Wednesday, January 26, 2011

Virginia lawmakers introduce gay rights bill

Virginia's lawmakers have a bill before them that would prohibit discrimination on the basis of sexual orientation in the Commonwealth's workforce and Virginia's National Guard.

Read more about it here.

Tuesday, January 25, 2011

Take Your Tie And Go “Packing”

A car salesman in Chicago was fired recently for refusing to remove his Green Bay Packers tie. Many are already calling for the former salesman to find a lawyer and “sue the dealership for all it's worth.” While wearing a tie emblazoned with the Packers logo the day after the Packers beat the Bears is probably not the best way to make friends (or sell cars) in Chicago, does it really give the geographically-challenged salesman grounds for suing his former employer? Certainly not. Unfortunately for this former employee, there is no law protecting Packers fans from being discharged from their jobs. Some may believe that firing the salesman for his choice of neckwear was unfair or harsh, but unfairness does not mean the discharge was illegal or grounds for a lawsuit. If this Packers fan wants to sell any 2011 models, he will have to do so at a different (and more Packer-friendly) dealership.

NLRB faces off with 4 states over constitutional amendments

The National Labor Relations Board announced on January 14 that it believes constitutional amendments passed in four states violate/are preempted by the National Labor Relations Act. South Carolina, Utah, South Dakota and Arizona passed amendments to their respective state constitutions that govern how unions can achieve representation of workers. The NLRB sent notices to the states advising of its position concerning the conflict and warning that suits will be filed to prevent enforcement of the amendments.

Monday, January 24, 2011

3rd party retaliation under Title VII? US Supreme Court says it's possible

One of the cases we were following at the U.S. Supreme Court is Thompson v. North American Stainless. That is the case where one employee (Miriam Regalado) filed a charge of discrimination against the Defendant while she was still working for it. Her fiance, Eric Thompson, also worked for the Defendant. He was fired three weeks after the Equal Employment Opportunity Commission notified the Defendant of Regalado's charge. He filed a retaliation claim under Title VII, alleging that his firing was because his fiancee engaged in protected activity.

The district court in Kentucky disagreed, dismissing Thompson's case on summary judgement. The Sixth Circuit Court of Appeals (covering Michigan, Ohio, Kentucky and Tennessee) affirmed the decision of the district court.

The U.S. Supreme Court said two questions needed to be answered:

  1. Did the Defendant's firing of Thompson constitute unlawful retaliation?
  2. If it did, does Title VII grant Thompson a cause of action?

The Court held unanimously that:
  1. Title VII's anti-retaliation provision, which is more broadly construed than its anti-discrimination provision, prohibits more than conduct which only impact the terms and conditions of employment.
  2. The anti-retaliation provision prohibits actions by an employer that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."
  3. Title VII did give Thompson the right to sue, because he is a "person aggrieved" under the statute.
  4. To be "aggrieved" under Title VII means that Thompson is someone who has interests that are sought to be protected by Title VII.
  5. If you accept the facts as Thompson represents them, he was collateral damage of his fiancee's charge of discrimination, squarely placing him within the zone of protection intended by Title VII's anti-retaliation provision.

What are the take-away points?
  1. Remember that this case decides a procedural point, but it does not decide whether Thompson actually experienced retaliation. Rather, the decision only means that Thompson should be allowed to present his case to a fact-finder (judge or jury) and let that body decide whether Title VII was violated.
  2. It also means that where someone raises a claim for third-party retaliation, the chances of disposing of the case at the summary judgment level have been greatly diminished. The Court acknowledged that its holding does raise a question about who is a protected third-party? Is being something less than a fiance going to be enough? What about if you're a close friend, acquaintance, or simply a co-worker with no defining relationship outside the workplace? Regardless of this gray area, the Court believed that the anti-retaliation provision's breadth could not be limited by creating bright-line relationship rules for its application.
  3. The Court ruled unanimously. This means that the Court wants to send a clear message about its holding and the intended consequences of the same. (Justice Kagan, the newest Justice, did not participate in the deliberations.)

Thursday, January 13, 2011

Employer I-9 handbook from USCIS

US Citizenship and Immigration Services unveiled the latest I-9 Handbook for Employers on January 6. You can get your copy here. For anyone in your organization who has responsibility for completing, reviewing, correcting, and storing I-9s, the handbook will be, well, handy.

Tuesday, January 4, 2011

EEOC Recess Appointments Confirmed by Senate

Just before Christmas, the Senate confirmed President Obama's three recess appointments to the Equal Employment Opportunity Commission: Jacqueline A. Berrien, Chai R. Feldblum and Victoria A. Lipnic. Without the confirmation, Lipnic's recess appointment would have retired, leaving only 3 commissioners plus the chair.

Lack of confirmation could have resulted in more of a shift in the EEOC's ideology than has already occurred with a Democratic majority on the Commission. Lipnic and Constance Barker are the two Republican commissioners. Stuart Ishimaru, a Democrat, rounds out the panel.

Now that we know who's going to be leading the EEOC's agenda for a while, let's take a look at the background of those on the Commission:

Jacqueline Berrien (Chair, Democrat): Berrien came to the EEOC from the NAACP Legal Defense and Educational Fund, where she had worked for the last 5 1/2 years. Her previous employment roles, including some time at the American Civil Liberties Union, allowed her to represent voters on issues of representation and voting rights, and for women's rights.

Stuart J. Ishimaru (Commissioner): Ishimaru started his service on the Commission under George W. Bush in 2003 as a Democratic appointment. Ishimaru was acting Chair during the last few years when the EEOC saw its budget increased significantly in order to ramp up its enforcement efforts and staffing. The drive to investigate and litigate systemic discrimination cases began under Ishimaru's tenure as acting Chair. He testified before Congress in support of the Employment Nondiscrimination Act (which, if passed, would have prohibited discrimination on the basis of gender identity and sexual orientation).

Constance S. Barker (Commissioner): Barker was nominated by President George W. Bush and confirmed by the Senate in 2008. Prior to joining the Commission, she worked for a private firm in Alabama defending businesses in cases of harassment and discrimination. She also worked as an assistant district attorney and has spent her time on the Commission focusing on issues involving worksite rape and sexual assault.

Chai Feldblum (Commissioner): Feldblum has previous legislative experience in playing major roles in the drafting of the Americans With Disabilities Act of 1990 and the Amendments which were passed in 2008. She worked for the American Civil Liberties Union as legislative counsel for its AIDS project and played a significant role in drafting the Employment Nondiscrimination Act. Feldblum has been perhaps the most controversial of President Obama's appointments given her particularly strong views on advancing the rights of gays, lesbians and transsexuals.

Victoria A. Lipnic (Commissioner): Lipnic came to the EEOC from private practice with a Washington, D.C. law firm. She previously worked in government, having oversight responsibilities for the Wage and Hour Division of the U.S. Department of Labor when it overhauled its overtime and exemption standards, as well as playing a role in the issuance of revised Family and Medical Leave Act regulations.