Is this the worst defense ever to a discrimination claim?

Litigation is painful. It takes a lot of time, costs a lot of money, and has lots of variables that you just can’t control. Especially when the client goes off the rails and says something so ludicrous that you might as well just pack it in and cut a check.

As an example, I offer Evans v. Canal Street Brewing. It’s a race discrimination currently pending in federal court in Detroit. According to the Detroit Metro Times, the plaintiff, who is African-American, alleges “a racist internal corporate culture,” including the repeated used of the “N word”, and  management naming its printer the “white guy printer” and  the printer for lower-tier employees the “black guy printer.”

The employer’s defense? The restaurant’s general manager, Dominic Ryan, claims that he did not know Evans was black.

What’s really at stake when the Supreme Court decides LGBTQ rights under Title VII

Sometime next Spring the Supreme Court will announce its decision on whether Title VII’s prohibition against sex discrimination implicitly includes LGBTQ employees. It’s poised to be the biggest employment law case of the past three decades. And not just because LGBTQ discrimination is such a hot-button, high-profile issue.

One of the issues the Department of Justice has asked SCOTUS to revisit is whether Title VII’s prohibition against sex discrimination encompasses sex-based stereotypes.

That “sex stereotyping” is no different than “sex discrimination” has been the law of the land since the Supreme Court decided Price Waterhouse v. Hopkins 30 years ago.

What might the American workplace look like if SCOTUS actually reverses Price Waterhouse?

Take a look at workplace training Ernst & Young just required of its female executives (per HuffPost).

Women at Ernst & Young Instructed on How to Dress, Act Nicely Around Men

My dog was victim-blamed … and I don’t like it

On Friday, Dante, our five-month-old puppy, was attacked while in the (what we thought was the) safety our our fenced-in yard.

New neighbors recently moved in next door with their not-so-nice German Shepherd. They’ve warned us that he doesn’t get along well with other dogs, and, for that reason, they either tether him in their backyard, or monitor him while outside. At the time of the attack he was flying solo, and it ended badly for Dante. No one actually saw what happened, but either Dante was puppy-exploring through the slats in our fence, or the other dog lunged through the slats, or a combination of both. Either way, the neighbor’s dog was definitely the aggressor, and Dante definitely limped away with the lone injury.

Before staples                          After staples

WIRTW #573 (the “last laugh” edition)

When I go, I hope I have enough forethought to go out like this.

A dead man pranked his family at his own funeral by using a recording to scream ‘Let me out!’ as they put his coffin into the ground

Here’s what I read this week.

New EEOC case is a not-so-subtle reminder that we still have a lot of work to do to improve race relations

The allegations in this case—which the EEOC just filed against a Louisiana river transporter—remind us that while race relations have improved over the past several decades, they are far from perfect and we remain a nation with a lot of work to do.

A dramatic retelling of the 17th nominee for the worst employer of 2019

Click here for the full story.

The 17th nominee for the “worst employer of 2019” is … the mauling manager

I don’t even know what to say about today’s nominee for 2019’s worst employer, so I’ll just let Newsweek do the heavy lifting.

A Pakistani electrician is filing charges against a client who refused to pay their bill and instead unleashed a pet lion on him. 

Poor taste does not amount to prohibited sexual harassment.

I once made the mistake of watching an episode of Orange is the New Black on an airplane. The guy sitting behind was very uncomfortably enjoying the show along with me, and I shut it down.

Which brings me to Sims v. Met Council, a case in which an employee claimed her co-workers’ choice of television shows in the break room created a hostile work environment.

The 16th nominee for the “worst employer of 2019” is … the shameful wall builder

If you’re a health care facility whose employees erect a “wall of shame” of disabled patients, and then you drag your feet when an employee, who was also a patient, reports the misconduct, you might be the worst employer of 2019.

From the Bangor (Maine) Daily News:

Employees at St. Mary’s Regional Medical Center in Lewiston created a “wall of shame” where they displayed confidential medical records of patients with disabilities detailing issues with their genitalia and bodily functions, according to an investigation by the Maine Human Rights Commission that found the exhibit had contributed to a hostile work environment. 

WIRTW #572 (the “what did I miss” edition)

Did I miss anything big while I was away earlier this week?

• Argument analysis: Justices divided on federal protections for LGBT employees  — via SCOTUSBlog
• The Law is the Basement — via Kate Bischoff’s tHRive Law & Consulting Blog
• SCOTUS Oral Argument Recap: Is Justice Gorsuch the swing vote on LGBT workplace rights? — via Eric Meyer’s The Employer Handbook Blog
• Trump Appointee Gorsuch Plays Coy In LGBTQ Employment Rights Case — via NPR
• Justice Gorsuch emerges as an unlikely swing vote in the LGBTQ discrimination cases — via Vox
• The Supreme Court asks whether Title VII protects LGBT workers — via The Economist’s Democracy in America blog

In other news, I recently authored an article for Gusto discussing what AB5 (California’s recent law on independent contractor classification) means for small businesses operating in that state (including some practical tips for all employers dealing with contractor classification issues). You can access the article here.

Here’s what else I read this week:

A little kindness goes a LONG way

Earlier this week I was in Philadelphia with my family for my son’s cardiac procedure. During our visit, we stayed at the Sonesta Philadelphia (because I’m a hotel snob and it was the only non-big-chain hotel that offered a special rate for the families of CHOP patients).

At check-in, the desk clerk, Rachel, asked what brought us to Philly. “Nothing great,” I reported. “My son is having a heart procedure on Tuesday.” “So sorry to hear,” she responded. “Please let me know if we can do anything to make your stay more comfortable.”

