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BT Currents - Hot Topics in Employment Law
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20 Aug 2013 Is EEOC Conciliation Subject to Judicial Review? Seventh Circuit to Decide

When the EEOC files federal court lawsuits alleging discriminatory conduct,  defendant-employers routinely assert a “failure to conciliate” defense.  Thus, the issue becomes whether and to what extent a court can review the EEOC’s internal pre-suit conciliation process. In its case against Mach Mining LLC, pending in the Southern District of Illinois, the EEOC took the position that the court cannot review its conciliation efforts. However, the District Court rejected that position and determined that conciliation is subject to at least some level of judicial review.  In particular,…

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20 Aug 2013 Back to School: Time to Focus on Takeaways from Supreme Court Flurry

The end of the U.S. Supreme Court term in June included an extraordinary number of important decisions, in employment law and otherwise. Sometimes it is hard to take it all in as the new stories and alerts fly, so we thought it was a good idea now that the dust has settled to review the three key employment cases and their implications. If you missed our webinar on the topic last week a quick summary follows.   Tina Syring-Petrocchi began by reviewing Vance v. Ball…

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19 Aug 2013 OFCCP Champions the Rights of Male Workers

Who said no one cares about the white male under 40? Take heart men – the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) cares about you and your employment rights. As part of an affirmative action audit of a government contractor, OFCCP found that the contractor discriminated against males applying for entry-level positions that involved contact with the public.  Perceptions that women have better customer service skills played into hiring decisions favoring women, found OFCCP. As a result, 200 qualified male applicants did not…

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25 Jul 2013 Associational Discrimination: Perfectly Healthy Employee Can Have Disability Claim

A recent Massachusetts Supreme Court decision highlights a form of discrimination that employers may not always remember – associational discrimination. Associational discrimination is workplace discrimination against one for his relationship with another, and is expressly recognized in the Americans with Disabilities Act. In this case, the court recognized such a claim under a counterpart state law. In Flagg v. Alimed, Inc., a long-time employee’s wife had surgery for a brain tumor and the employee needed extra time to care for his children. The employee’s manager told him “to…

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19 Jul 2013 Straying from Past Practice in Investigation Raises Retaliation Risk

A recent 7th Circuit case demonstrates the importance of carefully designing workplace investigations to account for a variety of potential claims. In Hobgood v. Illinois Gaming Board, a gaming board employee filed suit against his employer alleging unlawful retaliation in violation of Title VII and the First Amendment. The employee was terminated for helping his coworker organize and research a suit against the gaming board, citing widespread corruption in its hiring policies. Additionally, the employee supplied two confidential documents supporting the coworker’s claims. The coworker’s lawsuit…

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17 Jul 2013 Be Careful What You Say

A recent case demonstrates the frustrating quandaries that employers can find themselves in if they do not choose their words carefully.  In Gulden v. Pratt & Whitney Rocketdyne, Inc., Case No. BC468909, a 76-year-old engineer sued his employer for age discrimination after he was laid off.  His employer had what would seem to be a good multi-faceted defense: The engineer was just one of 81 employees who were laid off (most of whom were significantly younger than him), he was the only part-time employee in…

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15 Jul 2013 Update: Still Legal to Fire the ‘Irresistible’ Employee in Iowa

A few months ago we wrote about the Iowa Supreme Court decision holding that it was not gender discrimination for a dentist to fire his attractive assistant at his wife’s behest because she was deemed a threat to the dentist’s marriage. Last week we got to relive this case in the media (social and otherwise) when the court declined the employee’s motion asking the court to reconsider its position. While it is certainly the exception for courts to reverse their own decisions (the employee probably…

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08 Jul 2013 Employers Should Use Care to Avoid Discrimination When Using Temporary Staffing Agencies

Employers that use staffing agencies to fill temporary work assignments should be prepared to meet the challenges inherent in such relationships for purposes of compliance with Title VII, as illustrated by the EEOC’s litigation against a small manufacturer in Illinois. Although the Illinois manufacturer claimed it was not subject to Title VII because it had fewer than the statutory minimum 15 employees, the EEOC argued that temporary employees needed to be counted. The EEOC contended that the employer should be held liable if the actions…

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26 Jun 2013 U.S. Supreme Court Directs 5th Circuit Court of Appeals to Re-Examine University of Texas’ Race-Conscious Admissions Policies

On Monday, June 24, 2013, the U.S Supreme Court issued a much-anticipated ruling in the first affirmative-action case since the 2003 landmark decisions of Gratz v. Bollinger and Grutter v. Bollinger.  However,  Monday’s ruling in Fisher v. University of Texas at Austin did not reach the merits of the school’s policy, holding that the 5th Circuit Court of Appeals applied the incorrect standard of review. For academic institutions that have race-conscious admissions policies, this case does not alter the current legal requirement that such polices be “narrowly…

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25 Jun 2013 Supreme Court Endorses Narrow Definition of “Supervisor” in Discrimination Claims

On Monday, June 24, 2013, the Supreme Court provided clarity for lower courts and employers when it ruled that an employer may be vicariously liable for a supervisory employee’s harassment (to the extent that it did not culminate in a tangible adverse employment action) only when the employer has empowered the employee to take tangible employment actions against the alleged victim of the harassment. And in the process, the Court soundly rejected the EEOC’s enforcement guidance as “nebulous” and unpersuasive. While the ruling in Vance…

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