What’s the status of transgender employees in the workplace?

by Raanon Gal and Chad A. Shultz

The law regarding the rights of transgender employees is evolving, with a clear trend toward the recognition and protection of the rights of transgender individuals. Just five years ago, employers in the United States likely would not have considered whether transgender employees were protected by federal employment laws. At most, employers would have considered whether state or local laws extended protections to transgender employees. However, the global community has been active regarding the protection of transgender employees’ rights in the workplace, and now it seems that the federal government is on track to join that trend. 

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Miss Utah and the Equal Pay Act

by Boyd Byers

She didn’t win the crown, but Miss Utah, Marissa Powell, made the most news during the Miss USA pageant this summer. Her bungled response to a question about the gender pay gap went viral and was seen by millions on the Internet. But her response also generated serious discussion about equal pay. 

‘Create education better’

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Same-sex couples stand to receive benefits after DOMA provision’s demise

by Scott Evans

On June 26, the U.S. Supreme Court issued a pair of decisions favorable to the gay rights movement. In United States v. Windsor, the Court ruled that same-sex married couples are entitled to federal benefits, and by declining to decide a California case, the Court effectively allowed same-sex marriage in the state.

In the Windsor case, the Supreme Court held that Section 3 of the federal Defense of Marriage Act (DOMA), which defined marriage as the union between a man and a woman and denied more than 1,000 federal benefits to same-sex married couples, was unconstitutional because it violated the Fifth Amendment to the U.S. Constitution. The Court’s decision to strike down Section 3 may dramatically transform the legal and financial standing of hundreds of thousands of Americans. Justice Anthony M. Kennedy wrote the majority’s opinion in the 5-4 decision, with the four liberal-leaning justices―Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan―joining.

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Sex, religion, and retaliation

by Mark I. Schickman

I keep waiting for the day that employment discrimination claims disappear. We spend a ton of time training employees to prevent and avoid discriminatory conduct, and the proper behavior is pretty intuitive. So, logically, employment discrimination should have been eradicated, like polio and smallpox.

It would be terrible for my business if discrimination cases went away because defending them is much of what I do. But no worries―there isn’t much chance of employment discrimination disappearing. The Equal Employment Opportunity Commission (EEOC) received about 100,000 charges in 2012, up from 75,000 in 2005. Religious discrimination is the fastest- growing category of charges, fed by a rising fear of those who practice Islam and the misplaced view that, unlike race or sex, a person can just change religion. The EEOC is putting extra enforcement effort into that area. read more…

What’s on the immigration horizon for employers?

by Elaine Young

During the month of May, the Senate Judiciary Committee marked up the comprehensive immigration reform bill that the “Gang of Eight” proposed earlier in the year. In June, we saw the House of Representatives debate over what to add or take away from the bill. Here’s a quick Q&A on how some of the most likely provisions will affect employers. Just a note―the bill is more than 800 pages long, so this is a general summary.

Drilling down to the basics

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Atten-hut! Know your USERRA obligations

by Steve Jones

Q What are my obligations to employees who are in the military, are called to serve, and then seek to return to their civilian jobs? What if an employee will be deployed for more than a year?

A The Uniformed Services Employment and Reemployment Rights Act (USERRA) governs the employment of military servicemembers. USERRA, which is a federal law and therefore applies in all states, is intended to ensure that people who serve or have served in the armed forces, reserves, National Guard, or other uniformed services (1) are not disadvantaged in their civilian careers because of their service, (2) are promptly reemployed in their civilian jobs upon their return from military duty, and (3) are not discriminated against in employment based on past, present, or future military service. You must be aware of your obligations under USERRA before you hire military servicemembers, during their employment, and while they are away from their jobs because of service-related duties.

Application of the law

First, you may not deny someone initial employment because of past, present, or future military service. You can defend your company against a USERRA claim by presenting evidence that you would have taken the same action if the job applicant didn’t have military service obligations. Detailed documentation, including comprehensive interview notes and in-depth explanations of your reasons for not hiring prospective employees, will help your defense. read more…

Military needs more than a few good men

by Mark Schickman

Let’s turn the clock back 50 years to the days before Title VII of the Civil Rights Act of 1964. Sex discrimination was a constant, and sexual harassment was so prevalent that it wasn’t yet a term of art. The notion that a woman had the right to a workplace free from sexist comments or unequal treatment was nothing short of bizarre. Work life as portrayed on Mad Men was pretty much the norm.

Do you know how gender discrimination found its way into Title VII? The bill was originally designed to cover discrimination based on race and national origin. Opponents allowed gender to be added as a protected class, thinking it would kill the bill. Much to their surprise, Title VII passed―sexual harassment prohibitions and all. read more…

She works hard for the money

by Kylie Crawford TenBrook

Several years ago, I attended a celebration for one of my brothers, who had just become an Eagle Scout. Several relatives were there, including some distant relatives I hadn’t seen in years. One of those distant relatives, who is close to my age, approached me, and the following exchange took place. (The comments in parentheses are my thoughts as the conversation progressed. Please take my fresh-out-of-law- school cockiness with a grain of salt―I have been severely humbled since then.)

Relative: So, Kylie, what are you doing these days?

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Criminal and background reports as evidence in EEOC class actions

by Steven Collis

In its first class action lawsuit challenging an employer’s use of criminal records, the Equal Employment Opportunity Commission (EEOC) ended up dropping its case against PeopleMark and getting socked with $750,000 in sanctions. Recently, the EEOC suffered another stinging loss when a federal court dismissed its discrimination case against Kaplan Higher Education Corporation (which was discussed in a previous blog post, “EEOC’s use of ‘race raters’ against Kaplan University gets failing grade”) based on an unsound analysis by the commission’s expert witness. With the same expert providing statistical evidence in another case, could the agency strike out in a third background check class action lawsuit?

Over the past few years, the EEOC has aggressively challenged the use of credit reports and criminal history checks in hiring decisions, alleging that use of the information results in a discriminatory impact on candidates in protected groups. In 2012, the commission successfully negotiated a $3.13 million prelawsuit settlement of a race discrimination charge against Pepsi in which the soda giant’s criminal background check policy was called into question for allegedly discriminating against African Americans. However, the agency has been less successful pursuing similar cases in court, mainly because of its struggle to proffer reliable evidence of discriminatory impact. Despite the EEOC’s mixed results, the recent settlements and case filings indicate that the use of credit and criminal history checks in the hiring process is a hot topic. read more…

EEOC’s use of ‘race raters’ against Kaplan University gets failing grade

by Judith E. Kramer

On January 28, a federal court ruled in favor of Kaplan Higher Learning Education Corp. and Kaplan University in a lawsuit filed by the Equal Employment Opportunity Commission (EEOC). The EEOC had alleged that Kaplan’s use of credit history reports in making hiring decisions violated certain provisions of Title VII of the Civil Rights Act of 1964 because the practice has a disparate impact on black applicants.

Background

The defendant in this case was a group of educational institutions. As the court noted, educational institutions operate in a highly regulated industry. The U.S. Department of Education (DOE) provides financial aid to many students enrolled at Kaplan University and Kaplan Higher Learning Education and requires its participants to have in place quality controls that limit access to student and parent information. read more…

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