The U.S. Supreme Court has issued a number of significant opinions over the past few months that address employment laws and practices, including harassment, retaliation, arbitration, and collective action wage claims. The impact of these decisions will be both immediate and far reaching. I am pleased to be participating in a webinar about these recent decisions and even more pleased to offer readers the opportunity to register for the event for free. 

The 90-minute webinar will be held on July 17, 2013, beginning at 3 p.m. Eastern time.  Among the cases that will be discussed are:

  • Vance v. Ball State University: Are there steps an employer should take to reduce the potential for harassment liability based on “supervisor” actions? 
  • University of Southwestern Texas Medical Center v. Nassar: Is this the end of retaliation claims as we know them, or a case that only lawyers can love?
  • American Express v. Italian Colors Restaurant: Should an employer consider changes to arbitration agreements? 
  • Genesis HealthCare Corp. v. Symczyk: A new defense for employers facing a collective-action lawsuit for unpaid wages?

We also will briefly discuss the potential impact of the Fisher v. University of Texas affirmative action decision, the recess appointments of NLRB members, and whether Congress will take steps to undo any of these Supreme Court decisions.

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.

In United Texas Southwestern Medical Center v. Nassar, the Supreme Court ruled that the anti-retaliation provision of Title VII requires “but-for” causation. In other words, an unlawful reason has to be the reason for the adverse employment action. The Supreme Court had previously ruled that this type of “but-for” causation also is required in cases alleging age discrimination.

It does not, however, apply to cases of discrimination brought pursuant to Title VII. In those cases, the unlawful reason need only be a reason. There may be other, lawful reasons, but if an unlawful reason plays a part in the decision, then the decision is unlawful.

Here’s how it plays out.  Let’s say that I go to work for a new law firm. My new boss doesn’t think that women lawyers are worth much. He also really hates my nose ring (despite how lovely and not at all offensive it looks in person). Based on those two prejudices, he decides to not put me up for a promotion.

The U.S. Supreme Court issued two important employment-law decisions this week and, surprising to many of us, both came out in favor of employers. Both cases will have significant impact on employment lawsuits but one of the two is of of particular interest to me because it has been an issue I’ve faced in prior cases of my own.

In Vance v. Ball State University, the Supreme Court was asked to decide what it means to be an employee’s “supervisor” for purposes of Title VII.  In short, the Court held that an individual can be considered to be a supervisor only if he or she has been empowered by the employer to take “tangible employment action” against the employee who claims to have been harassed. 

And what, exactly, is a “tangible employment action,” you ask?  Basically, it means the power to effectuate significant change in the victim’s employment status.  So the power to hire, fire, demote, etc., is the power to effectuate a tangible employment action.  If the individual does not have the authority to fire, transfer, or demote the victim, then the individual is not considered to be the victim’s supervisor.

I’ve spent the past four weeks preparing for and in trial in Delaware’s Court of Chancery.  As evidenced by the absence of any posts in the past several weeks, virtually all of my waking hours have been devoted to the case as we neared the big day at the courthouse.  Now that trial has concluded and we switch gears to focus on the impending post-trial briefing and oral argument, I’ve been able to to catch my breath and to reflect.judge's gavel_thumb

In the employment context, trials are few and far between.  Most cases are dismissed or settled prior to trial.  Clients often struggle with the idea of settlement, though, and, at least initially, find the idea difficult to stomach.  This automatic bias against settlement is unfortunately, though, as there are can be many good reasons to settle a case-both for the plaintiff and defendant.

Good lawyers will discuss those reasons with their clients early in the case in a frank and honest way.  And good lawyers will keep an eye on those reasons throughout the case and will not hesitate to remind their clients about them when appropriate.  A lawyer who discourages his client from considering settlement is, in my opinion, doing his client a tremendous disservice.

Harassment knows no boundaries. Unfortunately, it occurs in workplaces of any shape and size and can be effectuated by persons in positions of every variety and in every industry. Even a quick look at the story reported in today’s News Journal makes this very clear.

According to the story, a partner at a prestigious law firm in Indianapolis became seemingly obsessed with a female intern, who was later hired as an associate.  The associate filed suit based on the partner’s conduct, which, if to be believed, is outrageous, bordering on horrifying.

Some of the conduct alleged includes that the partner sent an email to the law firm, pretending to be the firm’s managing partner, claiming that the associate had acted in pornographic movies and suggesting that she had been awarded her job at the firm as a result of performing sexual favors.  The email also included a video clip of a young woman dancing topless-the video was not the female associate.  The email was one incident in a string of similar aggressions by the partner. 

Teachers’ use of social media is an ongoing problem across the country. Teachers are given little, if any, guidance about what is and is not appropriate online conduct. School districts, in turn, are left to decide the rules on an ad hoc basis. And uncertainty breeds disaster.

Cases of teacher termination based on social-media commentary are some of the most common in the employment-law world. Most of these cases have been decided in favor of the school district, finding that the district was within its rights when it fired the teacher for her inappropriate online posts. Angry woman on cell phone_thumb

One case, though, came out in favor of the teacher. In March, I reported about a ruling from the New York Supreme Court, which overturned the decision of a disciplinary hearing officer. Before being overturned, the hearing officer had upheld the decision to terminate a teacher who had posted on her Facebook page that she wished that her students “would drown,” along with other, equally distasteful comments.

FLSA overtime claims can be tremendously difficult to defend, particularly when the plaintiff-employees don’t “recall” when or how many hours they allegedly worked. Many employers are shocked when they learn that the plaintiffs can pursue their claims without making any real proffer of such critical evidence. A decision from the Eighth Circuit last month represents a significant step in the right direction-and away from the shadowboxing that many FLSA lawsuits can involve.

The plaintiff-police officers were given flextime or time off in lieu of overtime compensation. Neither the officers nor the city tracked the accrued flextime, which the officers alleged would be lost if not used within a short period. The officers filed a collective action under the FLSA.

In response to the city’s written discovery requests, the officers did not identify the number of uncompensated hours or the amount of money that they claimed to be owed. After discovery closed, the city moved for summary judgment, arguing that the officers failed to satisfy their evidentiary burden. In response, the officers submitted affidavits in which they offered precise estimations, week by week, of the hours they claimed to be owed.

Gender discrimination happens. Let’s not pretend that it doesn’t. I have not, in my short life as a lawyer, ever felt that I was not getting the same opportunities as my male counterparts. But I don’t pretend that it doesn’t happen. Recently, I had an interaction with a senior lawyer from an out-of-state firm that reminded me how lucky I am.

Let me set the scene. The event was hosted by lawyers and held for lawyers. So, waitstaff aside, everyone present was a practicing lawyer. When I arrived, I saw a female colleague of mine (a lawyer), and went over to say hello.

Standing with her was a junior female associate and a senior male partner, both from the same firm. I reached out to shake the partner’s hand and introduce myself. As I did, he said, “You look like you’re from the Mid-West.”

I’ve posted before about restaurant employees’ Facebook posts that caused big headaches for their employers. I’ve also posted about trouble-causing Facebook posts by a saloon manager and by a tavern owner. Well, it seems that the trend has made it way to Delaware.

As reported by Patty Talorico on her Second Helpings blog, a Thai restaurant in Hockessin has landed itself in hot water as a result of unappetizing posts made to its social-networking sites. Photographs of customers’ receipts and of restaurant patrons were posted to the Instagram account of the restaurant’s manager. According to Talorico, racial slurs and derogatory comments were posted with the photos.

The manager reportedly told The News Journal that other employees have access to the accounts and that he didn’t post the controversial comments, “probably.”

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