I was perusing the Equal Employment Opportunity Commission’s recently released Volume 2 of its 2018 Federal Digest of Equal Employment Opportunity Law (yes, I know I need some better hobbies), and noticed an article entitled, “Assessing Workplace Harassment Prevention Methods Through Comparisons With Similar Crime Prevention Strategies.” The article posits that “[b]y comparing harassment prevention strategies to similar crime prevention efforts, for which empirical research already exists, the EEOC hopes to identify useful tools for preventing workplace harassment.” Well, that struck me as an interesting, if somewhat questionable, approach. But let’s look at what the EEOC says. Continue Reading The EEOC Compares Harassment Prevention to Crime Prevention
I have a friend who is a high school biology teacher. A few years ago, her class dissected a sheep’s brain. After class, one of her students confessed to her that he had licked the brain!!! (I’ll pause here for a moment so you can wrap your own brain around that….) Unsurprisingly, this caused an immediate uproar. The school nurse was appropriately concerned about possible health issues (prions that can cause horrific diseases, poisonous chemicals, etc.). On the other hand, an administrator questioned whether my friend had failed to preemptively instruct her students NOT TO LICK THE BRAIN. Um, what? I think we can agree that is one of those things that is so glaringly obvious you should not have to spell it out as a general matter. Continue Reading Starbucks – Training Employees on the Obvious?
As a minority female, I have had my share of being harassed, and I have felt rage at the unfairness. I completely understand the desire to lash out at the harasser. But actually burning them with a cigarette? Well, that crosses the line (unless, of course, the harasser is threatening physical harm. Then, all bets – and gloves – are off!) But that’s what one employee did, and yet she was surprised when the employer fired her for it. Continue Reading Burning a Customer Is Not the Appropriate Response to Harassment
Emojis and emoticons, which we all use to add flavor and emotion to dry, text based communication on our phones, emails, or Facebook messages, have become points of contention in a variety of legal disputes. (For those of us not in the know, emoticons are created from a standard computer keyboard while emojis are more commonly used when texting or using social media.) This phenomenon should not be too surprising, as there are now an estimated 2,600 emojis (and counting) and they are so commonly used that emojis even had their own feature film this summer, The Emoji Movie (albeit to questionable reviews). Continue Reading Employers – Don’t Let Your Emojis Get the Best of You
I am a luddite (meaning that I fear technological change) and am wholly inept when it comes to my smartphone. I know it can do many marvelous things of which I am unaware – but apparently it has a darker side as well, as illustrated by a recent case, Lee v. Trees, Inc. In that case, the court threw out an employee’s Title VII lawsuit because she had submitted fabricated texts, supposedly from her supervisor, to support her claims of sexual harassment and retaliation. Continue Reading Fabricated Texts? Something Else for Employers to Be Aware Of…
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!
As you may know, I am a die-hard management-side attorney. Typically, I cheer on federal courts that rule in favor of employers – but there are the rare occasions where I think the court gets it unquestionably, unutterably wrong. And the U.S. Court of Appeals for the 8th Circuit’s decision in Abdel-Ghani v. Target Corp. is one of these.
In this case, the plaintiff, a Palestinian immigrant, was employed by a third party, MarketSource, to work at a mobile phone sales kiosk at a Target store. He only worked there for about two months before he was terminated. During his employment, he did not get along with the MarketSource sales manager at that store, and at one point she supposedly told him, “Go back home, go to your country.” In addition, the plaintiff alleged that Target employees (from behind shelves) called him names such as camel jockey, Muslim, Arab, terrorist, and sand nigger, and that this occurred at least ten times during the two months of his employment. Also, he overheard another employee say, “[y]ou should be rounded up in one place and nuke[d].” He was terminated, ostensibly for issues with the sales manager, Target employees and guests. He then sued MarketSource and Target under Title VII for subjecting him to a hostile work environment and national origin discrimination, among other things. Continue Reading “Go Back to Your Country” Is Not Evidence of National Origin Discrimination?
In 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
We are all watching and reading how Uber is responding to yet the latest scandal and legal problem to confront the on-demand ride service giant. About a week ago, a former Uber employee, Susan Fowler, posted a blog about why she left Uber last December. Susan alleges (and these are only allegations at this point) that during her one year at Uber as an engineer, she was subject to harassment and a rampant sexist culture at Uber, and when she complained, Uber did nothing. Continue Reading What Does the Ex-Uber Employee’s Blog Teach Employers about the Power of Social Media?
As a company’s workforce ages, some thoughtful managers may be concerned about business continuity and planning. And it seems pretty obvious that much of that planning will depend on when certain older workers plan to retire. Or a manager may see an older worker becoming less productive, and begin thinking that the person should retire. But, asking about an employee’s retirement plans – or even requiring an employee to retire – can be very problematic. I thought it might be helpful to review the rules on retirement under the Age Discrimination in Employment Act (ADEA).
Generally, ADEA prohibits employers from forcing employees to retire because of their age. The only exception to this prohibition for private employers is certain bona fide executives or high policymakers. For those individuals, ADEA allows employers to require mandatory retirement at age 65 if the individual has been:
- Employed in that capacity for at least two years prior to retirement; and
- Is entitled to immediate and non-forfeitable annual retirement benefits from the employer that total at least $44,000.