Oh, the drama! A couple of recent cases warn employers that drama that happens in the workplace may give rise to liability for workplace harassment.
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Maryland Bans Another Box from Employment Applications (and Discussions)
In Maryland, if your employment application includes criminal history questions, then you are not paying attention to Shawe Rosenthal’s electronic communications. As we advised in an E-Lert, “Ban the Box” (the little box asking about criminal history that applicants check off) became the law in Maryland effective February 29, 2020.
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EEOC Says Employees in Opioid Treatment Are Protected by the ADA
On August 5, 2020, the EEOC released technical assistance documents for employees and health care providers on opioid addiction and employment. The documents provide questions and answers about how the Americans with Disabilities Act (ADA) protects employees who use legal opioid medications or have past addiction to opioids. Of particular significance, the EEOC asserts that employees currently in treatment for opioid addiction are protected by the ADA – thereby officially endorsing a position that they have previously asserted on a less formal basis.
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Hey CEOs – Be Careful About Diversity Hiring Quotas!
In light of the global racial justice movement, I know that all major (and most not-so-major) corporations are thinking about diversity, equity and inclusion right now. They are promoting DE&I initiatives in the workplace, and proudly trumpeting their activities to their workforce and the public. And that’s good, because this is an important issue. But what’s not good is when companies rush in blindly, because those anti-discrimination initiatives can (ironically) end up violating the anti-discrimination laws!
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Let’s Be Clear – The “C” Word Is Not a Compliment
I was distracted from all things COVID by a judge in New York who defended his use of the “C” word to describe a female attorney with the explanation that he meant it as a compliment! Let’s pause for a moment, shall we? That level of twisted logic defies all rational thought. Particularly from a judge – someone we generally (and reasonably) expect to exhibit and promote appropriate behaviors (which includes not being sexist. Just saying.)
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The Important Role Employers Play in Addressing Racism in Light of the George Floyd Tragedy
The killing of George Floyd, an African American, at the hands of a white Minneapolis police officer, was a tragic moment in our country’s history. It has sparked weeks of public protests in cities and states across the U.S. Individuals have gone to the streets to voice their concerns about the issues of racial injustice in American society. While police brutality may be at the forefront, the movement is aimed at shedding light on all areas of racial inequality. Many high-profile figures, from politicians to stars to professional athletes, have been vocal about their condemnation of racial bias. They have further indicated in no uncertain terms that any individual, company, or organization that remains silent on issues of racial inequality is in fact complacent and part of the problem.
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COVID-19 Antibody Testing: Useful Screening Tool or Impermissible Medical Examination?
As the United States still struggles with testing capacity for active COVID-19 infections, employers are increasingly asking “may we require our employees be tested for the presence of COVID-19 antibodies?” This is particularly true following the Equal Employment Opportunity Commission’s position that employers were permitted to test for the presence of active COVID-19 infection, set forth in its What You Should Know About COVID-19 resource (Q&A 6).
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Selecting Employees for Recall or Rehire
In the COVID-19 recession, many employers made reductions in force en masse, thus avoiding selection decisions that might be challenged as discriminatory. If the same employers recall or rehire employees en masse, they will continue to avoid such decisions. But what if the employer’s need to recall or rehire is partial or gradual, such that some employees are brought back before others? Such choices can give rise discrimination claims. To protect itself, an employer will need to apply and document a non-discriminatory method of choosing among employees.
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Recalled Workers Don’t Want to Return Because of Health Risks or Child Care – Now What?
As businesses slowly begin to reopen, workers are being recalled to the workplace. Some of them are expressing reluctance to return due to increased health risks from COVID-19 based on underlying medical conditions or age. Others are struggling with child care issues as schools remain closed for the remainder of the academic year and summer care programs are canceled. Some employers have asked what are their obligations to such workers under the law? Can they terminate them, or do they have to accommodate them?
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Methadone User Can Sue Under ADA
As I discussed in a blog post last year, the Equal Employment Opportunity Commission has been bringing cases on behalf of applicants/employees who use lawfully prescribed opioids (including methadone) against employers who fail to conduct an individualized assessment of the applicant/employee to determine whether those drugs made them unqualified for the position. In EEOC v. Steel Painters LLC, the U.S. District Court for the Eastern District of Texas held that a reasonable jury could find that the employer did just that.
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