The Boss, your boss, and LGBT rights

April 12, 2016 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

North Carolina got itself a bit of attention recently when it enacted House Bill 2, which mandates that public restrooms be limited for use based on the individual’s “biological sex.” The effect of this bill was to take away from transgender citizens their ability to choose, based on their individual gender identities, which restroom they will use. There was some fairly prompt backlash. Bruce Springsteen cancelled a Greensboro concert in protest. The NBA is considering relocating its 2017 All-Star Game from Charlotte.  Fist hand with rainbow flag patterned isolate on white

Relevant to the workplace, the Equal Employment Opportunity Commission (EEOC) has been pursuing LGBT cases since long before the Boss or the Association ever heard of HB2. The EEOC’s position is that it “interprets and enforces Title VII of the Civil Rights Act of 1964′s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. These protections apply regardless of any contrary state or local laws.” While Title VII does not explicitly prohibit discrimination on the basis of sexual orientation or gender identity, the EEOC says that it will pursue adverse employment decisions that are the result of “gender stereotyping.” Consider these actions brought by EEOC:

  • EEOC sued a Maryland company for not taking action to prevent harassment of a lesbian employee.
  • EEOC sued a Michigan funeral home for termination of a transgender funeral director.
  • EEOC settled a case with a Minnesota company that refused to permit a transgender employee to use the restroom of her choosing after she began presenting as a woman.
  • EEOC secured a six-figure verdict in a Title VII case alleging that the male supervisor of an all-male construction crew harassed one of his subordinates.

North Carolina is not alone here. Mississippi recently passed a similar “religious liberty” bill that was viewed by many as anti-LGBT. Like Springsteen, rocker Bryan Adams cancelled a show in Biloxi in protest. Anything he does, he does it for us.

Don’t matter if you’re black or white

February 16, 2016 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Somewhere between outrage, bewilderment, and comedy falls the news that a U.K. production company has cast very very very white actor Joseph Fiennes as Michael Jackson in Elizabeth, Michael and Marlon, a short film about a rumored post-9/11 road trip involving Liz Taylor, Michael Jackson, and Marlon Brando.  hip hop funk dancer dancing man

There has been much criticism of this particular casting decision, especially against the backdrop of the #OscarsSoWhite campaign. But what about any black actors who believe the casting of a white actor is discriminatory? Turns out they probably don’t have a case.

A few years ago, black applicants for ABC’s The Bachelor sued the network and the show for race discrimination. They alleged the show overwhelmingly preferred white contestants over blacks. A federal district court dismissed their action and made some interesting points. The court pointed out that the plaintiffs’ theory would call into question how certain networks target an audience (Ovation, Telemundo, BET) as well as the demographic makeup of the casts of various shows (The Shahs of Beverly Hills, The Cosby Show).

The money money quote from that decision is, “To the extent that these networks and programs discriminated and discriminate in their casting choices, would they not be subject to civil liability under prevailing state and/or federal antidiscrimination statutes, but for the First Amendment? There are other examples: Would applying anti-discrimination laws require a playwright to consider white actors to play Othello, black actors to play Macbeth, or a male to play Lady Macbeth? For that matter, could a dramatist face civil liability for staging an all-female version of Romeo & Juliet?”

Fair points.  The only thing keeping 2 Broke Girls from becoming The Golden Girls is freedom from the Age Discrimination in Employment Act.

Age, sex, and sports media

December 21, 2015 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Sports reporter Colleen Dominguez is 54 years old and has enjoyed a successful career in sports journalism including a lengthy stint at ESPN. Dominguez recently jumped to Fox Sports 1 and believes her age and gender are the only plausible reasons that FS1 has cut her broadcasting assignments and diminished her career. These are her allegations in a lawsuit filed recently in a California federal court. The complaint tells the story of a veteran, experienced reporter who has paid her dues but is being pushed aside by the men and the new pretty girl on the block. Can a media company make decisions based on the age and gender of its on-air talent?a young woman journalist with a microphone and a cameraman

This is not the first time this has come up in the TV and entertainment industry. In 1993 a Minnesota jury awarded 53-year-old sportscaster Tom Ryther $1.2 million in an age discrimination case. Ryther, a longtime fixture on TV news, was not renewed after his network commissioned a poll that showed he wasn’t having a “positive” effect on viewership. According to Ryther, at the time of his termination, the station manager asked him how it felt to be a failure at age 53.  No doubt that played well with the jury.

