7th Circuit historically holds that Title VII expressly bans LGBT discrimination

If you spend any time reading or watching the news today, you will inevitably encounter much about the 7th Circuit’s historic (and correct, in my opinion) decision in Hivley v. Ivy Tech Community College [pdf]. You can read the background of this case here.

The court expressly held that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” Hivley now stands in direct contradiction to the opinion of the 11th Circuit in Evans v. Georgia Regional Hosp., which sets up this issue for a showdown in the Supreme Court.

The adverse action standard for retaliation is low (but not this low)

The legal standard for an “adverse action” to support a claim for workplace retaliation is pretty low. How low? According to the Supreme Court, an adverse action sufficient to support a claim for retaliation is any action that would dissuade a reasonable worker from complaining about discrimination.

But, is does it reach this low? In Bien-Aime v. Equity Residential (S.D.N.Y. 2/22/17), a federal court concluded that two managers’ general rudeness towards the plaintiff, which started only after the plaintiff filed a civil rights complaint, stood as a sufficient adverse action to support his retaliation claim.

Job descriptions count (but not as much as you think) in ADA cases

Donald Bush worked as a chef manager for Compass Group. According his written job description, his duties included routinely lifting more than 10 pounds. Bush informed his employer that he suffered from rapidly progressing cervical/thoracic spondylosis (a degenerative back condition), and requested a transfer to a less physically demanding job. Ultimately, Compass Group fired him because his illness prevented him from heavy lifting of over 50 pounds.

So, who wins Bush’s disability discrimination claim? Bush (based on the 10 pound limit in his job description), or Compass Group (based on its estimation of the practical realities of his job’s lifting requirements)?

WIRTW #455 (the “God’s not in the restaurant biz” edition)

Two years ago I reported on a lawsuit the DOL filed against Akron, Ohio, televangelist Ernest Angley, alleging he employed unpaid volunteers in his church’s for-profit buffet restaurant. The judgment is in, and it’s not good news for Mr. Angley. U.S. District Judge Benita Pearson, in a scathing opinion [pdf], has ordered him and his church to pay employees more than $388,000 in damages (half for unpaid wages and half for liquidated damages).

Reverend Angley would suggest that Church members had an obligation to provide their labor to the Buffet, in service to God, and that a failure to offer their labor to the Buffet … would be the same as failing God. … Reverend Angley would thus coerce Church members into agreeing to volunteer at the Buffet. …  Reverend Angley thus used “scare tactics/bullying” and made “people feel bad” for not working at the Buffet. … Reverend Angley preached that he was God’s prophet, and saying “no” to Angley would be tantamount to saying “no” directly to God. … Reverend Angley also preached that repeatedly saying “no” to God or failing God ultimately leads to a person “blaspheming against the Holy Ghost,” which meant that the individual’s connection to God has been lost and was irredeemable. … 

The Buffet is a commercial, for-profit institution in competition with a number of other commercial eateries in its immediate vicinity. … Defendants stress the alleged religious purpose served by the Buffet and its ability to provide low-cost meals. … But they undoubtedly achieve those low prices, at least in part, by circumventing wage laws and maintaining a workforce that is largely unpaid. … Indeed, Reverend Angley admitted that the Buffet reverted to using volunteers as a cost-saving measure. … 

Seems like the correct result to me.

Here’s what else I read this week:

Social media may distract employees, but should we care?

I posted this from work yesterday

Earlier this week, I asked when employees will learn that online comments can, and will, be used against them. There is another half to the workplace-social-media equation—employers, who have the task of regulating their employees’ use of social media, which happens more and more in the workplace.

Yesterday, Cleveland reporter Olivia Perkins discussed a recent survey, which found that nearly 90 percent of employees access personal social media accounts at work, to varying degrees of distraction.

New surveys reveal that most employees favor paid leave and flexible schedules

America remains the only industrialized nation that doesn’t mandate some level of paid maternity and/or family leave for employees. Meanwhile, while the FMLA provides 12 weeks of unpaid leave, many will tell you that benefit is woefully inadequate for employees. Indeed, more than 40 percent of employees are not covered by the FMLA and are not eligible to take FMLA leave.

http://dilbert.com/strip/2013-05-10

Thus, the results of a recent survey conducted by the Pew Research Center should surprise few.

When will employees learn that online comments can, and will, be used against them?

Business in the front, party in the rear

I’ve recently given two different speeches discussing the balance between an employee’s privacy and an employer’s right to know. One of the themes of this talk is that social media has irreparably blurred the line between one’s personal persona and one’s professional persona, and employees best be careful with that they say online, because employers are watching and holding them accountable.

Case in point? Buker v. Howard County (4th Cir. 3/20/17) [pdf].