Recently, the EEOC filed a lawsuit against Hire Dynamics, a staffing firm (click here for the EEOC press release). According to the complaint, after a Hire Dynamics employee filed a charge of discrimination against one of its clients, the staffing firm retaliated by failing to give the employee any further job assignments or opportunities. As this case highlights, it is important that staffing companies and their clients work together to comply with applicable fair employment practice laws.
Termination of Rutgers basketball coach highlights importance of employment advice to athletic departments
Rutgers University announced its termination of the employment of men’s basketball coach Mike Rice. The firing occurred after a media frenzy from the release of video of practices in which Mr. Rice was observed shoving players, throwing balls at them, and using gay slurs. Part of the controversy facing the University arises from the athletic director’s decision to suspend Mr. Rice for three games and fine him $75,000 after investigating Mr. Rice’s conduct, as opposed to stronger disciplinary measures such as termination.
New York City Council Overrides Mayors Veto; Discrimination Against the Unemployed Now Prohibited in New York City
Moments ago, the New York City Council voted to override Mayor Bloomberg's veto to its new law prohibiting unemployment discrimination. Our earlier post summarizing the law is here, and our update to that post is here. We strongly recommend that employers take steps now to position themselves to comply with the law when it goes into effect in 90 days.
As we predicted in an earlier blog post, Mayor Michael Bloomberg has vetoed legislation aimed at prohibiting discrimination against New York City’s unemployed.
In a statement explaining his veto decision, Mayor Bloomberg said: “Hiring decisions frequently involve the exercise of independent, subjective judgment about a prospective employee’s likely future performance, and the creation of this ambiguous legal standard will make it harder for employers to make decisions that will benefit their businesses.” Unlike other protected characteristics, such as an applicant’s race, “the circumstances surrounding a person’s unemployment status may, in certain situations, be relevant to employers when selecting qualified employees,” Mayor Bloomberg said in his statement.
Also as predicted, City Council Speaker Christine Quinn said today that the council would vote to override the veto of the measure. It is anticipated that the council has more than enough support to override Mayor Bloomberg’s veto. We will continue to monitor developments, and will keep you informed.
New York City on the Verge of Prohibiting Discrimination Based on an Individual's Unemployment Status
New York City employers beware: The New York City Council has once again acted to expand the nation’s broadest anti-discrimination law – this time to prohibit discrimination against New York City’s unemployed. While several other jurisdictions (such as New Jersey, Oregon and Washington D.C.) have recently passed similar laws, the New York City measure goes one (major) step further: if enacted, unemployed individuals who believe they have been discriminated against on the basis of their employment status will have the right to sue in court and recover compensatory and punitive damages, as well as attorneys’ fees.
On January 29, 2013, the Department of Labor’s Office of Federal Contract Compliance Programs issued a Directive. pertaining to federal contractors’ use of arrest and conviction records in making employment decisions. This Directive is consistent with and incorporates guidance issued by the Equal Employment Opportunity Commission in April 2012.
Don't Hate Me 'Cause I'm Beautiful: Termination Based on "Irresistible Attraction" is Not Unlawful Sex Discrimination
Christmas came a few days early for Iowan employers, when the Iowa Supreme Court ruled that a male employer acted legally when he fired a female employee because he had become irresistibly attracted to her – a situation the employer’s wife, also an employee, found objectionable.
Several members of the New York City Council have introduced a bill that would amend the City’s Human Rights Law to permit employees to waive a Human Rights Law claim only where the waiver is “knowing and voluntary.” Such a statutory (rather than common law) knowing and voluntary requirement currently only applies to waivers of Federal age discrimination claims. The bill aims to capture not just the waiver of age discrimination claims under the City Human Rights Law, but also any other type of discrimination claim an employee may assert under the City law (e.g. race, gender, national origin, sexual orientation, etc.).
Recently, the Second Circuit Court of Appeals confirmed that awards of back pay and front pay under Title VII constitute “wages” under the Internal Revenue Code and are therefore subject to statutory withholding requirements. Reasoning that both front and back pay awards are compensation for what the victim would have earned and paid taxes on but for the discrimination, the Court, in Noel v. New York State Office of Mental Health, held that an employer must withhold taxes (Federal, state and local) from judgments paid to an employee relative to claims for discrimination. Indeed, an employer who fails to do so can be held personally liable for the amount it should have withheld.