Ten years earlier, a Missouri court ruled against a female newscaster on her sex discrimination claim. She was replaced on air after a local survey showed she scored very low in categories dealing with “good looks” and the image of a “professional anchor woman.” The court rejected her arguments that the station’s appearance standards were discriminatory and were applied more leniently to men.

Equal Employment Opportunity Commission (EEOC) regulations state that the bona fide occupational qualification (BFOQ) defense isn’t available in a sex discrimination case when the adverse action is based on “stereotyped characterizations of the sexes.” Likewise, the BFOQ defense isn’t available in an age discrimination case unless the defendant can show that the disqualifying characteristic cannot be separated from age. Dominguez’s complaint alleges statements by FS1 personnel that link her reduced workload to perceptions about her age and her gender.

Anyone who consumes sports television cannot help but notice that it is male-dominated, and the few women one sees on screen skew young. Is Dominguez a victim of industry perception?  It will be interesting to see how FS1 frames its defense.

Tricks and treats and trial briefs

October 26, 2015 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Remember NBC’s The Office? I think some lawyers used to blog about it. Anyhow, one of my favorite episodes was “Costume Contest” where the Scranton employees threw a Halloween party at the branch office. The costumes in the episode were mostly tame, ranging from Justin Bieber (Ryan) to Lady Gaga (Gabe). Late in the episode Angela dressed up as “sexy nurse.” The employment lawyer in me was not amused.  Devils Not in Disguise

Halloween is a few days away, and many employers will be holding costume-themed events. Unless HR steps in with some firm rules about costumes and conduct, some of those parties will invariably end up as reported Title VII cases. Consider just a few examples:

  • In a 2009 New York case, the plaintiff, dressed as a punk schoolgirl, was asked by her supervisor whether her fishnet stockings were waist-high or thigh-high;
  • In a 2009 Massachusetts case, photographic evidence of the provocative costumes the plaintiff wore to Halloween parties was offered by the defense in her sexual harassment case;
  • In a 2006 Louisiana case, the plaintiff dressed like a cat, prompting her manager to comment that he wanted “that p***y”;
  • In a 1995 Eighth Circuit decision, a white officer came to the party dressed in blackface, wearing overalls and a black curly wig, and carrying a watermelon.

Don’t let this be your workplace. Take steps before the party to diminish the risk of liability. Prohibit or limit alcohol. Do not allow provocative costumes. If the party takes place at the workplace, have it end at a reasonable hour. Remind employees about the company’s harassment and discrimination policies. Nothing is scarier than being sworn in for your deposition. Happy Halloween, everyone.

Employment is short. Don’t have an affair.

September 08, 2015 - by: Brian Kurtz 2 COMMENTS
Brian Kurtz

Imagine a guy, a married guy, more specifically an unhappily married guy, and even more specifically an unhappily married guy lacking a moral compass. The guy creates a discrete (ha!) profile on AshleyMadison.com, a dating website for married people whose tagline is “Life is Short. Have an Affair.” No need to prowl hotel bars at last call. Thanks to Ashley Madison, our guy can arrange an illicit rendezvous from the privacy of his laptop. shhhhh

Or not.

As you surely know, hackers last month released a mountain of personal data about Ashley Madison users into the dark web. Those skilled in such things have spent the past few weeks mining that data and have “outed” numerous site members, including celebrities, politicians, government employees, and something called a Duggar. Could things get any worse for our guy?

The answer is yes, specifically if our guy is employed by a church or other religious-based institution. Courts have consistently dismissed lawsuits against faith-based organizations who terminated employees for things like adultery or having a child out of wedlock. An Ohio Catholic school, for example, fired its music teacher for adultery. She filed a gender discrimination lawsuit claiming that her affair was irrelevant to her qualifications as a teacher. A federal court disagreed noting that her Diocese and Parish legitimately believed her sexual conduct was directly related to her qualifications to work at the Catholic school. The Ohio decision is not an outlier.

This may be one of the unintended consequences of the Ashley Madison data dump. Faith-based institutions may terminate employees who created profiles on the basis that adulterous behavior isn’t consistent with the organization’s religion mission. So now our guy is not only unhappy, he is unemployed. Good luck with that, guy.

