Labor and Employment Law

Recent Posts

Two Big Sexual Harassment Cases: Where the Employers Went Wrong
Posted on 23 Jan 2015 by Robin Shea

As an employer, what can you do to protect yourself when one employee claims severe sexual harassment and the other party denies it or claims it was all consensual? The Marchuk v. Faruqi & Faruqi trial ( daily updates here ) is far from over, but... Read More

Supreme Court of New Jersey Adopts Faragher/Ellerth Affirmative Defense
Posted on 18 Mar 2015 by Sheppard Mullin

On February 11, 2015, the Supreme Court of New Jersey expressly adopted the test created by the United States Supreme Court in Faragher v. City of Boca Raton , 524 U.S. 775, 807 (1998) [ an enhanced version of this opinion is available to lexis.com subscribers... Read More

Harassment Is Equal Opportunity
Posted on 5 Jun 2013 by Margaret (Molly) DiBianca

Harassment knows no boundaries. Unfortunately, it occurs in workplaces of any shape and size and can be effectuated by persons in positions of every variety and in every industry. Even a quick look at the story reported in today's News Journal... Read More

A Valentine's Day Bouquet of Sexual Harassment Cases
Posted on 15 Feb 2012 by Robin Shea

Ah, February! The month of love! Of course, if you're a lawyer, you see the worst of humanity and never get to hear about true, faithful, honorable, self-sacrificial love -- sexual harassment is as close to "love" as we ever get. (See... Read More

Sexual Harassment against Uncle Sam
Posted on 10 Aug 2011 by Craig Salner

Today we look at a case that's interesting both factually and procedurally. In Jenkins v. Mabus , 2011 WL 2936331 (8th Cir. 2011), Plaintiff sued the Secretary of the Navy for sexual harassment and retaliation under Title VII as well as state law... Read More

Should the Taxpayers of San Diego Pay Filner's Legal Fees in His Sexual Harassment Case?
Posted on 5 Aug 2013 by Robin Shea

Chutzpah is "that quality enshrined in a man who, having killed his mother and father, throws himself on the mercy of the court because he's an orphan." (Dang, Leo Rosten , you were good!) Well, anyway, that brings us to Mayor Bob... Read More

If Your Workplace Has “No bra Thursday,” It’s Time For Some Harassment Training
Posted on 9 Aug 2011 by Jon Hyman

According to the Salt Lake Tribune , a Utah woman has sued her former employer, claiming she was sexually harassed at work. The allegations, according to her federal lawsuit, are outrageous: Her supervisor provided a written work schedule that included... Read More

An Uninvited Guest: The NLRB Settles In
Posted on 13 Aug 2012 by John Holmquist

The NLRB continues its march into everyday workplace issues. It started in earnest with social media. It has now moved into the arena of employer policies and handbooks focusing on the impact of employer policies on protected, concerted activities. To... Read More

If you hire only people you have the hots for, is that sex discrimination?
Posted on 18 Oct 2012 by Robin Shea

It's a well-known fact that good-looking people have a better chance of being hired and promoted , and make more money, than less good-looking people. At least, as long as you're not too hot . Generally, there isn't much you can do about it... Read More

Love Is in the Office Air: Regulating Office Romance
Posted on 10 Feb 2015 by Barran Liebman LLP

With Valentine’s Day right around the corner, employers may consider what to do if cupid’s arrow happens to strike two employees. Relationships are not stagnant. And while a relationship that may initially be harmonious or consensual (at least... Read More

To Be Or Not To Be An Employee? That is the (Agency) Question
Posted on 18 Nov 2011 by Steptoe & Johnson PLLC

by Joseph U. Leonoro A few weeks ago in this forum, we talked about an important opinion from the Sixth Circuit Court of Appeals - the Circuit in which Kentucky and Ohio sit - on associational discrimination. Well, that Court must be enjoying its... Read More

Strippers Have Rights Too
Posted on 25 Jun 2012 by Donna Ballman

There have been two recent stories about strippers and discrimination in the news lately. Sarah Tressler is a journalist who worked her way through journalism school stripping. Her newspaper employer fired her when they found out she was moonlighting... Read More

A Lesson in How Not to Respond to a Harassment Complaint
Posted on 25 Jun 2015 by Jon Hyman

Diana Retuerto worked in the office of Berea Moving & Storage. She claimed that the company’s owner, Willard Melton, made “verbal advances” towards her, including comments about dreams he was having about her, her physical appearance... Read More

