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New Laws Gives New Rights Delaware First Responders

Posted by Lauren Moak RussellOn September 19, 2013In: Delaware Specific, Discrimination, Discrimination & Harassment, Legislative Update

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Delaware extended employment rights to volunteer firefighters and other first responders who must miss work due to emergencies or injuries sustained while providing volunteer rescue services.

Volunteer Emergency Responders Job Protection Act

Governor Markell signed two new bills affecting the employment rights of Delaware's emergency responders. Under the Volunteer Emergency Responders Job Protection Act, employers with 10 or more employees are prohibited from terminating, demoting, or taking other disciplinary action against a volunteer emergency responder because of an absence related to a state of emergency or because of an injury sustained in the course of his or her duties as a volunteer emergency responder.

The Act defines a "volunteer emergency responder" as a volunteer firefighter, a member of the ladies auxiliary of a volunteer fire company, volunteer emergency medical technician, or a volunteer fire police officer.

Importantly, while an employer may not discipline or terminate an employee for being absent when performing emergency services, the employer is not required to compensate the employee for time away from work to perform such services. The employee also has an obligation to make "reasonable efforts" to notify the employer of a possible absence.

Under the Act, employers are also entitled to verify that an employee was absent due to emergency service or a related injury. Employers may request a written statement confirming relevant facts from either the volunteer department with which the employee serves or from a treating medical provider. The employer is entitled to the statement within 7 days of making such a request.

Amendment to the Delaware Discrimination in Employment Act

The second bill signed into effect amends the Delaware Discrimination in Employment Act, to provide protection to volunteer firefighters, ambulance personnel, and ladies auxiliary members. More specifically, the bill makes it unlawful for employers to refuse to hire, discharge, or otherwise discrimination as to the terms and conditions of employment based on an individual's service rendered to a volunteer fire or ambulance company or related ladies' auxiliary.

Bottom Line

The bottom line is that Delaware employers have one more protected classification to be aware of. Hopefully these new restrictions will not impose a significant burden upon employers--comments made in connection with the bill signing indicate that the bills are a reaction to a single incident affecting an injured firefighter working in Wilmington. However, as always, employers need to give careful consideration to the circumstances impacting hiring and disciplinary decisions.

Employees and the Burdens of Being Beautiful

Posted by Molly DiBiancaOn August 2, 2013In: Discrimination, Dress & Attire, Gender (Title VII), Social Media in the Workplace

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Being beautiful ain’t all it’s cracked up to be.  Or so it seems from the legal-news headlines.

First, there are the “Borgata Babes.”  The female cocktail servers at Borgata Hotel and Casino in Atlantic City, known as Borgata Babes, challenged the legality of their employer’s policy prohibiting them from gaining more than 7% of their body weight after they were hired.  The Babes lost the lawsuit, though, when a New Jersey judge granted Borgata’s motion for summary judgment. 

The cocktail servers alleged that the hotel created a culture of humiliation and harassment with its dress Borgata Babes Suit Dismissedcode but the court disagreed, finding that the policy did not constitute unlawful gender-based discrimination.  Particularly noteworthy was the court’s commentary about the potential problems associated with using the term “babe” to describe a workforce:

From the court’s perspective, the term “babe” is at best undignified and at worst degrading. . . . Regardless, there are people in our society who view “babe” as playful flattery . . . To the chagrin of those in our society hoping to leave sexual stereotypes behind, some of those people are female. And some of these people may be among the plaintiffs.

But “undignified” isn’t reserved just for cocktail waitresses.  Bob Ambrogi tweeted earlier this week about the news organization in L.A. that reminded its female employees to dress professionally, particularly when attending a court hearing or other matter at the courthouse.  Ok, well, the memo wasn’t actually addressed to, “All Female Journalists” but only women received it. 

Dress codes are tough stuff.  They make for awkward conversations and lots of grey areas.  And it is entirely appropriate for a news agency to require its reporters to dress with the appropriate level of decorum whenever they are in court.  But was it really only the women who had to be “reminded” of the policy?  Maybe it was but it sure wouldn’t have hurt to send the memo to all hands on deck. 

The subject of appropriate decorum and dress code for the legal profession brings us to our final story of the day.  As reported by Sean O’Sullivan of the News Journal, a recently admitted Delaware lawyer has raised quite a stir about his job-search strategy.  Said strategy involves an email to nearly every lawyer in the State, to which he attached a picture of himself (a “selfie”) wearing a Villanova t-shirt (my alma matter, no less), with the sleeves rolled up, displaying his well-toned arms (i.e., his “guns”). 