Donald Trump will win (a Title VII lawsuit)

July 20, 2015 - by: Brian Kurtz 2 COMMENTS
Brian Kurtz

This is an entertainment-centered blog and therefore as good a place as any to discuss Donald Trump. By now you are surely aware of the nuanced approach Trump took toward U.S.-Mexico immigration policy in his presidential bid announcementDonald Trump

“When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”

If you are of Mexican national origin, that stings. If you are of Mexican national origin and are employed at Trump Plaza, or at the Trump Taj Mahal, or work on the Miss USA Pageant broadcast, you may be asking yourself whether Trump’s remarks could give rise to a discrimination or harassment lawsuit under Title VII of the Civil Rights Act of 1964. read more…

Gall, Blatter

June 01, 2015 - by: Brian Kurtz 2 COMMENTS
Brian Kurtz

Joseph “Sepp” Blatter is a man whose name seems an adjective as much as a proper noun. Blatter, as you likely know by now, was just elected to a fifth term as President of the Fédération Internationale de Football Association (FIFA), the international umbrella organization for international soccer. The 79-year-old Blatter was his typically arrogant and tone-deaf self after his election victory, but one wonders if privately he is lining up some Ballon d’Or-caliber legal counsel.FIFA headquarter in Zurich, Switzerland

Because the Yanks are coming.

On Wednesday, May 27, the U.S. Department of Justice (DOJ) launched a studs-up tackle at FIFA, unleashing a comprehensive 47-count indictment that charged 14 individuals with racketeering, fraud, and money laundering. The indictment outlined 24 years of kickbacks, bribery, and outright corruption detailing how sports marketing firms bought off FIFA officials for lucrative broadcast rights to various FIFA-sanctioned tournaments. Nine of the 14 individuals indicted were FIFA officials. Some of the arrests were carried out in Zurich, Switzerland, with the cooperation of Swiss officials. The DOJ says this is only the beginning of its investigation, and there may be more arrests and indictments to come.

One of the non-FIFA defendants named in the indictment is Aaron Davidson, president of Traffic Sports USA, a sports marketing firm. Davidson is a U.S. citizen. His U.S. citizenship, coupled with the DOJ’s assurance that the investigation is not over, makes one wonder if the government is also going to bring charges under the Foreign Corrupt Practices Act (FCPA).

The FCPA generally prohibits a U.S. citizen or entity from bribing a “foreign official” for the purpose of obtaining business. The definition of “foreign official” includes an officer of a governmental agency, department, “or instrumentality thereof.” According to the indictment, Davidson facilitated bribes to soccer officials from Trinidad & Tobago, Costa Rica, Nicaragua, and the Cayman Islands. The question then is whether the soccer federations of those nations are “instrumentalities” of their national governments.

The recent Esquenazi decision from the Eleventh Circuit appears to permit a broader reading of the statute. In Esquenazi the court defined “instrumentality” as “an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own.” There is evidence that some national soccer federations are under the control of their national governments. A bribe by a U.S. citizen to such an official could bring the act under the FCPA. Davidson’s legal troubles may not be over. For Traffic Sports employees who helped facilitate the bribes, their legal troubles may just be beginning.

The men arrested last Wednesday are not hardened criminals. Some or all of them might be singing to the feds already. We can only speculate whether the scandal will reach Blatter and truly reform FIFA. But considering the DOJ’s resources, the cooperation of the Swiss government, and the recent announcement by British banks that they will review whether any dirty FIFA money was funneled through their systems, I think it’s appropriate to invoke the chant of U.S. Soccer’s diehard supporters:  I believe!  I believe that we will win!

Fire Harry Crane

April 16, 2015 - by: Brian Kurtz 2 COMMENTS
Brian Kurtz

Mad Men can be tough to watch for an employment lawyer. I was thinking of this while watching the show’s most recent episode, “New Business.” In a particularly cringe-worthy scene, Harry Crane propositions Megan under the pretense that he can help get her acting career back on track. Harry is a buffoon and a jackass, and I wondered if he was exposing the firm to potential liability. iStock_000051863008_XXXLarge

There is precedent for the theory that an employee who harasses a third party can expose his employer to vicarious liability. Twenty-five years ago, a New York trial court  famously found that a model was sexually harassed by Penthouse Enterprises, which, among other things, required her to engage in sexual activities for the benefit of the company’s business. In that case the model was quasi-employed by Penthouse, but the court pointed out that the conduct constituted intentional infliction of emotional distress as well as sexual harassment.