Nothing Good Comes of Forcing Employees to Go to Brothels
Posted on 19 Dec 2011 by Eric Meyer

And, then, there are those that allegedly do. It is on those occasions that this blog can practically write itself. Take, for example, AutoNation . According to a complaint recently filed in California state court -- well, let's just say that... Read More

Equal-Opportunity Jerks Take the "Sex" Out of Sexual Harassment
Posted on 25 Oct 2011 by Eric Meyer

To prove sexual harassment, a plaintiff must have been subjected to pervasive or severe behavior that would make the plaintiff (and a reasonable person in the plaintiff's shoes) believe that the working environment are hostile or abusive. Wait... Read More

  • Blog Post: Caps and Damages

    Today's case is not about the facts, which are brutal, but rather on an issue of statutory interpretation. In Hernandez-Miranda v. Empresas Diaz Masso, Inc. , 2011 WL 2557012 (1st Cir. June 29, 2011), a woman sued for gender discrimination related to sexual abuse. According to Plaintiff, she was...
  • Blog Post: If Your Workplace Has “No bra Thursday,” It’s Time For Some Harassment Training

    According to the Salt Lake Tribune , a Utah woman has sued her former employer, claiming she was sexually harassed at work. The allegations, according to her federal lawsuit, are outrageous: Her supervisor provided a written work schedule that included "Mini-skirt Monday," "Tube...
  • Blog Post: Sexual Harassment against Uncle Sam

    Today we look at a case that's interesting both factually and procedurally. In Jenkins v. Mabus , 2011 WL 2936331 (8th Cir. 2011), Plaintiff sued the Secretary of the Navy for sexual harassment and retaliation under Title VII as well as state law claims. According to her original Charge of Discrimination...
  • Blog Post: Sexual Harassment Lessons Still Being Learned

    A few months ago, we posted an excellent piece detailing some of the important things an employer should try to do to avoid a sexual harassment claim, including how to appropriately respond to one. Apparently, that message hasn't quite seeped in to certain employers out there - at least if the...
  • Blog Post: Equal-Opportunity Jerks Take the "Sex" Out of Sexual Harassment

    To prove sexual harassment, a plaintiff must have been subjected to pervasive or severe behavior that would make the plaintiff (and a reasonable person in the plaintiff's shoes) believe that the working environment are hostile or abusive. Wait, I'm forgetting something. Oh yeah, the complained...
  • Blog Post: Equal Opportunity Harassment Is Not Unlawful Sexual Harassment

    For harassment to qualify as sexual harassment it must be because of sex. That means that the complained-of misconduct is of a sexual nature, or it singles out women differently than men. Non-sex-based conduct that targets women and men the same, no matter how harsh, is not sexual harassment. Case...
  • Blog Post: Herman Cain, Sexual Harassment, and 10 Lessons for Employers

    Politico has reported that the National Restaurant Association paid out a five-figure settlement to two women who accused Herman Cain of making sexually suggestive comments. Here are the details on the story, from the Politico article: During Herman Cain's tenure as the head of the National...
  • Blog Post: Post-Employment Acts Don't Create a Hostile Work Environment

    When Krysten Overly, a financial advisor at a bank, told her male boss that she was resigning, Overly claims that he grabbed Overly's arm to push her out the door. And as Overly left her boss's office, he yelled, "Good riddance, bitch!" What a jerk! But, as a matter of law, did...
  • Blog Post: "A Closed Mouth Gathers No Feet": What Herman Cain Teaches Employers About Sexual Harassment

    Poor Herman Cain. Or, poor young women who used to work for him. Right now, I'm not sure which because the allegations are murky and anonymous. OK, I do have an opinion, but I'm going to keep it to myself until we get more specifics. This is not going to be a political post. It's...
  • Blog Post: To Be Or Not To Be An Employee? That is the (Agency) Question

    by Joseph U. Leonoro A few weeks ago in this forum, we talked about an important opinion from the Sixth Circuit Court of Appeals - the Circuit in which Kentucky and Ohio sit - on associational discrimination. Well, that Court must be enjoying its time in the spotlight, because it recently issued...
  • Blog Post: 5 Signs That You'll Lose Your Sexual Harassment Case

    DISCLAIMER: Today's post has absolutely nothing to do with Veterans Day. But thank you, veterans! Last week, I was pretty hard on Herman Cain and his response to allegations of sexual harassment . Since then, two women have come forward publicly, and all I can do is quote from my partner John...
  • Blog Post: Nothing Good Comes of Forcing Employees to Go to Brothels

