Harassment has long been an Achilles’ heel of the workplace. Believe it or not, like the NCAA’s tournament TV ratings, the number of harassment-related lawsuits has held rather steady since the 1990s!  And like most NCAA tournament games, the workplace can often be fast-paced and exhilarating, but it requires participants to play by the rules and when conduct goes out of bounds, participants must be benched or even ejected.  In this regard, an employer must ensure that it has (1) the right players-personnel; and (2) systems in place not just for a successful season here and there, but for sustainable success over time that allows it to compete for the championship year after year.  So what does this look like?

Continue Reading March Grabness: Lessons from the (Basketball) Court: Avoiding Personal Fouls, Violations and Time Outs in the Workplace

Being connected to not just your friends, but their friends and their friends’ friends (it’s all six degrees of separation, right?) means that it’s become increasingly hard to stay anonymous when using an online dating platform.  Just ask one recent male user of OkCupid who made vulgar and inappropriate comments to a female user.  Her response?  Post the conversation and the man’s profile picture to her Facebook account.  He insulted her, she publicized him.  So far, there are no legal implications.

Her friend, an independent recruiter for tech startups, saw the post and recognized the man’s profile picture.  As it turns out, it was also his LinkedIn profile picture, and he had just applied for a position with one of her clients.  Her response?  Withdraw his application from consideration and tell him to treat women better online.  He insulted her friend, she withdrew his application for employment.  Here is where the criticism started.

The question: Can a recruiter reject a potential applicant based on inappropriate comments made on a dating site?

Continue Reading Inappropriate Social Media Activity Dooms Job Applicant’s Prospects

Just last month, two federal district courts reached different conclusions, further contributing to the confusion as to whether notes taken during a Human Resources department investigation of a discrimination or harassment complaint are protected from disclosure in subsequent litigation. Continue Reading Are Your HR Investigation Notes Protected Against Disclosure? Maybe, Maybe Not.

My colleague David Barmak, was quoted in a SHRM article entitled, Justices Question Whether EEOC Should Pay $4.7M in Attorney Fees, in which he examines the potential advantages for employers if the EEOC is required to reimburse a trucking company for legal fees incurred in connection with a sexual harassment lawsuit.  The article outlines the nature of the suit, the grounds for its dismissal and the nuances of the 8th U.S. Circuit Court’s initial decision to reverse the award of fees.

 

“They’re beautiful.  They’re charming.  And they’re bringing drinks.  She moves toward you like a movie star, her smile melting the ice in your bourbon and water.  His ice blue eyes set the olive in your friend’s martini spinning.  You forget your own name.  She kindly remembers it for you.  You become the most important person in the room.  And relax in the knowledge that there are no calories in eye candy.  Part fashion model, part beverage server, part charming host and hostess.  All impossibly lovely…On a scale of 1 to 10, elevens all…The memory of their warm, inviting, upbeat personalities will remain with you long after the vision has faded from your dreams.”

Do we have your attention yet?

Continue Reading NJ High Court Declines to Review “Borgata Babes” Case, Effectively Doubling Down on Appellate Court’s Acceptance of Atlantic City Casino’s Stringent Rules on Grooming, Dress and Weight Gain

New York Governor Andrew Cuomo recently signed a series of bills entitled the “Women’s Equality Agenda” that significantly amend the State’s equal pay, sex discrimination, harassment and other laws to provide additional protections for women in and outside the workplace. Among other changes, the amendments broaden the definition of “equal work” for equal pay, add “familial” status as a protected class, require employers to accommodate pregnant workers, authorize treble damages for willful violations, provide sex discrimination plaintiffs with a new right to attorneys’ fees and apply the law’s prohibition on sexual harassment to all employers regardless of size.  The amendments, which we briefly summarize below, take effect on January 19, 2016.

Continue Reading New York State Employers Face Strict New Equal Pay and Sex Discrimination Laws

In Precia Jones v. SEPTA, the Third Circuit Court of Appeals last week joined six sister courts in finding that a suspension with pay typically does not constitute an “adverse employment action” within the meaning of Title VII and analogous Pennsylvania law.

Continue Reading Third Circuit Joins Sister Courts in Finding Suspension with Pay is not an “Adverse Employment Action” Within Meaning of Discrimination Laws

The New York City Human Rights Law specifically says that an employer’s agent can be held liable for discrimination, but its liability provision doesn’t address the circumstances under which that agent may be held liable for the discriminatory actions of the agent’s employee.  A New York Federal Court has now addressed this gap in the law.

Continue Reading New York Federal Court Applies New York City Human Rights Law’s Liability Provision to Employer’s Agent

In Aguas v. State of New Jersey, the New Jersey Supreme Court recently adopted an affirmative defense—available under federal law since 1998—allowing employers to use their anti-harassment policies to limit vicarious liability under the New Jersey’s Law Against Discrimination (LAD) to the employer for a supervisor’s harassment.  At the same time, however, the Court adopted the more expansive definition of “supervisor” used by the EEOC as opposed to the narrower definition adopted by the U.S. Supreme Court in 2013.

Continue Reading You Take the Good, You Take the Bad: NJ High Court Offers Employers Avenue to Limit Vicarious Liability in Harassment Suits; But Broadens Definition of “Supervisor”

Written by Michael Arnold

This summer, those (31?) of us who watched Chris Pratt steal scene after scene in Parks & Recreation saw him ripen into the star we always hoped he’d become. First he charmed audiences as the voice of Emmett in the Lego Movie (you know, the one that easily broke the record for most references that went over your kid’s head in a G-rated movie). Then he dazzled audiences as Peter Quill, the fun-loving action hero, in the top-grossing movie of the summer Guardians of the Galaxy. Overall, an unexpected, but welcomed surprise.

Also unexpected, but a welcomed surprise: the California Supreme Court siding with an employer in a wage and hour class action case.

Continue Reading Employment Law Summer Recap 2014: Part 4 of 11 – Chris Pratt and Unexpected Surprises in Hollywood and the World of California Employment Law