California Streamin’. Gov. Jerry Brown has either signed into law or allowed to take effect a torrent of new employment laws that will take effect January 1. Nestor Barrero of our LA-Century City Office has a summary of the significant ones, with recommendations for employers with operations there. Check it out!

Travel Ban 3 has been blocked. First, a federal court in Hawaii blocked President Trump’s September 24 travel ban Proclamation, which replaced the travel ban Executive Order that he issued on March 6 (“Travel Ban 2”).

Words fail me. Let’s just say that I hope he is sincere about getting the help he needs to turn his life around.

Which, among other things, should include trying to make some form of restitution to his allegedvictims. (None of this ridiculous “atonement by fighting the NRA.”)

There are more Weinstein stories than I can link to, but here are the two original sources: The article by Jodi Kantor and Megan Twohey in The New York Times is here, and Ronan Farrow’s excellent and very disturbing article in The New Yorker is here.

Mr. Weinstein, through a spokesperson, has denied engaging in any non-consensual sexual relations or retaliating against anyone who refused his advances. The full denial is in the video, below.

Here are my eight takes from an employment law and Human Resources perspective:

No. 1: “Quid pro quo” harassment is just a fancy word for extortion — where the prize is sex, instead of money or property. When an employer threatens to terminate (or otherwise punish) an employee for refusing sexual advances, or promises to hire (or otherwise reward) her for participating, then that is extortion. (I’m using “she” and “her” for convenience, but men can be victims, too.) In the ordinary employment context, an employer is strictly (automatically) liable if a supervisor or manager engages in this type of harassment.

Trump’s travel ban scores one with the SCOTUS. This week, in a victory for the Trump Administration, the U.S. Supreme Court dismissed as moot one of the two pending challenges to the March 6 travel ban issued by the Administration and vacated the lower court decision striking down the ban. (That March 6 travel ban has since been replaced by a September 24 travel ban.) Will ...

The freedom of speech afforded by the First Amendment is remarkably broad. Several categories of speech, including even “hate speech,” are afforded varying degrees of protection.

However, the freedom of speech guaranteed by the First Amendment is not without limits, even for public sector employees. Governmental employees who voice their opinions — even on matters of legitimate public concern – are well served to choose their words, as well as the times and forums in which they communicate those words, very carefully.

Just ask Michael Todd Snipes, a former law enforcement captain for the Beach Safety and Ocean Rescue Department in Volusia County, Florida. Capt. Snipes was fired for making racially insensitive comments on his Facebook page and in group text messages sent to several of his fellow officers.

In freedom of speech cases, the context in which a thought or idea is communicated often matters a great deal. Although there is never a good time to make racially insensitive remarks, Capt. Snipes’ timing was particularly ill-considered.

Last month, I had the pleasure of speaking to the Federal Bar Association about hot topics under the Americans with Disabilities Act with my blogging buddy Bill Goren, proprietor of the Understanding the ADA blog. If you haven’t visited Bill’s blog, you should — he covers all aspects of the ADA, including Titles II and III, as well as the employment provisions (Title I).

Here are four ADA (or ADA-related) areas that employers need to watch in the coming year:

Asserting that the U.S. Department of Justice “must interpret Title VII as written by Congress,” the DOJ is reversing the Obama-era interpretation of Title VII, taking the position that Title VII does not prohibit discrimination based on gender identity.

In a memorandum issued this week by Attorney General Jeff Sessions, the DOJ formally withdrew a 2014 memorandum by then-Attorney General Eric Holder taking the contrary position.

Attorney General Sessions contends that transgender individuals are protected from discrimination based on sex, but not based on “gender identity per se.” He noted that Title VII refers only to discrimination based on “sex,” which is “ordinarily defined to mean biologically male or female.” He also noted that Congress had specifically referred to gender identity in other contexts, indicating that it would have done so in Title VII had that been its intent. Finally, he said that Title VII did not prohibit treatment “that [took] account of the sex of employees but [did] not impose different burdens on similarly situated members of each sex,” specifically referencing sex-specific bathrooms.

The memorandum concludes as follows:

The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals. Nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity, or to express a policy view on whether Congress should amend Title VII to provide different or additional protections. Nor does this memorandum remove or reduce the protections against discrimination on the basis of sex that Congress has provided all individuals, including transgender individuals, under Title VII. . . . The Department of Justice has vigorously enforced [federal laws specifically protecting transgender individuals], and will continue to do so, on behalf of all Americans, including transgender Americans.

The DOJ position is not a surprise, given that it recently submitted a “friend of the court” brief making roughly the same arguments in a sexual orientation discrimination case.

The U.S. Customs and Immigration Services has resumed the “priority processing” option for all H-1B applications. Jeanette Phelan of our Jacksonville Office has the details here.

Image Credit: From flickr, Creative Commons license, by Jelene Morris.

The Affirmative Action and OFCCP Compliance Practice Group will be launching its own new blog, Affirmative Action Edition, later this month. During the brief intermission, get yourself a treat!

Father, you kiss your mother with that mouth?

“Father, I’m appalled!”

The recent dismissal of a lawsuit in New York — involving a priest who is principal at a Catholic high school —  illustrates why an (alleged) “equal opportunity offender” is better than a discriminatory one.

But that’s not to say it’s good.

Father Michael Reilly — as well as his school, the Archdiocese of New York, Cardinal Timothy Dolan, and Father Reilly’s two alleged “henchmen” — were sued by a guidance counselor and two teachers for harassment and discrimination based on age and sex under the New York Human Rights Law, and for defamation.

(WARNING: If you expect priests to conduct themselves a certain way, you may be unpleasantly surprised at what follows.)

Among other things, the lawsuit alleged that Fr. Reilly did the following:

*Used the “F” word — all the flippin’ time.

*Referred to individual women as “bi*ches” and “tw*ts,” and to women collectively as a “tw*teria.”

*Said that he would kick an African-American teacher “back to the jungle.”

*Said that he would kick an employee with cancer “to the f***ing curb.”

*Said about an older employee who was ill and later died, “F*** crusty, she’s a vodka-shi**ing bi*ch that we don’t need.”

*Called an administrator a “fat fa**ot.”

There is a change.org petition signed by 2,192 people asking the Archdiocese to remove Father Reilly from his position.

Father Reilly denies having said any of these things.

Because the motion to dismiss was filed at the very beginning of the lawsuit, the court had to assume that everything alleged by the plaintiffs was true.

The defamation claim — based on Fr. Reilly’s loudly asking the guidance counselor whether he was a pedophile — was not valid, the judge said, because the priest was not saying the guidance counselor was a pedophile but only asking. (Long story, but it makes sense in context.)

This week, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit held that a “multimonth leave of absence is beyond the scope of a reasonable accommodation” under the Americans with Disabilities Act.

In doing so, the court rejected longstanding guidance from the Equal Employment Opportunity Commission that a long-term medical leave is a reasonable accommodation when the leave is (1) definite and time-limited (not open ended); (2) requested in advance; and (3) likely to enable the employee to perform the essential job functions on return. Noting that under the EEOC’s position “the length of leave does not matter,” the court characterized it as an “open-ended extension” of leave under the Family and Medical Leave Act.

Robin Shea has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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