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Supreme Court Rules Title VII Prohibits LGBTQ Discrimination
By: Teresa Shulda

The Civil Rights Act of 1964, which includes Title VII, prohibits employment discrimination against employees because of race, color, national origin, religion, and sex. Today, the Supreme Court issued its long-awaited decision in a trio of cases that tested the question of whether Title VII’s existing ban on discrimination “because of… sex” includes discrimination because an employee is gay or transgender. A six-justice majority of the Court ruled that an employer indeed violates the law when it impermissibly considers an employee’s LGBTQ status in making employment decisions.

In the cases at issue, the Court heard three similar fact patterns, representing a split among the federal appellate courts. In the title case, Bostock v. Clayton County, Georgia, a long-time gay male county employee alleged that he was terminated for conduct “unbecoming” of a county employee shortly after he joined a gay recreational softball league. In that case, the Eleventh Circuit Court of Appeals, covering Georgia, Florida, and Alabama, ruled that Title VII’s prohibition against discrimination based on sex did not include sexual orientation discrimination.

The Second Circuit Court of Appeals, covering Connecticut, New York, and Vermont, gave an opposite ruling in Altitude Express, Inc. v. Zarda. In that case, Zarda, a gay male skydive instructor, alleged that he was terminated because he was openly gay and referenced his sexual orientation to clients and coworkers. The Second Circuit concluded that an employer cannot consider or define a person’s sexual orientation without considering the person’s sex. Thus, sexual orientation discrimination is discrimination because of sex,      Continue Reading...

Looking Ahead: Hot Employment Law Issues for 2020
By: Morgan Hammes

What issues and trends do we see on the horizon for employers in 2020? Here are some hot employment law issues that may impact your organization or give you food for thought. 

  • Arbitration Provisions. The Supreme Court has made it clear that class action waivers in employment agreements requiring employees to arbitrate legal disputes are valid and enforceable. More and more employers are using such arbitration agreements to limit liability exposure for employment law claims. Is this a good option for your company?
  • Marijuana Legalization. Colorado has legalized recreational marijuana; Oklahoma and Missouri have legalized medical marijuana; and Nebraska has decriminalized marijuana usage. What does the future hold for Kansas? Even aside from potential legal changes, some Kansas employers have decided to stop testing for marijuana use in light of the tight labor market and changing public perceptions.
  • Ban the Box. Kansas state employers under Governor Kelly's jurisdiction and employers in Kansas City, Missouri, are now prohibited from asking about criminal history until after a conditional offer has been made. Many other states and cities have also “banned the box.” As an employer, should you continue to use criminal history to automatically disqualify job applicants?
  • LGBTQ Protections. In 2020, the U.S. Supreme Court is expected to decide the hotly debated question whether Title VII’s prohibition of discrimination based on sex extends to sexual orientation and/or      Continue Reading...
A Christmas Story: Tales of Woe and Joy from the Holiday Party
By: Teresa Shulda

Now that the holidays are over, we can look back on a year of accomplishments and success. Or, for some, we can start the new year with HR headaches resulting from the annual holiday party.

The Naughty List
Holiday parties are ripe for mischief and mistakes. The following are true stories of office parties that went horribly awry.
  • A California bank branch held an annual holiday party at a local restaurant. There were only about 15 people in attendance, but they included a female bank teller, the teller’s female boss, and the boss’ boyfriend (a manager at a different bank branch). The entire affair, including the alcohol, was funded by the bank’s budget. The office party officially ended, but the party-goers continued their revelries. But once the bank’s party ended, the bank employees had to fund their own cocktails. The party continued into the restaurant bar area, then moved to another bar as the night progressed, and finally ended up at the boss’s house. You can probably see where this is going. The teller ultimately accused her boss and the boss’s boyfriend of sexual harassment, and brought suit against the bank, alleging that the bank should have foreseen the harassment, particularly in light of the alcoholic drinks that were provided at the holiday party. The trial court ultimately found the bank wasn’t liable, largely because the office party ended, and the drinking that continued wasn’t on      Continue Reading...
EEOC's Position on Sexual Orientation Based Discrimination Rejected by the 7th Circuit
By: Donald Berner

As most of you probably already know, the EEOC has taken the position that bias based on sexual orientation is sex discrimination in violation of Title VII.  In a decision issued by the 7th Circuit Court of Appeals (the first federal circuit court of appeals to hear such a case), the EEOC's position was rejected.  The Court focused heavily on following the precedent established in prior 7th Circuit cases in reaching its conclusion. that Title VII does prohibit bias on the basis of sexual orientation.