WIRTW #571 (the “thoughts and prayers” edition)

I’ll be offline next week, as my family will be in Philadelphia for my son’s heart procedure.

Donovan was born with pulmonary valve stenosis, and on Tuesday he’s having a balloon dilation via cardiac catheterization to (hopefully) fix it.

While everyone likes to tell us it’s a routine procedure, we’ve learned with Donovan over the years that because of his genetic disorder anything medical is rarely simple. Moreover, if it doesn’t work, he’s almost certainly looking at open heart surgery in his future to replace the valve.

Thus, we are traveling to Children’s Hospital of Philadelphia (with a small detour first to New York City to take D-man to the Nintendo Store; he told me I better have a lot of room on my credit card) with hopeful thoughts and very anxious anticipation.

We’re taking all good vibes and prayers you have to send Donovan’s way.

I’ll post an update next week after his procedure.

Here’s what I read this week.

If at first you don’t succeed … Ohio will again try to fix its broken employment discrimination law

For lack of more artful description, Ohio’s employment discrimination law is an awful mess.

Among other problems, it exposes employers to claims for six(!) years; contains no less than four different ways for employees to file age discrimination claims (each with different remedies and filing deadlines); renders managers and supervisors personally liable for statutory discrimination; omits any filing prerequisites with the state’s civil rights agency; and contains no affirmative defenses for an employer’s good faith efforts to stop workplace harassment.

There have been several prior attempts to fix this law and harmonize it with its federal counterparts. All have died on the legislative vine.

Welcome House Bill 352 [pdf], introduced on October 1. It’s yet another business-friendly attempt at comprehensive reform of Ohio’s employment discrimination statute.

The 15th nominee for the “worst employer of 2019” is … the disability demoter

An employee tells you he might need to leave work on a moment’s notice to rush home to care for his disabled daughter (born with a severe neurological disorder, Rett Syndrome, which affects the ability to speak, walk, breathe, and eat, among other things).

Do you?

Why are so many employers discriminating against lactating moms?

Women were told to pump in their manager’s office or a meeting room without locks, where they were walked in on repeatedly. Many had to pump in view of security cameras. In two separate cases, restaurant workers were instructed to pump behind the bread racks, leaving them partly visible to colleagues and customers. 

Those who do find an appropriate space often don’t receive the time they need to fully empty their breasts. A McDonald’s worker was yelled at and ordered to return to work before she was done pumping. A Family Dollar worker asked for more time to pump and got demoted to part-time. A spa employee was required to sign a piece of paper agreeing that she wouldn’t take any more breaks. Her inability to pump caused her to leak milk from her breasts while she worked.

These are just a few of the stories of discrimination against lactating moms the Huffington Post recently shared. These employers are likely violating both Title VII (which would prohibit employers from denying breaks to these moms while granting breaks to others), and the Affordable Care Act (which specifically requires employers to provide lactation breaks).

Are hangovers the next frontier of your FMLA headaches?

A German court recently ruled that a hangover qualifies as an “illness.”

Which got me thinking … are hangovers the next frontier of your FMLA headaches?

Thankfully, the answer to this question is almost certainly “no.”

But it’s worth reviewing the FMLA’s definition of “serious health condition” to see how I reach that conclusion.

WIRTW #570 (the “unexpected” edition)

I always assumed my kids would out-achieve me. I just never imagined it would happen by the 8th grade. 

Cleveland Magazine just named her band, Fake ID, Cleveland’s “Best Unexpected Rock Stars” in its 2019 Best of Cleveland issue.

It’s not everyday you witness a band of 12- to 15-year-olds absolutely wail on Black Sabbath’s “War Pigs.”

Yet there’s Fake ID, chugging through the sinister heavy metal classic with style and skill to spare, cresting a wave of pummeling sound…. Yes, the cover act’s ages often precludes bars and clubs from their tour dates, but Fake ID’s easy poise and undeniable chops tend to draw a crowd wherever they plug in.

You can read the rest of the story here, check out Fake ID at their website, and catch them performing at the Best of Cleveland Party at the Rock and Roll Hall of Fame on October 25.

Here’s what else I read this week:

6th Circuit holds that an employee cannot contractually shorten Title VII’s statute of limitations

In Thurman v. Daimler Chrysler, the 6th Circuit agreed that the following agreement between an employer and an employee shortening the time in which an employee has to file a lawsuit was lawful.

READ CAREFULLY BEFORE SIGNING I agree that any claim or lawsuit relating to my service with Chrysler Corporation or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.

I’ve long argued that because of Thurman, employers should consider having all employees agree to a shortened statute of limitations to limit the duration of their potential exposure to employment claims. Yesterday, however, the same court punched big hole in this litigation avoidance strategy.

DOL announces new salary threshold for white collar exemptions

Yesterday, the Department of Labor announced that effective January 1, 2020, the salary threshold for an employee to be exempt from overtime under the administrative, executive, professional, and computer exemptions will increase from $455 per week to $684 per week (or $35,568 per year). For employers, this new threshold means that employees who are currently exempt and earn a salary of less than $684 per week will, in most cases, become non-exempt. The change is expected to impact an estimated 1.2 million workers.

Girl Scouts good / union organizers bad

What rights do you have to ban union organizers from your property? A lot. Your property is your property.

What if, however, you allow your employee’s daughter’s Girl Scout troop to set up a table outside and sell cookies? Have you just opened yourself to an argument that allowing cookie sales unlawfully discriminates against the banned union organizers?