Wednesday, February 26, 2014

Another One Bites the Dust . . . Texas SSM Ban Struck Down

I guess I feel some kind of obligation to keep reporting these decisions. Earlier today, a federal judge in Texas struck down the state's ban on same-sex marriage as unconstitutional. You can read the decision here. And, of course, the obligatory link explaining why this matters to Pennsylvania employers here.

Tuesday, February 25, 2014

EEOC Charge Data and Chart FY2013

Earlier this month, the EEOC released its charge statistics through FY2013. The headline is a no-brainer: total charges dropped by almost 6%. As you can see in my handy dandy chart, charges dropped across all of the major categories:

However, my chart does not show retaliation claims. Retaliation charges actually increased. Retaliation claims have increased every year since FY2005. GINA claims also increased this year, but there were still only 333.

One thing that sticks out about the drop in charges is a disproportionately large drop in sex discrimination charges. I have no theory about what's causing that - but sex discrimination charges dropped by almost 9% to the lowest number since FY2007.

I will have some more commentary on the EEOC and the charge stats in an upcoming spot on Bloomberg (don't worry, I'll shamelessly plug it when it runs so you won't miss it).

Body Odor Fails to Establish Pretext

Hannoon v. Fawn Engineering Corp. out of the 8th Circuit starts off like a pretty routine discrimination case. The plaintiff claims he was fired based on his race and national origin. The employer counters with a legitimate non-discriminatory reason, here his poor performance. And the burden shifts to the employee to establish that the proffered rationale was pretext.

Here's where things get interesting. The Court turns to the issue of . . . body odor?
First, [the employee] argues that the confrontation concerning body odor demonstrates animus concerning race or national origin. We disagree. Because the comments regarding body odor did not suggest any reference to race or national origin, we are unwilling to hold such comments reasonably capable of supporting an inference of discriminatory intent. 
[The employee] attempts to bolster his argument on this point by noting that Wayne did not need to confront him, but rather could have referred him to Fawn's employee medical assistance program. As an initial matter, while we understand that comments from a supervisor to a subordinate concerning the delicate issue of body odor are, no doubt, distressing to all involved, we do not believe that a reasonable jury could find such comments to be race-based, inherently discriminatory, or the type of matter that requires referral to a medical assistance program. Further, there is no evidence that [the employee's] body odor problem was a medical issue rather than merely an issue of personal hygiene.
Apparently, complaints about body odor do not establish pretext. The 8th Circuit affirmed the district court's grant of summary judgment for the employer.

HT: Thanks to my colleague Janine Gismondi for alerting me to this case.

Wednesday, February 19, 2014

Gender-Neutral Employee Called "Miss" and "Lady" Files Lawsuit

A former Bon Appetit Management Co. employee is suing "their" former employer for using the wrong pronouns:
Valeria Jones alleges in a lawsuit that co-workers repeatedly called Jones “miss,” “lady” and “little lady” despite explanations that Jones “was not a female or a male and that the term was unwelcome.” . . . . The lawsuit, filed this week in Multnomah County Circuit Court (Oregon), says Jones preferred to be addressed by a general neutral pronoun.
The lawsuit apparently fails to include the employee's preferred terminology. We can speculate gender neutral terms like "their" (a plural that is catching on as a gender-neutral singular). This article mentions "zie" - a gender neutral term I have never heard of before.

Transgender issues are often tricky because many people are unfamiliar with the terminology and have little if any exposure to transgender individuals. I think a good general rule is to just call the employee whatever the employee wants to be called (unless it's a racial slur or something that would present its own liability issues).

As I have blogged previously, transgender/gender identity discrimination will most likely be treated as sex discrimination by courts.

e-Filing Now Available for Commonwealth Court of Pennsylvania

Sound the trumpets! Cue the confetti! A momentous occasion occurred yesterday . . . I filed an appellate brief with the Commonwealth Court of Pennsylvania. Sounds uneventful, but here's the catch: I filed it electronically!

Earlier this year, the Commonwealth Court began allowing e-filing through PACFile. The Commonwealth Court is a mid-level appellate court that reviews certain types of cases - most notably for me, it handles appeals from the Unemployment Compensation Board of Review.

This is really a great convenience. You don't need to worry about catching the mail carrier, crossing your fingers on overnight deliveries, or worst-case-scenario: the dreaded run to the courthouse to file it in person. Hopefully we'll get all Pennsylvania courts on this system. Of course, for federal courts we already have PACER. Neither system is perfect - but both surely beat physical delivery.

Monday, February 17, 2014

Employment Rejections Prompt Cat-Poop Response

How about a little fun to start off the week? This story involves employment, and the law. I wouldn't go so far as to call it employment law per se . . . but the rules are a little lax around here.

The NY Daily News Reports: Man mails employers cat poop after they reject him for job. I don't recommend this for many reasons - it's gross, it burns bridges, blah blah blah . . . oh, and it's apparently a crime the NY Daily News calls "mailing injurious articles."