In 2011, the United States Supreme Court held in Thompson v. North American Stainless that an employer may violate Title VII by retaliating against an employee who is related to a worker engaged in conduct protected by Title VII—even if the employee himself neither raised a claim of discrimination nor engaged in any protected conduct. Click here to read an alert we wrote on this topic. Since then, some jurisdictions have interpreted Thompson to protect employees and applicants from discrimination, as well as retaliation, based on their close relationship with a member of a protected class.
These cases turn on whether the close associate of the applicant or employee falls within a protected class. Finding that “alienage” is not a protected category, the United States Court of Appeals for the Seventh Circuit recently held that the spouse of an undocumented alien is not protected from termination based on her husband’s unauthorized status.
“Caregiver responsibilities” is not a protected category under federal fair employment practice laws, meaning that it is not unlawful to discriminate against individuals with caregiving responsibilities. Nevertheless, the EEOC has historically taken the position that such discrimination may be unlawful, if and to the extent stereotyping or other forms of disparate treatment are implicated. Recently, the EEOC has signaled a renewed interest in drawing attention to, and pursuing claims related to caregiver responsibility discrimination.
Employee is Not "Substantially Limited" Under the ADA When He is Able to Work a 40-Hour Week But No Overtime.
Some people just can’t catch a break. In recent years, this was certainly true of Michael Boitnott, an employee of Corning Incorporated. Mr. Boitnott, a maintenance engineer, worked a schedule that was typical for similarly-situated co-workers, which included twelve-hour shifts, alternating bi-weekly between day shifts and night shifts. Throughout 2002 through 2004, Mr. Boitnott experienced health problems for which he was periodically absent from work, including abdominal pain, a heart attack with further cardiac difficulties, and leukemia. In February 2004, following his leukemia-related absence, Mr. Boitnott regained his health and told Corning he was ready to return to work. According to his physician, however, Mr. Boitnott was limited to working a typical 40-hour, day-shift workweek without overtime. Thus, Mr. Boitnott could not return to his former schedule of twelve-hour rotating shifts.
Anyone who works frequently with employment counsel has heard the words “it depends” – it (the answer to a question) depends on the specific facts and circumstances at issue, which should be analyzed and discussed before a course of action is determined.
Two recent cases illustrate this point. Both cases arose out of similar, but not identical, situations.
On November 15, 2011, the Massachusetts House of Representatives passed An Act Relative to Gender Identity, by a vote of 115 to 37. The next day, the bill was passed in a voice vote by the Massachusetts Senate. If Governor Patrick signs it, which he is expected to do, the Transgender Act will go into effect on July 1, 2012.
California's DFEH Drops The Disability Discrimination Hammer - Largest Administrative Award In Its History
On September 12, 2011, the California Department of Fair Employment and Housing (“DFEH”) announced its largest-ever administrative award of $846,300 (and no, that’s not a typo) against electrical supplier Acme Electric Corporation (“Acme”) for firing an employee, Mr. Charles Richard Wideman, because he had cancer.
Here is what happened...
On September 8, 2011, President Obama addressed a joint session of Congress, during which he unveiled a comprehensive jobs plan aimed at spurring job creation and jump-starting a stalled economy. The President’s proposal includes a provision banning companies from refusing to hire unemployed workers.
In this day and age, all employers know that sexual harassment in the workplace is wrong. Right? Not so fast. If the allegations set forth in a case filed in in Utah on August 4, 2011 prove to be true, there is at least one supervisor out there who simply does not get it.
As alleged by Trudy Nycole Anderson, a former employee of Lone Peaks Control, Inc., her direct supervisor subjected her to unlawful sexual harassment. The supervisor’s alleged behavior included: frequent references to Ms. Anderson’s body; unwanted sexual touching; soliciting Ms. Anderson for sex; and viewing pornography on his office computer. Ms. Anderson further asserts that the company failed to take reasonable and necessary steps to promptly correct or prevent the harassment, and retaliated against her for asking that the behavior be stopped.