This week in employment law. Continue Reading ›
Don't expect the EEOC to appeal. Continue Reading ›
Resistance is building. Continue Reading ›
I've been asking this a lot lately. Continue Reading ›
Whoa, Nelly! It's a stampede! Continue Reading ›
The bathroom battle (among others) continues. Continue Reading ›
It's not over. Continue Reading ›
The TL;DR version. Continue Reading ›
What's good for the goose . . . Continue Reading ›
What takes priority? Continue Reading ›
The teacher had a religious objection. Continue Reading ›
It's worth a read. Continue Reading ›
Could this catch on? Continue Reading ›
And opens up a can of worms. Continue Reading ›
The leagues are not necessarily of one mind. Continue Reading ›
Don't be surprised. Continue Reading ›
What should employers be watching for? Continue Reading ›
Here's what's been going on this week. Continue Reading ›
EEOC takes a stand on bathrooms and gender identity. Continue Reading ›
For $250 grand. Continue Reading ›
Test your knowledge! Continue Reading ›
And what employers need to do . . . assuming they haven't already. Continue Reading ›
The case will go on. Continue Reading ›
"Let's turn over -- a new leaf." Continue Reading ›
Two courts have said yes, but one now says no. Continue Reading ›
Who's the "swing vote," the "parade of horribles," and more. Continue Reading ›
According to the DOJ. Continue Reading ›
Happy holiday weekend! Continue Reading ›
The status, the arguments, and my predictions. Continue Reading ›
Most charges were down, but sex harassment, LGBT charges were up. Continue Reading ›
Sort of. Continue Reading ›
Here's a summary of what you may have missed over the holiday break. Continue Reading ›
Delayed again! Continue Reading ›
What are you thankful for this year? Here is my list. Continue Reading ›
We may know by the end of this month. Continue Reading ›
Hurry up and wait. Continue Reading ›
Commission adopts an expansive view of "sex." Continue Reading ›
The Colorado baker is going on offense. Continue Reading ›
Hively v. Ivy Tech is ovah! Continue Reading ›
But will the EEOC be allowed to defend? Continue Reading ›
Not a typo. Continue Reading ›
The state Civil Rights Commission broadens its interpretation of "sex discrimination." Continue Reading ›
Do it the old-fashioned way. Continue Reading ›
The Sixth Circuit decision seems overall correct, although it contains some "woke dicta," too. Continue Reading ›
Are you in the know? Continue Reading ›
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. Continue Reading ›
How much can you do - and not do - about your employees' personal appearance and grooming? Take this quiz and find out! As usual, I'll have the answers at the end, so if you get one wrong, no one but you will know.
QUESTION 1: If I operate in a jurisdiction that doesn't have a law against appearance discrimination, I can make any rules about appearance and grooming that I want.
TRUE
FALSE
QUESTION 2: My employees are required by OSHA to wear masks on the job. The masks are no good unless there is a proper seal around the employee's mouth and nose. Since facial hair prevents a good seal from forming, we have a no-beard policy. I have one employee who is Sikh and wears a beard for religious reasons. What should I do?
A. Let him keep his beard and pray that the mask will work without the proper seal.
B. Tell him he has to shave the beard off or lose his job.
C. Meet with him and explain that the mask is required by OSHA and the safety rationale for the rule. Talk with him about reasonable accommodations, which might include use of a different type of mask that works with a beard, or transfer to another position that doesn't require use of a mask. After you've talked and perhaps consulted with vendors or safety experts, make a determination of what to do that won't violate the law or endanger his safety while accommodating his beliefs as much as you can. Continue Reading ›
By David Phippen of our Metro D.C. Office.
While the year is still young, here are 15 New Year's resolutions that employers may want to make:
1. Make sure your "independent contractors" are really independent contractors. "Independent contractors" are under scrutiny by the Internal Revenue Service, the U.S. Department of Labor, the National Labor Relations Board, state and local agencies, plaintiffs' lawyers, and union organizers. A misclassification can cost you back taxes, back pay (including overtime), and back benefits, as well as penalties and interest.
2. Review your email policies. The NLRB recently found that employees generally have a right to use employer email systems during non-working time in support of union organizing and concerted activity. The Board's decision means that many employer email use policies, as currently drafted, would probably be found to violate the National Labor Relations Act if an unfair labor practice charge were filed or a union tried to organize employees and argued that the employer's email policy interfered with the organizing efforts. In light of the new "quickie election" rule that the NLRB issued last month, both union and non-union employers would be well advised to review their email policies and revise as needed. (The "quickie election" rule is scheduled to take effect on April 14, but the U.S. Chamber of Commerce and other employer groups, including the Society for Human Resources Management, filed suit on Monday seeking to block the rule.)
It's not too late to register for our webinar on the NLRB's new rules on "quickie elections" and employee email use. The webinar, featuring labor attorneys Tim Davis, Jonathan Martin, and Dan Murphy, is from noon to 1 p.m. Eastern tomorrow (January 8). Be there, or be square!
This is Constangy’s flagship law blog, founded in 2010 by Robin Shea, who is chief legal editor and a regular contributor. This nationally recognized blog also features posts from other Constangy attorneys in the areas of immigration, labor relations, and sports law, keeping HR professionals and employers informed about the latest legal trends.