Happy Monday!

Saturday, February 15, 2014

Judge Strikes Down Virginia Same-Sex Marriage Ban

Marriage laws often overlap with employment laws, including FMLA, ERISA, and tax laws. I have previously explained how out-of-state marriage laws impact employers in Pennsylvania (which does not currently recognize same-sex marriages).

Well, Virginia just got a little more complicated as a judge struck down its ban on same-sex marriage. I lived in Virginia when this law was passed by voter referendum (I voted against it, if you're wondering). I should probably note that courts recently struck down similar prohibitions in Utah and New Mexico.

It's starting to look the writing is on the wall on this issue, but the United States still has some holdouts (notably, my state of Pennsylvania). If you're an employer in a holdout state, you need to keep tabs on what other states are doing for now.

One final note, the original opinion striking down Virginia's law included a humiliating gaffe - the judge quoted the Declaration of Independence and attributed it to "our Constitution." D'oh!

Thursday, February 13, 2014

EEOC vs. Separation Agreements

The EEOC filed a lawsuit last week that has been making some waves. Basically, the Complaint (available here) alleges that seemingly routine clauses in CVS's separation agreements (copy attached to Complaint) violate Title VII.

The challenged clauses include:
  • Cooperation - The Complaint highlights language requiring the employee to notify CVS general counsel if an investigator contacts the employee about an administrative investigation;
  • Non-Disparagement;
  • Non-Disclosure of Confidential Information - The clause covers personnel information, wages and benefits structures, and affirmative action plans;
  • General Release of Claims - Complaint emphasizes that it includes "any claim of unlawful discrimination of any kind."
  • No Pending Actions; Covenant Not to Sue - This clause prohibits the employee from initiating any action covered by the general release - plus, the employee agrees to cover the employer's legal fees for any breach.
The EEOC claims the separation agreements limit and interfere with an employee's right to file charges with the EEOC, and cooperate and participate in an investigation. 

The EEOC acknowledges that the covenant not to sue includes an exception for an employee cooperating with agency (like the EEOC) enforcement and investigation. The EEOC seems to take issue with this exception only applying to the covenant not to sue.

I bet Jon Hyman loves this case . . . oh wait, actually his exact words were "OH MY GOD, THIS CASE COULD BE RUINOUS!!!" He does, however, offer up a solution (spoiler alert: it's essentially a disclaimer like the exception in the Covenant Not to Sue, but applicable to the entire agreement). That sounds like a plan to me.

Dan Schwartz agrees with Jon that this case is a big deal. He offers up some additional solutions (spoiler alert: a severability clause, and a "blue pencil" clause).

Of course, the Court may just tell the EEOC to shove it and you won't need any of these clauses. I tend to include severability clauses in my agreements, and don't see any problem with the disclaimer Jon proposes. One thing I like about Jon's disclaimer (and it's something I usually include) is a clause that the employee will not accept any money/relief from an agency action.

Image: EEOC seal used in commentary on EEOC. Not official use.

Wednesday, February 12, 2014

Yoga Instructor "Too Cute" for Playmate and Husband

So, a yoga instructor filed a lawsuit late last year claiming she was fired for being "too cute." The defendants are a playboy playmate and her husband. I know, I know, you want to see the goods. Well here you go (it's a link to the Complaint, what else would it be?).

If for some reason you want to see pictures of the parties, they're here. And no, not *those* pictures. You can find those yourself (but they probably require a subscription).

The lawsuit is framed as a gender discrimination/sexual harassment lawsuit. The plaintiff basically claims she was fired because the playmate was jealous and suspected something was going on between her husband and the yoga instructor (which she denies).

Does this sound familiar? I think we have Iowa case law on point here. Remember the "irresistible" dental assistant? The Court concluded it was lawful for an employer to fire a woman because his spouse was concerned about the nature of their relationship.

That's not binding on New York courts (where this lawsuit was filed) though. The defendants here argue that terminating someone for "attractiveness" is not illegal (but you already knew that because you clicked the link with the pictures).

Maybe the "too cute" yoga instructor, the "irresistible" dental assistant, the "too hot" banker, and the "too busty" data entry specialist should start a non-profit to protect the extraordinarily attractive in the workplace. Or perhaps lobby for legislation on this issue . . . .

Tuesday, February 11, 2014

Another Obamacare Employer Mandate Delay

I suppose this warrants another blog entry. Although, let's be honest . . . at this point it would be more surprising if the administration actually started enforcing the law as written. In any event, another day, another Obamacare delay.

As the linked LA Times article explains, the employer mandate will now be phased in until 2016:
Under the latest regulations, only employers with more than 100 full-time workers will have to pay fines next year and only if they do not cover at least 70% of those workers. 
In 2016, when the full mandate takes effect, employers with more than 50 full-time employees will have to provide insurance to at least 95% of their employees.
I don't think I need to tell you, but stay tuned! Who knows what changes will pop up next.

