Courts inch closer to recognizing sexual orientation as a protected class

The Ohio Bell Telephone Company fired Plaintiff Jason Koren after he missed work for his father’s funeral. Koren suspected that Ohio Bell really fired him because he’s homosexual and took his husband’s last name. He sued for gender discrimination. Did the court: a) grant Ohio Bell’s motion for summary judgment because Title VII does not offer protections for sexual orientation; or b) deny the motion because Title VII does protect against the application of unlawful sex-based stereotypes? Give yourself a prize if you answered “b.”

Here’s what the court had to say in Koren v. The Ohio Bell Telephone Co. (N.D. Ohio 8/14/12) [pdf]:

“[A] plaintiff hoping to succeed on a claim of sex stereotyping [must] show that he fails to act and/or identify with his or her gender, … as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.” Koren’s position is that changing his name upon marriage was a nonconforming “behavior” that supports his gender discrimination claim…. Ohio Bell disagrees and attempts to frame Koren’s claims as a simple attempt “to bootstrap protection for sexual orientation into Title VII.” …

The Court agrees with Koren: homosexual males do not “by definition, fail to conform to the traditional gender norms” by changing their surname upon marriage. And here, Koren chose to take his spouse’s surname—a “traditionally” feminine practice—and his co-workers and superiors observed that gender non-conformance when Koren requested to be called by his married name….

Koren has alleged just such a failure to conform. And he says that [manager] Miceli “harbored ill-will” because he changed his name but that she would not have done so if a female employee had changed her name. Koren testified that Miceli refused to call him by his married name, that Miceli went out of her way to call him by his previous last name, and that Miceli informed him that she did not recognize same-sex marriages. And that ill-will, Koren says, resulted in seven unexcused absences and, ultimately, his termination.

Nine out of the last 10 Congresses have tried to pass a version of the Employment Non-Discrimination Act, which among other things, would add “sexual orientation and gender identity” to the list of classes protected under Title VII. It has failed each time. Courts and the EEOC, however, continue to give the LGBT community that which the legislature has rejected.

As for me, I’ll simply repeat the opinion I gave after the EEOC issued its groundbreaking pronouncement on this issue earlier this year:

The time is coming when this type of discrimination will no longer be an open issue. I suggest you get on the bandwagon now, and send a signal to all of your employees that you are a business of inclusion, not one of bigotry and exclusion.

WIRTW #238 (the “Doc Hopper” edition)

What does a labor and employment lawyer do to relax on the weekends? If it’s this labor and employment lawyer, and it happens to be the second Sunday in August, the answer is frog jumping (the Valley City Frog Jump Festival, to be precise). Click here for a full recap of my family’s not so stellar, but oh so fun, showing at this year’s event.

Here’s the rest of what I read this week:

Discrimination

• Sexual orientation and reverse discrimination — from EmployerLINC
• Harassment complaints by male Homeland Security employees — from Walter Olson’s Overlawyered
• Can a Netflixian Approach to Selection Decisions Eliminate Discrimination? — from Stephanie Thomas’s Proactive Employer Blog
• Employer wins lawsuit despite a "pattern of systematic sexual harassment" — from Eric Meyer’s The Employer Handbook Blog
• Helping Employers Against Employees Who Help Themselves to Company Information to Build a Discrimination Claim — from Jason Shinn’s Michigan Employment Law Advisor
• Discrimination claims by Muslims on the rise — from California Employment Law
• Employment Litigation: How Much Will You Pay? — from Mark Toth’s Manpower Employment Blawg
• Orders to “Go see the Doc” cost Baltimore County $475,000 — from Employment Discrimination Report
• The EEOC Came Knocking (Part Two): Effective Position Statements — from Suzanne Boy’s Southwest Florida HR Law & Solutions
• Virtually All of The Fortune 500 Companies Voluntarily Prohibit Discrimination On The Basis of Sexual Orientation — from Employment Discrimination Report

