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ICYMI: Our Social Media Posts This Week – May 8 - 14, 2016

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 5/08/16 we learned the EEOC filed the first suits for sexual orientation discrimination. The time has come! Federal law does not specifically protect LGBTQ persons from workplace discrimination or harassment. However, the EEOC ruled that discrimination on the basis of sexual orientation is sex discrimination and therefore illegal. Now it’s backed up its talk with a walk (to the courthouse). One of the first 2 cases were filed against a Pennsylvania-based employer, Scott Medical Health Center, alleging that a gay male employee was repeatedly harassed based on his sexual orientation, including his manager calling him anti-gay epithets. Ugh. More details are in the post.

TAKEAWAY: The Supreme Court told us that marriage between persons of the same sex is legally cognizable; now let’s see what courts do with the EEOC’s interpretation of sex discrimination as including sexual orientation.

The post on Monday 5/09/16 noted a federal contractor was sued over alleged hiring discrimination against women and people of color. This NY company with over $46M in federal contracts is in hot water again, this time for allegedly discriminating in hiring practices as against Asians, blacks and women. The suit alleges B&H hires only Hispanic men for entry-level positions in the warehouse while promoting and compensating white workers at higher rates than Hispanics. More allegations are in the post, including denial of equal access to clean, functioning bathrooms. B&H denies the allegations, including that it has no bathrooms segregated by race or religion. Time will tell as this winds its way through the system.

TAKEAWAY: Federal contractors have some anti-discrimination obligations that private-sector employers do not – be careful of what you do (or don’t do) and against whom to stay in compliance.

In the post on Tuesday 5/10/16 we asked: Are you discriminating against older employees without realizing it? Yes, it might be true. The post highlights some things that may not quite be illegal (or could be), but still might be discriminatory against older employees, including using the word “overqualified” to mean “old”.

TAKEAWAY:  Don’t use the term “overqualified” unless you truly mean the person has more or better skills than are required for the job – and nothing more. A younger person could be overqualified too.

The post on Wednesday 5/11/16 told us a Yelp tweet about a fired employee could spell legal trouble. A former Yelp employee posted something on socmedia, alleging that she was fired after asking for time off to care for a sick boyfriend. Nothing strange so far, right? Wait for it. Yelp then replied on socmedia, with details! See the post. Not only did that make their lawyer cringe, it may have gotten Yelp in legal trouble for violating one or more laws. Further, since she denies some of the information in Yelp’s reply, there could be a defamation claim in the works too.

TAKEAWAY: While it can be difficult, an employer does not have to respond to public comments or allegations about its actions – and often it should not in order to stay on firm legal footing.  

The post on Thursday 5/12/16 was about the firing by KFC of a manager who discriminated against a transgender employee.  Our recent post on the underlying incident was here. KFC made the right decision by firing the manager who acted illegally. KFC also hired the employee (again). A good ending.

TAKEAWAY: All companies want to be known, but not for illegal actions – here KFC publicly did the right thing to remedy discrimination practiced by one of its managerial staff. Kudos!

The post on Friday 5/13/16 asked Is Hispanic is a race (a federal court says yes). In short, a white, Italian-American employee sued after being denied a promotion given to a white, Hispanic employee. A jury agreed with him to the tune of $1.35M.  The verdict was upheld on appeal with the ruling that “Hispanic” does indeed refer to a race under Title VII. Details of the case are in the post, but this case broke new ground in broadening and defining the meaning of race under the statute. The decision noted that “Hispanic” has always been deemed a race in reference to Section 1981 cases, then here brought that definition over into Title VII (to sit alongside national origin, which is not covered under Section 1981 and under which “Hispanic” might also fit).

TAKEAWAY: It’s risky to assert new legal ground as a basis to justify what could be an illegal action – the obvious, best course is not to take the potentially illegal action in the first place.

Finally, the post yesterday 5/14/16 told us that SEPTA dues over an ADA project. A borough in Bucks County, PA, has a $36M project to bring its bus station into ADA compliance. SEPTA is all for that. What SEPTA is not all for are issues with fees and regulations. SEPTA asked to be treated like Amtrak (which would exempt it from many fees and regulations). Stay tuned!

TAKEAWAY: Even doing the right, legal thing might not make you immune from suit – just keep that in mind.

EXTRA: on 5/14/16, we posted (here and here as but two examples) congratulations to Sara A. Austin on becoming the 122nd (and only third female) President of the Pennsylvania Bar Association! It is worth taking a minute to check out the video of the procession leading her to the podium.

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