The stir over this unsolicited and unconventional email was soon trumped by the half-naked selfie posted on his Facebook page (which, of course, is public), with a  handwritten sign taped to the mirror in which the words “lawyer” and “escort” were used in a single (grammatically incorrect but multi-colored) sentence.  I’m quoted in the article as saying, among other things, that the whole thing is”just wrong on so many levels.” Indeed.

Really. If you don’t believe me, go see for yourself.  And, while you’re there, be sure to check out the video the hopeful job seeker posted in response to the criticism he’s been receiving.  And, yes, the video does include him flexing his guns for the camera. 

BONUS:  I know, I know. I said that was the final story for today.  But here’s a Friday-morning bonus for you.  At Mashable.com, there’s an entertaining comic titled, “The Pros and Cons of Being Tall.”  Happy Friday!

See also

Don’t Hate Me Because I’m Beautiful

I’m Too Sexy for My Job

Exotic Dancer Claims Sex Discrimination

Ex-Banker Says She Was Fired for Being Too Sexy

Employee Fired When Boss Finds Her Sex Blog

Court Orders Gender-Based Sentence to Female Defendant

Posted by Molly DiBiancaOn July 12, 2013In: Discrimination, Gender (Title VII)

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Today’s post is more of a rant than anything close to a legal analysis.  Yesterday, Mark Hansen of the ABA Journal reported about a sentence issued by a judge in Halifax County, N.C. 

The defendant, a 21-year-old female, Tonie Marie King, pleaded guilty to being drunk and disorderly and resisting arrest.  Police were called to the scene in response to a call alleging that King hold stolen beer from a convenience store.  When police arrived, King put up a fight and kicked the arresting officer. image

Judge Brenda Branch sentenced King to 45 days in jail but suspended the sentence in lieu of a one-year supervised probation, during which she may not possess or drink alcohol and-now here’s the kicker—she must write a two-page essay on “How a Lady Should Behave In Public.”

Oh, brother

Let . . . me . . . think.  A “lady,” to me, invokes images of Victorian times, when “ladies” could be seen carrying a parasol and wearing delicate gloves.  The word also makes me think of the Disney movie, "Lady and the Tramp.”  So, basically, an adorable dog with big eyes sharing a piece of spaghetti with her beau.  Here’s what Bryan Garner has to say about it in his book, Garner’s Modern Legal Usage:

This word has become increasingly problematic.  Though hardly anyone would object to it in the phrase ladies and gentlemen, or on a restroom sign, most other uses of the term might invite disapproval . . .

And why is it that the word has been “so beaten down” in modern usage, to quote Edward N. Teall from his 1940 article, Putting Words to Work?  For the same reason that we counsel employers to not ask job applicants about their familial or marital status—because it doesn’t make a hoot of a difference.  Instead, we counsel employers to stick to job-related questions.  If the question does not provide insight into whether or not the applicant can perform the necessary duties, the question should not be asked.

The same maxim applies to the court-ordered essay.  The essay that the court should have ordered is “How a Citizen Should Behave In Public” or “Why It’s A Bad Idea to Be Drunk In Public” or “10 Reasons to Not Assault a Police Officer.”

But “How a Lady Should Behave In Public”—what response is that likely to invoke?  Well, if we look to Old Massachusetts: A Practical Primer for Daily Living, here are some possibilities:

Keep Your Arms from Going Astray.  Preferably with a fan but, when you cannot have one in your hands, it is better to keep the arms pressed lightly against the sides in walking or sitting.

Limit Your Observations.  A woman who is boisterous and loud-talking is almost unendurable.  A lady is, by nature, intended to be the gentler and restraining element.

Be Not Excessively Frank.  Do not take pride in offensively expressing yourself on every occasion under the impression that you will be admired for your frankness. Speaking one’s mind is an extravagance, which has ruined many a person.

Excerpts published at ConcordMa.com.   Folks, can we just take a moment to reflect on that last characteristic of a lady’s “proper demeanor”—“Speaking one’s mind is an extravagance, which has ruined many a person.”

Consider me ruined in that case because I’m about to speak my mind.  The judge’s order, however well intended it may have been, does more harm than good and, quite unfortunately, reflects a bias on the bench.  The judge—a woman, mind you—felt that it was perfectly appropriate to use the defendant’s gender in determining the sentence.  As readers well know, similar conduct by an employer would get the employer sent directly to the EEOC—do not pass Go, do not collect $200.

When imposing a “sentence” in the workplace (i.e., an adverse employment action), assume that gender is irrelevant because it almost always is. And then leave gender out of it.

