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Have you added gender identity to your anti-discrimination policy?

If not, now would be a good time.  Last week the EEOC sued two separate companies in two separate states for alleged sex discrimination arising out of the treatment of transgendered employees (in both cases, male employees who were in the process of becoming female).  It’s not a surprising move, given that the agency and many courts have interpreted “sex discrimination” to include discrimination based on a failure to conform to sexual stereotypes.  But it is a good reminder that LGBT rights are gaining prominence, in the workplace and beyond.

It’s simple for employers, really.  Make sure you add “sexual orientation” and “gender identity” to the list of protected categories in your anti-discrimination and anti-harassment policies.  And train your workforce to understand that the prohibition against sex discrimination extends to those who do not conform to sex-based stereotypes.

Gay Pride Parade Winds Through New York City


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The right way to deal with a scary employee

Say you have an employee who exhibits strange and intimidating behavior such as glaring at colleagues, standing inappropriately close to them, laughing in a wild cackling manner, clenching his fists, and forcefully hitting colleagues on the shoulder.  Say also a number of his colleagues have complained that they are “terrified” of him and believe he could harm himself or others.  What should the employer do?

The recent case of Kao v. University of San Francisco provides a useful example.  After receiving numerous complaints from Kao’s colleagues, the university initiated an investigation.  It also contacted a forensic psychologist with expertise in identifying workplace threats.  The psychologist suggested that Kao undergo an independent medical examination to determine whether he was fit for duty.  The university engaged another psychologist to perform the exam and instructed him not to provide the university with any medical information, but to simply report back on whether Kao was fit for duty and, in particular, whether he posed a danger to himself or others.  Kao refused to undergo the exam and, as a result, the university fired him.

Kao’s subsequent lawsuit contained a number of claims, including an ADA-like claim (under California state law) that challenged the university’s right to insist on an independent medical exam.  Both the lower and appellate courts ruled in the university’s favor, under a “direct threat” analysis.  The court held that the employer had a right to require a fitness for duty exam, as it was “job related and consistent with business identity.”  Further, the exam was specifically tailored to assess whether Kao posed a danger to himself or others (e.g., whether he was a direct threat).  Given the employer’s duty to maintain a safe workplace, its insistence on a medical exam as a condition of employment was legal.

This case carries a number of important takeaways for employers.  If you have an employee who is actually frightening other employees, and whom you suspect could partake in workplace violence, you have the right (and duty) to do something.  UCSF walked the delicate tightrope balance between the rights of the employee in question and the obligation to provide a safe workplace by consulting with an expert and requiring a narrowly tailored medical exam.


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Sometimes it makes sense to settle instead of litigate, but sometimes …

An employment law headline caught my eye yesterday.  DSW (the large women’s shoe retailer) agreed to settle an age discrimination case for $900,000.  The interesting thing about the settlement is that it comes just one week after the EEOC class action lawsuit was filed.  Now $900,000 is nothing to sneeze at, so one could reasonably assume DSW thought it faced some major liability.  The case arose out of a reduction in force in which a lot of employees over 40 were let go.  In addition to the monetary settlement, DSW agreed to train its workforce on the anti-discrimination laws, revise its anti-discrimination policy, and report all internal complaints of age-based discrimination for the next three years.

DSW issued a statement to the effect that it settled the case to avoid litigation costs.  Maybe, but I’m skeptical.  If there’s a takeaway here, it’s take extra care to make sure members of a protected group (e.g., older workers) are not disproportionately affected by layoffs and the like.


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A recent case on accommodating religious requests sheds some light on employers’ duties

The Fifth Circuit recently decided the case of Davis v. Ford Bend Cty, where an employee was unavailable to work over a particular weekend because she had a special church event.  She told her supervisor of the conflict, offered to come in after the religious event, and arranged for a replacement.  When she did not show up for her shift, the employer fired her.  When she sued for religious-based discrimination, the lower court dismissed the case, concluding that the absence was based on the employee’s “personal commitment” as opposed to “religious conviction.”  It stated “being an avid and active member of church does not elevate every activity associated with that church into a legally protectable religious practice.”

