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onion-1328465Here’s a seasonally appropriate horror story for employers.

As employers know (I hope), Title VII prohibits discrimination against employees on the basis of religion. That means that employees cannot be subjected to adverse employment actions based on their own religious beliefs, but also because they refuse to submit to an employer’s religious beliefs. But what is “religion” within the meaning of Title VII? The answer to that is incredibly confusing and very broad – encompassing all sorts of non-traditional belief and morality systems. The Supreme Court has said that determining what is a religious belief “is more often than not a difficult and delicate task.” The Equal Employment Opportunity Commission, in its regulations, has provided an expansive definition of religion that includes:

moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. . . . The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.

The effect of this incredibly vague and broad definition means that employers may not always recognize when they’re dealing with a situation involving religion. A striking (perhaps even terrifying) example of this can be found in the recent federal court decision, EEOC v. United Health Programs of America, Inc.
Continue Reading Court Finds “Onionhead” Conflict Resolution Program = Religion

Last week, a federal district court in Nevada extended Title VII protections to a transgender employee with respect to bathroom usage by holding that discrimination “because of sex” under Title VII includersghs discrimination based on a person’s gender.

The Plaintiff (Roberts) is a transgender police officer with the Clark County School District (the Department) who identifies as a male officer.  In 2011, Roberts began dressing for work like a man, grooming like a man, and identifying himself as a man.  He also started using the men’s bathroom at work.  Co-workers in turn complained that a woman was using the men’s bathroom.  A meeting was called with Roberts, and his supervisors told him that he could not use the men’s restrooms and that he should only use the gender-neutral restrooms to “avoid any future complaints.”  When Roberts complained about the bathroom ban, he was informed that he would not be allowed to use the men’s restroom until he could provide official documentation of a name and sex change.
Continue Reading Nevada Federal Court Finds that Prohibitions on Transgender Employee’s Bathroom Usage is Discrimination Because of Sex under Title VII

ml_rm_iliw_tm_4cc_d_eAs I mentioned in a recent post, “SEIU Fights Its Own Unionization,” the Service Employees International Union has been behind the push at the National Labor Relations Board to extend joint employer status to franchisors, like McDonald’s (meaning that McDonald’s would be deemed an employer of its franchisees’ employees). And now, it is further extending this push – to the Equal Employment Opportunity Commission. On October 5, 2016, (as first reported by The Guardian) Fight for $15 (which is backed and funded by SEIU) announced that it had helped 15 McDonald’s employees (who are also Fight for $15 activists, unsurprisingly) file charges with the EEOC, claiming that they had been sexually harassed by their employers. Apparently only one of the charges was filed against a corporate McDonald’s store – the rest were filed jointly against franchisee stores and McDonald’s Corporation.
Continue Reading SEIU Expands Joint Employment Fight to the EEOC

As you all likely know, the latest pop culture craze is Pokémon Go, where individuals use their mobile IMG_3414devices to catch Pokémon creatures. I’ve been watching my crazy teenage son play this everywhere. He was particularly excited about the Dratini that he caught at the restaurant last night, pictured here. Apparently it’s really rare. Whatever…

My son is not the only one obsessed with this game. Given the popularity of the game as well as the extensive time that players are spending on it (some have described it as an “addiction”), wise employers should be prepared to address the impact of employees playing Pokémon Go (and other games in the future) in the workplace and even on company-provided equipment.
Continue Reading Pokémon Go is a No-Go in the Workplace

That’s an eye-catcher of a title, isn’t it? As reported by the New York Times, Babeland, an adult toy store, became the first sex shop to become unionized. Workers at three New York City locations voted to be represented by the Retail, Wholesale and Department Store Union, one of the country’s largest retail unions.vienna-2-1552451

Why did they choose to unionize? There were several typical reasons – wanting more transparency around hiring, promotions and discipline, as well as better ways of addressing workplace disputes and grievances.

But there were some other, less typical reasons. One is the customers. I’m sure you aren’t surprised to hear that Babeland’s customers can be, well, difficult. Some of them seem to believe that it’s ok to sexually harass sex shop workers. The workers want management to provide better training and support in dealing with these folks.
Continue Reading Sex Shop Workers Unionize

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On a related note to my previous post on pet bereavement leave, my daughter told me about another leave available to those dog-crazy folks in the U.K – “paw-ternity leave.” (Which is very different than “peternity” leave – another name for pet bereavement leave!) Essentially, this type of leave is a maternity/paternity leave for pets.

