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Is the playing of obscene and misogynistic rap music in the workplace discriminatory on the basis of sex if it offends women?  A former Tesla employee has asked the U.S. District Court for Nevada to answer “yes” to that question after filing suit against her former employer alleging that, among other things, the obscene and misogynistic rap music, as well as the actions and statements made by her co-workers related to that music, amounted to sexual harassment.
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Continue Reading Can Rap Music in the Workplace Create a Hostile Work Environment?

As I mentioned in a previous post, I am always curious as to how things turn out. But often as an employment lawyer, I am left in a state of ignorance. I give advice to employers on what to do in tricky situations, but don’t always hear whether my advice was implemented (I certainly hope so!) or what resulted (good things, hopefully!). And often I wonder what happens to the parties in high-profile cases – like Bostock v. Clayton County, one of a trio of cases in which the U.S. Supreme Court ruled that Title VII’s prohibition on “sex discrimination” in employment encompasses sexual orientation and gender identity.
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Continue Reading Bostock v. Clayton County: The Epilogue… and What It Means for Employers (for Now)

I know we’re all tired of COVID-19, and many of us are just pretending that life has returned to normal. But, just as the darned variants continue to evolve, so does the Equal Employment Opportunity Commission’s What You Should Know About COVID and the ADA, the Rehabilitation Act, and Other EEO Laws guidance. This week, the EEOC updated a number of its Q&As, with some more targeted guidance for employers. Of particular interest (at least to this management-side attorney) are the newly-identified factors that employers should consider to establish a business-necessity for viral testing and those that are relevant to the direct threat assessment.  Here’s our summary of most of the updated questions:
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Continue Reading The EEOC Updates Its COVID Guidance for Employers – Testing, Accommodations, Direct Threat and More

When considering a request for reasonable accommodation under the Americans with Disabilities Act, many employers focus on what will enable an employee to perform the essential functions of their job. But the reasonable accommodation obligation is actually broader than that. As set forth in the EEOC’s regulations, employers must also provide reasonable accommodations that enable an employee with a disability “to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.” And this encompasses certain activity outside the workplace – such as parking.
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Continue Reading Reasonable Accommodations Don’t Just Start at the Office Door…

In this third (and final) post of our mini-series based on the Equal Employment Opportunity Commission’s pay discrimination article, we’ll take a look at the barriers to pay equity identified by the EEOC and their suggestions for preventing pay discrimination. As previously noted, the EEOC issues a quarterly digest of EEO law that sometimes includes an article, like this one, providing insight into the EEOC’s approach to (and expansion of!) discrimination protections for employees. Again, while the EEOC’s article is focused on the federal workplace, many of their observations and action items are equally applicable to the private workplace. Our first post discussed pay discrimination claims under the Equal Pay Act and Title VII, and the second addressed the intersectionality and sex-plus discrimination theories. So now we move from the legal theories to the practical considerations.
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Continue Reading The EEOC Speaks: Pay Discrimination – Barriers and Suggested Actions

In my first blog post in this little series based on the Equal Employment Opportunity Commission’s article “In Pursuit of Pay Examining Barriers to Equal Pay, Intersectional Discrimination Theory, and Recent Pay Equity Initiatives,” I covered the EEOC’s explanation of the difference between pay discrimination claims under the Equal Pay Act and Title VII. (As I explained last time, the EEOC issues a quarterly Digest of EEO Law that occasionally contains articles of interest to the private employer community. Prior articles that I’ve shared include those on fragmentation of harassment claims,  religious discrimination, comparing harassment prevention to crime prevention, and new types of race discrimination, among other things). In this post, we’ll review the EEOC’s take on intersectionality (one of the EEOC’s new favorite topics) and sex-plus discrimination in the context of pay discrimination claims.
Continue Reading The EEOC Speaks: Pay Discrimination – Intersectionality and Sex-Plus

A COVID-19 infection, in and of itself, is not necessarily a disability that triggers employee rights under the Americans with Disabilities Act – but there are circumstances when it can be, including for individuals experiencing long-term symptoms of COVID-19 (a condition with many names, such as “long COVID,” “post-COVID,” “long-haul COVID,” “post-acute COVID-19,” “long-term effects of COVID,” or “chronic COVID”). The EEOC has now updated its COVID-19 Guidance to provide clarification on this issue for employers.
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Continue Reading When Is COVID-19 a Disability? The EEOC Speaks

On October 25, 2021, the Equal Employment Opportunity Commission updated its guidance document, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, to address religious objections to COVID-19 vaccine mandates. In a new section to the guidance, the EEOC draws upon previously-existing guidance for religious exemptions generally. While there are no real surprises, the collection of information in the guidance document is helpful.
Continue Reading EEOC Issues Guidance On Religious Exemptions to COVID-19 Vaccine Requirements

Throughout the past decade, there have been efforts across the nation, at both the state and federal level, to ban the display of Confederate flags, a symbol associated with promoting hate, specifically racism.  In fact, some states have adopted laws that prohibit public displays of the Confederate flag, while other states, including Maryland, have phased out license plates that display the Confederate flag.  Private company giants,  such as Amazon, Walmart and NASCAR, have also banned the display of the Confederate flag.
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Continue Reading Employers – Do Not Ignore Confederate Flag Sightings in the Workplace!

Coining a new acronym (which we are not sure how to pronounce), the federal Equal Employment Opportunity Commission announced new resources regarding LGBTQ+ workplace rights on June 14, 2021 – the anniversary of the landmark Bostock v. Clayton County, Ga. decision in which the U.S. Supreme Court ruled that Title VII’s prohibition on “sex discrimination” in employment encompasses sexual orientation and transgender status.
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Continue Reading SOGI (Sexual Orientation and Gender Identity) Discrimination? The EEOC Offers Guidance