The employee appealed and the Fifth Circuit reversed.  It concluded the trial court probed too deeply into the plaintiff’s motivation.  The issue, according to the court, was whether the plaintiff sincerely felt she was religiously compelled to participate in the service in question.  This is a light burden, per the court, which the plaintiff easily met.  Her testimony that she was a devout church member and needed to be at this particular service was enough.

What’s the takeaway for employers?  Tread lightly if you plan on denying a request for a religious accommodation.  The employee has a minimal burden in demonstrating that she has a religious conflict with work, and courts tend to defer to employees in this arena.


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Can people really change?

I get asked this question a lot when I do one-on-one sensitivity training sessions.  These situations typically arise when a very valuable or very senior person (or both) engages in some kind of problematic behavior (e.g., inappropriate or unprofessional comments, bullying behavior, harassment).  The employer wants to keep said employee but try to rehabilitate him or her.  I typically meet with the individual for a number of hours and work through the problematic behavior, the legal implications, the other business consequences (e.g., reputational damage), and tools for change.  Is this intensive form of training effective?  Sometimes.

I’ve met with knucklehead senior executives who refuse to take any ownership of the issues the led them to me.  Those ones generally are not in for much of a transformation.  But even more often, I’ve worked with well-meaning folks who didn’t realize how detrimental their behavior was.  While ignorance is not a defense to the law, it can be a state of mind amenable to education and change.  So yes, I do think people can change.  That doesn’t mean they necessarily will, but it does mean that when you have a valuable employee who needs some redirection, one-on-one training can be just the thing.

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Training 201: Blurred Lines

A lot of managers become managers because they are good at what they do.  Not because they know how to manage others.  This is one of the (many) reasons it’s so important for employers to train their supervisory employees.  One thing it’s really important to emphasize — especially to those managers who rose up through the ranks — is now that they are “management,” they have to maintain appropriate boundaries with their subordinates at all times.  This is a hard concept for many to get, and harder still to implement.  But maintaining a professional boundary is critical for a number of reasons: avoiding legal claims (e.g. a perception of claim that a manager created or participated in a hostile work environment), setting the right tone for the workplace (think respectful and legal), and, ultimately, demonstrating leadership skills (not engaging in favoritism, for example).

So what should this training look like?  It can be included in your run of the mill anti-harassment training.  There can be a piece on appropriate boundaries, or avoiding blurred lines.  How once one dons the manager hat, it’s there for good and doesn’t ever come off.  It’s something a lot of managers will need some solid guidance on.


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Should you have a domestic violence policy?

Domestic violence is making big news these days as a result of the recently released video of NFL running back Ray Rice punching his wife (then his fiancee) so hard in the face that she immediately fell to the ground, unconscious.  It’s big news, especially in light of the NFL’s handling of the situation (which is now being investigated by former FBI Director Robert Mueller – this is an investigation I’ll be watching, BTW).  While the facts surrounding the Rice case and the implications for the NFL are of much interest, the whole issue raises an important questions for HR and business owners.  Should your organization have a domestic violence policy?

Recent statistics show that 1 in 4 women will suffer from domestic violence.  Because of this ridiculously high number, the Department of Justice has supported the creation of a Workplace Toolkit for responding to the issue of domestic violence.  Federal agencies are now required to have domestic violence policies.  Why?  Because both perpetrators and victims of domestic violence are members of the workforce.  Accordingly, the issues surrounding domestic violence infiltrate the workplace.

What should a domestic violence policy look like?  The NFL recently implemented one outlining discipline for any NFL personnel (not just players) who engages in domestic violence.  It also offers assistance for victims and those at risk for becoming victims.  These are both good facets of a comprehensive policy.  If you want to know more, the Toolkit referenced above can help craft a policy that’s right for your organization.