And, just one more thing for this Friday-morning post, it is my wholly subjective opinion based purely on my own anecdotal experience but this kind of gender-based order would only come from a woman.  We really can be our own worst enemies.

See also:

No, I am not from the Midwest. Sex Discrimination Lives On.

A Turning Point for Women in the Legal Profession? Almost.

Gender Discrimination & Dress Codes. Who wears the skirt, I mean, pants in your office?

Are Women Attorneys Being Stricken by a Pantsuit Pandemic?

The Pantsuit Pandemic Part II

The Immediate Impact of the DOMA Ruling for Delaware Employers

Posted by Lauren Moak RussellOn July 8, 2013In: Benefits, Cases of Note, Discrimination, Sexual Orientation, U.S. Supreme Court Decisions

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Delaware began issuing marriage licenses to gay couples on July 1, 2013, less than a week after the U.S. Supreme Court's decision striking down the Defense of Marriage Act (DOMA). Delaware will no longer perform civil unions pursuant to the Civil Union Equality Act, which was passed into law in 2010. Couples who entered into a civil union prior to July 1 may convert their civil union into a legally recognized marriage or wait until July 1, 2014, when all remaining civil unions will be automatically converted.

The Court's DOMA ruling is expected to affect an estimated 1,138 federal benefits, rights, and privileges. For Delaware employers, the impact is potentially significant. Delaware employers must now extend all federal benefits to gay married couples that were previously made available to straight married couples. The impact also is immediate. Unlike with new legislation, there will be no delay between the Court's ruling and an employer's obligation to extend benefits.

Although the Supreme Court's decision will impact who is eligible for benefits, the procedures remain unchanged. For example, the process for requesting and reviewing FMLA leave, COBRA coverage, and other federally mandated benefits of employment will not change.

One step employers should consider is possible adjustments to tax and health-insurance forms. Spouses that could not previously "claim" one another on federal tax forms may need to submit new IRS Form W-4s. In addition, if your company offers ERISA-covered health-insurance plans and did not previously extend benefits to gay couples, those plans will now be open to the enrollment of gay spouses. This means that, if your company offers health insurance coverage to the straight spouses of its employees, the same benefits must now be extended to gay spouses. In addition, gay spouses will now be the primary beneficiary on all 401(k) plans.

In the end, Delaware employers are likely in a better position to adapt to the Supreme Court's decision, since benefits have been extended under State law since January 1, 2012. Employers should keep in mind that the same benefits must be extended and the same processes will still apply to same-sex married couples. In the event that you think it may be necessary to deviate from this rule of thumb for some unusual circumstances, consider consulting legal counsel before doing so.

Delaware Passes Gender-Identity Anti-Discrimination Law

Posted by Lauren Moak RussellOn July 8, 2013In: Delaware Specific, Discrimination

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Delaware's employment-law landscape has been in flux in recent months. In addition to the Supreme Court's recent decisions affecting employment law, Delaware also passed a law prohibiting employment and other types of discrimination on the basis of an individual's gender identity. Here is what Delaware employers need to know about the new statute.

What Is Gender Identity?

Gender identity and sexual orientation are not synoymous. Instead, an individual's gender identity relates to his or her internal sense of self as male or female, as well as an outward presentation and behavior related to that internal sense of self. Developing from that concept, an individual may be described as transgender when his or her gender identity does not match his or her biological sex at birth. Because gender identity is based on what an individual feels inside, when addressing transgender employees, employers should be guided by the employee's description of his or her gender, not outward appearance.

Protection Against Gender-Identity Discrimination

On June 19, 2013, the Delaware Discrimination in Employment Act ("DDEA") was amended to prohibit employment discrimination on the basis of gender identity. The statute defines "gender identity" to mean "a gender-related identity, appearance, expression or behavior of a person, regardless of the person's assigned sex at birth." The statute further provides that "[g]ender identity may be demonstrated by consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person's core identity; provided, however, that ender identity shall not be asserted for any improper purpose."

The DDEA provides the same protection from discrimination based on gender identity as it does for all other protected classifications. In other words, it is unlawful for an employer to discriminate against an employee in any term or condition of employment on the basis of the employee's gender identity. Only employers with four or more employees are subject to the provisions of the DDEA.

How to Prepare for the Change in Law

In light of the amendments to the DDEA, which are currently in effect, employers should begin educating employees about gender identity, and their non-discrimination obligations. While more than fifteen states currently have laws that prohibit gender-identity discrimination, it is still a concept that is frequently misunderstood. Outlining for employees and managers the differences between sex, gender, and sexual orientation will help individuals to better understand their workplace obligations with respect to the new law.

