An employee may not have a right to receive a reasonable accommodation, but they at least have a right to conversation about it

The EEOC has sued Mercy Health St. Mary's for religious discrimination, claiming that it violated Title VII by rescinding a job offer to an applicant who, for religious reasons, refused to obtain a flu vaccine pursuant to hospital policy.

According to the EEOC's lawsuit, the hospital arbitrarily denied the applicant's request for an accommodation from its vaccination policy and rescinded the job offer, without specifying why or how the request for an exemption accommodation was deficient. Instead, the EEOC alleges, it should have offered an opportunity to supplement the accommodation request to address any perceived deficiencies.

N-word + noose = jury trial

In the nine months that Tyrone Rembert worked as a temporary employee at Swagelok Company, he claims he was subjected to the following:

• The routine use of the N-word, including his two white supervisors directing it towards him at least 50 times.
• A coworker holding up a noose fashioned out of hose pipe and saying, "This is what we do around here."
  
• A supervisor telling him, "I see you have your black face on today."
• Repeated threats of violence, including a group of white employees telling him, "There are enough of us to take you down," and "You better pray."

WIRTW #670: the “dope” edition

"Write a rap about employment lawyer Jon Hyman."

That was the prompt I gave to ChatGPT. I think what it came up with is pretty, pretty good.

* * *

Listen up, y'all, let me tell you a story

'Bout a lawyer named Jon Hyman, he's got all the glory

He's an employment law expert, with knowledge so vast

If you need legal advice, he's the one to ask

Jon Hyman, Jon Hyman, he's the man

He'll fight for your rights, he's got a solid plan

Employment law is his game, he's got the skills

He'll win your case, just pay your bills

He's got a blog called "Ohio Employer Law"

Where he shares his wisdom, and he never withdraws

He's got the answers to all of your questions

His legal advice is a legal injection

Jon Hyman, Jon Hyman, he's the man

He'll fight for your rights, he's got a solid plan

Employment law is his game, he's got the skills

He'll win your case, just pay your bills

He's got the passion, he's got the drive

He'll never give up, he'll always strive

To protect your rights, and make things right

He's the legal eagle, he's got the might

Jon Hyman, Jon Hyman, he's the man

He'll fight for your rights, he's got a solid plan

Employment law is his game, he's got the skills

He'll win your case, just pay your bills

So if you need a lawyer, don't hesitate

Jon Hyman's the man, he's got what it takes

He'll fight for your rights, he'll make things right

Jon Hyman, he's the legal eagle in sight.

(That 💩 is dope!)

Here's what I read this week that you should read, too.

Intentional misgendering IS sexual harassment

Jane works as a cashier at a donut shop. She is a transgender female who identifies by a female name and female pronouns. Her supervisor, Lisa, however, refuses to use Jane's preferred gender. She uses Jane's male legal name, male pronouns, and "dude" when referring to her, despite Jane's frequent requests for her to use female pronouns and the preferred female name. Lisa would similarly encourage customers not to use Jane's preferred name or pronouns.

Did Lisa create a hostile work environment based on Jane's sex? 

You bet she did.

Your anti-harassment obligations are 24/7/365

"I did not know that a workplace policy could be enforced when you're not at work."

Those are the words of former Tennessee Representative Scotty Campbell, spoken to a reporter a mere six hours before he resigned his seat in State General Assembly after a bipartisan ethics subcommittee concluded that he had sexually harassed two female  interns. 

Tip credits, tip pools, and slutty vegans

Bar Vegan in an affiliate of Slutty Vegan, a plant-based restaurant chain that finds itself in the crosshairs of a wage-and-hour collective action lawsuit challenging how it pays its tipped employees. The issue focuses on the bar claiming a tip credit and paying its tipped bartenders less than the statutory minimum wage. That practice, in and of itself, is legal. What makes it allegedly illegal in this case, however, is how Bar Vegan distributes tips among its staff, and more specifically that it permits non-tipped employees to participate in a tip pool with its tipped bartenders.

That's an FLSA no-no.