This issue is likely to make news through the remainder of 2016 and throughout 2017 as other federal circuit courts of appeals are set to hear cases raising the same issue.  In addition to further court decisions, the Equality Act is pending in Congress which would add sexual orientation and gender identity to the protected classifications currently in existence under federal law.  Stay tuned for further developments.  

Holiday Party Fun
By: Donald Berner

It is that time of year again.  Now that we have cleared Thanksgiving, we are into the homestretch to Christmas and the New Year.  As they say -- "Tis the Season".  Well it is the season for the annual holiday party or in some circles a series of parties until the holidays are gone.  Before your company holds its holiday party, take a quick review of this post and make sure you are all set in the HR office.  

1.  Be careful with the alcohol.  If you are going to serve alcohol do your best to apply some sane limits upon your partygoers.  And by all means make sure that before you turn off the lights and send everyone home that you have taken care of providing some form of transportation to those that failed to limit themselves.  

2.  It's a great time to shine some light on your productive work environment policy (anti-harassment).  For those that serve alcohol (see #1 above), harassment concerns may rear their ugly heads at the holiday party.  And while everyone else is having a good time, keep your eye out for problems in this area and step in before it gets past the point of no return.

3.  If you have employees involved in any of the setting up or cleaning up beware of wage and hour rules.  Remember, employees are not volunteers. 

4.  Do your best to keep the various religious references out of the holiday party.  Remember, your employee group is diverse and what might be acceptable to one could offend another.

Keeping an eye on these little things prior to, or during, the holiday party can help avoid      Continue Reading...

Happy Halloween!
By: Donald Berner

It's almost Halloween.  A night when young kids dress up and roam the streets crying out "TRICK OR TREAT" in hopes of getting bags full of candy.  For some adults, Halloween is a big holiday.  It's a time to dress in costume and go to parties of their own without the kids.  Keep in mind that Halloween can be a tricky holiday in the workplace.  The origins of the holiday are rooted in religious related concepts (click here for the unofficial history of Halloween).  These religious roots can make Halloween in the workplace more trick than treat.  The holiday meets resistance from those who practice Islam, Judaism, and Christianity.  Some have very strong beliefs about Halloween.  With that in mind, if your workplace celebrates Halloween or requires employees to dress in costume, be mindful of employees with religious objections to such activity.  Should an employee object, ensure you carefully handle these objections to avoid religious discrimination concerns. 

A “General” Reminder about E-mail
By: Boyd Byers

“Don’t put anything in writing that you wouldn’t want to see published on the front page of the newspaper,” the old saying goes. Apparently our top military leaders didn’t get the memo. 

Unless you’ve been hiding in a cave in Afghanistan, you probably know the story. Retired General David Petraeus quit as CIA director last week when an investigation turned up e-mails exposing his affair with his biographer, Paula Broadwell. Now Marine General John Allen, the top American military commander in Afghanistan, is under scrutiny for a voluminous e-mail exchange with Jill Kelley, a Florida socialite and “volunteer social liaison” to an Air Force base in Tampa. (When I say “voluminous,” I mean 20,000 to 30,000 pages.) The e-mails “go beyond flirtatious and can probably be described safely as suggestive,” according to an anonymous Defense Department official.
The discovery of these e-mails was triggered by a prior set of e-mails. Last summer Kelley received several e-mails from an anonymous sender that she perceived as harassing or threatening. So she went to a friend at the FBI and asked him to look into it. While the facts remain murky, the FBI’s investigation apparently revealed that Broadwell had sent anonymous e-mails to Allen, warning him about Kelley, and that Allen had forwarded these to Kelley. And in the course of investigating Broadwell’s and Kelley’s e-mail accounts, the FBI stumbled upon the Petraeus-Broadwell and Allen-Kelley e-mail exchanges. What a tangled Web!
Why, you ask, am I re-hashing this      Continue Reading...
Green Cards, Hostile Environments, and March Madness
By: Donald Berner

Who would've thought March madness would provide an opportunity to comment on immigration law and harassment issues? 

During yesterday's first round tournament game, a Kansas State player was fouled and went to the free throw line to shoot two free throws.  Like any good crowd, the Southern Mississippi fans tried to get in his head to cause him to miss the free throw.  The problem is they whipped out the "Where's your green card?  Where's your green card?" chant because the Kansas State player is Hispanic.  The player is actually from Puerto Rico and grew up in Miami.  And he is a U.S. citizen, just as surely as the misguided Southern Miss students who originated the chant. 