Employers should also be alert to workplace conduct that may implicate this new protected classification. Common issues implicating gender-identity include "joking" about an individual's external appearance (e.g. dress, facial hair, or physical build; the use of proper gender pronouns to refer to a transgender individual; and the use of communal bathrooms that are designated for use by gender). While there are no hard and fast rules in addressing these issues, employers should be guided by the transgender employee's personal preferences, whenever possible.

Bottom Line

Delaware law now protects employees from discrimination on the basis of their gender identity. When preparing for this change, employers should make sure that their employees (managers and subordinates, alike) have a basic understanding of the concept of gender identity, and that they following basic workplace standards of respect. If conflicts or misunderstandings arise, employers should take their lead from the transgender employee--wherever reasonable--in how best to treat the employee with respect.

What Is Good for the Goose . . . Employers Oppose Federally Mandated Inequality

Posted by Molly DiBiancaOn February 28, 2013In: Discrimination, Employee Engagement

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The United States Supreme Court will hear argument next month in United States v. Windsor, which addresses the constitutionality of the federal Defense of Marriage Act (DOMA).  Nearly 300 private-sector employers joined forces in opposition to the law, filing a joint amici brief.  Among the employers who oppose the law are Citigroup, Google, Facebook, and Starbucks, reports the L.A. Times.Employers Oppose DOMA

The employers voice a number of objections to the law, all arising from the conflict between state and federal law.  Twelve states and the District of Columbia now recognize same-sex marriages.  But federal law, pursuant to DOMA, prohibits the recognition of same-sex unions.

This contradiction puts employers—particularly those operating in multiple states—in a difficult position as they attempt to reconcile what they must do according to state law, what they must not do according to federal law, and, for many employers, what they want to do according to their own policies of anti-discrimination. 

We discussed a similar conundrum in October of last year, when Nordstrom, Amazon, Microsoft, Nike, and others, took a stand in favor of Seattle’s same-sex law, Referendum 74. A similar theme is heard in the Windsor briefing—smart employers know that equality and fairness are essential to a productive and efficient workforce.  Employers lose when employees are treated unequally in the workplace. 

So it makes sense that smart employers would speak out in opposition to government-imposed inequality.

I Believe, I Believe! A Vegan and a Flu Shot

Posted by Molly DiBiancaOn February 5, 2013In: Discrimination, Religious (Title VII)

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Can an employee be required to get a flu shot? Employers want a healthy workforce and, presumably, employees do not want to be sick. So a flu shot seems like a good idea. And an offer of a free flu shot for employees seems like a great perk.

But the goodwill-nature of a suggestion always seems to change when a suggestion turns into a requirement. Maybe it's just the rebellious teenager in all of us that reacts negatively to being told that we must do something. Maybe we all have authority issues. I don't know what it is about being ordered to do something that seems to set off an automatic negative response.

The real trick, though, is how to respond to that negative response. Push back? Stand your ground and insist? Or give in and abandon your request? This is the question that one employer had to deal with when its employee refused to get a flu shot.

In Chenzira v. Cincinnati Children's Hospital Med. Ctr., the employer required its employees to be vaccinated for the flu. Ms. Chenzira had worked for the hospital for 10 years when she was terminated for refusing to be vaccinated. She alleged that she refused on religious and political grounds because, as a vegan, she does not ingest any animal or animal by-products.

The employer moved to dismiss the complaint on the grounds that Veganism is not a true religion but, instead, is more of a dietary preference or social philosophy. The court denied the employer's motion, finding that the plaintiff-employee may be able to establish that veganism meets the requirements of a religious belief for purposes of Title VII's anti-discrimination provisions.

It is important to note that the court did not find that Veganism is or is not a religion. Instead, it merely held that, based on the face of the complaint, it was plausible that the plaintiff would be able to show that she subscribed to Veganism with a religious-like sincerity.

Here are two points to consider from this case.

First, take a deep breath and slowly exhale. Don't overreact. When a 10-year employee refuses to get a flu shot, consider whether this is a truly terminable offense. I would suggest that, based on the facts as they are described in the court's opinion, the answer is, "no." If it's not, let it go and move on. (The same advice applies in the context of Facebook comments by employees).

Second, do not be the arbiter of morality. Do not make a decision about whether an employee holds a "true belief" with regard to their religion (e.g., "She's not a real Catholic; she never goes to mass!"). And do not make decisions about whether a particular belief qualifies as a religion, as was the case here.

Instead, consider the practical approach. If the employee had not gotten a flu shot and she got the flu, would it have been the end of the world for the employer? Probably not. Although there are plenty of times when standing on principle is the right approach. But that is not always the case. There also are plenty of times when the better approach is a practical one.