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Harassment training 201: Consider including “abusive conduct”

Some states have statutes making it mandatory for employers to conduct harassment training (e.g., California and Connecticut).  But even in states like Ohio where there is no particular statute mandating such training, employers should view it as mandatory.  The courts and agencies unanimously agree that employers must have a harassment prevention plan, and also that an essential element of such a plan is training.  What should this training look like?  It’s a good idea to look at the statutory requirements in those states with training statutes.  In California, for example, such training must occur every two years (for supervisors) and should cover federal and state laws prohibiting harassment and should include practical examples on identifying, preventing, and responding to harassment, discrimination and retaliation.

A new amendment to the California statute should give all employers pause – not just those in California.  Yesterday, California Governor Jerry Brown signed AB 2053, requiring employers to also cover “abusive conduct” in their harassment prevention training.  The amendment defines abusive conduct as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”

Sound familiar?  Looks like a classic definition of bullying to me.  While bullying in and of itself is not illegal, it’s a subject that many are clamoring over and hoping for a legal intervention.  What is a proactive employer to do?  Prohibit bullying in the workplace.  Not only because it’s the right thing to do (duh), but because it’s a form of disrespectful behavior that has tangible negative consequences for the workplace (think, for example, of lowered employee engagement, productivity, and loyalty).  And train on your no-bullying stance as part of your harassment prevention training.

Hat tip to Allison West of Employment Practices Specialists for the update.

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What HR needs to know about orientation periods

Many employers have so-called “orientation” or introductory periods.  These are typically 30, 60 or 90 day periods following the onset of employment.  Handbooks often describe these orientations as an opportunity for the employee to get to know the company, and vice versa.  Don’t make the mistake of thinking it is less risky to terminate an employee during this period of time.  It’s not.

Unless they are covered by a contract providing for something other than at-will employment, employees are considered “at-will,” meaning both they and the employer can terminate the employment relationship at any time and for any reason — except for an illegal one (e.g., discrimination).  And there’s the rub.  The legality exception to at-will employment applies to all employees, even your newbies.  Thus, if you are looking to terminate someone in their orientation period, tread just as carefully as you would with any employee.  Make sure the decision is legitimate and not based on any illegal factors (even such as absenteeism due to a medical condition – think ADA coverage).


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Another NBA owner’s race-based rant

Atlanta Hawks owner Bruce Levenson announced his intention to sell the team this past weekend based on a “racially insensitive” email he sent to members of the team’s management over two years ago that addressed the issue of attracting more white fans.  Levenson was one of the most vocal critics of Donald Sterling’s racist rant (blogged about here).  Levenson self-reported the email a couple of months ago and the NBA was in the middle of investigating it when Levenson announced his intention to sell the team.  The email opined that the largely black fan base scared away more affluent white fans.  It suggested the team hire white cheerleaders, play less hip hop music, and make sure to feature white fans on the “kiss cam.”  (Click here for the full email).

Levenson’s email purported to disagree with the stereotyping he opined white fans were engaging in, stating “This was just racist garbage.  When I hear some people saying the arena is in the wrong place I think it is code for there are too many blacks at the games.” Critics say Levenson’s discussion of the issue was itself racist.  Supporters say Levenson shouldn’t be compared to Sterling, who espoused his own racist views.  Whichever side you come out on, it’s clear that race is an emotionally charged issue in the NBA (and in all areas of society).  What is a responsible business owner (and other senior levels of management)  to do?  Tread very carefully.  Don’t adopt racially-based stereotypes.  And certainly don’t make business decisions based on them.  Remember, customer preference is never a defense to a claim of discrimination.

bruce levenson

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Oakland Raiders settle cheerleaders’ wage and hour suit

The Raiderettes have something to cheer for.  They sued the team earlier this year, claiming they were misclassified as independent contractors and therefore not paid minimum wage under the FLSA.  Yesterday the team announced a settlement of $1.25 million for cheerleaders dating back to 2010.  Two other NFL teams still have similar lawsuits outstanding – perhaps this settlement will encourage them to settle too.

