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Fifth Circuit Court of Appeals

In an opinion issued yesterday in Wittmer v. Phillips 66 Company, the Fifth Court of Appeals affirmed the granting of summary judgment in favor of Phillips 66 on a claim of employment discrimination based on transgender status. 

The Court of Appeals went beyond merely upholding the lower court’s summary judgment however. In its opinion, the Fifth Circuit expressly rejected the district court’s determination that Title VII prohibits employment discrimination based on transgender status

The Fifth Circuit pointed to its past precedent holding that Title VII does not prohibit sexual orientation discrimination and faulted the district court for not distinguishing this case from that precedent.  Interestingly, this decision leaves some room for the possibility that the Fifth Circuit might someday hold that Title VII does in fact prohibit transgender employment discrimination as long as the case is distinguished from discrimination based on sexual orientation, which the court has already ruled is not prohibited.

Here is the text of the Fifth Circuit opinion.

Here is a link to the Fifth Circuit oral argument.

Here is the text of the original district court opinion.

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Chai Feldblum, a member of the Equal Employment Opportunity Commission

GOP senator Sen. Mike Lee, R-Utah blocks reappointment of EEOC’s only LGBTQ commissioner, Chai Feldblum because her existence is a "threat to marriage."

This is a real blow to American workers, especially those who are disabled. Feldblum, who was nominated by President Trump, has spent most of her time on the Commission championing the rights of the disabled in the workplace.

In her capacity as an EEOC commissioner, she has little to nothing to do with any laws or policies having to do with marriage. So when it comes down to it Senator Lee doesn't like her because she is a lesbian.

Meanwhile, this will leave the EEOC without a quorum in 2019, making it more difficult for the agency to conduct business.

I for one, don't care what Senator Lee's religious views are. That's his business. But why is he trying to for enforce personal religious positions by going after an advocate for the disabled?

It just doesn't make sense to me and I don't think anyone should be very happy about it.

Read the entire story here.

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Local Verterans Benefits Officer Terminated

“U.S. Army veteran Steven Price just had hip replacement surgery for the second time. Price has been fighting for his service disability status to be upgraded from 70 percent to 100 percent for decades, starting in 1988 when the U.S. Department of Veterans Affairs (VA) diagnosed his hip and low back issues as congenital bone disease....The difference between winning and losing his appeal is about $500,000 in retroactive pay, he said.”

But his case manager, Bexar County Veterans Service Officer Queta Rodriguez, was fired Nov. 9 and her position was eliminated in a decision she calls political retaliation for running against County Commissioner Paul Elizondo earlier this year. Bexar County Commissioners voted 3-1, with Elizondo abstaining, to approve the selection of a new veterans service office director and cut Rodriguez's position.

”The Commissioners' decision has left the veterans service office without a full-time accredited claims officer – and likely for a while.” Price and other veteran’s are upset that political retribution may be hurting their chances to get the benefits they so terrible need. 

Read the entire article at the Rivard Report.

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Women experience $513 billion in lost wages a year because of the stubborn pay gap that persists between them and their male peers, according to a new report from the American Association of University Women.

The consequences of women earning 80 cents on average for every dollar brought home by a man can impact nearly every aspect of their lives, from the ability to pay off college debt to their decisions about having children to how financially stable they are when they ultimately retire.

The wage disparity begins to widen almost immediately, with 20-year-old working women tending to earn 90 cents for every dollar paid to a male peer. But, by the time they turn 54, women are earning 22 cents less on average, according to the AAUW report.

Read the full story here.

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Source: Picpedia

Illnesses can include high blood pressure, poor quality sleep, anxiety, even depression

Many say that time heals all wounds. But that’s not true. The impact of workplace sexual harassment or sexual assault can result in lingering health problems years after the experience, a new study published in the JAMA Internal Medicine journal says.

The study, “Association of Sexual Harassment and Sexual Assault With Midlife Women’s Mental and Physical Health”, set out to answer the following question: Do women with a history of sexual harassment or sexual assault have higher blood pressure, greater depression and anxiety, and poorer sleep than women without this history.

It found that women with a history of workplace sexual harassment had “significantly higher odds of hypertension and clinically poor sleep than women without this history, after adjusting for covariates”. Women with a history of sexual assault had significantly higher odds of clinically significant depressive symptoms, anxiety, and poor sleep than women without this history, after adjusting for covariates, it says.

Read the Entire Article at Entrepreneur.com

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Sex Discrimination Has Devastating Economic Consequences

Getting fired is almost always difficult and disappointing, but research suggests the impacts are far more devastating for women than men.

In fact, while men typically bounce back stronger, earning an average of 1.3% more in their subsequent role, women typically see their salaries decrease by an average of 24%, according to a recent study by Insurance Quotes.

“The salary decrease that we’re seeing in this study is really significant,” says Insurance Quotes media relations associate Bri Godwin. “That’s enough to really change how you live your life.”

Read the rest of the Article at FastCompany.

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Credit: Prentsa Aldundia

The recent national turmoil over the Supreme Court candidacy of Judge Kavanaugh and the completely broken way that we have dealt with allegations of sexual assault in this country has had one hopefully positive side effect — the number of women around the country who have felt confident enough to come forward with their own stories.

In the workplace, this issue most often takes the form of workplace harassment or bullying. Recently, writer Jessica Press was caught by surprise while working on an article about workplace bullying. When she posted to social media that she was looking for stories from women about their experiences of being bullied at work, she expected a sprinkling of replies. Instead, as she recounts in her feature article appearing in Redbook magazine’s October issue, she got a deluge:

“My inbox was flooded — overflowing with incoming mail. I’d put out the call to a handful of experts and Facebook groups for women’s stories of workplace bullying. I thought perhaps I’d hear from a dozen women.