Chenzira v. Cincinnati Children's Hospital Med. Ctr., No. 11-917 (S.D. Ohio Dec. 27, 2012).

Who Says I'm a Girly Man? Doth Sayeth the EEOC

Posted by Molly DiBiancaOn December 27, 2012In: Discrimination, Discrimination & Harassment, EEOC Suits & Settlements, Gender (Title VII), Harassment, Harassment, Other (Title VII), Harassment, Sexual

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The EEOC has enjoyed several victories in recent months. For example, the EEOC was granted summary judgment in a hostile-environment claim filed on behalf of a class of black construction workers. Even more recently, the EEOC was awarded summary judgment in an age-discrimination lawsuit against the City of Baltimore. But things haven't been all peaches and cream for the EEOC.

In EEOC v. McPherson Cos., Inc., a federal district court in Alabama granted summary judgment to the defendant-employer in a sexual-harassment lawsuit brought by the EEOC on behalf of an unnamed male employee. The employee worked in a warehouse with an all-male workforce.

The EEOC alleged that, after being subject to a constant barrage of "ugly talk," the employee complained to his supervisor about the allegedly hostile work environment. About a year later, the employee confronted his co-workers, who apologized and, thereafter, stopped directing rude comments his way. About a year after that, the employee complained to HR, which investigated the complaint, resulting in discipline for several workers and two supervisors. After this last complaint, the comments ceased.

The court held that the EEOC had failed to establish the existence of an unlawful hostile environment because it had not shown that the rude comments and "ugly talk" were of a sexual nature or that they were made "because of" the employee's gender.

The EEOC argued that the harassment was because of his gender and, specifically, because of his effeminate behavior. This can be a valid cause of action--when a male employee is treated badly because he acts "too girly." But, here, despite the EEOC's argument, the testimony of the employee himself contradicted this argument. Thus, the court dismissed the gender-discrimination and sexual-harassment claims.

The court also dismissed the EEOC's retaliation claim. The employee was terminated, along with 11 other employees, as part of a reduction-in-force 3 months after his complaint to HR. The court expressed that it was "hard to believe" that the EEOC "is seriously arguing that the entire RIF process was a subterfuge for fraud designed for the sole purpose of providing cover for retaliation."

EEOC v. McPherson Cos., Inc., No. 10-cv-2627 (N.D. Ala. Nov. 14, 2012).

Not So Simply Irresistible, Says Iowa Supreme Court

Posted by Molly DiBiancaOn December 26, 2012In: Discrimination, Gender (Title VII), Harassment, Sexual

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I've posted more than my share of stories involving allegations by employees that they were terminated because they were "too sexy" for the job. For example, there was the female banker who sued Citigroup, alleging that she was terminated for being "too sexy for her job." Then there was the data-entry employee who was terminated from her job in a lingerie warehouse for, she alleged, wearing what her employer considered to be clothing that was "too sexy."

Usually, this type of allegation involves at least some level of grandiose delusion and almost always involves the employee's belief that everyone hates her for being so darn good looking. But today's post goes much closer to the realm of the legitimate. Because this post involves an actual court decision. On December 21, the Iowa Supreme Court unanimously ruled that there was no unlawful discrimination where a dentist terminated his dental assistant of 10 years after his wife became jealous.

For his part, the dentist admitted that the assistant was a good employee and wasn't fired for poor performance. Instead, he claimed that her tight clothing was too distracting and felt that he wouldn't be able to resist her charms if she remained in his employ any longer, reports CNN.

In other words, the ruling makes clear that "being irresistible" will not serve as the basis for a gender-discrimination or sexual-harassment claim.

Nelson v. James H. Knight DDS, P.C., No. 11-857 (PDF).

Attempted Suicide and the ADA

Posted by Molly DiBiancaOn December 2, 2012In: Disabilities (ADA), Discrimination

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When an employee seeks to return to work following a failed suicide attempt, there can be concerns about safety--both for the employee and for co-workers. At the same time, savvy employers know that the ADA may provide the employee with legal protections. A recent case in the Western District of Pennsylvania, Wolski v. City of Erie, provides an opportunity to review this potential conflict.

The plaintiff-employee, Wolski, who was the City's first female firefighter, began to suffer from panic attacks and severe depression following the death of her mother in 2005. She took sick leave for several months, during which she was prescribed multiple medications by a psychiatrist.

After she failed to return to work as scheduled, she was granted additional time off. During this period of leave, she attempted suicide by disabling the carbon-monoxide and smoke alarms and setting a fire in her home. She survived the attempt and was hospitalized until early 2006. The fire was the subject of a criminal investigation.