    And, then, there are those that allegedly do. It is on those occasions that this blog can practically write itself. Take, for example, AutoNation . According to a complaint recently filed in California state court -- well, let's just say that AutoNation better have some good lawyers. Two...
  • Blog Post: A Valentine's Day Bouquet of Sexual Harassment Cases

    Ah, February! The month of love! Of course, if you're a lawyer, you see the worst of humanity and never get to hear about true, faithful, honorable, self-sacrificial love -- sexual harassment is as close to "love" as we ever get. (See, you thought lawyers were just jerks - now you feel...
  • Blog Post: Foley & Lardner Labor and Employment Law Weekly Update (Week of February 13, 2012)

    Appeals Court Finds Employer Liable for Supervisor's Same-Sex Sexual Harassment by Ryan N. Parsons A recent case reminds us to take all claims of sexual harassment seriously, including when the two employees are of the same sex. In Cherry v. Shaw Coastal [ an enhanced version of this opinion...
  • Blog Post: Strippers Have Rights Too

    There have been two recent stories about strippers and discrimination in the news lately. Sarah Tressler is a journalist who worked her way through journalism school stripping. Her newspaper employer fired her when they found out she was moonlighting as a stripper. She claims gender discrimination. The...
  • Blog Post: An Uninvited Guest: The NLRB Settles In

    The NLRB continues its march into everyday workplace issues. It started in earnest with social media. It has now moved into the arena of employer policies and handbooks focusing on the impact of employer policies on protected, concerted activities. To further educate today's workforce, it has set...
  • Blog Post: Naked Twister, Orgies, and Facebook - COTW #105

    Ah yes: naked twister, orgies, and Facebook . . . just another Case of the Week! In Targonski v. City of Oakridge , the plaintiff brought a number of workplace discrimination claims, including a sexual harassment hostile work environment claim. Her claim started off pretty well. She alleged that co-workers...
  • Blog Post: PA: Forced reinstatement of a sexual harasser violates public policy

    Courts analyzing anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act mandate that employers educate employees about discrimination in the workplace and provide a way for them to complain. Then, once made aware of discrimination in the...
  • Blog Post: USDA Grade F: The dumbest sexual harassment case evah!

    If you're an employment lawyer or Human Resources professional who handles sexual harassment cases, or a federal judge who decides them (bless your heart!), you know there are a lot of "tares" mixed in with the "wheat." What the heck is a "tare," anyway? Besides being...
  • Blog Post: If you hire only people you have the hots for, is that sex discrimination?

    It's a well-known fact that good-looking people have a better chance of being hired and promoted , and make more money, than less good-looking people. At least, as long as you're not too hot . Generally, there isn't much you can do about it if your opportunities are limited by male pattern...
  • Blog Post: An old-fashioned, labor and employment Thanksgiving

    Happy Thanksgiving, y'all! I know we have plenty to be miserable concerned about, but that is not my role today. Here, in no particular order, are five labor-and-employment-related things for which I am thankful. (Crabbiness returns next week.) 1. OK, I am completely serious now. You, my clients...
  • Blog Post: The "She Asked For It" Defense Strikes Again

    In another example of why women hesitate to bring sexual harassment claims, a judge has ordered twenty two women who are bringing a sexual harassment claim to turn over their cell phones and social networking passwords to attorneys for their former employers. The judge will allow these attorneys...
  • Blog Post: Is Rejecting a Sexual Advance, without Reporting It, Protected Activity?

    Of all employment claims presented to the Equal Employment Opportunity Commission , retaliation numero uno. It's been that way since 2010. There are three essential elements of a retaliation claim: (1) protected activity -- opposition to discrimination or participation in the statutory complaint...
  • Blog Post: Employee Gets Fired for Tweeting Complaints about Discrimination

    Is this Retaliation 2.0? Two weeks ago, Adria Richards attended an industry conference at which she overheard sexual jokes from two attendees sitting behind her during a session. So, she complained...on Twitter: And then she blogged about it here . The social-media complaints resulted in one...
  • Blog Post: Should Employers Be Liable for Conduct They Cannot Control? Fired for Tweeting about Third-Party Misconduct

    While attending a conference, Adria Richards became offended by two attendees sitting behind telling inappropriate jokes. So, she tweeted her grievance. Then, she blogged about it. Then, her employer fired her. Ars technica has the full details. If the people about whom Ms. Richards complained were...