Had Sterling Cooper learned of Crane’s quid pro quo proposition to Megan, it could have fired him and faced little risk of loss if Crane sued. In a 2003 Connecticut case, the court granted summary judgment to an employer who fired an IT employee it had loaned to another company after that company’s female employees complained the IT employee was harassing them.

Employers must understand that their employment-related liability can extend beyond their own workforce. An employee who harasses a third party is a problem, as is the situation when the employer fails to take reasonable steps to protect its employees from harassment by third parties. Turning back to Sterling Cooper, Peggy seemed unfazed by Pema’s advances. Unfortunately for employers, not all your employees can be Peggy.

Pay the lady

February 24, 2015 - by: Brian Kurtz 2 COMMENTS
Brian Kurtz

Patricia Arquette won the Oscar for Best Supporting Actress at this year’s Academy Awards, and people are still buzzing about her acceptance speech where she exclaimed: “It’s our time to have wageshutterstock_225011584 equality once and for all, and equal rights for women in the United States of America!”

Arquette will be pleased to know that the Equal Employment Opportunity Commission (EEOC) vigorously administers the Equal Pay Act, which guarantees equal pay for equal work. In fact, an EPA complainant doesn’t even have to file a charge with the EEOC and, unlike with Title VII or the Americans with Disabilities Act, can proceed straight to court with a lawsuit.

To prevail in an EPA lawsuit, an individual must demonstrate that her employer paid employees of the opposite sex different wages for equal work or for jobs the performance of which requires equal skill, effort, and responsibility or are performed under similar working conditions. The jobs at issue need not be identical, but substantially equal, which is determined on a case-by-case basis. If the plaintiff can make this showing, the burden shifts to the employer to prove that its pay is determined by: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of production; or (4) any other factor other than sex, e.g., education and experience.  Even if the employer establishes its defense, an EPA plaintiff can still try to put on evidence that the defense is a pretext for gender-based pay discrimination.

According to industry sources, for the period June 2013 to June 2014, the four highest-paid male actors raked in $35M-$52M while the four highest-paid actresses made $15M-$35M. Production companies probably have various rationales for paying their male talent more than their female talent. But maybe Arquette has a point because one strains to understand how Jennifer Lawrence–Oscar winner, three-time Oscar nominee, Katniss Everdeen–earns less than The Rock.

BFOQ FTW

January 04, 2015 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

YOU are a seasoned HR pro.  YOU understand the difference between Internet slang–omg, imho, lmao–and the Title VII defense of BFOQ.  We must discuss the BFOQ exception–bona fide occupational qualification–in the wake of the Abu Dhabi adventures of actress, singer, and ex-Biebs girl Selena Gomez.  ICYMI (see what I did there?), a picture surfaced of Gomez in a mosque taken while she and some pals were vacationing in Abu Dhabi. In the photo, Gomez clearly flashes her (NSFW alert) … ankle. shutterstock_194149595

Context is important. Gomez was a female in a mosque in the United Arab Emirates. Mosque rules prohibit “intimate behavior,” including a female’s failure to wear ankle-length garments. Could a U.S. employer refuse to hire or employ a female because it did business in Arab countries with decisionmakers who were devout Muslims?

The BFOQ exception essentially permits an employer to discriminate by recognizing that there are certain job requirements that are not compatible with a person’s gender, religion, etc. The exception is race; the BFOQ defense does not apply in a race discrimination case.  There are not a lot of BFOQ cases out there, but two decisions from the 1980s demonstrate what distinguishes a successful BFOQ defense from a flawed one.

In a 1983 Texas decision, an employer lawfully terminated a helicopter pilot who refused to convert to Islam. The facts in that case were unique. The pilot was tasked with flying passengers in and out of Mecca, Saudi Arabia. At the time, a non-Muslim flying into Mecca was subject to beheading under Saudi law! By contrast, gender preferences of customers or business partners are generally not sufficient to establish the BFOQ defense. In a 1981 California case, an employer’s BFOQ defense was rejected. The company failed to promote a female candidate in part because of its subjective belief that its South American clientele would not prefer to do business with a female executive.

The success of the BFOQ defense will turn on whether the employer has a basis in fact for discriminating against an employee or applicant. Courts examine whether the employer’s rationale is objective, i.e., avoiding legally sanctioned beheadings, or subjective, i.e., perceived customer preference. In the former case, the courts will likely be sympathetic.  In the latter, well … smh.

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