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ICYMI: Our Social Media Posts This Week -- July 26 – Aug. 1, 2015

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

In the post on Sunday 7/26/15 we listed 10 questions employers should never ask in a job interview. Some of the questions explicitly ask about legally-protected characteristics, others merely hint at them, so just don’t (ask them, that is). So what are the questions? What is your religious affiliation? Are you pregnant? What is your political affiliation? The others are in the post.

TAKEAWAY: The way for an employer to make sure an employee is qualified is to review the essential functions of the job and ask the employee is s/he can perform them, with or without reasonable accommodation. Then let the employee answer (and any necessary dialog continue). Easy peasy.

The post on Monday 7/27/15 was about a university being sued for allegedly firing a professor for transitioning from male to female. And what makes it interesting is that the plaintiff is not the professor, but the Department of justice; the suit is for sex discrimination and retaliation. The professor was a man when hired in 2004; before the start of the 2007-08 school year, she informed the school that she would be transitioning. In 2009, when she applied for tenure, she was denied – despite recommendations from her department chair and other tenured faculty in her department. After the 2010-11 year, she was terminated for not having become tenured. On-line petitions with over 4300 signatures went up after the discharge. The post has more details. The university basically issued a non-statement in response to the allegations. The case remains pending.

TAKEAWAY: If your head has not been under a rock, you know that gender identity is the next recognized wave of sex discrimination – and therefore prohibited under Title VII.  Use performance for adverse employment decisions, not protected characteristics.

In the post on Tuesday 7/28/15, we talked about maternity leave varying by company size (and state). Remember that the FMLA does not apply to all employees or to all employers, but only to those who meet the requisite thresholds (as specified in the law itself). However, some states may have laws on maternity leave (PA does not) and individual employers may have policies providing maternity leave (paid or unpaid).

TAKEAWAY: Pregnant employees, and especially those who intend to get pregnant, should check into their legal right to maternity leave if it impacts their household financial stability or future work plans. Likewise, employers must remember not to treat pregnant employees differently simple because of the pregnancy.

The post on Wednesday 7/29/15 was about a man filing suit after being discharged for refusing to wear women’s clothing. I do not make up these things. Tristan is a transgender man who was hired by First Tower Loan LLC as a manager trainee. He alleges that a mere week into his job, he was called to the Vice-President’s office to discuss his work clothing; that resulted from Tristan’s supervisor alerting management to him being a transgender man (are your alarm bells going off yet?!?). The only reason the supervisor knew was she questioned “female” being listed as Tristan's gender on his license. Go to the post to see what happened when the VP found out and the ensuing discussions. The suit follows the US Dept. of Justice’s clarification in December 2014 that discrimination on the basis of gender identity is indeed sex discrimination that is prohibited under Title VII. Tower is denying that transgender employees are protected by the DOJ clarification. The case is not over …

TAKEAWAY: Not only do we have the DOJ clarification, we now have the EEOC’s recent guidance, both saying that discrimination on the basis of gender identity is prohibited sex discrimination under Title VII. Just don’t do it.

The post on Thursday 7/30/15 included 5 things not to do when facing workplace harassment or discrimination. These tips are from the angle of the employee, but give insight into what an employer also should think about (not) doing). The first DON’T is to fail to report the action as soon as it happens. Next is DON'T interfere with the investigation. The other tips are in the post.

TAKEAWAY: Nobody wants harassment or discrimination in the workplace, but employers can only remedy what they know about – employees must make sure to follow these tips.

The post on Friday 7/31/15 was about Planet Fitness settling a race and gender discrimination suit for $25K. Not much money, but it still represents a win for anti-discrimination. Rachel, an African-American female, was employed for almost a year. She filed a charge with the EEOC alleging she was not promoted and later discharged based on race and gender. The EEOC determined there was probable cause (and added age and marital status to the mix). More details are in the post, but one tidbit form Planet Fitness is that male worker who was promoted “was more mature, married and has real bills.”  Yuck.

TAKEAWAY: We've said it before and will say it again: make sure employment decisions – hiring, discipline, promotion, and discharge – are based on performance and not any protected characteristic. Period.

Finally, the post yesterday 8/1/15 highlighted a suit for FMLA violation for having to show mastectomy scars before returning to work. Yep, these things happen in the real world! Here Andrea alleges that her employer, Broward Health in Florida, refused to waive a policy requiring employees off for FMLA leave for surgery to all an in-house medical clinic to examine the wound before returning to work. Andrea thought the policy was “demeaning and humiliating” and asked that it be waived; the employer said it was to ensure no open wounds, sutures or staples. A nurse suggested that Andrea obtain a note from her treating physician that there were no open wounds, sutures or staples; she did so and turned it in, but the employer still refused to waive the exam. Andrea then offered to allow her doctor to speak to the employer, but still no exam waiver. She refused to undergo the exam and was discharged. The suit is still pending as you read this.

TAKEAWAY: While it is advisable for employers to uniformly enforce policies, they may need to exercise some variance or discretion when a law comes into play.

References (7)

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