Federal court breaks new ground with transgender disability discrimination claim

The ADA expressly excludes from its coverage “transvestism, transsexualism, … [and] gender identity disorders not resulting from physical impairments….”

Thus, it should be an easy call for a court to dismiss a lawsuit in which an employee, born a male but who identifies and presents as a female, alleges disability discrimination because of her gender identity disorder.

Right?

I still despise the misnamed and overused phrase “wage theft”

Writing at Inc.com, Suzanne Lucas (aka Evil HR Lady) reports on a study published by the Economics Policy Institute, which says that employers short their employees $15 billion in wages per year. According to Suzanne, “Wage theft isn’t always the case of a corrupt boss attempting to take advantage of employees.” She is 100 percent correct. In fact, most instances of an employer not paying an employee all he or she is owed under the law results from our overly complex and anachronistic wage and hour laws, not a malicious skinflint of a boss intentionally stealing from workers.

The National Labor Relations Act protects the rights of non-employees under other statutes‽

In MEI-GSR Holdings, LLC (5/16/17) [pdf], a two-member majority of the National Labor Relations Board held that an employer violated section 8(a)(1) of the National Labor Relations Act when it banned from its property an ex-employee who had filed against it a wage/hour collective action under the Fair Labor Standards Act.

Let me pause for a second to let this sink in.

WIRTW #462 (the “those were the days” edition)

I write a lot about music (particularly for a legal blog), which means that if you are any sort of regular reader, you read a lot about music. What can I say? You write what you know. I we do a lot of music in my house. Between my two kids we have three bands, three weekly lessons, three rehearsals, and gigs, gigs, and more gigs (including three this weekend).

Much of my writing about music is about my favorite band, Old 97’s. And, I don’t apologize for it. Yes, I love their music, and their songs, and how damn good they are live. But I also love who they are, as noted by this clip from their Cleveland show last week.


Who else gets a shout-out from the stage in the middle of a concert? Norah, that’s who. I can only assume she’s learning and will pay it all back when she’s famous some day.

(Bonus, check out Nicole Atkins, who we knew very little about before last week, and she converted us all to huge fans with one 40-minute opening set).

Here’s what I read this week:

The 10th nominee for the “worst employer of 2017” is … guess who?

Let’s play a game. Close you eyes and imagine. Imagine you’re the CEO of a company. And let’s also imagine your VP of HR is investigating a former executive of the company (who happens to be close friend and confidant of yours) for illegal or unethical conduct. And imagine that you privately ask said VP of HR, on the down-low, if maybe he can give your good-guy buddy a pass and end his investigation.

Is your non-compete agreement killing a fly with a sledgehammer?

At least half of my legal practice is serving as outside labor-and-employment counsel for small to midsize businesses. And, increasingly, much of that practice is consumed with drafting post-employment covenants, sending cease-and-desist letters to employees who are in violation of said covenants, or filing lawsuits to enforce said covenants; or, conversely, advising a business whether it can hire an employee with a non-compete agreement, responding to cease-and-desist letters, or defending a lawsuit seeking to enforce said covenants.

A better take on what creates a hostile work environment

Last week, I nominated Target Corporation and MarketSource for the worst employer of 2017, because they ignored the approximately 10 incidents of vile ethnic harassment a Palestinian employee suffered during the brief two month tenure of his employment. Almost as bad was the logic of the 8th Circuit Court of Appeals, which concluded that, as matter of law, the employee failed to state a claim for ethnic harassment because the “morally repulsive” comments “were not physically threatening.”

Some courts, however, do get this issue correct. Case in point? The 2nd Circuit Court of Appeals, in Ahmed v. Astoria Bank (5/9/17) [pdf].