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Category Archives: Discrimination and Harassment Law and Practice

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Religious Discrimination – Employee’s Failure to Note Religious Objection Fatal to Her Claim

Posted in Discrimination and Harassment Law and Practice

Savvy employers know that legal and regulatory trends are toward candid and effective communication. Think interactive process under the ADA. But, at times, this same rule applies to employees. Here, an employee who refused to read the Rosary with a resident was terminated. The refusal was considered failing to perform a requirement of her job, since… Continue Reading

U.S. Supreme Court to Decide Court’s Authority to Review EEOC’s Conciliation Efforts

Posted in Discrimination and Harassment Law and Practice, Labor Board Proceedings and Practice

Can an employer challenge whether the EEOC has done its job in defense of a case brought by the EEOC?  The U.S. Supreme Court has agreed to decide that question.  The issue is whether courts have authority to review whether the Equal Employment Opportunity Commission (EEOC) properly engaged in efforts to “conciliate” a case prior… Continue Reading

UPDATE: President Obama Poised to Sign Executive Order Barring Discrimination Based on Sexual Orientation

Posted in Discrimination and Harassment Law and Practice

On June 18, 2014, we reported that President Obama would sign an Executive Order prohibiting federal contractors from discriminating against LGBT individuals on the basis of their sexual orientation or gender identity.  As promised, on July 21, Obama issued the Executive Order.  This presidential action amended existing Executive Order 11,246, which applies to federal contractors,… Continue Reading

Tennessee Legislature Makes Significant Changes in State Employment Laws

Posted in Discrimination and Harassment Law and Practice, Doing Business in Tennessee, Retaliation/Whistleblower

Effective July 1, 2014, the following changes in Tennessee employment laws will take effect: No individual liability of supervisors or managers in discrimination claims; only the “employer” can be sued for discrimination; Caps on non-monetary damages (pain, suffering, humiliation, embarrassment) in discrimination claims; caps do not limit back-pay or front-pay; Preemption of common law “whistleblower”… Continue Reading

Rigid Application of Light-Duty Policy May Discriminate Against Pregnant Employees

Posted in Discrimination and Harassment Law and Practice

A federal court recently ruled that an employer’s rigid application of its light-duty policy could be used as evidence of pregnancy discrimination.  The employer had a policy of providing light-duty jobs only to employees with on-the-job injuries, which the Court here, and the EEOC (Equal Employment Opportunity Commission) in general, have blessed as not showing… Continue Reading

Supreme Court Decision Narrows Potential for Employer Liability in Harassment Claims

Posted in Discrimination and Harassment Law and Practice

The Supreme Court recently narrowed the definition of “supervisor” in harassment suits. In Vance v. Ball State University the Court defined supervisors as those empowered by the employer to take tangible employment actions against the alleged victim. Previously those that directed employees’ day-to-day activities were considered supervisors. While seemingly mere “word games,” this decision will… Continue Reading

EEOC Issues Guidance on Domestic Violence Responses

Posted in Discrimination and Harassment Law and Practice

The EEOC recently issued guidance on how an employer’s stereotypical responses to victims of domestic violence, sexual assault or stalking could run afoul of the discrimination laws. The guidance, here, gives some examples which, to the savvy employer, may appear obvious examples of inappropriate (and unlawful) stereotyping. However, the guidance is worth the read. Why?… Continue Reading

Cat’s Paw Theory: What Is It? Why Should I Care?

Posted in Discrimination and Harassment Law and Practice

Some recent court rulings have referred to the “cat’s paw theory” of liability for discrimination. Employers should be aware of these recent decisions because: Employers can be held liable under this theory, even if there is no evidence that the ultimate decision-maker acted in a discriminatory manner; Supervisors who wrongly influence a termination decision can… Continue Reading

Termination Notice Referring to Disability Considered Direct Evidence of Discrimination

Posted in Discrimination and Harassment Law and Practice, Leaves of Absence/FMLA Law and Practice

A Tennessee federal judge recently ruled that a termination notice referring to an employee’s “long-term disability” was direct evidence of discrimination and retaliation.  The Court granted the employee judgment as a matter of law under the ADA. The employee, Coffman, had been off work on an extended medical leave.  She had exhausted her FMLA leave… Continue Reading

EEOC Issues Guidance on Criminal Background Checks

Posted in Discrimination and Harassment Law and Practice

On April 25, the EEOC approved enforcement guidance on an employer’s use of criminal background checks in making hiring decisions. By a 4-1 vote, the EEOC clarified that a criminal background check is not unlawful. BUT, the Commission explained its view that the use of criminal histories can be discriminatory in “impact” on minorities and… Continue Reading

