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Total Articles: 32

Has #MeToo Created a New Claim of Male-Bias Discrimination?

Often—and without much thinking—when an employer faces a claim of sexual harassment, the knee-jerk response is to discipline or terminate the man accused. It is the easiest way to go, especially if the alleged harasser is a mid- or lower-level employee, is not a stellar performer, and involved in a largely he said/she said situation. And terminating the alleged harasser may have the salutary effects of cutting off liability under federal law and limiting damages under New York State and New York City law by showing that the employer took appropriate steps to ensure that the harassment would not recur.

Fraternizing May Lead to Your Partner’s Promotion, Your Discharge, and Possibly a Lawsuit

At what point does a company’s application of its anti-fraternization policy become sex discrimination? Last week, a federal court in Alabama found that the answer to this question may be determined by a jury.

Dear Littler: Do We Have to Provide the Kitchen Sink (Literally!) to Lactating Employees?

Dear Littler: A long-term San Francisco-based employee with our company is returning soon from maternity leave. In discussing her return date, she requested accommodations for expressing breast milk at work. After working with our human resources manager, we decided to install a lock on her office door so that she would have a private and convenient place to do so. The employee is not satisfied with this measure, however, and has requested a room with both a sink and a refrigerator for her private use. We have a kitchen on a nearby floor, but we aren’t sure if that is necessary or sufficient. Also, we have locations throughout the country, and similar questions keep coming up at our various regional offices. Do we really need to provide “the kitchen sink” to be in compliance with lactation accommodation laws? What are our duties?

Rumors Run Amok: Poorly Managing Rumors of an Alleged Affair Opens Title VII Liability

Just in time for Valentine’s Day, in Parker v. Reema Consulting Services, Inc., the U.S. Court of Appeals for the Fourth Circuit has held that a false rumor that a woman slept with her manager to obtain promotions could give rise to Title VII liability. Reema Consulting Services Inc. had won a motion to dismiss Evangeline Parker’s discrimination and retaliation claims. The district court viewed Parker’s allegations as describing harassment motivated not by her gender but by false allegations about her conduct. The court had also ruled that because the rumor was in circulation for such a short time, the treatment Parker suffered because of it was not severe or pervasive.

Sex Discrimination Claim Arising from No Severance

A severance package is pay and/or benefits employers pay employees following a termination or layoff. Often, the employee’s acceptance of the severance will include a release of any potential claims against the employer. Of course, severance packages are not required. In a recent decision, a court considered what happens when every departing employee is not offered a severance package.

3 Ways Your Company May Be Engaging in Sex Discrimination

March is Women’s History Month, and it marks 55 years since the Equal Pay Act was enacted and 54 years since Title VII of the Civil Rights Act has been the law of the land. And yet women continue to experience discrimination, sexism and harassment in the workplace at alarming rates.

Wisconsin Jury Rejects Fired Jail Officer’s Claims of Discrimination and Retaliation

A case involving a former jail officer shows how keeping detailed, contemporaneous records of complaints of discrimination and unfair treatment can help defend against employee claims.

Re-Evaluating the Weight of the “Subtle” Discriminatory Remarks: One Pennsylvania Federal Court Discusses “SUBTLE” SEX DISCRIMINATION IN THE WORKPLACE

Although sex discrimination claims are often met with explanations that the alleged offender didn’t realize what they said or did was offensive, or that the recipient misinterpreted the words or actions of the alleged offender, these types of dismissive explanations are becoming more carefully scrutinized the world of workplace discrimination lawsuits. In dicta, the United States District Court for the Middle District of Pennsylvania found that an employer’s “subtle” discriminatory comments could support an inference of discrimination based on a plaintiff’s protected class.

New Tax Reform Bill Stifles #MeToo Settlement Deductions

In acknowledgment of the recent sexual misconduct allegations and the confidential settlements in connection with those allegations, Congress added a new section 162(q) to the Internal Revenue Code as part of the Tax Cuts and Jobs Act. The new section prohibits companies from deducting costs related to sexual assault and sexual harassment settlements that are subject to nondisclosure agreements. While motivation for this new provision was a well-intentioned nod to the #MeToo movement, this new provision may have unforeseen consequences.

Breastfeeding is a “gender-specific condition” protected by the Pregnancy Discrimination Act.

Does Title VII’s Pregnancy Discrimination Act (PDA) protect nursing mothers against post-pregnancy workplace discrimination? One federal court – the 11th U.S. Circuit Courts of Appeals – recently gave a resounding “Yes” to that question. Hicks v. City of Tuscaloosa, Alabama, 11th Cir., No. 16-13003, September 7, 2017. (With that decision, the Eleventh Circuit becomes the second federal appellate court to answer that question in the affirmative, with the Fifth Circuit having done so in 2013).

