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Category Archives: Employment Discrimination

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“Funny Walk” Is a Disability? That’s Just Screwy.

Posted in Employment Discrimination, Laws & Regulations, Litigation

I know that the amendments to the Americans with Disabilities Act (ADAAA) were intended to expand coverage of the Act, but sometimes I think the extent of the expansion is just ridiculous.  This was highlighted for me in a recent case, EEOC v. Staffmark Investment LLC, in which the court found that an employee was covered… Continue Reading

Employers Can Be Liable for Harassment by Outsiders

Posted in Employment Discrimination, Laws & Regulations, Legislative Developments, Sexual Harassment

Employers (most of them, anyway) understand that they must protect their employees from harassment by their co-workers or supervisors.  A recent case, Freeman v. Dal-Tile Corp., provides a reminder that they must also protect their employees from harassment by outsiders. The employer, Dal-Tile, did a significant amount of business with another company, VoStone.  The VoStone sales… Continue Reading

New Performance Standards Could Be Pretext for Discrimination

Posted in Employment Discrimination, Litigation, Reasonable Accommodation, Workplace Trends

In our troubled economic times, many employers have focused on making their workforce leaner and more efficient.  This frequently involves raising performance standards for employees.  But it is important to do so in a thoughtful and legally defensible way. An illustration of this point can be found in the case of Dupont v. Allina Health… Continue Reading

Disturbing Criminal History Ordinance Being Considered in Baltimore

Posted in Background Checks, Employment Discrimination, Laws & Regulations

I follow proposed employment legislation in Maryland during our legislative session, which runs from January to April each year. More and more, the bills that are proposed use California statutes as models, which is troubling. Employers in our State certainly do not want Maryland to become the “California of the East!” More troubling still, in… Continue Reading

Lessons from the Ivy League on Discrimination and Retaliation

Posted in Employment Discrimination, Laws & Regulations

Even smart people can get tripped up on personnel decisions.  Harvard, for example, ran into this problem in Pierce v. President and Fellows of Harvard College.  That case involves an African-American university police officer claiming race discrimination and retaliation in the denial of three promotions and being placed on foot duty.  The court threw out the… Continue Reading

Temporary Conditions Can Be Disabilities

Posted in Employment Discrimination, Laws & Regulations, Reasonable Accommodation

In a happier, pre-ADAAA (Americans with Disabilities Act Amendments Act) time, I could blithely advise clients that any medical condition that lasted less that 6 months was only temporary, and therefore was not a covered disability under the ADA.  Upon passage of the ADAAA, however, this elegantly simple, bright-line rule no longer applies.  Instead, we are faced… Continue Reading

Fewer Work Hours Should Mean Less Work

Posted in Employment Discrimination, Laws & Regulations, Litigation, Reasonable Accommodation

This seems like a no-brainer – if an employee has to work fewer hours, the employer should expect (and assign) less work from the employee.  Well, an employer you would think would be savvy about this obvious point – IBM – seems to have missed it, in the case of Hochstetler v. International Business Machines,… Continue Reading

Racial Profiling in the Workplace?

Posted in Employment Discrimination, Laws & Regulations, Litigation

We’ve heard about racial profiling by the police.  But what about by employers?  A state agency, the Nebraska Equal Opportunity Commission, made the very broad (and aggressive) finding that, “Racial profiling occurs when an employee . . . is questioned, disciplined, and terminated, on the basis of his race.”  That is a strange definition of racial… Continue Reading

Sniffing Can Be Sexually Harassing

Posted in Employment Discrimination, Laws & Regulations, Litigation, Sexual Harassment

It dumbfounds me how creative people can be in coming up with new ways to harass others.  Take, for example, the recent case of Royal v. CCC&R Tres Arboles, LLC, which involved a complaint of sexual sniffing.  Yes, sniffing.  Like a dog. A female employee worked as an apartment complex leasing manager for only four… Continue Reading

Managers Can Be Individually Liable For Discrimination – Or Not?