The (obvious) takeaway: Misclassifying employees as independent contractors is a big mistake.


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Remember the blog post about telecommuting as a reasonable accommodation? JK (maybe)

Back in April I blogged about a noteworthy Sixth Circuit case that held telecommuting may be a reasonable accommodation.  (See here for the post).  The case was filed by the EEOC against Ford and involved a resale steel buyer who asked if she could telecommute due to her medical condition of irritable bowel syndrome.  The employer’s position was that the employee had to have face to face contact with co-workers and suppliers and so denied the request.  The Sixth Circuit held in April that the EEOC was entitled to a jury trial on the issue.  The case caught a lot of attention for its significant pronouncement that changes in technology have, in effect, changed the definition of the “workplace” to expand beyond the employer’s actual place of business.

Just yesterday, the Sixth Circuit agreed to rehear the case.  What does this mean?  That some of the judges are skeptical of the pro-telecommuting decision and want a chance to revisit it.  This is a case to watch.

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Appellate court rejects sex discrimination claim based on favoritism

When managers play “favorites,” the non-favored often feel mistreated and disrespected.  That is especially so when the favoritism is not based on merit (work product or ethics), but on a personal relationship.  That’s one of many reasons why managers should never be in a direct reporting relationship with a romantic interest.  Favoritism claims have been raised in the courts before, often with very little success.  A recent Tenth Circuit case aligns with the majority of opinions on the issue.

In Clark v. Cache Valley Electric Company, a male project manager sued for sex discrimination when his female colleague allegedly received better assignments and more bonuses.  The better treatment, according to his complaint, was based on her romantic relationship with their supervisor.  Rejecting the claim, the court held this favoritism alone did not present any evidence of discrimination: “favoritism of a paramour is not gender discrimination.”

I’ve seen a least one other court go the other way on this issue (yes, it was a California case), but the Clark decision represents the majority view.  Does this mean managers should be free to play favorites?  Absolutely not.

Favoritism in the workplace erodes trust and creates negativity.  Even if it does not run afoul of the employment laws, it is certainly not a “best practice.”  Managers should be trained to apply consistent treatment across the board, unless there are legitimate business reasons for differential treatment.  Not just to avoid lawsuits and liability, but to create a workplace where employees perceive that fairness prevails.

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So an employee asks for FMLA leave but you really, really need her for a big project . . .

What do you do?

Multiple choice:

(a) let her take the leave and find a way to manage without her; (b) flat out deny the leave, since she is essential to your operations; (c) try to persuade her to keep working on the project while she’s at home on leave, but continue to pay her.

Unless you chose option A, you could be looking at an FMLA interference claim.  The employer in Evans v. Books-a-Million (BAM) chose option C and is now getting ready to defend itself before a jury.

Ms. Evans was a payroll manager for BAM.  BAM was implementing a new payroll system when Ms. Evans requested FMLA leave after the birth of her child.  Because BAM really, really needed her help, it persuaded Ms. Evans to work on the project from home.  She reluctantly did so, but not to her supervisor’s liking.  Accordingly, upon her return she was offered a different position, one that required a lot of travel.  Being a new mom and all, Ms. Evans did not want the new position.  Thus, BAM terminated her employment.

Not at all surprisingly, Ms. Evans sued for FMLA violations.  While the lower court tossed the case on summary judgment, the appellate court reversed, sending the case to a jury trial.

The takeaway should be pretty obvious: if an employee is on an FMLA leave, don’t persuade (read, coerce) him or her to work.  FMLA leave is meant to be what it sounds like – time away from work.

