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BT Currents - Hot Topics in Employment Law
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30 May 2013 The Trouble With The So-Called “Equal Opportunity Harasser” – Another Cautionary Case

Under Title VII, if a supervisor is obnoxious and abusive to everyone in the workplace, subjecting women and men alike to a barrage of insults, vulgar innuendo, and sexual propositions, the employer is not liable for hostile work environment sexual harassment under Title VII. The rationale is that if a person is an “equal opportunity harasser” then the harassment is not “because of sex” and thus Title VII provides no remedy. Therefore, the equal-opportunity harasser defense may let employers off the hook for liability for sexual harassment, depending…

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17 Apr 2013 Employment Rule Book’s Silence Does Not Overcome Presumption of At-Will Employment

The concept of at-will employment remains alive and well in Illinois, at least as expressed by the U.S. Court of Appeals for the Seventh Circuit. In a recent ruling in favor of a municipal employer, the Court of Appeals examined the extent to which an employment rule book could alter the at-will employment relationship into one in which the employee could have a right to continued employment absent “cause” for discipline or termination. In Cromwell v. City of Momence, the Appellate Court rejected the argument…

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02 Apr 2013 U.S. Supreme Court to Consider Application of ADEA to State and Local Workers

The U.S. Supreme Court has agreed to hear an appeal from Illinois Attorney General Lisa Madigan on the issue of whether state and local government employees can bypass the Age Discrimination in Employment Act and sue for age discrimination under an equal protection theory. The case is Madigan v. Levin, Docket Number 12-872. Appellate courts are split on whether the ADEA is the exclusive route for state and local government employees to bring a claim for age discrimination, or whether an equal protection claim via…

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08 Mar 2013 Internal Investigations Can Be Crucial to Defense Against Retaliation Claims

It will come as no surprise to many employers that retaliation charges under Title VII and similar employment laws are, in many instances, more challenging to prevent and defend than discrimination claims. So there is comfort to be found in a pair of rulings from the Seventh Circuit Court of Appeals today, affirming that an employer’s investigation into alleged workplace misconduct can serve to stave off liability in the event of a retaliation lawsuit. In Vaughn v. Vilsack, the Court affirmed summary judgment for the…

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08 Mar 2013 Illinois court revives Whistleblower Act claim of employee who was fired following fine

Say an employee makes a report to a government inspector of an alleged violation of the law, but the government agency already knows of the violation – is the employee still protected from retaliation by his employer under the Illinois Whistleblower Act? A trial court judge in central Illinois did not think so, and granted an employer’s motion to dismiss on the pleadings. But on appeal, the Illinois Appellate Court reversed, ruling that the language of the Whistleblower Act focuses on what the employee reasonably believed,…

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28 Jan 2013 Paid Leave Can Be a Lawful Option When an Employee Is Facing Criminal Charges

Paid administrative leave for an employee who is charged with a crime is not a materially adverse employment action for purposes of proving an employment discrimination case, according to a recent federal appellate court order. The 10th Circuit’s decision in Benavides v. City of Oklahoma City, is a useful reminder for employers that thorny legal issues may arise when an employee is accused of criminal wrongdoing. The Benavides case illustrates that while an employer cannot prevent an employee from filing a charge of discrimination or lawsuit…

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23 Jan 2013 High Court to Decide Whether “but-for” Standard Applies to Retaliation Claims Under Title VII

The United States Supreme Court has added yet another interesting employment law issue to its docket, agreeing to take up the question of whether Title VII’s retaliation provision and similarly worded statutes require a plaintiff to prove “but-for” causation or instead require only proof that the employer had a mixed motive for the employment decision in question. The Supreme Court granted a petition by the employer to hear its appeal in the case of University of Texas Southwestern Medical Center v. Nassar, Docket No. 12-00484. The…

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22 Jan 2013 Social Media Regulation Attracts Mainstream Media Attention

Regulation of employees’ use of social media continues to make headlines, with an article in today’s New York Times just the latest example of continuing coverage of the subject by national news organizations. The article, available here, summarizes the good and bad in social media policies, pointing out that a policy with specifics is more likely to withstand legal scrutiny than very general, sweeping policies that have the potential to chill lawful speech. Thus, employers are well-advised to adopt policies that remind employees to avoid harassment,…

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05 Nov 2012 Newsweek’s history includes path-breaking gender discrimination case

When Newsweek/Daily Beast Editor-in-Chief Tina Brown recently announced that the print edition of Newsweek will cease publication at the end of 2012 after a nearly 80-year history, the fact that a female editor-in-chief broke the news likely was not lost on former Newsweek staffer Lynn Povich.  Ms. Povich, one of the leaders of a 1970s sex discrimination case against Newsweek, is the author of a newly released book that lays out all the details of the struggle by women at the magazine to rise beyond…

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31 Oct 2012 Illinois Courts to Require Redaction of Personal Identity Information

While employers as a rule know that they must take reasonable measures to protect personnel records from unnecessary disclosures in the course of business, when employment litigation arises there are myriad records that may become subject to disclosure in discovery, including personnel records of the plaintiff as well as individuals who are not parties to the case, such as decision-makers and comparators in employment discrimination cases.  Protective Orders can be entered to govern the use and protection of confidential information during the pre-trial discovery phase…

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