In early March, when Wolski asked the Chief when she could return to work, he indicated that she was not likely eligible to return until the conclusion of the investigation. On April 3, Wolski ran out of sick leave and was placed on administrative leave. On April 11, after she was formally cleared in the investigation, Wolski was fired. In the termination letter, the Chief explained that Wolski was being fired as a result of her suicide attempt in December:

. . . you started a fire in your residence, having disconnected the smoke detectors and carbon monoxide detectors, and took an overdose of medication as a suicide attempt. Family members extinguished the fire, but the City firefighting crew was dispatched to your home; and you were taken by helicopter to Pittsburgh for emergency medical treatment to save your life.


This incident renders you presumptively unsuited to be a firefighter, as you pose an ongoing threat to the safety of the public, other firefighters and yourself, having set a fire in a residence . . ..

Wolski filed suit alleging that her termination violated the ADA. The case went to trial but a retrial was ordered based on improper jury instructions, so the court's opinion does not address the question of liability. In the Wolski case, the employer argued, unsuccessfully, that the decision to terminate was not based on the employee's suicide attempt but because of her having set the fire.

But this is not the usual case. More commonly, the employer is worried that the employee will attempt to harm herself again and, in the course of doing so, may harm others. The EEOC addresses this in its Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities:

35. Does an individual who has attempted suicide pose a direct threat when s/he seeks to return to work?


No, in most circumstances. As with other questions of direct threat, an employer must base its determination on an individualized assessment of the person's ability to safely perform job functions when s/he returns to work. Attempting suicide does not mean that an individual poses an imminent risk of harm to him/herself when s/he returns to work. In analyzing direct threat (including the likelihood and imminence of any potential harm), the employer must seek reasonable medical judgments relying on the most current medical knowledge and/or the best available factual evidence concerning the employee.

According to the EEOC's Guidance, the ADA prohibits an employer from terminating an employee because of an attempted suicide. Although the employer's concerns about safety may be well intended, they are not a basis for an adverse employment decision. One purpose of the ADA is to ensure that employers do not substitute their own judgment about "what is best" for an employee and, instead, let the employee and the medical professionals make those determinations.

Wolski v. City of Erie, Case No. 1:08-cv-289-SJM (W.D. Pa. Sept. 28, 2012).

H/T Mitchell Rubinstein at the Adjunct Law Prof Blog

Employer Can Depose All 94 Claimants In EEOC Lawsuit

Posted by Molly DiBiancaOn November 24, 2012In: Discrimination, EEOC Suits & Settlements, Race (Title VII)

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Litigating against the the EEOC is difficult for several reasons. For one, unlike a lawsuit brought by an individual plaintiff, a suit brought by the EEOC has the resources of the entire federal government behind it. Perhaps because of the agency's bureaucratic structure, negotiating with EEOC counsel can be difficult during litigation, at times resulting in a total breakdown of communication. A recent decision by a federal court in Illinois illustrates what happens when the lawyers in an employment-discrimination lawsuit take the driver's seat to the exclusion of the individuals at the heart of the case.

EEOC v. DHL Express (USA), Inc., was brought by the EEOC on behalf of 94 claimants, alleging that DHL discriminated against its African-American driver/dockworkers based on their race by giving them less desirable, more difficult, and more dangerous route and dock assignments than their Caucasian counterparts and by assigning African-American drivers to routes in predominately African-American areas.

DHL brought a motion to compel the EEOC to produce all of the claimants for deposition after the EEOC provided interrogatory responses that included an unsworn "vignette" for each claimant with the claimants' general allegations of discrimination. DHL argued that individual depositions were required because the vignettes were vague, filled with generalities, and, in several instances, inaccurate. DHL also argued that, because there is no standard as to what constitutes a "more dangerous assignment" and no objective criteria for what constitutes "less desirable," each claimant's individual testimony was necessary to establish its defense.

The court was not impressed by the "vignettes," finding that they failed to give any meaningful detail or specifics about the alleged discriminatory treatment. Instead, the court concluded that the additional 60 depositions (DHL had deposed 34 of the 94 claimants already), were necessary not to evaluate both potential liability and damages.

The lesson to be learned from this decision, in my opinion, relates mostly to litigation strategy. By submitting these "vignettes" in response to the defendant-employer's interrogatories, the EEOC seems to have forgotten about the individual employees whose claims were the basis for the lawsuit. Had the EEOC actually provided the sworn responses of the employees instead, the need for the employer to expend its resources to take an additional 60 depositions would not have been necessary. Or, perhaps, the EEOC should have formulated a clearer understanding of its allegations before filing its Complaint. Ah, a lawyer can dream, can't she?