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Legal compliance 201: Making sure the right hand knows what the left hand is doing

It’s a problem many organizations face.  One member of management does or says one thing, while another does or says the opposite.  This kind of communication break-down, innocent though it may be, can have legal consequences.  Take the EEOC’s recent press release that it is suing the grocery chain Food Lion for religious discrimination.  According to the EEOC, a Jehovah’s Witness employee asked for and received a scedhule modification to attend religious services.  But when he was assigned to another store location with a different manager, the new manager refused to accommodate the schedule change.  And when the employee missed work to attend a religious service, he was fired.  Enter the EEOC.

What can an employer do to avoid situations like this one?  First, train all supervisors.  Then, make sure supervisors know that if an employee had a previous accommodation, inquire into the circumstances before nixing it.  If supervisor B had simply picked up the phone to call supervisor A, she would have realized that the schedule change was for a good reason – accommodating a religious belief.


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The problem with “doesn’t fit in” comments

It can be hard to articulate why a candidate isn’t right for a particular job.  Or why an employee is not the best pick for a certain assignment or promotion.  But it is really important for employers to identify legitimate, business related reasons for an individual’s non-selection.  One phrase that has historically been problematic is the “she just doesn’t fit in” approach.  Saying someone does not fit in can sometimes be seen as proxy for some kind of discrimination.  That’s precisely the pickle the Connecticut Department of Public Safety finds itself in now.

In Abrams v. Dept. of Public Safety, the Second Circuit reversed a grant of summary judgment for the employer.  At issue was an African American employee’s non-selection for a prestigious assignment.  Two of the decision makers said words to the effect that Mr. Abrams just didn’t fit in with the group.  While the lower court found these insufficient to take the case to a jury, the court of appeals disagreed.  Stating it was a “close case,” the court opined that a reasonable jury could construe the comments as implicitly referring to Mr. Abrams’s race.  Now, a jury will decide.

This decision is a scary one for employers.  The comments about Mr. Abrams not fitting in could very well have nothing at all to do with his race.  Yet the employer is now stuck with the expensive and stressful prospect of proving this to a jury.

What’s the takeaway?  TRAIN your supervisors on how to make employment-related decisions and, just as importantly, what not to say in the process.  This would typically fall under your performance management training (which of course you roll out on a regular basis, right?).

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Back to school means back to work

The end of August is always a difficult time to successfully keep all the necessary balls in the air – for me, anyway.  Camp is over, it’s time for the big family vaca, and it’s all I can do to stay on top of everything (I know some of you out there are feeling my pain, yes?).  So blogging tends to take a back seat.  Yesterday, as I was shopping for new notebooks for my soon-to-be sixth grader, I got that excited feeling I used to get as a student every year.  Time for school!  It’s true – I was a nerd who loved notebook shopping and the anticipation of a new academic year.  I now feel that same elation as a mom.  My kid is back to school and I’m back to blogging.

Back to school


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Back to school means back to work

The end of August is always a difficult time to successfully keep all the necessary balls in the air – for me, anyway.  Camp is over, it’s time for the big family vaca, and it’s all I can do to stay on top of everything (I know some of you out there are feeling my pain, yes?).  So blogging tends to take a back seat.  Yesterday, as I was shopping for new notebooks for my soon-to-be sixth grader, I got that excited feeling I used to get as a student every year.  Time for school!  It’s true – I was a nerd who loved notebook shopping and the anticipation of a new academic year.  I now feel that same elation as a mom.  My kid is back to school and I’m back to blogging.


Back to school

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Treating employees differently can support discrimination claims

You probably already know this basic maxim of employee relations: treating “similarly situated” employees differently is great fodder for plaintiffs seeking to show discrimination.  A recent Seventh Circuit case demonstrates this nicely and serves as a good reminder for HR and employers to look for consistent treatment among employees.