Transgender Status Now Protected Under Title VII

Posted in Discrimination and Harassment Law and Practice

The EEOC recently ruled that Title VII’s prohibition of discrimination “because of . . . sex” now includes protection for any transgender individual. With this ruling, the EEOC expressly overturns earlier EEOC decisions to the contrary dating back to 1984, 1994 and 1996. Employers should be aware that, according to the EEOC’s current interpretation, any… Continue Reading

Fourth Circuit Holds that Former Employee Can Sue for Discrimination Based on Severance Offer

Posted in Discrimination and Harassment Law and Practice

Title VII’s protections against gender discrimination can extend to former employees complaining about the severance package they were offered, according to a recent federal appeals court ruling.  In Gerner v. County of Chesterfield, Virginia, the Fourth Circuit Court of Appeals ruled that offering less favorable, non-contractual employment benefits can be an “adverse employment action” under… Continue Reading

Texas Court Rules Against EEOC – “Lactation Discrimination” Is Not Unlawful Sex Discrimination But …

Posted in Discrimination and Harassment Law and Practice, Doing Business in Tennessee, Leaves of Absence/FMLA Law and Practice

A Cautionary Reminder for Employers A Texas Federal Court recently ruled that terminating an employee because she wanted to pump breast milk at work is not sex discrimination.  The Equal Employment Opportunity Commission sued on behalf of an individual employee who had mentioned her need to pump breast milk at work and soon thereafter was… Continue Reading

Employer Dilemma – How Should An Employer Respond to Ambiguous Workplace Conduct

Posted in Discrimination and Harassment Law and Practice

Employers struggle with conduct that appears ambiguous but is interpreted by the “victim” as unlawful.  The dilemma arises most often in a sexual harassment setting.  For example, a co-worker comments that another’s clothes make her “look good” or that he “really likes” her perfume.  Employers, and courts, struggle with the intent behind this conduct.  For… Continue Reading

Court Rules That Two-Year Period After Demotion Not Fatal to Constructive Discharge Claim

Posted in Discrimination and Harassment Law and Practice, Retaliation/Whistleblower

A former elementary school principal, who was demoted to a physical education (P.E.) teacher, survives a summary dismissal of his constructive discharge claim despite a two-year gap between the demotion and his decision to retire.  Terry Gannon sued the Cannon County, Tennessee Board of Education for, among other things, discrimination and retaliatory constructive discharge in… Continue Reading

Beware of Gender-Based Dress Codes

Posted in Discrimination and Harassment Law and Practice

Federal courts have generally upheld employers’ dress and grooming policies that differentiate by the stereotypical appearance standards of males and females. However, an increasing number of states and cities have enacted laws that protect an individual’s “gender identity” and “gender expression.”  In these jurisdictions, an employer may maintain dress standards; however, they must allow employees… Continue Reading

Why the Renewed Debate on Criminal Background Checks?

Posted in Discrimination and Harassment Law and Practice

The EEOC has renewed the debate recently on an employer’s use of background checks in hiring.  Nothing new right?  You know you cannot use arrest records but only convictions because in this country, all are innocent until proven guilty.  But the renewed debate is whether use of conviction records is unlawfully discriminating against minorities. In… Continue Reading

What are the Protected EEO/Non-Discrimination Categories in Tennessee?

Posted in Discrimination and Harassment Law and Practice, Doing Business in Tennessee

The Tennessee Human Rights Act (THRA) applies to employers with eight or more employees within the state and prohibits discrimination based on race, creed, color, religion, sex, age or national origin.  The interpretation and enforcement of the THRA follows closely that of Title VII and the Age Discrimination in Employment Act (ADEA). The Tennessee Human… Continue Reading

What is the “Interactive Process”?

Posted in Discrimination and Harassment Law and Practice

As an employer’s representative, I know that when I become aware of an employee’s disability, or even now, under the Americans with Disabilities Act (ADA) amendments, when I become aware of an employee’s impairment that could impact the employee’s job, I must engage in an “interactive process.”  But what is that?  How does the interactive… Continue Reading

The Wal-Mart Class Action Decision

Posted in Discrimination and Harassment Law and Practice

What Are the Implications for Business? Recently, the U.S. Supreme Court rejected a lawsuit attempting to assert claims of gender discrimination on behalf of nearly 1.5 million female employees of Wal-Mart.  The decision has been hailed as one of the most significant business decisions in recent years.  While certainly a significant decision, the result was… Continue Reading