Knocking Down the Maternal Wall to Avoid Family Responsibility Discrimination

On March 8, 2017, International Women’s Day, women all over the US donned red to celebrate “A Day Without Women” and highlight the economic power and significance that women have in the US and global economies and also call attention to economic injustices.

‘A Day Without a Woman’ Demonstrations Planned for March 8

On the heels of the “Day Without Immigrants” protest, thousands of women may take the day off from work on March 8, 2017, to underscore the value of working women to the economy. The organizers of “A Day Without a Woman” cites national political issues as the key reason for this “general strike” action.

Is There A Women’s March On Employers? What Employers Need To Know About The ‘Day Without A Woman’ Protests

After the Women’s March on Washington earlier this year, organizers have now called for a worldwide protest to take place this Wednesday, March 8 – fittingly to take place on International Women’s Day, a day historically known for protests advocating for gender equality. Those organizing the protest are encouraging women to take the day off from paid and unpaid work, avoid shopping for one day (with exceptions for small, women- and minority-owned businesses), and wear red in solidarity with A Day Without A Woman.

Title IX Meets VII: Grappling with Gender-Based Harassment and Discrimination in Education

Employers in education are familiar with Title IX of the Education Amendments of 1972 and its applicability to all schools receiving federal funding. Title IX states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX applies to students and employees, and impacts decisions pertaining to admissions, athletics, funding, employment of women as faculty and administrators, sexual harassment, and testing. For employees (including faculty), Title IX is an additional overlay to other federal laws protecting employees from gender-based discrimination, including Title VII.

New OFCCP Sex Discrimination Rule Now in Effect

Executive Summary: On June 14, 2016, the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) published its updated sex discrimination rule for federal contractors and subcontractors. The Final Rule, "Discrimination on the Basis of Sex," takes effect today, August 15, 2016. The Rule implements the requirements of Presidential Executive Order 11246 (E.O. 11246), which prohibits covered federal contractors and subcontractors from discriminating against their employees on a number of grounds, including sex. The OFCCP's sex discrimination rule was last updated in 1970, and the new rule incorporates many legal developments that have occurred since that time.

Developing Leaders: Avoiding the Glass Cliff

Promotions tend to be a good thing – especially when the elevation takes one’s career path to the C-suite or to other senior leadership opportunities. But the context in which the appointment is made may be relevant to achieving true diversity and inclusion in the workplace.

Paid Maternity Leave Tripled Under US Navy and Marine Corps Policy

Effective immediately, women serving in the US Navy or the Marine Corps will be entitled to 18 weeks of paid maternity leave after childbirth. Previously, they could receive up to six weeks of paid maternity leave. The policy change also will apply retroactively to any woman who has given birth since January 1, 2015.

The Women’s Economic Security Act: What Employers Need to Know

On Mother’s Day, Sunday, May 11, 2014, Governor Mark Dayton signed into law the Women’s Economic Security Act (WESA), which amends a number of Minnesota laws concerning pregnancy, nursing, parenting leave, and familial status. These laws will significantly impact employers and will require employers to revise their policies and alter their practices. Many of the provisions go into effect immediately, while others have later effective dates. Below are the key provisions about which private employers need to be aware.

Happy 50th, Sex As a Protected Category

Fifty years ago, on another February Saturday, after what had been a grueling fight to pass a strengthened Civil Right bill out of the House, Representative Howard Smith (D-VA) who had lost his battle to bottle the bill in the Rules Committee that he chaired, offered an amendment on the floor of the House to expand the protected categories from race, color, national origin and religion, by adding sex.

Does Your Dealership Have A Locker Room Mentality?

If a year ago you had heard that conduct in an NFL locker room had resulted in a complaint of harassment and bullying, you might have assumed that the alleged victim was a female reporter. Few would have guessed that the alleged harasser and alleged victim both would be NFL linemen capable of bench pressing refrigerators. After all, these players function in an environment where taking and dishing out mental and physical abuse is all in a day’s work.

"Nursing Mother" Break Requirement Spurs Investigations, Lawsuits

A little-known section of the Patient Protection and Affordable Care Act requires employers covered by the federal Fair Labor Standards Act (FLSA) to allow a worker to take unpaid break time to express breastmilk for her nursing child. The requirement extends for a year after the child is born.

Lactation Discrimination Against Nursing Mother Violates Title VII

Last year the United States Equal Employment Opportunity Commission published its strategic enforcement plan in which the agency identified its priorities for the years 2013 to 2016. The EEOC listed accommodating pregnancy-related limitations as an emerging issue and a national priority on which it intended to focus. That focus has already paid dividends for the agency in EEOC v. Houston Funding II Ltd., where the Fifth Circuit Court of Appeals held that firing a woman because she is lactating or expressing milk constitutes unlawful gender discrimination under Title VII of the Civil Rights Act of 1964 (as amended by the Pregnancy Discrimination Act of 1978). The Pregnancy Discrimination Act amended Title VII to prohibit employment discrimination based on pregnancy, childbirth, or related medical conditions.

