Thursday, May 2, 2019

A cautionary tale on why we background check employees


A cautionary tale on why employers should conduct thorough background checks on employers.

In late 2013, Kristl Thompson, Ashley Raby, and Corbie Leslie filed a lawsuit against The Scott Fetzer Company (doing business as “The Kirby Company”), Crantz Development, and John Fields. The women claimed Fields had sexually assaulted them (including verbal abuse and harassment, inappropriate touching, forced sexual acts, and rape) on numerous occasions between May 2012 and January 2013. A number of these allegations resulted in felony and misdemeanor convictions against Fields.

Wednesday, May 1, 2019

Handshakes, children’s poems, and the loss of responsibility


Handshakes could be BANNED under new workplace rules to avoid expensive sexual harassment claims

So reads a headline in The Sun. No one is actually considering banning handshakes. Instead, it’s a cautionary “what if” from an “employment expert,” saying what could happen if employers take sexual harassment precautions to far.

I thought of that story as I read a different story yesterday, one about book of children’s poems banned from Costco because a “concerned mom” did not like the content of one of the poems.

Tuesday, April 30, 2019

Should you pay if your business is attacked by ransomware?


Cleveland Hopkins Airport flight information boards have been out of service since last Monday (story here). Yesterday, after paying contractors more than $750,000 to restore them, the City finally acknowledged the cause—a ransomware attack.

Ransomware is malicious software that locks and encrypts a victim’s computer data. The criminal then demands a ransom to restore access, usually within a set amount of time. If the ransom is not paid, the data is destroyed.

Monday, April 29, 2019

I REALLY thought people knew better not to advertise jobs “for whites”


Cynet Systems, an IT and engineering staffing company, had a viral mess on its hands over the weekend, after it posted a job that asked for candidates “Preferably Caucasian.”

Friday, April 26, 2019

WIRTW #550 (the #NoSpoilers edition)


What are your plans this weekend? I'll be avoiding the internet until 10:30 Sunday night.

We have a 6:40 Saturday showing of Avengers: Endgame, followed by Sunday night on the couch to see if the the gathered forces of good at Winterfell can stop the Night King and his army of the dead on Game of Thrones.


I'll need a Xanax and a glass of wine to get to sleep after all this is done. #NoSpoilers

Here's what I read this week:

Thursday, April 25, 2019

Supreme Court signs off on death by a thousand cuts


Lingchi was a form of torture and execution used in China from roughly 900 BC until China banned in 1905. It translates variously as the slow process, the lingering death, or slow slicing. It's more commonly known as "death by a thousand cuts," in which the torturer uses a knife to methodically remove portions of the body over an extended period of time, ultimately resulting in death.

Yesterday, in Lamps Plus v. Varela, the Supreme Court held that parties to an arbitration agreement cannot be required to arbitrate their claims as a class action unless they specifically agreed to do so in the arbitration agreement.

Wednesday, April 24, 2019

This disability discrimination lawsuit was no party


Party City has agreed with the EEOC to pay $155,000 to settle an ADA lawsuit the agency filed on behalf of a rejected job applicant on the autism spectrum and suffering from severe anxiety.

According to the lawsuit, the individual had been receiving services from Easter Seals of New Hampshire to build up her self-confidence, including working and applying for a job. These services included a job coach.

Tuesday, April 23, 2019

Supreme Court grants review in three cases to decide, once and for all, whether Title VII protects LGBTQ employees from discrimination


Yesterday, the Supreme Court agreed to hear appeals in three cases, to decide whether Title VII's prohibition against "sex discrimination" expressly includes prohibitions against LGBTQ discrimination.

Monday, April 22, 2019

Does Title VII protect heterosexuals from discrimination?


So meet, ROBERTa! Shopping in the women’s department for a swimsuit at the BR Target. For all of you people that say you don’t care what bathroom it’s using, you’re full of shit!! Let this try to walk in the women’s bathroom while my daughters are in there!! #hellwillfreezeoverfirst

Suppose you own a company, and one of your employees posts this rant on her personal Facebook page. Further suppose that in addition to owning the company, you are also a lesbian, and take offense to the employee's views. If you discipline the employee for her Facebook post, and later fire the employee after she complains about the discipline, can the employee sue for retaliation under Title VII? In other words, does Title VII protect heterosexuals from discrimination in reaction to anti-LGBTQ speech?

In O'Daniel v. Industrial Service Solutions, the 5th Circuit said no.

The case put the plaintiff, unabashedly and vocally anti-LGBTQ (as expressed in the at-issue Facebook post), in the position of arguing that Title VII protects against discrimination on the basis of sexual orientation.

The Court held that under its own precedent, O'Daniel could not move forward on her claim.

O'Daniel claims in essence that she was retaliated against because she "opposed" discrimination perpetrated against her on the basis of her heterosexual orientation.… Title VII in plain terms does not cover "sexual orientation." … Because the law in this circuit is clear, we cannot accept O'Daniel’s … suggestions that this panel either overrule the precedents or assume arguendo that the "trend" has upended them.

Thus, because the 5th Circuit does not recognize sexual orientation as class Title VII protects, and employee's complaints about her employer discriminating against her because she is heterosexual could not support a retaliation claim: "Title VII protects an employee only from retaliation for complaining about the types of discrimination it prohibits."

Two points to make about this opinion.

First, if Title VII equates LGBTQ discrimination to "sex" discrimination (as I, like many other courts and the EEOC, believe it does), then logic says that it must also protect heterosexuals from discrimination at the hands of the LGBTQ community because of their sexual orientation. Any other result is logically inconsistent.

