Employment Law Observer

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) published a final version of its Enforcement Guidance on Workplace Harassment. The new guidance provides  updates and agency direction on workplace harassment in virtual or online work environments, as well as harassment related to sexual orientation, gender identity, pregnancy, and religion.

The 2021 regular session of the Texas Legislature produced two employee-friendly bills that found their way to the Governor's desk and were signed into law. Both laws will go into effect on September 1, 2021.

The Court of Appeals for the D.C. Circuit recently remanded a decision of the National Labor Relations Board (the "Board"), thus compelling the Board to revisit and clarify its position on the scope of Section 7 protection for speech or conduct which may subject an employer to liability under other statutes, including Title VII. The D.C. Circuit concluded that the Board failed to consider key arguments raised by the employer, namely, the conflict between the Board's interpretation of the National Labor Relations Act (NLRA) and an employer's obligation to provide a workplace free of unlawful harassment under state and federal equal employment opportunity laws.

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2020. In the spirit of the season, we are using the "12 days of the holidays" to blog daily about one of these new California laws and its impact on California employers. On the third day of the holidays, my labor and employment attorney gave to me: three French hens and SB 778.

On November 8, 2019, Governor Andrew Cuomo expanded the list of protected categories under existing New York City Human Rights Law by signing the New York Reproductive Choice Law. Under this provision, employers are prohibited from discriminating against employees or their dependents for their reproductive health decisions. Specifically, the law prohibits employers from accessing personal information about an employee or dependent's "use or access of a particular drug, device or medical service without the employee's prior informed affirmative written consent." Further, employers cannot retaliate against or treat an employee differently because they "use or access a particular drug, device or medical service."

In an effort to align its legislation with the broader standards of the New York City Human Rights Law, New York State recently passed an amended anti-harassment bill which will significantly impact how employers handle harassment claims. Governor Cuomo signed the bill on August 12, 2019. Many of the new provisions, if not already in effect, will be effective within sixty days. All employers will be subjected to the new amendments, regardless of the number of employees.

It is the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2019. In the spirit of the season, we have used the "12 days of the holidays" to blog about one California law a day and that law's impact on California employers. Without further ado, on the twelfth day of Christmas, my Labor and Employment attorney gave to me—twelve lords a leaping and SB 1300. We saved SB 1300 for the end because it is chock full of important changes for employers.

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2019. In the spirit of the season, we are using the next "12 days of the holidays" to blog about one California law a day and that law's impact on California employers. On the ninth day of Christmas, my Labor and Employment attorney gave to me—nine drummers drumming and SB 820.

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2019. In the spirit of the season, we are using the next "12 days of the holidays" to blog about one California law a day and that law's impact on California employers. On the eighth day of Christmas, my Labor and Employment attorney gave to me—eight maids a milking and AB 3082 and AB 2338.

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2019. In the spirit of the season, we are using the next "12 days of the holidays" to blog about one California law a day and that law's impact on California employers. Without further adieu, on the second day of Christmas, my Labor and Employment attorney gave to me—two turtle doves and SB 1343.

Employers are equipped and know how to handle complaints of racial discrimination and harassment—or at least should be so prepared. However, facts have a funny way of developing into novel situations. What happens, for instance, if an employee is being called a racist by other employees?

In a milestone decision, the 6th Circuit Court of Appeals held discrimination based on an employee’s transgender or transitioning status violates Title VII. In addition, the court held as a matter of law that a religious employer “cannot rely on customers’ presumed biases to establish a substantial burden” under the Religious Freedom Restoration Act (RFRA). Thus, the employer’s sincerely held religious beliefs did not free it from the proscriptions of Title VII.

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2018. In the spirit of the season, we are using the next "12 days of the holidays" to blog about one California law a day and that law's impact on California employers. On the twelfth day of Christmas, my Labor and Employment attorney gave to me – twelve lords a leaping and SB 295.

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2018. In the spirit of the season, we are using the next "12 days of the holidays" to blog about one California law a day and that law's impact on California employers. On the Third Day of Christmas, my Labor and Employment attorney gave to me – three French hens and SB 396.

The United States Court of Appeals for the 7th Circuit recently addressed whether common law tort claims arising during the employment relationship are pre-empted by the Illinois Human Rights Act simply because they share similar fact patterns to claims of discrimination or harassment in Richards v. U.S. Steel. The answer is no.

The EEOC issued Proposed Enforcement Guidance on Unlawful Harassment on January 10, 2017. It is designed to consolidate numerous agency guidelines into one document and addresses hostile work environment harassment prohibited by statutes enforced by the EEOC. The Guidance examines three primary elements of a harassment claim. First, is the conduct based on a legally protected status; second, is the conduct sufficiently severe or pervasive to create a hostile work environment; and third, is there a basis for employer liability. The 75-page treatise covers key case law since the Supreme Court first recognized harassment as an actionable form of discrimination in 1986.

It is not uncommon for companies to contract their daily business operations to third-party companies. In Motta et al v. Global Contact Services, Inc., the court addressed whether such relationships relieve the outsourcing company of any duties to address discrimination or harassment in the workplace.

An African-American female who served in a University's dining services division filed a complaint against the University alleging racial harassment and discrimination due to the actions of a white catering specialist who worked at the same location. The catering specialist did not direct the employee's day-to-day activities or have authority to hire, fire, demote or discipline the employee, but sometimes handed the employee her list of tasks and directed the employee in the kitchen. The employee alleged that the catering specialist was her supervisor and that the University was liable for the creation of a racially hostile work environment.

The Equal Employment Opportunity Commission  (EEOC) brought a lawsuit on behalf of a class of female employees against a grocery store operating in Oswego, New York, alleging sexual harassment and a sexually hostile work environment in violation of Title VII and New York State law. The sole alleged harasser was the store manager, who was alleged to have engaged in verbal and physical harassment. An employee made numerous complaints to management about this alleged harassment, but the store owner allegedly discredited the complaints, likely due to the fact that the store owner and the alleged harasser were in a long term romantic relationship. After a jury trial, the employee was awarded over $1.25 million in compensatory and punitive damages.

Five mid-level supervisors brought suit for racial and sexual harassment against their employer based upon purported physical and verbal misconduct by a higher-level supervisor. It turned out, however, that the employees had delayed almost eight months before reporting the misconduct, despite the fact that the employer had a “zero tolerance” policy regarding this type of misconduct, had policies in place which set forth the complaint process. The employer only learned of the supervisor’s alleged misconduct after the employees filed EEOC charges, and at that time, the employer undertook a prompt investigation. The employees claimed that they didn’t complain earlier because their complaints would have been ignored and/or because they feared retaliation.