EEOC v. DHL Express (USA), Inc., No. 10 C 6139 (N.D. Ill. Oct. 31, 2012).

Employment Discrimination and Domestic Violence

Posted by Molly DiBiancaOn October 30, 2012In: Disabilities (ADA), Discrimination, Discrimination & Harassment, Gender (Title VII)

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Northern Delaware managed to escape Sandy largely unscathed, I feel very lucky to say. Our thoughts are with those who are still without power and, especially, with those whose homes were damaged by the storm. I am grateful to be able to return to work, though. In the spirit of maintaining normalcy, today's post is not going to focus on hurricanes, floods, or other natural disasters. Just employment law. Stay safe, everyone.

No federal employment law expressly prohibits discrimination against an employee because of the employee's involvement in domestic violence. For many employers, the idea of intentionally discriminating against a victim of domestic violence may be difficult to envision, even. I have seen this issue manifested in a few different contexts.

First, there's the employee who is chronically absent from work as a result of domestic violence at home. In that case, the employer wants to know whether it is lawful to discipline the employee for her absenteeism, or whether it must permit her some type of leeway because the absences are not merely a result of the employee playing "hooky." This question is particularly difficult when the employer's attendance policy distinguishes between "excused" and "unexcused" absences.

Second, there's the employer who wants to terminate an employee who is involved with a violent domestic partner for fear that the partner will carry out a violent act in the workplace. This usually arises when the employer learns that the partner has been stalking the employee, often on or just outside the employer's property. In that case, the employer is concerned about protecting its employees and wants to prevent a workplace shooting or similarly tragic event. This issue is as complicated as the first scenario, above, because it proposes that it is better to save the flock than a single sheep.

But where does Title VII and the ADA come into play in these and other situations involving domestic violence? The EEOC's most recent fact sheet addresses this question and offers some thought-provoking answers. The fact sheet offers some examples of how the federal anti-discrimination laws may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking. Many of the examples are not as much about domestic violence as they are about anti-retaliation and anti-harassment. For instance, the fact sheet explains that an employee who is given less favorable assignments after reporting that she was raped by a manager during a business trip. This example is, in my opinion, a bit obvious and not precisely within the framework of domestic-violence discrimination.

But a more provocative item on the fact sheet is the "Answer" that concludes that an employer who terminates an employee after learning she has been subjected to domestic violence, saying that he fears the potential 'drama battered women bring to the workplace.' On the whole, I would agree that this sort of gender-based stereotype likely violates Title VII. The trouble that I have with it, though, is that it's a bit conclusory on the question of intent.

I can easily imagine a scenario like the one I described above, when an employer decides to terminate a female employee whose husband has appeared at the workplace and threatened the employee or even her coworkers. Worried about the likelihood of future disruptions and potential violence, the employer considers whether it owes a duty to its other employees to prevent such incidents by terminating the victim. Although it would be easy to assume the worst by concluding that the employer just wanted to avoid the "drama" associated with battered women, it may be a more legitimate fear that drives the employer's decision.

Employment decisions are never easy. Employers often have to make tough calls and, rightfully so, worry that their choices will be later challenged as unlawful. The best starting point for these tough choices is to ask, "what's fair?" It's no coincidence that an honest answer to that question also is usually the most legally defensible position.

Here's to Job Security

Posted by Molly DiBiancaOn September 5, 2012In: Discrimination

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I spent my Labor Day weekend in the office. Yesterday, I spent my birthday (or 14 hours of it, anyway), in my office. This is not a result of some deeply-seeded self-loathing tendency or a lack of enthusiastic friends. It's a different type of popularity that is keeping me tied to my desk these days--popularity with clients. Or at least that's what I tell myself. Truth told, the real reality is that I'm just plain ole' busy.

And that's a good thing, or so I tell myself. But let me not feel too sorry for myself. [FN 1]
Misery does love company, after all. And I, apparently, am not alone.

Bruce Springsteen.jpg

According a Hildebrandt survey as reported by the Washington Post, employment lawyers across the country have been burning the midnight oil. While the largest legal markets have dropped 2 to 3 percent, labor-and-employment work increased by nearly 5 percent in the second quarter of 2012, as compared with the second quarter of 2011.

Many employers are all too familiar with this phenomenon, unfortunately. As we've previously reported, the EEOC received more complaints last year than ever before. And discrimination is not the only thing keeping my friends in the plaintiff's bar busy, either. The number of FLSA suits has tripled in the last decade.