Social Media & Workplace Technology

• The Business BYO Craze: Has It Gone Too Far? — from hr bartender
• Use Your Email Signatures to Get Overeager Coworkers Off Your Back — from Lifehacker
• Does the Company or the Employee Own a Twitter Account? — from California Employment Law Report
• Social tools for tracking your employees — from Mike VanDervort’s The Human Race Horses
• CFO firing after Chick-fil-A post shows what's protected and what’s not in social media speech — from Phoenix Business Blog
• How to Use Social Media Evidence in Workplace Investigations — from i-Sight Investigation Software Blog

HR & Employee Relations

• “I Would Like To Extend You A Counter-Offer To Suck My Dick”: A Rejected Jobseeker Sends The Padres The Best Letter Ever — from Deadspin
• Separation Agreement or No Separation Agreement? — from Labor & Employment Law Perspectives
• Criminal Convictions and Arrests - To Hire Or Not To Hire? — from From the Sidebar
• Your employer sucks and isn’t going to change — from Ask a Manager
• My Employer Says I Have To Resign. What Should I Do? — from Donna Ballman’s Screw You Guys, I’m Going Home
• Locking Janitors in Wal-Mart - False Imprisonment? — from Phil Miles’s Lawffice Space

Wage & Hour

• The One In Which I Try to Explain the Joint Employer Test — from Dan Schwartz’s Connecticut Employment Law Blog
• FLSA Lessons from Gordon Ramsay — from Molly DiBianca’s Delaware Employment Law Blog
• Can my boss track my hours? — from Suzanne Lucas, the Evil HR Lady, writing at CBS Money Watch
• Tenth Circuit Upholds Salary Basis (and Thus Exempt Status) Despite Deductions From PTO Bank — from Wage and Hour Law Update
• Overtime and Exotic Dancers — from Alabama Employment Law Report
• Federal Judge Severely Limits Scope of Auto-Deduct Collective Action — from Healthcare Employment Counsel
• Beware the loose thread that can unravel the entire garment — from Mike Maslanka’s Work Matters
• Why You Should Know Your Rights Under FMLA — from Workplace Fairness

Labor Relations

• NLRB Taking Aggressive Legal Positions in Attempt to Remain Relevant — from Russell Cawyer’s Texas Employment Law Update
• An uninvited guest: the NLRB settles in — from John Holmquist’s Michigan Employment Law Connection
• Does the Golden Rule Violate Section 7 of the NLRA? — from Labor Relations Institute
• NLRB Sets Sights on “At-Will” Provisions — from Hiring & Firing
• Free Speech is not Protected at Work but Some things you say may be. — from Mike Haberman’s Omega HR Solutions

Piercing the bulletproof employee

Retaliation comes in two flavors: participation and opposition. The former protects employees who have “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under” the relevant statute; the latter protects employees who have “opposed any practice made an unlawful employment practice.” Jackson v. Board of Education of Memphis City Schools (6th Cir. 8/15/12) [pdf] answers the question of how far the opposition clause goes to protect employees who make unreasonable or unfounded complaints about discrimination. It also teaches an important lesson that not every employee who complains about discrimination is bulletproof.

The Memphis City Schools employed Janice Jackson (African-American), as a teacher’s assistant. She worked at a school run by an African-American principal. Ninety-seven percent of the school’s staff was African-American, including 29 of the school’s 31 teacher’s assistants. After being admonished by the principal for unprofessional behavior, Jackson delivered a personal letter, in which she indicated that she felt unfairly singled out because her White co-workers were allowed “duty[-]free breaks,” while African-Americans were “criticized for taking breaks”—“a clear violation of the Civil Rights Act of 1964.” After her transfer to a different school, she sued, claiming retaliation.

The court of appeals affirmed the trial court’s dismissal of her retaliation claim. The court noted that to support a claim of retaliation under the opposition clause, an employee’s opposition must “be based on a reasonable and good faith belief that the opposed practices were unlawful.” In this case, Jackson did not come forward with any evidence that the school principal treated African-American employees differently than White employees. Instead, the court concluded that she was merely addressing a legitimate personnel issue raised by Jackson’s unprofessional behavior.