Monday, February 10, 2014

Fired for What!? - Sports Edition

Happy Monday! To ease you back into the week, we have a special sports-themed triple feature of Fired for What!?

Thiago Silva's SWAT team standoff - UFC fighter, Thiago Silva was arrested by a SWAT team after he barricaded himself in his house. The incident apparently began with Thiago Silva threatening to shoot everyone at a gym where the owner apparently "dates Silva's wife." Per UFC President Dana White, "This guy will never fight in the UFC again!"

Peeing out the car window - Oklahoma State threw Stephen Clark off the basketball team after police arrested him for allegedly urinating out of a moving car. It has been a tough few days for Oklahoma State, which just suspended a different basketball player for shoving a fan. Of course, everyone knows student athletes are not employees . . . well, everyone except for the Northwestern Football team and this labor law prof.

A-Rod drops lawsuit - Not a firing, but one helluva suspension. A-Rod (or, as he's affectionately known in some circles, A-Frod or A-Roid) received a one-season suspension for allegedly using performance-enhancing drugs. He had filed a lawsuit seeking to overturn the grievance arbitration results upholding his suspension. He withdrew the lawsuit and will take the suspension.

Wednesday, February 5, 2014

NLRB Proposes Amendments to Election Rules

The National Labor Relations Board (NLRB) issued a press release today: The National Labor Relations Board Proposes Amendments to Improve Representation Case Procedures. The press release includes a bullet-point version of the highlights:
  • allow for electronic filing and transmission of election petitions and other documents;
  • ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process; 
  • streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation; 
  • include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and 
  • consolidate all election-related appeals to the Board into a single post-election appeals process.
The release notes that these are similar to proposals from 2011 - I assume the Board is just dotting its i's and crossing its t's in case it turns out the NLRB didn't really exist back then (long story, see generally, Noel Canning pending before SCOTUS) - the release also notes a district court decision specifically invalidating
the rule and a joint stipulation dismissing the appeal.

Image: NLRB Seal used in commentary on NLRB. Not official use.

Receipt of UC Benefits Not Enough to Rebut Non-Retaliatory Reason

The Commonwealth Court of Pennsylvania recently decided a claim under the Whistleblower Act in Evans v. Thomas Jefferson University, 81 A.3d 1062 (Pa. Commw. Ct. 2013). In many ways, the case was uninteresting - Plaintiff couldn't establish a causal connection, couldn't establish that she engaged in protected activity, and lost accordingly.

The Court did touch on one interesting issue though:
[Plaintiff] also argues that the decision of the Unemployment Compensation Board of Review that she was entitled to unemployment benefits shows that there are material issues of fact as to whether her discharge was retaliatory. We do not agree. The issue in the unemployment case was whether [her] behavior rose to the level of willful misconduct sufficient to deny her benefits, not whether [Defendant] had a legitimate reason for discharging her. See Webb v. Unemployment Compensation Board of Review, 670 A.2d 1212, 1215 (Pa.Cmwlth.1996). Nothing in the unemployment decision suggests either that [Plaintiff] was discharged for any reason other than the co-worker's complaint or that [Defendant] did not believe that [she] had acted rudely to the co-worker. Indeed, the Unemployment Compensation Board of Review found that “[d]uring the course of her employment, the claimant received warnings about rude behavior to others” and that Evans was discharged for the incident with the co-worker.
Id. at 1071-72 (record citations omitted).

If you're a plaintiff in an employment case, I still think you want that UC decision in your favor (certainly, you still want the benefits!). It shows that the employer has failed to establish that the employee was fired for "willful misconduct." But, that doesn't preclude the employer from showing that it had a legitimate non-retaliatory reason (a lower threshold).

In this case at least, the mere fact that the employee was receiving UC benefits was not enough to rebut the defendant's evidence of a legitimate non-retaliatory reason for her termination. The Commonwealth Court affirmed the trial court's grant of summary judgment in favor of the employer.

Tuesday, February 4, 2014

Comment on Ganulin . . . from Ganulin!

Around Christmas, I often blog about Ganulin v. U.S., the constitutional challenge to Christmas as a federal holiday. See. Is a Christmas Federal Holiday Constitutional? and Christmas and the Constitution. The posts have generated some nice dialogue, and I encourage people to chime in with their comments.

Well, I never expected to get a comment from the plaintiff, Richard Ganulin, himself! He sent me an email recently, noting that he came across my blog entries. He provided me with a very well thought out retort to my blog entry - his petition for writ of certiorari to the United States Supreme Court (available online here)(yeah, I realize he didn't draft it in response to my blog entry).

 He also directed my attention to James Kilpatrick's article on the case, Our Constitutional Christmas. Mr. Ganulin conveyed that he is not obsessed with the case, but still feels very passionately about the issue. He also thinks that removing the federal holiday would be beneficial to those who celebrate because "their holy day would again be holy."

I was very excited to receive his email, and continue to find this issue interesting.