So, why the uptick in labor and employment work? According to the article, our practice is "countercyclical." In a bad economy, more employees are let go. And the longer they go without being able to find new work, the more likely they are to sue.

On the flip side, the economy has been bad long enough that employees who've been itching to leave but too scared to take that step find they're tired of waiting and they're jumping ship. When they jump ship and climb aboard with a competitor, the former employer is more likely to sue to enforce a non-compete agreement if one exists.

More employees filing suit and more employers filing suit equals more work for labor and employment lawyers like me. I'll put my birthday celebrations on hold for the moment. For now, I'll make a toast to job security.

[FN 1] Don't feel too bad for me. I did see The Boss in Philly on Labor Day. See Picture, above. And what could be more motivating than Bruuuuuuuuuuuce to get me through the workweek?

Don't Hate Me Because I'm Beautiful

Posted by Molly DiBiancaOn June 4, 2012In: Discrimination, Fair Labor Standards Act (FLSA), Gender (Title VII), Hiring

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Sex, drugs, and rock 'n roll. Employment law can involve any or all three. Which explains why it takes a certain personality to really love this gig. Lately, though, I've seen a bevy of employment-law stories involving claims based on or involving beautiful people.

Last week, for example, I reported on yet another story involving a woman who claims she was fired from her data-entry job in a lingerie warehouse for being too sexy. [Ed. Note: This story, which involves a woman alleging she was too sexy for her job in a lingerie warehouse owned by Orthodox Jews, should clear up any doubt about why I love my job.] This wasn't the first story of this kind, though. I've reported about at least two similar claims in the past couple of years. And I recently reported about a gender-discrimination claim based on the plaintiff's part-time job as a dancer.

Michael Schmidt of the Social Media Employment Law Blog reports a different type of case involving exotic dancers. [Ed. Note: Michael's post is overflowing with hilarity in the form of well-crafted double entendres. For a great read, be sure to jump over to his original post, Slowly Stripping Away Privacy Rights. Brava, Michael!] In In re Penthouse Executive Club Compensation Litigation, No. 10-cv-1145 (KMV) (S.D.N.Y. May 10, 2012), the employer-defendant sought to compel one of the plaintiffs, an "entertainer in the Penthouse Executive Club," to produce nine pages of Facebook messages that she'd exchanged with other plaintiffs and with non-parties about others joining the FLSA suit.

The judge considered the motion in the same way any similar motion would be considered. She found that the Facebook messages sent to non-parties were "prepared in anticipation of litigation" and, as such, were protected by the work-product doctrine because they were "descriptions of conversations with Plaintiffs' counsel regarding litigation strategy, as well as responses to questions about the lawsuit." On the other hand, Facebook messages sent by non-parties to the plaintiff were not subject to the same protections and had to be produced.

And here's a twist on the theme. Instead of claims brought by beautiful people, here's a story brought against beautiful people. The owner of Marylou's, a coffee shop in Rhode Island known for employing beautiful baristas donned in pink shirt, is speaking out against the EEOC. The coffee shop has been under investigation for more than a year by the federal agency, which claims to be investigating the business' hiring practices. There has not been a complaint of discrimination, though, and many members of the community are outraged at the expenditure of federal funds and the cost imposed on the business in the absence of any actual charge of wrongdoing.

Maybe the EEOC is just trying to balance out all of those don't-hate-me-because-I'm-beautiful claims.

Delaware's EEOC Charges of Discrimination for FY 2011

Posted by Molly DiBiancaOn May 31, 2012In: Delaware Specific, Discrimination, Discrimination & Harassment

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The EEOC recently released new data, which identifies the number of charges filed by state. It's no surprise that the number of charges has increased steadily over the past three years, up from 163 charges filed in FY 2009, to 175 in FY 2010, to 228 last year.
But the percent of charges filed in Delaware as compared to the rest of the U.S. has remained consistent for the past 3 years--making 0.2% of the total charges filed in the U.S.

To put it in perspective, Delaware has one of the smallest populations in the country--we rank 45th out of 50. With less than 1 million residents, Delaware makes up less than 0.3% of the nation's population.

Although these numbers do sound positive, employers should remember that the EEOC isn't the only game in town. Because Delaware has a work-share agreement with the EEOC, the Delaware Department of Labor also receives charges of discrimination. In FY 2009, for example, the DDOL took 728 charges. The EEOC, on the other hand, received only 163 charges that year. In short, Delaware employers should look at these numbers with cautious optimism.

See also, What the Delaware Charge Statistics Mean for Employers
and DDOL Charge Statistics for FY 2009