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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...

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...

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...

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...

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...

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...

Harassment Is Equal Opportunity

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 makes this very clear. According to the story...

Should the Taxpayers of San Diego Pay Filner's Legal Fees in His Sexual Harassment Case?

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 Filner of San Diego, California. Home of Ron Burgundy...

NY Court Says Unpaid Intern Not Protected by Harassment Laws

The employment-discrimination laws have been expanding since their creation. And, most of the time, that’s a good thing. But there are times when I wonder, “Have we gone too far?” There was the bullying craze a few years ago, when there was a push to make bullying in the workplace unlawful...

Love Contracts at Work

With Valentine’s Day only a week away, I thought I’d repost my discussion of “love contracts.” A “love contract” or in lawyer terms – a Consensual Relationship Agreement — is an effort to mitigate the risk of sexual harassment claims from an office romance...

The United Colors of Harassment Claims

Let’s take a look at two recent settlements of harassment claims brought by the EEOC: A Tampa, Florida, bank paid $300,000 , resulting from a manager’s ongoing harassment of subordinate female employees, which included repeatedly trapping a 20-year-old behind the teller counter with...

Sexual Harassment Investigations

by Jami K. Suver Your policies look good on paper, but are you prepared to conduct an effective investigation of workplace sexual harassment? When you receive a complaint of harassment, you need to quickly commence and complete an investigation. Of course, your approach and the questions you ask will...

Two Big Sexual Harassment Cases: Where the Employers Went Wrong

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 that case, as well as one involving CRST Van Expedited...

Love Is in the Office Air: Regulating Office Romance

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 in one party’s opinion), it may not always...

Has the Social Media Battle Already Been Lost?

It is day 7 of the sex discrimination jury trial against a high-profile Silicon Valley venture capital firm and the social media debate is raging [Ed. note: This article was originally posted on Mar. 4]. For those not following along, Ellen Pao, formerly a partner at Silicon Valley venture capital...

Supreme Court of New Jersey Adopts Faragher/Ellerth Affirmative Defense

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 ] and Burlington Indus., Inc. v. Ellerth...

Was the Ellen Pao Gender Bias Trial a Wakeup Call or Snooze for Businesses?

I intended to begin the week with a post about a company’s legal obligation to predict — yes, predict — an employee’s mental fitness for duty. Then, I started on a brief tangent on Ellen Pao , the former partner of a Silicon Valley venture capital firm, who just lost a highly...

A Lesson in How Not to Respond to a Harassment Complaint

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, and questions about her makeup and hair. Over...

Fourth Circuit Uses "Hybrid" Test For Title VII Joint Employer Liability

Meet Brenda - she was hired by a staffing agency to do work for a car parts manufacturer. Brenda now claims that she is getting harassed at work (the phrase "big old ass(es)" came up a few times), so she files a Title VII lawsuit. Of course, Title VII generally allows employees to sue their...

Don’t Forget Anti-Harassment Training For Temporary Workers

In these Summer months, it’s easy to relax a bit. For example, last weekend I spent Sunday morning sleeping off a fun Saturday night in the shade of a tree on my front lawn while my four kids played slip-and-slide in traffic on the front lawn too. Although, I did catch my youngest two cooling off...

When One Act Is Enough For Harassment

To be actionable, the offensiveness of alleged harassment needs to be either pervasive (that is, happening often) or severe (that is, shocking to the system even if observed only once). In Macias v. Southwest Cheese Co. (10th Cir. 8/24/15) [pdf] , a federal appellate discussed the difference in the context...

4 Thoughts on the Ashley Madison Hack

Four quick thoughts on the Ashley Madison hack: 1. Should you post anything on the internet that you wouldn’t want to see on the front page of the New York Times ? “No” used to be standard advice, but that isn’t practical any more. I do online banking, but that doesn’t...

Is “No” Enough?

by Martin J. Saunders Like most statutes prohibiting discrimination, Title VII also outlaws retaliation so that individuals will not be inhibited from asserting claims under the statute. Thus, Title VII prohibits retaliation against anyone who opposes an act made unlawful by it. The question, therefore...

The Other Side of the Coin on the Appropriate Response to Harassment

Last week I discussed the importance of a timely and effective remedial response by an employer to an employee’s harassment complaint. Today, I examine the other side of the coin—what happens when an employer does not take proactive steps to eliminate harassment from the workplace. The...

Workplace Sexual Harassment Prevention

For the first time in three semesters of teaching employment law at Penn State, I am cancelling class on Thursday. As a result, I recorded a video to address some of the issues we would have covered that day. Here's Intro to Workplace Sexual Harassment Prevention: Intro to Workplace Sexual Harassment...