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Gender Identity Bias and Employer Dress Codes

Frank Kollman
10/02/2019
Employment Discrimination, Gender Identity, Supreme Court Decisions
On October 8, the Supreme Court will hear arguments whether gender identity is a protected classification under Title VII of the Civil Rights Act, in addition to sex, race, color, religion, and national origin.  R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, et al., No. 18-107.  Whatever the Court decides, its opinion could have a profound impact on dress codes in the workplace.  The case before the Court...
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“No, Thank You,” is Not Protected Activity

Kollman, Saucier, & Jackson
09/13/2019
Employment Discrimination, Retaliation
Ok, students in my employment discrimination law class, here’s a pop quiz.  “Would you like to go grab dinner with me?” said the boss to his subordinate employee.  “No, thanks,” responds the employee, “I don’t believe in mixing business with pleasure.”   A few weeks later, the employee is reassigned or terminated.  Was the employee’s rejection of a dinner offer stated opposition to sexual harassment that qualifies as protected...
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NLRB Issues New Guidance on Social Media Policies

Kollman, Saucier, & Jackson
08/28/2019
Agency Activity, Labor Law, Social Media
The Office of the General Counsel to the NLRB recently released an Advice Memorandum shedding new light on the types of social media rules that are permissible in the wake of the Board’s December 2017 ruling in The Boeing Co, 365 NLRB No. 154 (12/17/17).  In that case, the Board set a new standard for evaluating the lawfulness of workplace rules under Section 7 of the NLRA. The Boeing standard weighs the importance of the employee’s exercise of...
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Employee Believed To Have Tampered With Drug Test Cannot Prove Disability Discrimination

Vincent Jackson
08/21/2019
Disability & Leave, Drug Testing, Employment Discrimination
A federal district judge in Oregon ruled that a Boeing employee who was terminated from his employment for tampering with his drug test could not advance his claims for disability discrimination and retaliation past summary judgment.  The case, Kelly v. The Boeing Company (D. Or. Aug. 15, 2019), reaffirms the general principle that an employer is not liable for discrimination where it holds a good faith belief of a lawful basis for its termination,...
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It’s a Headache: Worker With Intermittent FMLA Leave for Migraines Gets a Trial

Kollman, Saucier, & Jackson
08/14/2019
FMLA
My blog earlier this week noted that the FMLA is 26 years old.  Yet, is it still – in some cases – difficult to apply in a balanced way.  Handling an employee’s use of unexpected intermittent FMLA leave is about the hardest issue an employer faces under this law.   And, to prove my point, let’s take a look at Dyer v. Ventra Sandusky, LLC, 2019 U.S. App. LEXIS 23678 (6th Cir.  Aug. 8, 2019). At issue here was the employer’s application...
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How An Employer’s Misleading Statements Can Be Evidence of Discrimination

Kollman, Saucier, & Jackson
08/13/2019
NLRB, Pretext
Two cases decided this month demonstrate how an employer’s false or inaccurate statements can bolster employees' claims that their employer engaged in unlawful discrimination. Sykes v. Fed Ex Freight East, No. 2:17-cv-13189 (E.D. Mich. 8/3/19) In this case, a supervisor’s misrepresentation or misapplication of a workplace policy led the district court to decide that the employer arguably discriminated against an employee because of his...
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I am NOT a Racist! And You “Created” My Performance Problems!

Kollman, Saucier, & Jackson
08/12/2019
FMLA
After 26 years, the Family and Medical Leave Act (FMLA) has pretty much reached the point where most cases rely on established jurisprudence.  There just is not that much new out there.   For example, if performance issues arise after an employee’s return to work they should be handled without regard to the employee’s use of FMLA leave.  An employee terminated after taking FMLA leave may claim retaliation and, when that occurs, the arguments...
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U.S. Department of Labor Issues Three New Opinion Letters

Kollman, Saucier, & Jackson
08/09/2019
DOL Opinion Letters, FMLA
On August 8, 2019, the federal Department of Labor (“DOL”) issued three opinion letters which concern the Family Medical Leave Act (“FMLA”) and the Fair Labor Standards Act (“FLSA”).  The details are as follows: FMLA2019-2-A Intermittent leave to attend Committee on Special Education (“CSE”)/Individualized Education Program (“IEP”) meetings to address the educational and special medical needs of an employee’s child is...
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D.C. Court of Appeals Finds That Perceived-Disability Discrimination Claim May Succeed

Kollman, Saucier, & Jackson
08/07/2019
Disability & Leave, Employment Discrimination, Pretext
Anti-discrimination laws often protect both individuals with actual disabilities and those whose employer perceives (regards) as disabled.  Whether an employer perceives an employee as disabled, however, can be a complicated matter, as a case decided last week by the District of Columbia Court of Appeals illustrates.  Abdul-Azim v. Howard University Hospital, No. 17-CV-453 (D.C. Ct. App. 8/1/19). Abdul-Azim worked as a cardiology...
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"Not Willful" Is Not The Same As "No Bad Faith" - A Lesson In FLSA Liquidated Damages

Kollman, Saucier, & Jackson
08/06/2019
Damages, Employer Liability, Wage & Hour
After a jury verdict was returned in favor of a group of Baltimore nightclub exotic dancers for their claims under the Fair Labor Standards Act and Maryland wage and hour law against the nightclub owner and the two nightclub entities, the presiding Magistrate Judge also awarded liquidated damages to the plaintiffs.  The club owner appealed on various grounds including questioning how the judge was able to award liquidated damages when the jury had...
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