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Monday
Oct092017

ICYMI: Our Social Media Posts This Week – Oct. 8 - 14, 2017

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 10/8/17 we found out about a waitress fired for pants religious objection. Really. The employee is a Pentecostal which forbids her from wearing the required denim pants. She told the manager that before she was hired. When she arrived for work the first day wearing a denim skirt, she was fired. The employer's reasoning (I use that term that loosely) is in the post. The EEOC sued for failure to accommodate her religious beliefs.

TAKEAWAY: If you cannot accommodate an employee's religious beliefs, make sure it is for a legally valid reason.

The post on Monday 10/9/17 told us that the Trump Administration says employers can fire people for being gay. Yes, this now puts the Administration at odds with the EEOC. The lawyer for the Administration who argues the case said "Employers under Title VII are permitted to consider employees' out-of-work sexual conduct ... There is a common sense, intuitive difference between sex and sexual orientation." Counsel for the plaintiff summed it up in basic terms; see the post. This is all occurring in a case being heard by the full Second Circuit and after the Seventh Circuit recently ruled in favor of the plaintiff in a similar case.                                                                        

TAKEAWAY: LGBT employees can legally be fired in PA for that reason alone, but that doesn’t mean employers should rush to do that – it's not good for morale or business and, needless to say, closes the door on employees performing their jobs day in and day out.

In the post on Tuesday 10/10/17 we talked about how to avoid a sexual discrimination lawsuit. The post gave us 5 tips including setting clear policies, training, and others in the post.

TAKEAWAY: Don't take adverse action against an employee because of sex – make sure any adverse action is based solely on work (non)performance.

The post on Wednesday 10/11/17 asked: Can spousal jealousy provide grounds for a discrimination claim? In the case in the post, the answer was yes. So what happened? The husband and wife owned a chiropractic office. They hired a female massage therapist and yoga instructor. Husband directly supervised the employee. What did he say to her that started this whole mess? See the post. And then a short time later, wife followed that up with a text message (again, see the post). After that, husband fired her. She sued for sex discrimination. And won on appeal.

TAKEAWAY: Yep, what we said above: Don't take adverse action against an employee because of sex – make sure any adverse action is based solely on work (non)performance.

In the post on Thursday 10/12/17 we read that a construction company will pay $125,000 to settle an EEOC race harassment suit. The suit alleged that the company subjected 2 black employees to a hostile work environment, including physical threats, based on their race. The employees were carpenters who were subjected to racial harassment form their supervisor, a white male, both verbally and by action. What he said and did are in the post. The settlement was signed off by the court on September 7th of this year and included both the monetary payment and other equitable relief (listed in the post).

TAKEAWAY: Employees should be treated equally and solely based on performance – don't let race (or any other type of) discrimination darken your company's doorstep.

The post on Friday 10/13/17 was about fat-shaming in the workplace: actionable?  The post starts off with a good question and sets the tone for what follows. Yes, fat-shaming is a thing. And apparently may be a legal basis on which to harass employees and create an hostile work environment. The post first attempts to define fat-shaming. Then it tries to answer the question of whether or not it is actionable. The post goes through some scenarios where it might give rise to a claim, including the language used in one case.

TAKEAWAY: Again, just because taking adverse action against an employee might be legal, that does not mean you should green-light it. You might find that an illegal reason underlies the action, thereby opening you up to liability.

Finally, in the post yesterday 10/14/17 we learned the EEOC sued Con Edison for allegedly requiring job applicants to submit to medical exams and provide genetic information. Ugh. The suit was just filed 9/27/17 in federal court in NY. Why? It says that the company violated the ADA, GINA and Title VII by discriminating against 3 employees with disabilities. What it allegedly did is in the post. Con Ed says it expects to get the case resolved.

TAKEAWAY: These laws are there for a reason – to protect people from actions taken not based on performance, but a protected characteristic that has nothing at all to do with performance. Don't get caught in the trap.

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