On April 25th, federal lawmakers reintroduced the latest version of the Employment Non-Discrimination Act (“ENDA”) in both the House and Senate. If passed, ENDA would prohibit covered employers from discriminating against employees and applicants on the basis of their sexual orientation or gender identity. ENDA is certainly not new legislation. ENDA, in one form or… Continue Reading
Category Archives: Discrimination
Subscribe to Discrimination RSS FeedDistrict Court Finds That an Employee May Be Lawfully Terminated for Misconduct Caused by a Disability
Posted in Disability, Discrimination, Labor, Trade SecretsOn March 4, 2013, the United States District Court for the Southern District of Florida, in the matter of Foley v. Morgan Stanley Smith Barney, LLC, Case No. 0:11-cv-62476-WILLIAMS, entered summary judgment in favor of employer Morgan Stanley, and against one of its former financial advisors, Ryan Foley, and held that an employee may lawfully be terminated for misconduct, even… Continue Reading
New Jersey Federal Court Cautions Employers When Responding to Even Routine Demand Letters
Posted in Discrimination, LitigationThough it has long been a common practice for in-house counsel to respond to routine (and not so routine) demand letters, a recent New Jersey District Court decision should cause in-house counsel serious concern when doing so in the future. In Bourhill v. Sprint Nextel Corp., the Court allowed into evidence a portion of a letter written by an in-house attorney, prior to the action’s commencement, explaining why counsel’s position was factually meritless, but offering to entertain counsel’s invitation to resolve the matter so as to avoid litigation (the Court opinion is attached for your convenience). And this decision affects in-house counsel’s exchanges not only in the employment context, but also extends to all litigation.
Good News From the California Supreme Court on Mixed Motive Discrimination Cases…at Least for Now
Posted in Discrimination, Litigation, State LawIt is an age old litigation problem. The employee engaged in conduct the employer found sufficient for termination. The employee claims that was not the real reason and points to alleged discriminatory acts. How does one decide the issue? As importantly, from an HR perspective, how does the employer assess risk as no workplace is… Continue Reading
Can Volunteers Sue For Discrimination?
Posted in DiscriminationIn certain organizations, particularly non-profit organizations, volunteers perform services for the organization. In a recent case in the Northern District of Illinois (Volling v. Antioch Rescue Squad, 1:11-cv-04920 (N.D.Ill. Dec. 4, 2012)), the court was faced with the question of whether members of a volunteer rescue squad could sue the relevant service organizations for sexual… Continue Reading
After Nearly 25 Years, New Jersey Appellate Court Provides ‘Sobering’ Guidance to Employers Respecting Workplace Alcoholism
Posted in DiscriminationOn October 26, New Jersey’s Appellate Division held in A.D.P. v. ExxonMobil Research & Engineering Co. that a private-sector, non-union employer’s blanket policy requiring any employee returning from an alcohol rehabilitation program to submit to random alcohol testing, applicable only to those identified as being “alcoholic” and divorced from any individualized assessment of the employee’s performance, was facially discriminatory under the Law Against Discrimination (LAD) — a conclusion that would likely be the same under the federal Americans with Disabilities Act (ADA).
New Jersey Enacts New Pay Equality Poster and Notice Law
Posted in DiscriminationNew Jersey Governor Chris Christie recently signed into law Assembly Bill No. 2647. This bill requires New Jersey employers with 50 or more employees (total number employed – not just in New Jersey) to post a notice informing employees of their “right to be free from gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment” under New Jersey’s Law Against Discrimination (NJLAD) and other state antidiscrimination statutes.
Accommodation
Posted in Disability, DiscriminationThe Seventh Circuit recently examined whether an employee could assert disability discrimination based on a failure to accommodate where a non-disabled employee requested an accommodation to care for her disabled child. Magnus v. St. Mark United Methodist Church, No. 11-3767 (7th Cir. August 8, 2012). In the case, the employee sought an accommodation to take… Continue Reading
Restrictions on Credit Checks Coming Soon to a State Near You
Posted in DiscriminationNew Jersey may become the 8th state to prohibit the use of credit checks in the employment process. Employers, particularly those with multi-state operations, need to review their current background check procedures and make sure that they are consistent with the ever-changing laws governing job applicants and employees.
Employers Can be Held Liable for Failing to Protect Employees From Sexual Harassment Based on Sexual Orientation
Posted in Discrimination, Harassment, Litigation, State LawIn a unanimous decision due to be published on May 15, the Connecticut Supreme Court has ruled that employers can be held liable for failing to protect employees from harassment based upon sexual orientation. In Patino v. Birken Manufacturing Company, a former employee of the jet engine component maker Birken Manufacturing, Co. accused the company of… Continue Reading
EEOC Says That Criminal Screens Must Be Job-Related
Posted in Discrimination, EEOCYesterday, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued ”Updated Enforcement Guidance,” reminding employers that screen applicants’ criminal backgrounds that they must prove that any use of information acquired through such screens is job-related to avoid potential discrimination suits. The Enforcement Guidance states that an employer accused of violating Title VII will have to carry the burden of proving… Continue Reading
California Enacts Two Trans Rights Bills
Posted in Discrimination, Legislation, State LawLast week, California Governor Jerry Brown signed into law the Gender Non-Discrimination Act (AB 887), which changes the language of the state anti-discrimination law to specifically include gender, gender identity and gender expression as enumerated protected categories. The governor also signed into law the Vital Statistics Modernization Act (AB 433), which streamlines the process by which transgender individuals may correct the gender marker on their birth certificates.