In Orton-Bell v. State of Indiana, the plaintiff was a prison social worker who had an inter-office affair with a supervising officer.  When the employer discovered the affair, which violated policy, it terminated the plaintiff and he paramour.  But it allowed the male officer to resign in good standing, keep all of his benefits, and continue working at the prison as a contractor.  The plaintiff, on the other hand, left with nothing.  When she sued for sex discrimination based on this disparate treatment, the court sent her claims to a jury, finding a reasonable jury could conclude the better treatment of the officer constituted sex discrimination.

Lesson learned: When two employees engage in the same misconduct, treat them equally.  If, however, there is a good reason for treating them differently, document it.  The Orton-Bell court noted that the employer did not proffer a good reason for the disparate treatment.



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Executive Order bars employers with employment-related violations from receiving federal contracts

On July 31, 2014 President Obama signed the “Fair Pay and Safe Workplaces” order (see the Order here).  The Order applies to new federal contracts and requires the disclosure of all labor and employment law violations for the previous three years.  If you work as a government contractor or subcontractor, this is huge news.  Government contracts are the lifeblood for some employers and even seemingly minor employment law violations can be used to bar them from receiving such contracts.  Also, for contracts in excess of $1 million, the Order prohibits the use of mandatory arbitration.  If this Order could apply to your business, read it carefully so you understand these new rules.  It will become effective in 2016.

This is one more reason to make sure your HR house is in order.

president seal

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Effectively defending a harassment complaint

The recent case of Simpson v. Big Lots Stores provides a great example of how an employer can successfully defend against a serious complaint of sexual harassment.  Before sharing the facts, let’s review the Faragher/Ellerth defense, which refers to a pair of U.S. Supreme Court cases decided in 1998.  An employer can prevail in a hostile work environment harassment complaint, so long as there was no tangible employment action, if it can show (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) the employee unreasonably failed to take advantage of any corrective or preventive opportunities provided by the employer.  The first prong of the defense is within the employer’s control.  It can be met so long as an employer has a solid anti-harassment policy that includes a clear complaint procedure, trains its employees on it, and investigates complaints of harassment.  The second prong, however, really depends on the employee.

Here are the Simpson facts: the employee was an assistant manager for Big Lots.  A co-worker allegedly harassed her and others on a regular basis by, among other things, discussing his sex life in explicit terms, commenting on females’ breasts and buttocks, and telling dirty jokes.  Big Lots had a clearly communicated harassment policy and provided a hotline for employees to make complaints.  Simpson lodged an anonymous complaint and Big Lots responded by immediately sending a representative to investigate.  Simpson did not participate in the investigation, even though she knew it was taking place.  Even without her participation, the investigation resulted in discipline for the co-worker.  Thereafter, Simpson complained about the co-worker to her boss, who brought in another district manager to investigate.  During this second investigation, Simpson was out of the office and did not make any attempts to reach the investigator.  She also told a co-worker who had been documenting the alleged harasser’s behavior not to share the documentation with the investigator.

After Simpson lost her job on an unrelated issue, she sued for harassment.  In dismissing the case, the court found the employer successfully invoked the Faragher/Ellerth defense, blaming Simpson for her failure to cooperate in, and her attempt to interfere with, the investigation.

What’s the lesson?  Have your harassment-prevention ducks in a row.  Be ready to jump in an investigate when you learn of potential harassment.  And document all efforts to communicate with the complainant.

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“One time at band camp” and Ohio State’s firing of band director over “sexual culture”

Ohio State University recently fired its marching band director Jonathan Waters after an internal investigation revealed “serious cultural issues and an environment conducive to sexual harassment” among the students.  The investigation, which was commenced following a parent complaint, concluded that the band culture allowed students to sexually harass other students, and that the band director “knew or should have known” about it (click here for the investigation report).  It’s that last quote that should have every employer on alert.

