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BT Currents - Hot Topics in Employment Law
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25 Jun 2013 Supreme Court Requires But-For Causation in Title VII Retaliation Claims

On June 24, 2013, the United States Supreme Court held in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ____ (June 24, 2013) (Nassar), that a plaintiff bringing a retaliation claim under Title VII must demonstrate “but for” causation, not merely that retaliation was a “motivating factor.”   Writing for the majority and relying on the plain language, structure, and history of Title VII, Justice Kennedy explained that the “motivating factor” standard applies only to claims of “status-based discrimination,” i.e. claims of discrimination…

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21 Jun 2013 The Witness Files: Deja Vu All Over Again in Workplace Investigations

Over time, as lawyers and HR professionals and others conduct numerous workplace investigations, we find that, while each investigation is unique, we “meet” the same characters over and over. With that in mind, I am writing monthly posts on the i-Sight.com blog about those composite witnesses and strategies for dealing with them. The first post that I’ve authored, entitled “The Clueless, Yet Compliant, Accused,” features the supervisor who really does want to improve his clueless behavior (a relatively easy case in many respects); while the…

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19 Jun 2013 Employers May Come Up, Um, Short Under ADA

A decision last week from the U.S. District Court for Arizona highlights a point made previously in this space – for better or worse, the number of people protected by discrimination laws almost never goes down, rather we just keep adding protected classes and who is covered under them. In this decision, the Court opened the Pandora’s Box of possibly protecting short employees under the ADA. The case involves an allegedly bullying supervisor – accusing the plaintiff of mistakes that turned out to the supervisor’s…

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18 Jun 2013 EEOC Makes Good On Its Promise To Rekindle Disparate Impact Claims: Files Lawsuits Against Dollar General and BMW

You can’t say that we didn’t warn you.  Last week, the EEOC made good on its promise to protect those adversely affected because of criminal background checks. The EEOC filed two lawsuits – one in federal court in Chicago against the national small-box retailer, Dollar General; and another in South Carolina against BMW. These lawsuits appear to be the first lawsuits filed by the EEOC since it issued its criminal background check enforcement guidance in April of 2012 – and the first since issuing its…

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06 Jun 2013 What Judges Really Want: Reasonable Litigants

Recently, a paralegal sued the law firm that she had been working for in New York City.  She alleged that the firm’s named partner had sexually harassed her in violation of New York’s anti-discrimination laws by implying that she should engage in a sexual relationship with him, by demanding that she feed him with chopsticks at an Asian restaurant, by chasing after her when she left the restaurant, and by eventually firing her for rebutting his advances. She also alleged that the firm failed to…

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03 Jun 2013 EEOC Files Two Genetic Information Nondiscrimination Act Lawsuits in Two Weeks

The EEOC recently filed its first-ever lawsuit alleging a violation of the Genetic Information Nondiscrimination Act (GINA) – and subsequently filed its second GINA lawsuit one week later. The first lawsuit settled, with a fabrics distributor paying $50,000 and agreeing to take other specified actions (i.e. posting an anti-discrimination notice, among other things) after the EEOC alleged a violation of GINA and the Americans with Disabilities Act (ADA). Specifically, with respect to GINA, the EEOC charged that the distributor violated the Act when it asked…

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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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22 May 2013 Hot Topic: The Use of Criminal Records to Make Hiring Decisions

Medical testing giant Quest Diagnostics Inc. (42,000 employees worldwide) recently found out the hard way that government agencies across the country are ramping up enforcement of state and federal laws restricting the use of criminal convictions when making hiring decisions. While the Equal Employment Opportunity Commission (EEOC) uses Title VII’s prohibition against disparate impacts against employees relating to race or national origin to investigate companies’ hiring policies in relation to criminal records, many states, such as New York, have laws specifically limiting the use of…

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17 May 2013 EEOC Offers Updated ADA Guidance Q&A’s Pertaining to Cancer, Diabetes, Epilepsy and Intellectual Disabilities

In a measure to keep up with the changes made by the Americans with Disabilities Amendments Act (ADAAA) in relation to what employees and applicants must show to establish that they have a “disability,” the Equal Employment Opportunity Commission (EEOC) has revised its informal “Question and Answer” guidance forms pertaining to four categories of medical conditions – cancer, diabetes, epilepsy, and intellectual disabilities – to provide clarification as to how employers should address such conditions and to confirm that individuals having each of the types…

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16 May 2013 OFCCP Notice Issued Regarding New Census EEO Tab

The Office of Federal Contract Compliance Programs (OFCCP) has issued a notice regarding the date on which federal contractors must begin using the 2006-2010 EEO Tabulation (2010 EEO Tab), which was released to the public on Nov. 29, 2012.  Effective Jan. 1, 2014, federal contractors must begin using the 2010 EEO Tab to develop all Affirmative Action Programs (AAPs) and the OFCCP, likely, will begin using the same at that time. As federal supply and service contractors may know, the employers must prepare and maintain AAPs…

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