Seventh Circuit Allows Supervisor to be Comparator of Plaintiff in Discriminatory Discharge Case
Posted in DiscriminationIn Rodgers v. White (No. 10-3916), decided on September 2nd, the Seventh Circuit reached the unusual result of allowing a plaintiff to use his supervisor as a comparator in a comparative discipline case alleging race discrimination. The result is important because the Seventh Circuit had previously indicated in several cases that supervisors are typically poor… Continue Reading
New York City Adopts More Stringent Standard for Showing “Undue Hardship”
Posted in DiscriminationNew York City has adopted a new, higher standard that employers must meet if they decline to accommodate an employee’s religious observance or practice on the grounds that the accommodation would constitute an “undue hardship.” On August 30, 2011, Mayor Bloomberg signed Local Law 54, which amended the definition of undue hardship in the New York… Continue Reading
Arizona Must Continue Offering Benefits to Same-Sex Partners of State Employees
Posted in Benefits, Constitution, Discrimination, Legislation, State LawLast Tuesday, the Ninth Circuit upheld an injunction that blocked an Arizona law that would have eliminated health care benefits for same-sex partners of state employees. Before 2008, health insurance benefits for dependents of Arizona state employees were available only to the spouses and children of those employees. In April of 2008, then-Governor Janet Napolitano implemented… Continue Reading
Connecticut Becomes 15th State to Ban Discrimination Against Transgender Employees
Posted in DiscriminationFifteen states prohibit discrimination against transgender people in the workplace now that Connecticut has added gender identity and expression to its existing anti-discrimination law. Connecticut Governor Dan Malloy signed the legislation (HB-6599 or “An Act Concerning Discrimination“) earlier this month, and it becomes effective October 1, 2011. The new law defines gender identity and expression as ”a person’s gender-related identity, appearance or behavior, whether or not that gender-related… Continue Reading
Nevada outlaws job discrimination against transgender individuals
Posted in DiscriminationNevada is the 14th state to make it illegal for employers to discriminate against transgender people in the workplace. On Tuesday, May 24, Nevada Governor Brian Sandoval signed into law AB211, which adds gender identity and expression to the State’s existing anti-discrimination statute. “Gender identity or expression” is defined by the statute as “a gender-related identity, appearance, expression or… Continue Reading
The Unemployed: A New Protected Group? New Jersey Bans Hiring Bias Against The Unemployed In Employer Want-Ads And The EEOC Is Watching
Posted in Discrimination, State LawBeginning June 1, 2011, New Jersey employers will be prohibited from publishing job advertisements that reflect bias against unemployed individuals. The new law, N.J.S.A §§ 34:8B-1, -2, prohibits employers, directly or through an agent, from knowingly or purposefully publishing (in print or on the Internet) job advertisements stating that: (i) current employment is a qualification for the job;… Continue Reading
The Ever Increasing Size of Class Action Lawsuits
Posted in Discrimination, LitigationRecently, it seems, class action lawsuits against employers are getting bigger. Firms that in representing plaintiffs are targeting companies with class action litigations, in particular lawsuits alleging gender discrimination. These lawsuits allege gender discrimination against a few women combined with evidence designed to show a pattern of discrimination against women throughout the company to create a plaintiff… Continue Reading
Transgender Man Challenges Firing From Male-Only Job
Posted in Discrimination, LitigationA job discrimination suit recently brought under the New Jersey Law Against Discrimination (“NJLAD”) challenges an employer’s decision to terminate a transgender man from a “male-only” position. Urban Treatment Associates in Camden, New Jersey, hired El’Jai Devoureau as a part-time urine monitor, but terminated him after his supervisor discovered that his assigned sex at birth… Continue Reading
The Trouble With Background Checking
Posted in DiscriminationAn issue arising more frequently recently concerns the use of background check results in making decisions regarding hiring and termination of employees. Some commentators believe the frequency with which the issue has arisen is a result of more regular use of background checks, the greater relative ease in checking individuals’ employment, credit and criminal history,… Continue Reading
Customer Preference Not Justification for Discrimination
Posted in DiscriminationLaws prohibiting discrimination trump patient preference regarding the race of health care providers, the Seventh Circuit recently ruled in Chaney v. Plainfield Healthcare Center, a case decided July 20, 2010. Brenda Chaney, a black certified nursing assistant (CNA), sued her former employer nursing home where a resident in her unit demanded white-only health… Continue Reading
Discipline of Employees Who Have Engaged in Protected Activity
Posted in Discrimination, WhistleblowerLots of laws prohibit an employer from firing or taking some other adverse action against an employee based on the employee’s protected conduct, status, or activity. But what happens when you discover an employee’s misconduct only because he or she engaged in protected activity? The U.S. Court of Appeals for the Eleventh Circuit recently answered… Continue Reading
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