Organizational leaders are expected to create and maintain a harassment free environment.  While context certainly matters and the college environment is, in many ways, quite unique from the typical workplace, the point about leadership applies across sectors.  There is a lot of debate about whether the firing was just and whether Waters should be held accountable for band traditions that pre-dated his tenure (such as students marching across the field in their underwear).  Regardless, the takeaway here is clear: if an employer, an HR professional, or a member of management knows of a potentially harassing environment, he/she/it has a duty to take steps to address and correct that environment.  Period.

one time at band camp

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Religion in the workplace: an issue that will continue to confound employers

Back in March the EEOC published a guidance entitled Religious Garb and Grooming in the Workplace, aimed at educating employers on their duty to provide reasonable accommodations to sincerely held religious beliefs.  It highlights employers’ obligations with respect to appearance standards and other facially neutral policies that can have religious implications for employees.  The issue of religion at work is one that I see continuing to grow as a hot topic (in fact, I just spoke about it at last week’s HR Star conference in Cleveland).  Under Title VII, employees have the right to some degree of religious expression at work, so long as they do not create an “undue burden” or proselytize.

A recently filed EEOC charge on this topic caught my eye: a newspaper editor in Iowa was fired based on a blog posting wherein he criticized the “gaystapo” for advancing LGBT rights despite the bible’s supposed rejection of them.  He stated “Shaw Media directly discriminated against me because of my [anti-gay] religious beliefs and my identity as an evangelical Christian . . . .”  Will the EEOC agree with him?  I tend to doubt it, as I think the employer had a right to terminate the editor given the public nature of his position and the fact that he used his position as a platform to express his religious views.  But you never know.  It’s a topic HR professionals and employers need to stay on top of.

While there is a lot of gray area here, I offer a couple of quick tips that can help employers stay out of trouble.  While they are not directly on point to the Iowa case, they can be good guides when navigating these issues:

  • Don’t reject requests for religious accommodations outright.  Have a good faith dialogue with the employee.  The EEOC and courts want to see you engage in an “interactive process.”
  • Document discussions and other communications relating to the process.
  • Before taking adverse action against someone who has requested an accommodation, step back and review the facts to make sure retaliation is not in play (better yet, check with counsel).


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Sixth Circuit case emphasizes importance of temporal proximity in retaliation cases

For an employee to prove she was retaliated against, she must show she engaged in protected activity (e.g., filing a claim of discrimination with the EEOC), she was subsequently subjected to an adverse employment action, and causation.  The causation part of the test is where temporal proximity (i.e., how quickly did the adverse action happen following the protected activity) comes into play.  Courts have been split on the issue of whether temporal proximity, standing alone, can be enough to send a retaliation claim to jury.  A recent Sixth Circuit case says yes.

In Montell v. Diversified Clinical Services, decided on June 27, 2014, the Sixth Circuit stated “temporal proximity alone can be enough” to establish causation.  In so holding, the court reversed summary judgment for the employer, sending the case to trial.  Keep in mind that retaliation claims before juries have garnered some pretty steep verdicts against employers.  Incidentally, the plaintiff in the Montell case was subjected to an adverse action literally the day after she engaged in protected activity.

Takeaway:  Think “caution” when taking disciplinary or other adverse actions against employees who have recently engaged in protected activity (which includes making requests for accommodations, BTW).  Employees should not be considered untouchable just because they made a complaint of some kind. But at the same time, caution dictates that some thought, documentation, and conversation take place with such employees.



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Federal contractors cannot discriminate based on sexual orientation and gender identity

Yesterday President Obama issued an Executive Order prohibiting discrimination based on sexual orientation and gender identity.  This protection for the LGBT community applies to both the government and to all federal contractors.  Regulations implementing these new requirements will be forthcoming in about three months’ time.  If you do business with the federal government (or if you are part of the federal government), check your anti-discrimination and harassment policies immediately to add these two new protected categories, if they are not already there (many employers voluntarily extend protections to the LGBT community).  Make sure your supervisors and employees are aware of the change.  Consider sending the revised policy out to everyone with a memo explaining the change.

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