Critically, the court went out of its way to point out that employers do not always need to fear taking action when faced with a poor-performing employee who happens to complain about discrimination.

To hold that opposition is reasonable when the employer is addressing an apparent and legitimate personnel matter in a way that does not explicitly or implicitly implicate Title VII, with no other testimony or evidence of racial discrimination, would hamper an employer’s ability to address legitimate issues for fear that doing so could leave the employer vulnerable to liability under Title VII.

Many employees believe they can make themselves bulletproof merely by raising the specter of discrimination. They wrongly believe that the anti-retaliation statutes will automatically protect their jobs. Conversely, many employers have a paralyzing fear of terminating a complaining employee no matter the circumstances. Jackson demonstrates that both of these fear can be unfounded. The potential of a retaliation claim certainly ups the ante when terminating an employee who has complained about discrimination. Yet, in the right circumstances and for the right reasons, employers do not need to live in fear of firing a deserving employee, provided that they take the right steps and have the proper documentation.

The language of the modern workplace

Merriam-Webster's Collegiate® Dictionary just released its list of new words for 2012. Three caught my eye.

According to the publisher, Merriam-Webster adopts new words based on usage:

To decide which words to include in the dictionary and to determine what they mean, Merriam-Webster editors study the language as it's used. They carefully monitor which words people use most often and how they use them….

To be included in a Merriam-Webster dictionary, a word must be used in a substantial number of citations that come from a wide range of publications over a considerable period of time. Specifically, the word must have enough citations to allow accurate judgments about its establishment, currency, and meaning.

Because these words have crept into the American lexicon, they should be accounted for in your workplace policies. Technology policies should cover information stored in and accessed from the cloud. Harassment policies and training should teach employees about the dangers of texting and other co-worker communications via mobile phones, email, and social media. And, if you get into a hot legal mess because you omitted these ideas from your policies, drop a few f-bombs (then call your lawyer).

Don’t forget these 5 security issues in your BYOD policy

BYOD might be the corporate buzz word for 2012. If you’re in the dark, BYOD stands for Bring Your Own Device. It represents employees connecting their own mobile devices to corporate networks, instead of using employer-issued devices. There was a time, not all that long ago, when Blackberry was the mobile device of corporate America. Once iOS and Android started supporting email via Exchange, however, executives started questioning why they needed to carry a work device and a personal device. In short, they wanted their email and Angry Birds wrapped up in one tidy mobile package. Thus, the birth of BYOD. Today, Blackberry is going they way of Betamax, and BYOD is here to stay. I call the iPhone-ification of corporate America.

BYOD, however, is not without its risks. Over at The HR Capitalist, Kris Dunn offers the following sample BYOD Policy (c/o Scott Stone):

We expect each team member to provide their own device – you select it, you buy it, you pick the plan that makes the most sense for you.  Your phone, your phone number, your provider of choice, your contract with the provider

We strongly recommend a “Smartphone” of some type, to ensure you can receive emails or other critical communications on the device.

Our Company will provide you access to your work email address on the device, including assisting you with the setup.

If your device is a “Smartphone”, our company will reimburse you $75 per month to cover all work related communications on the device (email, text, voice, communications, etc).  We expect you to select a plan which can accommodate your business and personal needs for voice and data

If you select a PO Phone (plain ‘ol phone) which lacks the ability to receive and send emails, our company will reimburse you $15 per month for all work related communications

We won’t provide a “company phone” to anyone, preferring to allow you to “BYOD”, and provide everyone maximum flexibility.

If you ever choose to leave the company, take your phone, your number, and your existing agreement with a provider – no hassle, no number change, no problem.

These seven points have one glaring omission—security. The biggest risk that BYOD creates is the seemingly uncontrolled access to your network, both in terms of what information is accessed and take from it, and what happens to that information if a device is lost or stolen. In light of these security risks, any BYOD program should answer the following 5 questions:

1. What devices are permitted? Does BYOD mean any device, or does it simply mean iPhones or Androids? What about iPads or other tablets? Employee-owned laptops? Stick drives and other portable memory?