Instead, within a week, nearly a hundred stories from around the country and around the world poured in, with a steady stream continuing in the days and weeks that followed. They worked in hospitals, academia, sales, food service — anywhere and everywhere. There were women still living in fear of retaliation. There were those who shared their journeys of deteriorating marriages, depression, anxiety, and PTSD-like symptoms. There were a surprising number who had involved lawyers and were limited in what they could even reveal due to nondisclosure agreements.”

The article contains a number of tips for dealing with workplace bullying and I commend it to your reading. I hope the national turmoil we are currently suffering will lead to real conversation and, ultimately, real change. Hopefully it will serve, if nothing else, to let people know that bullying, sexual harassment and assault occurs much more frequently than many believe.

I also hope that we can make progress in dispelling some of the false beliefs that many still hold about bullying and harassment in the workplace. Here are a few of the worst:

  1. That if bullying/sexual harassment/assault happened then the woman must have done something to put herself in peril.

  2. That it must always take more evidence than a woman’s word that something happened to be equal to a man’s word that it didn’t.

  3. That if sexual harassment/assault really happened the woman would have reported it immediately.

  4. That sexual harassment/assault is, any any time or context, normal male behavior (“boys will be boys”).

These are all 100% FALSE. And yet many people, including well-meaning women I meet in focus groups, will often state some version of one of these falsisms.

The #MeToo movement has helped to expose just how badly this country has been dealing with the treatment of women who suffer bullying/harassment/assault. But if the raging anger of a bunch of old, male senators last week showed us anything it is that this problem will not go away easily or quietly. We still have a long way to go.

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Dollar General Sued for Sexual Harassment

Dollar General violated federal law when it subjected a store manager to a sexually hostile work environment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced yesterday.

According to the EEOC's suit, within a week of Dollar General hiring an assistant store manager for its Rock Hall, Md., location on May 28, 2016, the store manager began sexually harassing her. He frequently made crude comments about her appearance or sexually charged innuendoes. The EEOC also charges that the store manager repeatedly subjected the assistant manager to unwelcome touching, including once grabbing her head and forcing it to his crotch while making a sexual innuendo; rubbing her shoulders; and grabbing her and ripping her blouse.

The EEOC said that after the assistant manager complained to Dollar General management, they transferred her to its Chestertown store, which required earlier, less convenient hours and added an hour to her daily commute. Dollar General refused to return her to the Rock Hall location and even permitted the harasser to go to the Chestertown store once while she was working there. The EEOC said that the assistant manager was compelled to resign on July 31, 2016, based on Dollar General's inadequate response to her sexual harassment complaint.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination based on sex. The EEOC filed suit (EEOC v. Dolgencorp, LLC, t/a Dollar General Stores Inc., Civil Action No. 1:18-cv-02965) in U.S. District Court for the District of Maryland, Baltimore Division, after first attempting to reach a pre-litigation settlement through its conciliation process.

EEOC Press Release

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The Fair Labor Standards Act (FLSA) is the federal law the controls the terms under which employees must be paid overtime. All employees fall into one of two categories "Exempt" or "Non-Exempt". If an employee is non-exempt, when they reach more than 40 hours in a given work week, they have to be paid at time and a half for any additional hours. If they are non-exempt), they aren't eligible for overtime. Most people think of non-exempt employees as "hourly" and exempt employees as "salaried".

  • Pro-Tip: Just because your employer pays you as salaried does not necessarily mean that you should be considered exempt and not entitled to overtime. Exempt employees are typically involved in management or high-level administration of the business. There are other exceptions as well but a good rule of thumb is this: if you are more like a rank and file line worker or clerical worker, you should probably be getting overtime. If you aren't you need to find a good employment lawyer.

As a general rule exempt employees are paid a salary and don't have to be paid overtime no matter how many hours they work. But there are other rules that come that exempt status. One important one that employers often ignore is the rule against docking pay.

Exempt employees who are late or who need to leave work early - for doctor's appointment, child care, whatever - cannot have their pay docked for missing a couple of hours of work. If an exempt, salaried employee shows up for work, even if it's just for 15 minutes, he or she must be paid for the entire day. That's the rule.

The employer can discipline, fire, or demote the employee. But it cannot dock the employee's pay.  Importantly, the employer is allowed to dock vacation time and force the employee to use that to cover the hours missed. But the employees pay may never be docked.

So what happens if the employer breaks this rule and docks pay? Well then the employer has just lost the FLSA "exemption" as to that employee. This means the employee is owed overtime for all hours over 4o worked in the last two years plus all overtime worked in the future. This can add up to a substantial amount.

So, long story short is this: If you are paid by salary and your employer docks your pay for being late or missing a few hours of work here or there, you should contact an employment lawyer right away. Your employer is taking advantage of you and breaking the law. You may be owed a substantial amount of overtime pay.

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A jury has awarded a Temple University executive assistant $850,000 in an age discrimination lawsuit alleging that, among other things, she was told by her boss, a Chinese national, that "in China, they put women out to pasture at your age" (Briggs v. Temple University, No. 16-248 (E.D. Pa., July 19, 2018)).

After she was fired, Ruth Briggs sued the Philadelphia-based school, claiming age discrimination and hostile work environment during her tenure as an executive assistant to the chair of the university’s computer and information sciences department. Briggs also said she suffered retaliation when she repeatedly complained to the university’s human resources department. The university, however, said she was fired for performance deficiencies.

A unanimous federal jury awarded Briggs compensatory damages of $350,000 for pain and suffering, back pay loss of $250,000 and $250,000 in liquidated damages.

Read local media report here. 

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