlier decision that would have heard the appeal of a 4th Circuit opinion granting a transgender boy the right to use the bathroom of his identified gender.
The decision comes on the heels of the Trump administration’s policy change [pdf], which revoked the Obama administration’s guidance that protected the bathroom rights of transgender students in public schools.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, November 17, 2016
Federal judge takes NLRB to task for rules that protect racist and sexist workplace misconduct
Of all of the decisions the NLRB has handed down in the past eight years, those that let striking employees lob racists and sexist bombs at replacement workers crossing picket lines are the most offensive to me.
Consolidated Communications v. NLRB (D.C. Cir. 9/13/16) is one such case.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, July 19, 2016
Ohio appellate decision sends working moms back to the 1950s
Employee claims her supervisor advised her not to apply for an open position because, “she is a single mother with kids and if [she] had to take time off work, it would jam [us] up for getting someone to cover the scheduling.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, June 9, 2016
D.C. Office of Human Rights publishes best practices guide for employers on transgender rights
The District of Columbia Office of Human Rights, in connection with the National LGBTQ Task Force, recently published a 19-page best practices guide for employers on transgender issues in the workplace. The document, entitled, Valuing Transgender Applicants & Employees: A Best Practices Guide for Employers [pdf], when taken together with earlier guidance from the EEOC on transgender bathroom access and broader guidance from the EEOC on LGBT discrimination continues to signal that issue is one that you can no longer ignore.
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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Wednesday, May 4, 2016
Transgender bathrooms is a solution in search of a problem
In the blogging world, when you snooze, you lose. Yesterday, my fellow bloggers were all over the EEOC’s publication of guidance on bathroom access for transgender employees:
- Eric Meyer’s Employer Handbook Blog: Not letting transgender employees use the restroom of their gender identity is sex discrimination
- Phil Miles’s Lawffice Space: EEOC issues transgender employee fact sheet
- Robin Shea’s Employment & Labor Insider: EEOC posts fact sheets on LGBT discrimination, transgender issues
- Dan Schwartz’s Connecticut Employment Law Blog: Bathroom Access Rights Guaranteed By Title VII
- The Russ Runkel Report: EEOC & OSHA on transgender bathrooms access
Here’s the bottom line.
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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Wednesday, January 20, 2016
Appellate court reinstates sex-discrimination claim of transgendered worker
A federal appellate court reinstated the sex-discrimination claim of a transgender auto mechanic. Credit Nation Auto Sales fired Jennifer Chavez less than three months after she notified it of her gender transition.
The employer argued that it fired her because it caught her sleeping in a customer’s vehicle while on the clock. Even though the court concluded that the employer’s reason was “true and legitimate”, it nevertheless reversed the trial court’s dismissal of the sex-discrimination claim.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, January 12, 2016
EEOC stakes its turf on the issue of sexual orientation discrimination
As I thought of which David Bowie song to support today’s effort, the one that leapt to mind is “Space Oddity” (I was going to use “Changes”, but Dan Schwartz already claimed it for his post yesterday).
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, November 12, 2015
What can go wrong when co-workers date? A lot.
True confession time. I watch The Voice. It’s not like it’s at the top of my DVR, but, my remote always seem to stop on NBC between 8 and 10 on Monday and Tuesday nights. (My pick to win this season: Amy Vachal). So, when I heard that Team Shelton and Team Gwen had formed one team outside of work, I thought, “What a great opportunity to write a blog post on office romances.” (This is how the mind of blogger works).
What can do wrong with office romances? As it turns out, a lot. So, in the spirit of The Voice, here’s 10 reasons co-workers shouldn’t turn their chairs for each other.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, September 17, 2015
Leave policies should apply equally across genders … but must they?
The New York Times reports that CNN has settled an EEOC charge brought by a former correspondent, who claimed that the company’s paid parental leave policy discriminated against biological fathers.
At the time Mr. Levs’s daughter was born, in October 2013, CNN offered 10 weeks of paid leave to biological mothers and the same amount to parents of either gender who adopted children or relied on surrogates. By contrast, the company offered two weeks of paid leave to biological fathers.
Mr. Levs, whose daughter was born five weeks prematurely, already had two young children. He said he felt he needed to spend more time at home sharing in caregiving responsibilities with his wife. He filed his charge when the company refused to grant him more paid time off.
Optically, there is a lot of appeal in a male employee claiming discrimination when a female employee receives more paid leave after the birth of a child. On its face, it certainly looks discriminatory. But, is such a policy really sex discrimination?
There is one key difference between women and men when they welcome a new-born child. Women give birth; men don’t. A women is not medically ready to return to work the day following childbirth; a man is. Indeed, current medical guidelines suggest that women take six weeks off from work following a vaginal delivery, and eight following a C-section. Adoptions also provide different challenges to a couple, including adjusting to new family member without the buffer of a nine-month pregnancy.