When an Employer Provides More Parental Leave to Mom than Dad, is this Gender Discrimination?

I received a ton of feedback on last week's blog post, which discussed Yahoo's new parental leave policy and its FMLA implications. Much of the feedback related to Yahoo's decision to provide 16 weeks of paid maternity leave to female employees and 8 weeks of paid paternity leave to male employees. Some wondered whether such a policy is discriminatory on the basis of gender because different leave benefits would be offered to moms vs. dads.

Gender stereotyping based on a person's non-conforming behavior violates Title VII.

As the U.S. Supreme Court has stated, Title VII is intended to “strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotyping.” Recently, a federal court in Virginia refused to dismiss the claim of a male employee who said that he was treated differently and subjected to a hostile work environment because he was viewed as effeminate and told that he was not a “real man.” Henderson v. Labor Finders of Virginia, Inc., E.D. Va., No. 3:12cv600 (April 2, 2013).

Workplace Preferences for Employees Having Relationships With Superiors Is Unfair, but Not Actionable Discrimination Under Title VII

In a decision handed down last week, the Second Circuit reaffirmed its long-standing holding that a “paramour preference” — a situation where a supervisor shows favoritism towards one employee over another due to the existence of a romantic relationship between the supervisor and the favored employee — does not give rise to claims for sexual discrimination under either Title VII of the Civil Rights Act of 1964 or the New York State Human Rights Law. Moreover, the court also held that retaliatory acts allegedly taken in response to complaints about the existence of such a paramour relationship were similarly not actionable.

Legal Alert: Supreme Court Set to Rule on Same-Sex Marriage

Executive Summary: The U.S. Supreme Court has agreed to hear two cases involving the issue of same-sex marriage; the Second Circuit's decision finding the federal Defense of Marriage Act (DOMA) unconstitutional and a Ninth Circuit Decision striking down California's ban on same-sex marriage.

Legal Alert: Second Circuit Finds DOMA Unconstitutional

On October 18, 2012, the U.S. Court of Appeals for the Second Circuit ruled that section 3 of the federal Defense of Marriage Act ("DOMA"), which defines marriage as "a legal union between one man and one woman," is unconstitutional under the Equal Protection Clause. The Second Circuit (Connecticut, New York, and Vermont) joins the First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) in holding that DOMA's definition of marriage unconstitutional.[1] The ruling sets the stage for the U.S. Supreme Court potentially to hear the issue in the coming months.

Court Revives Hotel Worker's Gender Stereotyping Claim.

A federal appellate court recently reinstated a gender stereotyping case brought by a hotel front desk employee who claimed she was fired for not having the "Midwestern girl look." According to the Eighth Circuit Court of Appeals, "[c]ompanies may not base employment decisions for jobs . . . on sex stereotypes."

Adverse Employment Action Based on Gender-Related Non-Conforming Behavior and Appearance is Impermissible.

Under Title VII, an unlawful employment practice is established when an employee demonstrates that gender is a motivating factor for an adverse employment action. Under that analysis, the 8th U.S. Circuit Court of Appeals has upheld the Title VII claims of a female hotel desk clerk who was fired after a company decision-maker complained that the employee lacked the pretty and “Midwestern girl” look desirable in a front desk employee.

Adverse employment action based on gender-related non-conforming behavior and appearance is impermissible.

Under Title VII, an unlawful employment practice is established when an employee demonstrates that gender is a motivating factor for an adverse employment action. Under that analysis, the 8th U.S. Circuit Court of Appeals has upheld the Title VII claims of a female hotel desk clerk who was fired after a company decision-maker complained that the employee lacked the pretty and “Midwestern girl” look desirable in a front desk employee.

EEOC Settles Beef With Restaurant.

On November 2, 2009, the Equal Employment Opportunity Commission (EEOC) announced that it settled a class action lawsuit against Lawry's Restaurants Inc. The EEOC reported that the west coast steakhouse chain agreed to settle the lawsuit, alleging gender discrimination, for more than one million dollars.

Fourth Circuit Recognizes Different Decision Maker in Title VII Sex Discrimination Case (pdf).

A plaintiff must ordinarily demonstrate replacement by someone outside his or her protected class to establish a prima facie case of employment discrimination. In Lettieri v. Equant, Inc., 478 F.3d 640 (4th Cir. 2007), however, the Fourth Circuit Court of Appeals recently recognized an exception to this requirement when the termination and replacement decisions were made by different people.
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