Secondly, this employee was not fired because she complained about discrimination. She was fired because she exhibited extremely poor judgment through her Facebook rant. As the concurring opinion succinctly and correctly states: "Simply put, Title VII does not grant employees the right to make online rants about gender identity with impunity." If the employee ranted against interracial marriage, and the company's African-American owner fired her, would anyone think she has a valid claim? This case is no different. The law protects the employee from discrimination and retaliation, but it does not protect the employee's right to express bigoted views, on her personal Facebook page or otherwise.

* Photo by Jim Wilson on Unsplash

Friday, April 19, 2019

WIRTW #549 (the #RespectIsComing edition)


You might have heard that a little show called Game of Thrones premiered it's final season last Sunday. In its honor, Sesame Street prepared a wonderful parody in which Elmo tries to mend bridges between Tyrion and Cersei by teaching them the importance of respect.

A lesson we should all to take to heart, especially at work.


Here's what I read this week:

Thursday, April 18, 2019

How to fire an employee


The Wall Street Journal recently asked this simple question:

What's the Best Way to Fire Someone?

I have some thoughts.

Wednesday, April 17, 2019

Bathroom conversations aren't private conversations


Michael Woods, a mortgage banker at Quicken Loans, was having a bad day at work. A customer Woods had helped four years ago had been trying to get in touch with a Client Specialist; the company routed the call to Woods because of their prior relationship. He aired his grievance to a co-worker, Austin Laff, while they were in the bathroom together. "The client should get in touch with a fucking Client Care Specialist and quit wasting my fucking time."

Jorge Mendez, a supervisor, overheard this conversation from a stall. He responded with an all-employee email reminding everyone of proper conduct in public areas. "Never, EVER, should we be swearing in the bathroom especially about clients."

Tuesday, April 16, 2019

That's how the ball bounces: 6th Circuit says that the ADA does not require a new supervisor as a reasonable accommodation


Cindy Tinsley was so stressed.

How stressed was she?

She was so stressed that even something as simple as her co-workers at Caterpillar Financial Services bouncing stress balls off the ground would trigger her post-traumatic stress disorder.

Monday, April 15, 2019

Maybe you should rethink telling your employee you're firing him becaus of his heart problems


Jonathan Baum worked as a scheduler for Metro Restoration Services. In late 2014, he began have cardiac problems. Over the course of the next several months, he went to the ER fearing a heart attack, had a heart catheter implanted, had an echocardiogram, and wore a heart monitor. He occasionally also missed work for medical tests and treatments, and sometimes worked remotely. His boss, and the owner of Metro, Patrick Cahill, was aware of all of Baum's medical issues.

Following a work day on which Baum had worked remotely from his home. Cahill fired him. The expressly stated reason: "health issues and doctors' appointments."

Oops.

Friday, April 12, 2019

WIRTW #548 (the “working for the weekend” edition)


I thought I'd update everyone on the summer goings-on of Northeast Ohio's favorite age-15-and-under cover band, Fake ID.

They have a busy summer. They will kick it off with a return engagement at Ohio Bike Week. After stealing the festival last year (really, go to the Ohio Bike Week Facebook page and read the reviews), they've been invited back to tear it up again.


Loverboy … and Fake ID. My 10-year-old self watching MTV in my grandparents' basement is totally freaking out.

Then, the band has a residency booked at Westlake's Crocker Park. They'll be playing on June 15, July 6, August 9, and August 20 (all from 5:30 – 7, on the square in front of the movie theater).

Pretty cool stuff for my 12-year-old daughter.

Here's what I read this week:

Thursday, April 11, 2019

The three things you need to know from the EEOC's 2018 charge data


Yesterday, the EEOC released its charge statistics for 2018. There are three big things you need to know.

Wednesday, April 10, 2019

When workplace training goes very, very wrong


A few months ago I participated in active-shooter training. I presented harassment training for a local manufacturer, and, at its conclusion, the company played a 10-minute video explaining to its employees what to do in an active-shooter situation. Generally I'm not a fan of training videos. They tend to be boring, poorly acted, and ineffective. This one, however, was quite effective. It was not only chilling to watch, but, a few months out, I still recall the ABCs of what to do during an active shooter (Avoid, Barricade, Confront).

An Indiana school district, however, had a different idea of how to train its employees to prepare for an active shooter.

This employer had its employees shot in the back, execution style, with plastic pellets.

Tuesday, April 9, 2019

To help end sexual harassment, men MUST be better in reporting it when they witness it


"Dad, something bad happened at recess today!"

It's a refrain I sometimes hear at the dinner table.

"Donovan, what happened?"

"Joe pushed Billy off the swing, and Billy cut his knee when he fell."

"Did anyone let a teacher know what happened?"

"No."

"Why not?"

"I didn't because I didn't want to be a tattletale."

I've had this conversation with both of my kids — the difference between being a tattletale and reporting an unsafe situation.

Monday, April 8, 2019

The 10th nominee for the “worst employer of 2019” is … the exorcising employer


Is it too early to declare a winner for 2019's contest?

According to the complaint Jason Fields fired against the Hampton Inn at which he worked, and its manager, Sharon Lindon, he had to endure some pretty odd stuff during his employment.

As he tells his story, Lindon decided to help Field's after she learned of his impending divorce. How? By offering to exorcise him.

Friday, April 5, 2019

WIRTW #547 (the “new music Friday” edition)


Jenny Lewis just released the first great album of 2019.  

On The Line has witty and funny, yet touching and sad, lyrics, and beautiful melodies that will stick in your head. It's an album that commands your attention. I'll be shocked if it's not at the top of the "Best Of" lists at year's end. You should listen, now and often.