I want to tell you about an Army reservist whose employer investigated him for taking fraudulent leave. That investigation spawned a grand jury indictment for theft. The employee was booked, detained in jail, suspended from his job, and eventually fired. Yada, yada, yada, a federal jury awarded the employee $1,500,000. Lest anyone should accuse me of having yada yada’d over the best part, I’ll share a few more important details. The reservist provided the district attorney’s office with documents substantiating his attendance at military functions on the dates relevant to his indictment ..read more

A white man filed a lawsuit against a company claiming that it denied him a high-six-figure executive position because of his race, age, and sex so that the company could search for more diverse candidates. Among the causes of action he asserted was one for race discrimination under 42 U.S.C. § 1981. A plaintiff suing under Section 1981 for a failure to hire must establish that “but for” his race, he would have gotten the job. Whoa, whoa, whoa! Hold up. If the plaintiff claims discrimination because of his race, gender, or age (i.e., any of the three), how can he establish that, but for his r ..read more

Often, an employer has affirmative defenses when an employee accuses a supervisor of sexual harassment. But Title VII of the Civil Rights Act of 1964 makes liability automatic in two ways. First, there’s the situation involving quid pro quo sexual harassment. That happens when a supervisor conditions some tangible employment action on a subordinate’s submission to sexual demands. In plain English, “Sleep with me or you’re fired.” If the supervisor follows through on that threat, then the employer is vicariously liable. Again, in plain English, the employer is screwed. Another possibility is a ..read more

Congress has considered legislation several times that would prohibit employers from discriminating based on an individual’s hair texture or hairstyle if that hair texture or that hairstyle is commonly associated with a particular race or national origin. But it has never passed. Why? Because many believe that this law is unnecessary since Title VII of the Civil Rights Act of 1964 already forbids discrimination based on race and national origin. Indeed, earlier this month, the U.S. Equal Employment Opportunity Commission announced that it had settled a race discrimination lawsuit that centere ..read more

The words “cisgender” or “non-transgender” employee appear nowhere in Title VII of the Civil Rights Act of 1964, the federal workplace law that outlaws gender discrimination. But, according to a Pennsylvania federal judge, “that does not preclude the possibility that discrimination against both a cisgender male and cisgender female may be independent Title VII violations.” I’ll explain why. In October 2019, the Supreme Court decided Bostock v. Clayton County. In Bostock, the Court concluded that Title VII prohibits an employer from discriminating against someone merely because they are gay or ..read more

After taking a few days off and rocking out in Seattle, I’m back to blogging about employment law. ??? Today, we pull back the curtain and reveal how the U.S. Equal Employment Opportunity Commission will address failure-to-accommodate claims under the Supreme Court’s new religious accommodation standard established last year in Groff v. DeJoy. In Groff, the Supreme Court held that Title VII of the Civil Rights Act of 1964, the federal workplace anti-discrimination law that requires employers to accommodate the sincerely held beliefs of employees absent undue hardship, requires an employe ..read more

Like The Rock laying the smack(eth) down on Cody Rhodes in a Chicago parking lot, a federal appellate court recently pummelled the National Labor Relations Board. Although to be clear, no one was harmed as part of the DC Court of Appeals’ recent ruling about the contours of employee surveillance. I’ll tell you what happened. During his lunch break, a delivery driver covered an onboard camera in his company truck. So his supervisor texted him once not to cover the camera. That’s it. But the union filed unfair-labor-practice charges anyway, and the Board’s General Counsel issued a complaint, al ..read more

Suppose an employee gets fired after complaining about sexual harassment at work. If that person later claims retaliation, they will have to establish a nexus between the two events, and the complaint also arises to the level of what we call a “protected activity.” For an internal sexual harassment complaint to qualify as a protected activity, an employee must have a sincere and reasonable belief that they were challenging conduct that violates Title VII of the Civil Rights Act of 1964. Axiomatically, if the complaint is insincere and unreasonable, the plaintiff’s lawsuit will be shorter than ..read more

A recent federal appellate court decision is an important reminder to confirm early—not later—whether the employee suing your business signed an arbitration agreement. The plaintiff had signed an agreement with an arbitration provision that covered his subsequent claims for disability discrimination, which he filed in federal court. But the employer didn’t act on it right away. To say the employer delayed would be an understatement. Over the next six-and-a-half months, the parties engaged in extensive discovery. Among other things, the employer participated in a discovery conference, served w ..read more

I’m going to tell you about a transgender man who worked for three years as a sergeant for a state prison. While working at the prison, he began the process of medically and socially transitioning to align with his gender identity. He underwent hormone replacement therapy, obtained a legal name change, and decided to live openly as a man. Since he had to disclose his gender identity at work, the employee contacted Human Resources. On a phone call with the HR director, during which the employer inquired if he “had the surgery,” the employee could hear people laughing. As others learned about t ..read more