While the idea on the basketball court is to create a hostile environment for your opponents, it isn't likely that a "Where's your green card?" chant is something Southern Miss administrators wanted to hear.  This type of behavior is never acceptable, whether at a sporting event or in the workplace.  These types of comments are becoming more commonplace, particularly as the various state legislatures debate and/or enact legislation relating to immigration and worker documentation.  And it's comments like these that employers dread.  Imagine if employees in your workplace were treating Hispanic co-workers in this manner.  In the case of the basketball game, Southern Miss will take some disciplinary actions against its students and that is likely to be the end of it.  In the workplace, those kinds of comments may lead to an EEOC charge and maybe even a slam dunk.  

For those who want to see the video click here.  You'll have to turn up      Continue Reading...

Employment Law Seminar
By: Boyd Byers

Foulston Siefkin LLP will host its seventeenth annual full-day employment law seminar on May 3 in Overland Park, and May 8 in Wichita. This entertaining and economical seminar provides the latest information you need to help your organization comply with the ever-changing employment and labor law landscape. 

The keynote speaker is David K. Fram, Director of ADA and EEO Services for the National Employment Law Institute. Mr. Fram previously served as Policy Attorney at the EEOC, where he helped formulate the federal guidelines implementing the ADA.
Over 600 people attended last year's seminar. Space is limited. For more information or to register, go to www.foulston.com/employmentseminar.
Beware of Cupid in the Cubicles
By: Boyd Byers

Valentine's Day is just around the corner.  It's estimated that 190 million Valentine cards and 15 million e-Valentines were sent in the U.S. last year. But when a love-sick employee sends a written expression of love to an unrequitting co-worker, trouble often follows. Here are a few real-world examples from published court cases.    

  • An employee sued after her co-worker harassed her, including sending her a card that said, “On Valentine’s Day, remember – candy is dandy . . . but sex won’t rot your teeth!  So what do you say!”
  • A male employee made a harassment claim over his female supervisor’s conduct, which included an incident on February 12 where the supervisor held a bottle of pink lotion, saying she was “going to have a great time on Valentine’s Day,” and asking the employee if he would like to try some of the lotion.
  • An employee claimed harassment regarding her supervisor’s conduct, which included giving her a Valentine’s Day card with a $50 bill in it. 
  • An employee sued after her supervisor posted a Valentine’s Day message to her in the town newspaper, which stated in part, “Dear Sgt., Spring is right around the corner, just like me. Look outside, see a Robin by the tree. Love Azalea.” 
  • A female employee claimed a male co-worker harassed her, starting when he gave her a Valentine’s Day card. The male co-worker told the female employee that he stayed up until 2:00 a.m. trying to decide what to write on      Continue Reading...
HR Resolutions for 2012
By: Boyd Byers

It’s not too late for human resources professionals to make a few resolutions for 2012.  If you need help getting started with your list, check out this article from HR Hero Line, featuring ideas from several employment lawyers across the country, including Kansas Employment Law Blog author Boyd Byers.  (HR Employment Law Resolutions for 2012)  Suggestions include: updating your sexual harassment policy, creating a social media policy, reexamining your FLSA classifications, and ensuring ADA and Genetic Information Nondiscrimination Act (GINA) compliance.

Lessons from Penn State
By: Boyd Byers

The sordid, surreal revelations at Penn State University over the past few weeks should serve as a wake-up call to employers. While the issues are not exactly the same, and without minimizing the tragedy of the alleged child sex victims, every employer in America should be doing some serious self-reflection about the way it thinks about and deals with sexual harassment in the wake of the Penn State fiasco. 

Does your company have an appropriate written anti-harassment policy? Does it specify how and to whom reports of sexual harassment should be reported? Further, does it mandate reporting by any employee who experiences or observes workplace harassment? A policy that imposes an affirmative obligation on employees to report any witnessed harassment is likely to help deter and increase detection of improper conduct.
A policy alone is not enough, of course. Do you regularly (at least annually) communicate the policy and provide training to all employees? Do you provide professional training to managers on how to recognize harassment and handle employee complaints?  Are you confident that every last manager in your organization would do the right thing if confronted with evidence or allegations of harassment?  Are your human resources professionals well-versed in how to investigate and follow-up on harassment reports, and the right way to document all of this? Does your organization, starting at the top level of management, foster a culture of zero-tolerance of sexual harassment?     
If your answer to any of these questions      Continue Reading...
Feds Find Fault with Firm's Facebook Firings
By: Boyd Byers

A non-profit organization violated the National Labor Relations Act by firing five employees who trash-talked a co-worker on Facebook, a National Labor Relations Board administrative law judge found. The employer argued that it fired the employees--who posted angry and defensive comments about the co-worker on one of their Facebook pages--for bullying and harassing the co-worker in violation of its zero-tolerance policy against harassment. But these Facebook rants constituted "concerted activity" protected by the NLRA, the ALJ ruled, so the organization must reinstate them with full back pay.