2. Are you going to mandate passwords or other security-screens on network-connected devices? Employees generally resist having to enter a four-digit pin code every time they turn on their iPhones. Your IT, legal, and risk management departments, however, should require them, since they make it that much harder for someone to access data on a lost or stolen device. If your organization deals in confidential information (e.g., doctors, lawyers, etc.), this requirement is that much more important (and might be mandated by law). Also, your BYOD policy should reference any other policies that address the handling of confidential and proprietary information.

3. What happens when a device is lost or stolen? IT must have the ability to remote-wipe a missing mobile device. Guess what happens, though, if an employee’s first call upon losing a phone is to their mobile carrier? The carrier turns off the device, and your organization loses the ability to remote wipe any data from it. Employees should be told that if they lose a mobile device, their first call should be to IT so that the device can be wiped of any corporate data.

4. Will you ban jailbreaks, roots, and other hacks? These practices void the phone’s warranty. Also, consider banning the installation of apps other than from the official iTunes App Store or Google Play. It will limit the risk of the installation of viruses, malware, and other malicious code on the devices.

5. What happens when an employee leaves? You should not only address what happens with the physical device, but also what happens with the data that lives on the device. You need a protocol to re-acquire or wipe all corporate information on the device. Otherwise, you are putting your confidentiality at risk.

Any successful BYOD program results from a synergy among the C-suite, legal, IT, HR, and risk management. Involve all of these departments to make sure that your BYOD program is successful, and addresses all necessary security issues.

Confidential workplace investigations are under attack … by the EEOC?

Earlier this month, I took the NLRB to task for its holding in Banner Estrella Medical Center that an employer’s request to employees not to discuss a workplace investigation with their coworkers while the investigation was ongoing violated the employees’ rights to engage in protected concerted activity. Lorene Schaefer, writing at One Mediation, brings us news that the EEOC has joined the fray and is also attacking the confidentiality of workplace investigations.

According to Ms. Schaefer, the EEOC’s Buffalo, NY, office has notified an employer of an investigation of its policy of warning employees not to discuss harassment investigations with co-workers:

You have admitted to having a written policy which warns all employees who participate in one of your internal investigations of harassment that they could be subject to discipline or discharge for discussing “the matter,” apparently with anyone.

EEOC guidance states that complaining to anyone, including high management, union officials, other employees, newspapers, etc. about discrimination is protected opposition. It also states that the most flagrant infringement of the rights that are conferred on an individual by Title VII’s retaliation provisions is the denial of the right to oppose discrimination. So, discussing one’s complaints of sexual harassment with others is protected opposition. An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial.

I’m speechless. Confidentiality is a cornerstone of any thorough and meaningful internal investigation. As one of my readers astutely stated in a comment to my post about the NLRB’s attack on confidentiality:

Permitting folks to talk about the investigation impacts the investigator’s strategy, possible spoliation of evidence by witnesses who now know about the investigation when under normal circumstances we would have at best a pretty good chance of keeping the investigation confidential, interfering with work relationships the more and more people talk about the investigation, the more things become both diluted and exaggerated (remember the game of telephone?), it is so much more than just the word “Confidential.”

The EEOC is supposed to prevent workplace discrimination and harassment. How can it possibly take issue with a key component of the crucial tool employers use to weed out unlawful harassment? This position simply does not make any sense. The EEOC should be championing confidential investigations, not signaling that they constitute a “flagrant” violation of Title VII. Prohibiting employers from keeping workplace investigations confidential will render investigations meaningless. I do not think this is a result the EEOC wants to foster.

WIRTW #237 (the “don’t judge a book by its cover” edition)

One of my earliest law school memories did not occur inside the lecture halls, but instead was a passing meeting in the hallway. I recall noticing a classmate’s turban, beard, and dark complexion, and thinking, “terrorist.” Soon thereafter, when Amardeep Singh and I became good friends, I learned he was a Sikh (and definitely not a terrorist). My initial reaction to seeing Amar for the first time embarrasses me to this day.