The 5th nominee for the “Worst Employer of 2023” is … the dog dumper

"You can only keep one, your current job or your family pet; which do you choose?" Most would choose the family pet. Which is why it’s so appalling that Clearlink CEO James Clarke used the example of an employee who sold his family dog to enable his return to the working from the office as a sterling example of the type of work ethic expected of all of his employees.

WIRTW #669: the “Lamborghini” edition

Either I cashed in some sweet crypto and bought a Lamborghini … or someone hacked my Instagram account.

(Hint: it's the second one.)

The most frustrating part is that I can't recover the account. 2FA isn’t working correctly so I can't reset my password. As a backup to confirm I'm me, Instagram asks for a video selfie to compare against photos in my account. But no matter how many selfies I submit, Instagram won't confirm me.

So I'm in Instagram hell, with an account I can't access, but someone else can. Meanwhile, they're using the account to spam my followers with nefarious requests about a new bakery "I" am opening that I can only assume will get them hacked, too.

Help!

If you work at Instagram or Meta and can help me get my account back (or can direct me to someone who can) I'll be eternally grateful.

For now, don’t click any links in any of "my" Insta Stories or Insta DMs from "my" account.

In the meantime, and until further notice, I'll be using the Insta account for The Norah and Dad Show Podcast as my own (with my co-host's/daughter's permission). Please follow me there.

Here's what I read this week that you should read, too.

Please don’t use “fit” to justify an employment decision, no matter what the 4th Circuit just said

"You're not a good fit." 

This statement could mean a lot of things. 

It could be innocuous description of a host of performance issues. 

But it could also mean—

"You're not white."

"You're not male."

"You're not Christian enough." 

"You're too Brown. 

"You're too old."

"You're too disabled." 

With this background, consider Lashley v. Spartanburg Methodist College, which involved a teacher suing her former employer after it did not renew her contact because they "were not a good fit for each other." The teacher claimed "good fit" was pretext for retaliation based on her prior request for a disability reasonable accommodation.

Most lawsuits settle. Here’s why.

$787.5 million. That's how much Fox News agreed to pay Dominion Voting Systems to settle its claims of defamation related to bogus claims of fraud in the 2020 presidential election.

Some people aren't happy that this case settled. For one reason or another they wanted these parties to have their weeks in court. But you know what? The only opinions that matter are those of Fox and Dominion.

When you litigate, you lose. This is an odd statement for a litigator to make. But it's true. When you litigate, the only people that "win" are the lawyers. It's for this reason that I believe that every claim or potential claim should settle. The two key considerations are when and for how much.

Here are three factors that litigants often consider in deciding the "when" and the "how much".

Your business should have an employee conflict of interest policy

Supreme Court Justice Clarence Thomas is under fire after the public disclosure of decades of valuable gifts he's received from right-wing donor Harlan Crow, including lavish vacations and even real estate. 

Politics aside, this story underscores the importance of having a clear and unambiguous conflict of interest policy within your organization and enforcing it when it's violated.

WIRTW #668: the “obrigado” edition

Three years ago — March of 2020 to be precise — my family and I were supposed to spend our kids' spring break in Portugal. Then a little thing called Covid happened, we canceled our trip out of an abundance of caution, and the world went to hell for a long, long time. 

Three years later we are finally set to take our Portuguese holiday. We'll spend 12 glorious and much needed June days in continental Europe's westernmost nation, split across Porto (4 days), Peniche (3 days), and Lisbon (5 days). The Airbnb's are booked, the rental car is reserved, and I've marked my tour books with all of the must-see sites both in and around our three home bases and during our journeys in between. 

Here's my question for anyone who's been to Portugal — what are your best tips? 

• Off-the-beaten-path sites? 
• Restaurant and bar recommendation? 
• Tours, wine and otherwise?
• Anything else?

Thanks in advance for playing tour guide for me. I'll reward you with pictures and stories upon my return.

Here's what I read this past week that you should read, too.

Do you know how to spot an employee at risk for mass violence?