Posted in Employment Discrimination, Laws & Regulations, Litigation

In a ruling that will strike fear into the hearts of managers everywhere, the 6th Circuit Court of Appeals held that managers can be held individually liable for discrimination under Title VII.  Yes, that means if you’re a manager, you can be sued personally and potentially be on the hook – personally – for damages… Continue Reading

Non-assignment to Racist Patient Is Not Discrimination

Posted in Employment Discrimination, Laws & Regulations

It’s a classic case of damned if you do, damned if you don’t.  Employers have an obligation to protect their employees from discrimination or harassment by third parties, including patients, customers, clients, vendors, and contractors.  But in the case of Blackburn v. State of Washington Dept. of Social and Health Servs., the employer’s attempt to do so resulted… Continue Reading

Hugs and Kisses Are Not Sexual Harassment

Posted in Employment Discrimination, Laws & Regulations, Sexual Harassment

Hugging and kissing are not typically considered professional conduct in the business world (unless you’re from France) - but is it harassment? A recent federal case, Lozosky v. Keystone Business Products, Inc., provides support for that most sophisticated of legal defenses, “It’s not harassment, your Honor. It’s European.” Patricia Lozosky was employed by Keystone Business Products, Inc…. Continue Reading

Caffeine Withdrawal a Psychiatric Disorder- Seriously?

Posted in Employment Discrimination, Laws & Regulations, Workplace Trends

I often say (only somewhat flippantly) that we are all disabled, but the newly released fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) seems to really go out of its way to make that point.  The DSM-5, which is produced by the American Psychiatric Association, serves as the authoritative guide on the diagnosis… Continue Reading

EEOC Says Gender Identity and Transgender Status Protected by Title VII

Posted in Employment Discrimination, Laws & Regulations

As sexual orientation becomes more mainstream (not that I’m saying it’s accepted everywhere, by any means), gender identity issues are getting attention in our society.  Think of Bradley/Chelsea Manning, for example – his gender identity change added a crazy twist to an already juicy story about betraying our country.  When someone chooses to identify with the… Continue Reading

Menopause Is Not A Disability

Posted in Employment Discrimination, Laws & Regulations

Menopause is approaching for me, and I am really looking forward to those momentary personal tropical vacations (i.e. hot flashes).  I hear from my more senior female friends that the symptoms of menopause – irrational emotional upheavals, poor sleep, dizziness, migraines, etc. – can be quite debilitating, as well as frustrating.  You might think that… Continue Reading

Sex-Stereotyping Is Discrimination

Posted in Employment Discrimination, Sexual Harassment

We all know that stereotyping can be unfair and sometimes just dumb.  But expecting people to be manly men and girly girls can actually get you into legal trouble.  Sex-stereotyping can be the basis of a claim under Title VII, which prohibits discrimination and harassment because of sex, among other things.  A recent example of this involved a supervisor’s same-sex harassment of… Continue Reading

EEOC Slapdown Over Meritless Criminal Background Check Lawsuit

Posted in Background Checks, Employment Discrimination, Litigation, Workplace Trends

I like the EEOC – I really do.  They do important work, and most of the time they seem to get it right.  But every once in a while they dig in their heels over something patently ridiculous, leaving employers and management attorneys like me tearing out our hair in frustration.  So there’s no small… Continue Reading

EEOC’s Attempt to Prohibit Use of Background Checks Rejected

Posted in Background Checks, Employment Discrimination

The EEOC has been facing some controversy with regard to its April 2012 guidance on the use of criminal background checks, in which it discussed the appropriate use of criminal background information for employment purposes, which we discussed in a prior blog entry, “EEOC’s Updated Guidance on Arrests and Convictions.”  It would help if the EEOC… Continue Reading

EEOC, NLRB and DOL Shutdown Contingency Plans

Posted in Employment Discrimination, Labor Law & NLRB, Laws & Regulations, Wage & Hour

Due to the federal government shutdown, the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB) and the Department of Labor (DOL) have issued contingency plans.  These plans set forth what the agencies will and will not do during the shutdown. The EEOC’s contingency plan states that the EEOC will continue to perform only… Continue Reading

EEOC Letter on Mandatory Vaccinations and Religious Accommodation

Posted in Employment Discrimination, Laws & Regulations, Uncategorized

In light of pandemic fears over the past several years, health care facilities have been more aggressive about mandating employee flu vaccinations, on the reasonable basis that such vaccinations are required to protect the health and safety of employees, patients and others.  On March 5, 2012, the EEOC issued an informal discussion letter on this… Continue Reading