While employers should offer equal leave allotments to men and women, before we jump the legal gun we need to consider that there might be an explanation other than discrimination that justifies different treatment between the sexes.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, July 8, 2015
Be conscious of inequities when gauging litigation
Four years ago, in Wal-Mart v. Dukes, the U.S. Supreme Court held that it was inappropriate to certify a nationwide class of 1.5 million female Wal-Mart employees allegedly denied pay and promotions because of a corporate-wide "policy" of sex discrimination. SCOTUS’s Dukes decision ended a decade of litigation over the propriety of the attempted nationwide class action.
More than a year after the Dukes decision, Cheryl Phipps, Bobbi Millner, and Shawn Gibbon launched a similar lawsuit in federal court in Tennessee, but instead seeking a region-wide sex-discrimination class. Wal-Mart alleged that the claims, more than a decade old, were time barred. Yesterday, in Phipps v. Wal-Mart Stores [pdf], the 6th Circuit formally disagreed.
For civil procedure geeks (like myself), the case is a fascinating read on the theory of statutes of limitations and equitable tolling. That analysis, however, is well beyond the scope of what I hope to accomplish with my little slice of the Internet.
Here’s the practical take-away. Employers favor certainty, knowing that if an employee fails to file a lawsuit 90 days after the EEOC issues its right-to-sue letter, for example, the employee waived the right to assert federal discrimination claims. Courts, however, favor equities, and try to avoid inequitable results. Sometimes, these ideals clash. When this happens, employers cannot assume victory, and should brace themselves accordingly.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, June 4, 2015
Transgender rights take center stage
It’s been a big week for the rights of transgender Americans.
- Caitlyn (née Bruce) Jenner had her coming out party on the cover of Vanity Fair and become the quickest person to reach 1 million followers on Twitter, in less than four hours, besting President Obama’s record from two weeks ago.
- The EEOC published a guide addressing the rights of LGBT employees working in the federal sector [pdf], and continues to litigate cases under Title VII’s sex-discrimination prohibitions on behalf of transgender employees.
- OSHA published a statement of “best practices” for bathroom access for transgender employees [pdf], clarifying that employees should be entitled to use the bathroom of the gender with which they identify, and that no employer should require an employee to use a specific gender’s bathroom, or a segregated transgender-only bathroom facility.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, April 15, 2015
Sex stereotyping as transgender discrimination
Last week the EEOC settled, for $150,000, one of its first cases alleging sex discrimination against a transgender employee. This week, another transgender employee filed a remarkably similar lawsuit in federal court in Louisiana. The key difference between the two cases? The Louisiana employer had a formal policy against employees presenting at work as a gender other than their birth gender:
Title VII does not (yet) specifically identify “sexual orientation” as a protected class. But, sexual stereotyping has been illegal for decades. Keep this in mind, and keep an open mind, if your employee shows up as John on Friday and Joan the following Monday.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 11, 2015
Company expands leave benefits for working mom, but what about the dads?!
The Washington Post’s On Leadership blog reports that global telecomm company Vodafone is establishing a new global maternity leave policy for all 30 of its operating companies: 16 weeks of paid maternity leave, plus a 30-hour work week with no reduction in pay for the first six months after retuning from maternity leave.
This policy is very generous, and, for its American operations, is a big step in the right direction towards aligning American maternity leave policies with those around the world (something on government has been unwilling, or unable, to accomplish). However, in rolling out this policy, Vodafone should not forget about the dads. We want flexibility too. A policy that offers parental leave, or reduced work schedules, other family-related benefits to women but not to men violates Title VII on its face.
Gender-neutral policies (those that extend the same benefits to moms and dads) are not safe from legal scrutiny. These policies must be neutral in their drafting and their application. An employer cannot overtly or subversively punish a dad who avails himself of such a benefit out of some stereotyped notion that family issues are the woman’s responsibility. Sexual stereotyping is illegal sex discrimination under Title VII.
The bottom line—moms and dads deserve to have careers and families. Balancing the two is hard enough without employers piling on.
For more on this important issue, I cannot more highly recommend reading An Apology to Dads Working, Too?, on Rob Schwartz’s Dad Working blog.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, January 22, 2015
Why performance reviews matter in employment litigation
The lawsuit alleges that bank “mommy-tracked” the plaintiff, a 14-year employee with a strong performance history, and ultimately fired her. Her lawyer argued to the court that her strong history of performance reviews demonstrates pretext in the bank’s decisions regarding her performance. In response to the bank’s counter-arguments about her performance (which included an argument that her positive reviews resulted from an “easy grader”), the judge responded, “It’s all sounding really fact-y to me.”
Folks, performance reviews matter. They not only matter in managing your employees during their employment, but they also matter in defending lawsuits about their employment. If you plan on terminating an employee on performance, you need to have the goods to back it up. What should you be doing before the termination? Checking the reviews to make sure the paper trail supports the poor-performer argument. If it doesn’t, you best have a solid explanation as to why. Otherwise, your termination will start to smell not only “fact-y”, but also possibly “pretext-y.” The last thing you want in a discrimination case is for your decision to have the scent of pretext.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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