When I heard the news on Sunday about the tragedy in Wisconsin, I immediately thought of my old friend, who, after law school, co-founded the Sikh Coalition and currently serves as its National Director of Programs. Earlier this week, The Guardian ran a poignant piece written by Amar, entitled The post 9/11 prejudice that menaces American Sikhs. This is part of what he said:

Fed a steady diet of Bin Laden and Taliban images, most Americans simply associate the turban, which Sikh men wear as an expression of faith, with terrorism. Turban equals terrorist in the minds of too many.

In part, Sikh Americans are collateral damage of a modern climate that rarely has time for explanations of our culture, our heritage, and our beliefs. This enduring legacy of 9/11 continues to stubbornly attach itself to our community. Not only do many people not know of the peaceful beliefs of our faith, but they wrongly associate us with acts of unspeakable terrorism….

We all deserve to live in a society where no one need fear violent attack—whether at a temple, mosque, synagogue or church—simply because of our ethnic and religious identity.

As a society (especially one that calls itself a melting pot), we should not need an excuse to confront our own biases and prejudices. This awful catastrophe reminds us that we should view people as people, and not as colors, religions, or stereotypes.

Here’s the rest of what I read this week:

Discrimination

• Facebooking about "naked Twister" may doom one's sexual harassment claims — from Eric Meyer’s The Employer Handbook Blog
• Some Employers Health Plans Deny Pregnancy Coverage For Dependents — from TLNT
• Three New High-Visibility Lawsuits—Seven Types of Alleged Discrimination — from Employment Discrimination Report
• Construction worker too “manly” to win same‑sex harassment claim — from EmployerLINC
• “Court Revives Discrimination Lawsuit against … the EEOC” — from Walter Olson’s Overlawyered
• When the EEOC Goes Too Far--Part II — from Molly DiBianca’s Delaware Employment Law Blog
• Can I Be Fired for Being Gay? — from Jessica Miller-Merrell’s Blogging4Jobs
• Getting ADA accommodations right from the very beginning — from HR Cafe
• Chick Fil-A and the Trickle Down Effect — from Tim Eavenson’s Current Employment
• The EEOC Came Knocking (Part One): What Should I Do? — from Suzanne Boy’s Southwest Florida HR Law & Solutions

Social Media & Workplace Technology

• Will the Chick-fil-A YouTube firing pass legal muster? — from Robin Shea’s Employment and Labor Insider
• Facebook says 'Likes' fall under free speech, supports sheriff fired over political controversy — from The Verge
• Chris Rock: Social Media Disasters Only Matter If Your Fans Care — from Kashmir Hill’s The Not-So Private Parts
• Facebook And Twitter Subpoenas, Privacy And The Law — from From the Sidebar

HR & Employee Relations

• HR’s Same-Sex Marriage Policy — from Tim Sackett at Fistful of Talent
• “Ascent of the A-Word” — from Bob Sutton
• I don’t talk about my sex life at work — from Mike VanDervort’s The Human Race Horses
• Forced to resign: What are your options? — from Evil HR Lady, Suzanne Lucas
• Mergers & Acquisitions: Don't Forget About Employee Compliance with Nondisclosure Agreements — from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• It Will Cost Me How Much? A Story of Misclassification and Improper Deductions — from Mike Haberman’s Omega HR Solutions
• Third Circuit Defines “Joint Employment” Under FLSA — from Phil Miles’s Lawffice Space
• What Is the Minimum Value of Work? — from Jim Brennan at Compensation Cafe
• Fourth Circuit: CEO's Administrative Assistant Properly Classified As An Exempt Administrative Employee — from Wage and Hour Law Update
• Litigation Over Unpaid Internships Under the FLSA Heats Up — from Workplace Prof Blog
• Employers Violating Overtime Laws On The Rise — from Overtime Lawyer Blog
• Seventh, Third Circuits Reach Opposite Conclusions in FMLA Cases — from Joe’s HR and Benefits Blog

Labor Relations

• Employers must be able to recognize a Weingarten request in order to avoid liability under the NLRA — from Employment Law Matters
• NLRB Decision Complicates Investigations in the Workplace — from Labor Relations Update