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Our Social Media Posts This Week -- Apr. 27 – May 3, 2014

Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

First up, Sunday 4/27/14 was a post about a scary creature, insider threats to security from unapproved BYOD. I hope by now you know what BYOD stands for (if not, contact me immediately!). It is true that BYOD can help the bottom line by the company not having to provide smartphones and the like to employees to work out of the office, but it can also bring to the company a host of problems – different operating systems, different uses, different security, and encryptions levels just to name a few.  While there is not just one answer or solution to protect an employer, having employees sign Acceptable Use Agreements and agreeing to installation of software to enable the employer to remotely wipe the device are just 2 things to consider.

TAKEAWAY: Make sure your company and its data are protected BEFORE allowing employees' personal devices to be used for work purposes. (As an aside, also be prepared to pay the employee for the time spent working on the device outside of normal working hours.)

Monday 4/28/14 brought a post about a car dealer settling a same-sex male harassment suit. More than 50 men will share in the $2.1M settlement of allegations of egregious sexual harassment including “shocking sexual comments, frequent solicitations for oral sex and regular touching, grabbing and biting of male workers on their buttocks and genitals.” There was also an allegation of retaliation against those who complained about the sexual harassment and the hostile work environment it created. While the case was pending but prior to settlement, the judge found that one employee had even received death threats.  

TAKEAWAY: Employers must remember that although it is less common, sexual harassment can occur among the same sex. The same care must be taken to investigate and eradicate same-sex harassment as harassment when the parties are of different sexes.

Next, on Tuesday 4/29/14 we learned of a court ruling that the unsuccessful party in a discrimination suit did not have to pay the other side’s legal fees.  The issue was whether the plaintiff brought a frivolous race discrimination suit against his former employer.  The trial court granted summary judgment for the employer which was not overturned on appeal. However, what was overturned was the plaintiff’s liability for the employer’s legal fees.

TAKEAWAY: Issues like this are very fact-specific, but the employer should not count on having its legal fees reimbursed.

On Wednesday 4/30/14, we had a post on new legal ground, a federal ruling that gays and lesbians are protected from sex discrimination under Title VII.  How? Because, “discrimination that stems from nonconformity to ‘gender stereotypes association with men’ is prohibited by Title VII, which prohibits workplace discrimination due to sex.”  So the case now moves to trial (with the possibility of a finding based on religious discrimination too).

TAKEAWAY: Employers should not allow any type of discrimination in the workplace, regardless of the basis. Period.

On Thursday 5/1/14, we talked about another court ruling, this time on national origin discrimination. This ruling ended up being good for supervisors but bad for employers. The case was out of Hawaii, but can still prove instructive here in PA.  What happened? Gerald worked as a car salesman; he said that the general sales manager ("GM") and other employees called him derogatory names based on his French national origin and that the GM referred to him in derogatory terms when talking to coworkers. Further, Gerald alleged that he was discharged only days after complaining about the harassment. Once suit was filed, the judge first looked at whether Gerald could sue the GM directly or only the employer (based on the definition of “employer” under Hawaiian law).  As have some federal courts, the court there said that supervisors cannot be personally liable as employers for harassment or retaliation claims. That was a win for supervisors. The bad news for employers was that the court said they are strictly liable to employees harassed by supervisors. Despite SCOTUS’s ruling in Vance v. Ball State last year, this court did not rule on who was a supervisor under applicable law.

TAKEAWAY:  It is important to know for what a supervisor might be legally liable and, to the contrary, what only an employer can be liable for.  Supervisors must be properly trained in what can be considered harassment and what the company’s policy provides for if it (allegedly) occurs by a co-worker or the supervisor him/herself.

The post on Friday 5/2/14 talked about religious accommodation and the need to accommodate – or the employer can land in hot water. Read the post for the background facts.

TAKEAWAY: Remember that in this age of diversity, accommodation becomes all the more important in the workplace.

Finally, yesterday 5/3/14, we posted about a war story where the employer found itself in trouble for refusing to accommodate the employee’s disability under the ADA.  The end result is the employer settling for $50,000. How did that come about? An employee with breast cancer needed surgery; she submitted the appropriate medical certification. A month after her leave started, the company told her it had denied her leave and she was being discharged for absences.  She filed a charge with the EEOC alleging an ADA violation. The EEOC ended up suing on her behalf. Then, instead of going to trial, the settlement came about.

TAKEAWAY:  This could have been avoided by the employer engaging in the interactive accommodation process as required under the ADA (and not undermining itself). Also, the employer should have viewed the situation under the FMLA too (as that usually goes hand in hand with the ADA).


     Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions or need assistance, please contact us.

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