Employment Discrimination

healthA recent case highlighted for me (and now for you) an interesting point under the Americans with Disabilities Act (ADA) – whether essential job functions can change. As you may know, the ADA protects employees with disabilities who, with or without reasonable accommodations, are able to perform the essential functions of his/her job. This means that the issue of what are the essential functions of the job is critically important.

According to the EEOC, the following factors should be taken into account in determining whether a job function is essential:

  • whether the reason the position exists is to perform that function,
  • the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
  • the degree of expertise or skill required to perform the function.

The EEOC also identifies the following types of evidence that can be used to establish that certain job functions are essential:

  • the employer’s judgment as to which functions are essential,
  • a written job description prepared before advertising or interviewing for a job
  • the actual work experience of present or past employees in the job,
  • the time spent performing a function,
  • the consequences of not requiring that an employee perform a function, and
  • the terms of a collective bargaining agreement.

Continue Reading Employer May Change Essential Functions of the Job

US-EEOC-Seal.svgIn a prior blog post, “EEOC Says Sexual Orientation Is Protected Under Title VII!!,” I noted that the Equal Employment Opportunity Commission can be sneaky in seeking to expand the scope of the laws it enforces. It will drop bombshells in the middle of otherwise pretty innocuous guidance or resource documents, as if hoping no one notices. The latest example of this is in its just-announced (December 12, 2016) publication on the rights of job applicants and employees with mental health conditions, in which the EEOC oh-so-casually expands the reach of the American with Disabilities Act! Continue Reading EEOC Expands the ADA!

onion-1328465Here’s a seasonally appropriate horror story for employers.

As employers know (I hope), Title VII prohibits discrimination against employees on the basis of religion. That means that employees cannot be subjected to adverse employment actions based on their own religious beliefs, but also because they refuse to submit to an employer’s religious beliefs. But what is “religion” within the meaning of Title VII? The answer to that is incredibly confusing and very broad – encompassing all sorts of non-traditional belief and morality systems. The Supreme Court has said that determining what is a religious belief “is more often than not a difficult and delicate task.” The Equal Employment Opportunity Commission, in its regulations, has provided an expansive definition of religion that includes:

moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. . . . The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.

The effect of this incredibly vague and broad definition means that employers may not always recognize when they’re dealing with a situation involving religion. A striking (perhaps even terrifying) example of this can be found in the recent federal court decision, EEOC v. United Health Programs of America, Inc. Continue Reading Court Finds “Onionhead” Conflict Resolution Program = Religion

Last week, a federal district court in Nevada extended Title VII protections to a transgender employee with respect to bathroom usage by holding that discrimination “because of sex” under Title VII includersghs discrimination based on a person’s gender.

The Plaintiff (Roberts) is a transgender police officer with the Clark County School District (the Department) who identifies as a male officer.  In 2011, Roberts began dressing for work like a man, grooming like a man, and identifying himself as a man.  He also started using the men’s bathroom at work.  Co-workers in turn complained that a woman was using the men’s bathroom.  A meeting was called with Roberts, and his supervisors told him that he could not use the men’s restrooms and that he should only use the gender-neutral restrooms to “avoid any future complaints.”  When Roberts complained about the bathroom ban, he was informed that he would not be allowed to use the men’s restroom until he could provide official documentation of a name and sex change. Continue Reading Nevada Federal Court Finds that Prohibitions on Transgender Employee’s Bathroom Usage is Discrimination Because of Sex under Title VII

