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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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10 Dec 2012 “Employee” Status Not Necessarily Dependent on Compensation

While Title VII discrimination claims apply only to “employees” and “employers,” the statute’s definitions of those terms are spectacularly unhelpful. An employee is someone who is employed by an employer. 42 U.S.C. § 2000e(b) & (f). Thanks, Congress! In light of this thoroughly circular definition, courts use agency principles to determine employment status when such is not clear. An illustrative opinion was recently issued by the Northern District of Illinois in Volling v. Antioch Rescue Squad. In Volling, one of the main questions was whether the members…

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05 Dec 2012 Census Bureau Release Workforce EEO Numbers

Last week, the U.S. Census Bureau released the 2006-2010 American Community Survey EEO tabulation that examines the diversity in the U.S. labor force. In the past, the Census Bureau has produced the tabulation after every 10-year census. However, for the first time, the bureau used the 2006-2010 American Community Survey estimates in its report.  The actual tables produced by the tabulation can be generated at the Census Bureau’s American FactFinder page available here. Federal agencies use the numerous tabulations as a monitoring device while employers…

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27 Nov 2012 Supreme Court Examines “Supervisor” Definition In Bias Suits

On Monday, the U.S. Supreme Court heard oral arguments regarding the definition of a “supervisor” as it relates to an employer’s vicarious liability under Title VII of the Civil Rights Act of 1964.  In Vance v. Ball State University, the Court pressed both sides to explain what the impact would be should it expand the “supervisor” definition under Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) should the Court choose to expand the…

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26 Nov 2012 Seventh Circuit Rejects EEOC’s Claim of Confidentiality Violations Under the Americans with Disabilities Act

In its opinion issued in EEOC v. Thrivent Financial for Lutherans, No. 11-2848, which can be found here, the U.S. Court of Appeals for the Seventh Circuit affirmed the award of summary judgment to Thrivent Financial for Lutherans (Thrivent), and rejected the Equal Employment Opportunity Commission’s (EEOC) arguments that Thrivent had violated the Americans with Disabilities Act (ADA) when it had revealed information regarding a former contract employee’s migraine condition to a prospective employer. The Seventh Circuit’s rationale hinged on the fact that Thrivent had…

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21 Nov 2012 Hand it Over: Federal Judge Orders Plaintiffs in Discrimination Lawsuit to Produce Cell Phones and Facebook Account Passwords

Plaintiffs in an employment discrimination lawsuit brought by the Equal Employment Opportunity Commission (“EEOC”) recently were ordered to hand over their cell phones and Facebook account passwords for in camera (i.e. private) inspection by a federal Magistrate Judge. In this case, the EEOC brought suit alleging the defendant employer had subjected a class of female employees to sexual harassment and retaliation. During the course of discovery, the employer moved to compel the production of various text messages and social media posts. According to the Magistrate…

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16 Nov 2012 En Banc Sixth Circuit Strikes Down Portions of Michigan’s Constitutional Amendment on Affirmative Action

Yesterday (Nov. 15, 2012), the United States Court of Appeals for the Sixth Circuit, sitting en banc, voted 8 to 7 to strike down portions of the amendment to Michigan’s constitution that barred the use of affirmative action in the admissions to public colleges and universities. The copy of the decision can be found here. In 2006, Michigan voters passed a referendum known as Proposal 2, which amended the Michigan Constitution to bar discrimination, as well as preferential treatment, toward “any individual or group on…

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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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26 Oct 2012 EEOC Releases Q&A Fact Sheet On Application of Title VII and ADA to Victims of Domestic Violence, Sexual Assault, and Stalking

The Equal Employment Opportunity Commission’s (EEOC) most recent official guidance involves the application of federal anti-discrimination laws to employees and applicants who have experienced domestic or dating violence, sexual assault, or stalking. The Q&A Sheet can be found here.  Because victims of these offenses are not explicitly protected under federal law, employers may not realize certain employment decisions can run afoul of Title VII (prohibits discrimination on the basis of sex and sex stereotyping, among other categories) or the Americans with Disabilities Act (ADA).  Examples that…

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24 Oct 2012 On The Radar: Supreme Court Set to Resolve Circuit Split as to Definition of Supervisor Under Title VII

The Supreme Court of the United States has agreed to review a Seventh Circuit decision involving the definition of a “supervisor” under Title VII.  The case, Vance v. Ball State University, could have significant employment law ramifications because “supervisors” automatically subject an employer to vicarious liability for its supervisors’ harassing conduct. Currently, the Seventh Circuit requires that employees have the authority “to hire, fire, demote, promote, transfer, or discipline an employee” to be considered a supervisor.  This bright-line, narrow definition ensures that alleged supervisors have…

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22 Oct 2012 EEOC Must Abide By 300-Day Rule in Pattern and Practice Case, Says New Jersey Federal Court

Although federal courts are divided on the issue, recent case law seems to be trending toward holding the Equal Employment Opportunity Commission (EEOC) accountable for complying with the normal requirement under Title VII and the Americans with Disabilities Act (ADA) that administrative charges must be filed within 300 days (or 180 days where there is no state agency equivalent to the EEOC) of the discriminatory event. In the latest case to weigh in on the issue, the District of New Jersey dismissed all potential claims…

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