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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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02 Dec 2013 “Using Social Media to Discriminate”: Please Read the Fine Print

A recent study of how hiring managers respond to phony social media accounts has been featured in some outlets with bold headlines along the lines of “Employers May Use Social Media to Discriminate.” Here is what the study, by researchers at Carnegie Mellon, really concluded:  The study involved sending dummy resumes to employers and creating dummy social media accounts to accompany those resumes. (While the subject matter of the research is undeniably important, is anybody else furrowing their brows a little about, um, lying to employers for purposes…

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27 Nov 2013 Construction Contractor Sues OFCCP To Block New Regulations

Recently, a construction trade association filed suit in federal court seeking to block the OFCCP’s new “Section 503” regulations on recruiting and hiring disabled persons from taking effect. Whether or not injunctive relief is granted, this lawsuit highlights the increased data-collection challenges that the OFCCPs new regulations will require for all federal contractors. On Nov. 19, 2013, Associated Builders and Contractors, Inc. (ABC) sued the Office of Federal Contract Compliance Programs (OFCCP) and the U.S. Department of Labor (DOL) in the U.S. District Court for…

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26 Nov 2013 Behind the Numbers: Employment Discrimination Cases at the Federal Level Decline, But Why?

Readers who enjoy a little data may want to download (free) Professor Theodore Eisenberg’s recent study of federal civil rights legislation data, including federal employment discrimination cases (available here). While certainly longer than a blog post, the article is quick and interesting reading. With respect to federal employment cases, Professor Eisenberg notes the following: 1. As a percent of the federal court docket, employment discrimination cases have steadily declined (though still a substantial portion). 2. There has been an increase in the settlement rate of…

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18 Nov 2013 Reference to Employee’s “Shelf Life” Not Enough to Prove Age Discrimination

No area of discrimination law presents as many opportunities for the interpretation (or misinterpretation) of workplace remarks as age discrimination. Google “old farts” and “age discrimination.” Seriously. There are many cases and situations where that expression is part of an age discrimination analysis. A reference by a supervisor to an employee’s “shelf life” would not seem to be as likely to indicate discriminatory animus (and “old fart” itself is far from a guarantee of success for an age plaintiff), but it was an importance part of George Roberts’…

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08 Nov 2013 ENDA Takes It to the House

As predicted earlier this week, the Senate, for the first time ever, passed the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination and harassment based on sexual orientation or gender identity. The final vote was 64-32, with all Senate Democrats (save one who did not vote) and 10 Republican senators (including influential members Orrin Hatch, John McCain, and Susan Collins) supporting the bill. Earlier in the week, an amendment passed barring retaliation by the federal government against any religious organizations that exercise their exemption from the…

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05 Nov 2013 Is This The Beginning of ENDA?

For nearly two decades, the Employment Non-Discrimination Act (ENDA) has consistently been put before Congress, but so far it has never reached the President’s desk. That may be about to change. ENDA, modeled after Title VII (preventing discrimination on the basis of race, sex, color, religion, and national origin), would prohibit the harassment or discrimination against employees based on sexual orientation and gender identity. Notably, the bill provides exceptions for religious schools, organizations and houses of worship. In light of the Supreme Court’s recent opinion…

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01 Nov 2013 Untimeliness, Hearsay, and Failure to Link Alleged Negative References and Third-Party Job Rescissions to Protected Activity Doom Employee’s Retaliation Claim

The U.S. District Court for the Southern District of Indiana has dismissed the retaliation claims raised against Eli Lilly and Company (Lilly) by former employee Cassandra Welch (Welch), reaffirming that discrete acts of alleged retaliation must independently meet timeliness requirements under 42 U.S.C. § 1981 (imposing a four year statute of limitations), and finding a void of evidence to link eighteen job rescissions to any retaliatory animus on behalf of Lilly. Specifically, in Welch v. Eli Lilly Co., found here, Plaintiff Welch had been terminated…

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30 Oct 2013 Informal Layoff Decision Survives Age Discrimination Claim – But You May Not Want To Try This At Home

A recent decision from the Northern District of Ohio rejected a truck driver’s claim that his selection for a layoff was due to age discrimination where his evidence consisted of (1) the fact that younger drivers were not laid off and (2) his supervisor’s comment that driving was a “young man’s game.” The case, McCormick v AIM Integrated Logistics, Case No. 4:11cv01524, involved a full service truck leasing company which laid off three drivers, ages 55 (the plaintiff), 54 and 51, but which kept drivers…

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23 Oct 2013 A Quick Reminder Regarding Complaints in the Workplace

Last year we reported on a landmark EEOC decision where the Agency concluded that discrimination against transgender individuals is actionable under Title VII. In that case, the EEOC held that Title VII prohibits an employer from taking adverse action based on the fact an employee/applicant fails to “adhere” to gender-based expectations or norms. It remains to be seen whether courts will agree with the EEOC’s position, but the decision appears to suggest that the argument may be viable in some jurisdictions. There’s another angle to…

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16 Oct 2013 U.S. Supreme Court Dismisses Age Case Without Reaching Disputed Question

The United States Supreme Court will not be providing an answer – at least for now – to the question of whether state and local government employees can bypass the Age Discrimination in Employment Act and instead head straight to court with age claims under 42 USC 1983. The Court this week dismissed the appeal in Madigan v. Levin, as “improvidently granted.” While the Court did not provide an explanation, it appears from summaries of the oral argument on Oct. 7, 2013 that the justices determined…

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