ml_rm_iliw_tm_4cc_d_eAs I mentioned in a recent post, “SEIU Fights Its Own Unionization,” the Service Employees International Union has been behind the push at the National Labor Relations Board to extend joint employer status to franchisors, like McDonald’s (meaning that McDonald’s would be deemed an employer of its franchisees’ employees). And now, it is further extending this push – to the Equal Employment Opportunity Commission. On October 5, 2016, (as first reported by The Guardian) Fight for $15 (which is backed and funded by SEIU) announced that it had helped 15 McDonald’s employees (who are also Fight for $15 activists, unsurprisingly) file charges with the EEOC, claiming that they had been sexually harassed by their employers. Apparently only one of the charges was filed against a corporate McDonald’s store – the rest were filed jointly against franchisee stores and McDonald’s Corporation. Continue Reading SEIU Expands Joint Employment Fight to the EEOC

question-markSo I was trolling through the Equal Employment Opportunity Commission’s quarterly Digest of Equal Employment Opportunity Law (because, yes, I am that much of an employment law nerd), and came across an article that I thought was of particular interest: “Stating a Claim in the EEO Process: Determining One’s Status as Either an Agency Employee or Independent Contractor.” Now this article is supposed to apply only to the federal government agencies as the employer – but I think the principles set forth in it provide guidance to what the EEOC’s position would be for private employers as well. (This is important because employees are covered by federal anti-discrimination and other employment laws; independent contractors are not). Continue Reading The EEOC on Independent Contractor Status

downloadAs I’ve made clear in past posts, I am increasingly frustrated with the current National Labor Relations Board’s clearly pro-union, anti-employer approach. I find many of their decisions to have little or no relationship to common sense or logic. So I found a concurring opinion by Judge Patricia Millett in the recent case of Consolidated Communications, Inc. v. National Labor Relations Board to be of particular interest, as she expresses her “substantial concern with the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes.” Judge Millet goes on to say, “These decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace.” (!!!!) Continue Reading Why Does the NLRB Tolerate Racist and Sexist Conduct?

yoga-1159968Employers (hopefully) know that you can’t fire someone based on a legally protected personal characteristic, like race, sex, religion, age or disability (among many other things). But apparently, being “too cute” is not one of them!

In this case, Edwards v. Nicolai, a yoga instructor, Dilek Edwards, worked at a chiropractic and wellness clinic owned by Charles Nicolai and his wife, Stephanie Adams. (Ms. Adams, by the way, is the first openly lesbian Playboy Playmate (Miss November 1992), as reported by the U.K.’s Daily Mail. Isn’t that intriguing?) According to Ms. Edwards, her relationship with Dr. Nicolai was strictly professional. At one point, however, he told Ms. Edwards that his wife might become jealous of her because she was “too cute.” Ms. Edwards only met Ms. Adams once, at the office, and the meeting was cordial. Continue Reading Fired for Being “Too Cute”

That’s an eye-catcher of a title, isn’t it? As reported by the New York Times, Babeland, an adult toy store, became the first sex shop to become unionized. Workers at three New York City locations voted to be represented by the Retail, Wholesale and Department Store Union, one of the country’s largest retail unions.vienna-2-1552451

Why did they choose to unionize? There were several typical reasons – wanting more transparency around hiring, promotions and discipline, as well as better ways of addressing workplace disputes and grievances.

But there were some other, less typical reasons. One is the customers. I’m sure you aren’t surprised to hear that Babeland’s customers can be, well, difficult. Some of them seem to believe that it’s ok to sexually harass sex shop workers. The workers want management to provide better training and support in dealing with these folks. Continue Reading Sex Shop Workers Unionize

male-709687_640This week, the EEOC issued a Fact Sheet regarding Bathroom Access Rights for Transgender Employees under Title VII of the Civil Rights Act of 1964, which the EEOC has stated prohibits discrimination on the basis of gender identity.  Title VII applies to all federal, state, and local government agencies in their capacity as employers, and to all private employers with 15 or more employees.

In siding with other federal government agencies that have released similar guidance (OSHA, the Office of Personnel Management, and the Department of Education), the EEOC stated that an employer should allow an employee to use the bathroom that corresponds with the employee’s gender identity. Continue Reading The EEOC’s Fact Sheet on Transgender Access to Bathrooms