Employers have legitimate business reasons to protect their good will and to foster a harmoneous workplace. They also have a legal obligation to protect employees from harassment. So the NLRB's stance on social media policies and practices obviously puts employers in a difficult position.

The case is Hispanics United of Buffalo Inc., NLRB No. 3-CA-27872 (Sept. 2. 2011, released Sept. 6, 2011). You can read the full opinion here.

For more on this subject, click on the links below to our prior blog posts:

In Your Facebook--NLRB Scrutinizes Employers' Social Media Policies (08/23/2011)

Social Media and the NLRB: Where Are the Boundaries of Protected Activity? (05/20/2011)

Social Media and the National Labor Relations Act (02/08/2011)

NLRB Joins Fray on Facebook Posts (11/09/1010)

Confucius Says: He Who Retaliates Digs His Own Grave
By: Boyd Byers

The thirst for revenge is among the strongest of human emotions.  In fact, the innate human desire to “get even” has driven much of the history of the world.  But acting on feelings of revenge can have dire consequences, not only in the world at large, but particularly in the world of employment law.

Most employment-protection laws contain anti-retaliation provisions.  And courts are broadly interpreting and applying these provisions.
The U.S. Supreme Court has recognized and expanded the right to bring retaliation claims in a series of cases over the past several years.  In January, the Court ruled that Title VII’s anti-retaliation provision covered an employee who was fired shortly after his fiancée, who worked for the same company, filed a sex discrimination claim.  (Supreme Court Finds in Favor of Fired Fiance 01/25/2011)
In March, the Court held that the FLSA’s anti-retaliation provision, which uses the phrase “filed any complaint,” applies to an employee’s oral complaints. 
These cases follow prior decisions in the last five years in which the Court ruled that: 
·       Title VII’s anti-retaliation clause, which refers to “opposition,” does not require active opposition, but encompasses involuntary participation, such as making statements during an employer’s internal investigation;
·       Employees can bring retaliation claims under the ADEA;
·       Employees can bring retaliation claims under Section 1981 of Chapter 42 of the      Continue Reading...
The $95,000,000 Sex Harassment Case
By: Donald Berner

Most employers understand the implications of sexual harassment in the workplace and have policies prohibiting inappropriate behavior.  Those same employers usually have a reporting mechanism embedded within those anti-harassment policies.  Both of these procedures are prudent.  So what should an employer do when a complaint arrives via the procedure established?  The answer is simple - go out and investigate and respond to the complaint.  Too often employers enact policies and procedures and then fail to implement them.  The cost of failure can be high in terms of monetary value and the lost time and energy in dealing with agency complaints and/or lawsuits that could arise down the road.  One employer recently learned the lesson of follow-up the hard way.  The allegations made by the plaintiff in Alford v. Aaron Rents, Inc. are extreme and the response by the company to the intial complaint appeared to be non-existent.  The takeaway from this $95,000,000 verdict against the employer is to always follow-up, investigate, and take action on complaints.  Otherwise the cost could be as extreme as the facts in this case. 

For the details click here for the story published in the St. Louis Post Dispatch.

Love Is In The Air a/k/a Complaint Is In The Mail
By: Donald Berner

On this most sacred of holidays devoted to love, take time to ponder your company's harassment policy.  Is it current and up-to-date?  How about your harassment training program?  Has it been ignored during the last couple of years during the economic downturn?  If so, it might be time to review and update that policy and pull the employees together for a training session on harassment in the workplace.  As most of you in HR know, love in the workplace can lead to plenty of troubling issues.  With Valentine's Day as the excuse, co-workers may be handing out candy, cards, gifts, and an occasional inappropriate advance in the office.  So for all you HR types reading this blog, get out of your office or cubicle and keep an eye on things.  If you're lucky, you might just be able to get a piece or two of candy as you make the rounds.  As an added bonus, if your company has a wellness plan you can confiscate all those chocolates in the name of eating healthy.  Just don't forget to send some my way.   


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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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