As first reported by the Mirror, a research study by pet insurance provider Petplan found that almost 1 in 20 new pet owners in the U.K. are offered “paw-ternity” leave by their employers. This leave can be used to settle in and care for a new pet, vet appointments, training, etc. It ranges from a few hours to a few weeks, and is provided in addition to the worker’s usual vacation leave allotment. The article specifically identifies two different companies that formally provide this type of leave – pet food manufacturer Mars Petcare and IT company Bitsol Solutions.
Continue Reading “Paw-ternity” Leave?

male-709687_640This week, the EEOC issued a Fact Sheet regarding Bathroom Access Rights for Transgender Employees under Title VII of the Civil Rights Act of 1964, which the EEOC has stated prohibits discrimination on the basis of gender identity.  Title VII applies to all federal, state, and local government agencies in their capacity as employers, and to all private employers with 15 or more employees.

In siding with other federal government agencies that have released similar guidance (OSHA, the Office of Personnel Management, and the Department of Education), the EEOC stated that an employer should allow an employee to use the bathroom that corresponds with the employee’s gender identity.
Continue Reading The EEOC’s Fact Sheet on Transgender Access to Bathrooms

The Maryland 2016 legislative session endedshadow-dollar-sign-1239535 on Monday.  A friend of mine mentioned that she heard the General Assembly passed an equal pay law in Maryland. But guess what? There is already an Equal Pay for Equal Work law in Maryland – it’s been in place for almost 25 years!! The current law already prohibits employers from discriminating against employees of one sex who work in the “same establishment” and perform work of comparable character or work in the same operation, in the same business, or of the same type by paying a lesser wage than an employee of another sex.

The equal pay bill mentioned, House Bill 1003, expands the prohibitions on discriminatory pay practices. It also adds an entirely new pay transparency provision. Specifically:
Continue Reading “New” Equal Pay Bill for Maryland

RookFollowing up on my last post about menstrual leave, I heard about another odd leave being offered by a few employers – pet bereavement leave (I also saw a reference to “peternity” leave). Unlike menstrual leave, this is not legally required in any country. But apparently it’s not entirely uncommon among those dog-crazy folks in the U.K. In the U.S., however, there are only a few companies that formally offer this type of leave, as a recent CBS Miami news story notes. In particular, Kimpton Hotels and Restaurants allows managers to grant up to three days off for grieving pet parents, while pet insurance company Trupanion grants one day of bereavement leave.

Why is the leave needed? Sandra Grossman, a pet loss counselor, told the Wall Street Journal in an article on “The Challenge of Grieving for a Pet at Work,” most grieving pet owners need up to a week away from work to get over the initial shock. In addition, a survey referenced in that article noted that nearly 1 in 3 people feel grief and sadness for at least 6 months after the pet’s death.Continue Reading Pet Bereavement Leave?

Last week, I heard about a British company, Coexist, that is planning to develop a “period policy” to provide menstrual leave to its female employees. As a female employment attorney, I’m a strong believer in equal rights for women, but this notion struck me as so very … odd. Initially, I wasn’t quite sure what to make of it, but intuitively it just seemed like a bad idea to me.

So I did a little research, and it turns out that menstrual leave is actually a legal right in certain Asian countries. In 1947, Japan was the first to pass a menstrual leave law. Since then, Indonesia, the Philippines, South Korea and, most recently in 2013, Taiwan, have also enacted such laws. The laws vary as to whether the leave is paid, half-paid, or unpaid, and how much time off may be taken (e.g. as needed each month, X days per month, X days per year). These laws, however, have proven to be controversial, and their effectiveness has been questioned.red-dot

Many argue that the laws perpetuate stereotypes of women as the weaker sex. Some male rights activists (yes, they exist) argue that these laws discriminate against men. One commentator, Tim Worstall at Forbes.com, noted that a new type of paid leave will increase employer costs – and the fact that the paid leave is only available to female employees will likely exacerbate the gender pay gap. Many employers in those countries ignore the laws. And, frankly, it seems that most women are afraid to come forward to ask for menstrual leave, for various reasons – embarrassment, not wanting to burden fellow employees, fear of discrimination or retaliation, etc.Continue Reading Menstrual Leave – Really?