Before Connor Sturgeon left his home with gun to travel to his place of employment, Old National Bank, to open fire in an assault that that killed five and injured eight others, he wrote a note to loved ones. He had also apparently told others that he was suicidal. This was just the most recent in a string of never-ending workplace tragedies.

Prior to Monday, were there any signals to anyone at Old National Bank that Sturgeon was about to be a major problem, that he could kill those with whom he worked in spectacular and tragic fashion?

Sturgeon was a banker with no criminal history. Still, even without a history of criminal violence in one's background (which isn't necessarily a predictor of future violence) there are certain warning signs for which an employer can look to help determine whether an employee is at risk for potential violence.

Federal agencies need to stay in their lanes

• National Labor Relations Board and Consumer Financial Protection Bureau announce new partnership to address employer surveillance, monitoring, and data collection in the workplace


• Worker advocates call on OSHA to set standard on employee surveillance


• NLRB General Counsel may seek to invalidate non-compete clauses in employee severance agreements

These are just a few of headlines I've recently read in which one federal agency or another is signaling an intent to regulate outside of its core mission. Federal agencies should stay in their lanes, period. OSHA regulates workplace safety. The NLRB regulates the relationship between unions and management, and in non-union settings the rights of employees to engage in protected concerted activity.

Do you know what recruiters are telling candidates on your behalf?

“The company is looking for someone more junior to fill this position.”

That’s what John Larkin claims an Exact Sciences recruiting consultant told him after he was not selected for a professional medical sales representative position. It’s also why the EEOC is now suing Exact Sciences for age discrimination.

7th Circuit decides the issue of religious rights vs. trans rights … and trans rights won

I really wanted to move on this week from writing about transgender rights. But then the 7th Circuit had to go and decide that a student's right to be called by his or her preferred gender trumps a teacher's religious accommodation request not to do so.

The case is Kluge v. Brownsburg Community School Corp. John Kluge worked as a music teacher at the Brownsburg Community School Corp. In 2017, the school adopted a new policy that required teachers to use students' chosen names and pronouns. Kluge refused to abide, asserting that it violated his Christian beliefs. The school initially granted an accommodation that permitted Kluge to refer to all students by their last names. It withdrew the accommodation, however, after both trans and cisgender students became angered after deciphering Kluge's surname use. Kluge resigned and sued for religious discrimination and retaliation under Title VII.

WIRTW #667: the “gigs” edition

It's been a while since I've shared info about my daughter's music. Since she has a bunch of gigs coming up — starting tomorrow night at Front St Social in Berea — I figured today is a good time to fix that deficit. 

For those new to norah marie, check her out at norahmariemusic.com. She plays a mix of indie acoustic originals along with classic rock and alternative covers spanning the 60s through today.

All shows are free with no cover. But the bars love it when you buy drinks and food, and she always loves tips. You'll find all the details at norahmariemusic.com/gigs.

Here's what I read this week that you should read, too.

The craft beer industry has a sexual harassment problem

According to the EEOC, the industry that generates the most sexual harassment reports (at more than 14% of all such claims filed with the agency) is hospitality and food service, which includes craft breweries.

Indeed, according to a recent survey conducted by Women On Tap, 73% of women report experiencing sexual harassment while working in a pub/bar. 

Simply stated, the craft beer industry has a sexual harassment problem.

Trans lives are human lives, and anti-LGBTQIA+ hate is wrong

"Dirty, f**got-loving motherf**ker." That's what someone yelled at me after I answered my office phone yesterday. I wish I knew who it was, but they chose to hide behind a blocked phone number.
For the past two days, I've posted about how employers can better support their transgender employees. Coincidence doesn't always equal causation, but in this case, I have to believe my posts and that awful phone call are linked.

5 tips to help support our trans employees in the workplace

Transgender people are under attack. They often experience discrimination, harassment, and a lack of understanding, including from their work colleagues and bosses. As an employer, it is important to create a safe and inclusive environment for all employees, including those who identify as transgender or gender nonconforming.

Here are five steps you can take in your business to support transgender and gender nonconforming employees at work: