In the era of the #MeToo movement, it may be easy to overlook that equal pay is also having a moment. A huge moment. The federal Equal Pay Act (“EPA”) of 1963 requires “equal pay” for “equal work.” If the plaintiff shows a difference in pay for such work, the employer must prove the wage difference is due to a legitimate reason, which includes: Continue Reading Is Equal Pay becoming the new #MeToo?

On December 8, the Equal Employment Opportunity Commission (“EEOC”) has released its draft strategic plan for public notice and comment.  Not to be confused with the revised Strategic Enforcement Plan published in September—which outlined substantive priorities for investigation and litigation—the strategic plan is akin to a company’s operational plan. Continue Reading Some Highlights from the EEOC’s Latest Strategic Plan

Last week, the Equal Employment Opportunity Commission (EEOC) announced it was offering a training program on respectful workplaces as an alternative to traditional harassment prevention training. This training was developed following the issuance of the Report of the Co-Chairs of the EEOC’s Select Task Force on the Study of Harassment in the Workplace, The press release included a quote from EEOC Acting Chair and Co-Chair of the Select Task Force Victoria Lipnic that stated, “These trainings incorporate the report’s recommendations on compliance, workplace civility, and bystander intervention training. I believe the trainings can have a real impact on workplace culture, and I hope employers make use of them.” Continue Reading The EEOC’s Civility Training Program – Watch Out For That NLRB Charge!

The consensus amongst employers in the recent past has been that, because federal law categorizes marijuana as an illegal substance, employers could take adverse action against individuals who tested positive for marijuana (refusing to hire, disciplining or terminating). In that same vein, because marijuana was illegal under federal law, the thought was that an employer had no obligation to provide accommodations to workplace policies, such as drug testing policies, to individuals who tested positive because of medical marijuana use.  (Except in Nevada, because it is the only U.S. jurisdiction whose statute requires accommodations for medical marijuana users).  However, a recent case, Barbuto v. Advantage Sales & Mktg., LLC, has seemingly caused the traditional line of thinking to go up in smoke. Continue Reading Do Employers Have to Provide Accommodations for Medical Marijuana Use?

moneyCan prior salary justify a pay differential, or does it necessarily perpetuate sex-based pay discrimination? This was the subject of a recent Equal Pay Act (EPA) case before the U.S. Court of Appeals for the Ninth Circuit, in which the court bucked the recent trend of connecting prior salary with pay discrimination against females.

The EPA is a federal law that prohibits discrimination between employees on the basis of sex by paying employees of one sex less than employees of the opposite sex for equal work. It bears noting that the law applies to both sexes. Under the EPA, a Plaintiff must show that he or she is receiving different wages for “equal work.” If the Plaintiff makes that showing, the burden shifts to the employer to assert any of a number of affirmative defenses to explain the wage disparity, including: Continue Reading Is Setting Pay Based on Prior Salary the Same as Setting Pay Based on Sex?

US-EEOC-Seal.svgIn January 2017, the Equal Employment Opportunity Commission released proposed guidance regarding workplace harassment.  Because guidance does not carry the same weight as regulations do, which require a formal notice and comment period, there is no legal requirement to solicit public comment on guidance.  However, the practice of voluntarily doing so began under former Chair Jenny Yang and provides employers a valuable opportunity to make their concerns known before the Commission finalizes guidance.

To that end, Shawe Rosenthal, in conjunction with four other law firms, led the effort on behalf of the Employment Law Alliance* to submit written comments  to the Commission’s proposed harassment guidance.  The comment period has closed, and we expect revised guidance to issue—hopefully factoring in some of our comments below!—in a few months. Continue Reading Reflections on the EEOC’s Proposed Harassment Guidance

transgender1600A few recent events provide employers a peek behind the curtain of the Trump administration’s position on whether Title VII provides protection to LGBT individuals.

First, some background. Title VII prohibits discrimination “because of sex,” among other things. In the past, the Equal Employment Opportunity Commission (the federal agency enforcing federal anti-discrimination laws) acknowledged that Title VII did not cover sexual orientation discrimination, although it did prohibit discrimination based on sex/gender stereotyping (which could overlap with sexual orientation claims to the extent the gay or lesbian employee did not conform to male or female stereotypes). Continue Reading What is the Future of Sexual Orientation and Transgender Status Under the Trump Administration?