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Employers increasingly focusing on sexual orientation bias in workplace

A growing number of companies driven by a concern over litigation are ramping up employee training in an effort to stamp out sexual orientation bias in the workplace.

Over the past couple of years, 20 states have passed laws protecting gay, lesbian, bisexual and/or transgender workers. And in November 2007, the U.S. House passed a bill that would prohibit employment discrimination based on sexual orientation. The Senate is expected to pass a similar measure.

Even for companies operating in states with laws against sexual orientation discrimination, it is becoming more common to include sexual orientation as a protected category in company handbooks and to adopt


inclusive policies for gay and lesbian employees, such as health benefits for domestic partners.

Anti-harassment training has traditionally focused on what not to do. But a new trend is to focus on topics such as how to interact with gay, lesbian and transgender co-workers and clients, and what terminology to use when referring to domestic partners.

Diversity training is designed in part to prevent lawsuits, since many employment claims are often based on denials, or perceived denials, of job opportunities and promotions.

If an employee is not invited to play golf, or go to key meetings, or is ignored when they speak, it can lead to feelings of exclusion.


Company’s e-mail to workforce about waiver of employment rights insufficient

A waiver of class actions as part of an employer’s dispute resolution program was recently struck down by a federal appeals court.

The reason? The company’s procedure for notifying its employees of the change fell far short of what’s required, according to the court.

In the case, two managers filed a class action against their employer, alleging the company had violated wage and hour laws. The company argued the suit should be handled in arbitration instead.

But the federal appeals court covering Massachusetts refused to uphold the class action waiver.

The court said the timing of the company’s e-mail to its workers about the change was suspect (two days before the Thanksgiving holiday). Also, the e-mail did not explicitly state that employment rights were being modified, and the two-paragraph class-action waiver was buried in a 15-page attachment to the e-mail, according to the court.

Also, the employer did not require employees to acknowledge in writing that they read and understood the change in policy.

The way the company notified the


work force was at odds with how it told employees about other changes in personnel matters, the court said. For example, the company usually had multiple communications in various formats when announcing policy changes.

Even if the company didn’t intend to obscure the policy changes, the effect of its actions was to hide the changes, the court indicated.

The court, however, made a point of saying that it was not ruling on the validity of class action waivers generally.

In 2006, the federal appeals court covering Ohio, Kentucky and Michigan suggested that a class action waiver involving wage and hour cases might be enforceable, even though it refused to uphold the actual arbitration agreement in the case it was considering.


Presence of porn in workplace enough for harassment suit

A secretary can sue for a supervisor’s actions in bringing pornography into the workplace, even though the materials were never overtly directed at her, a federal court recently ruled.

The secretary alleged that one of her professor-supervisors harassed a female professor in the department, viewed pornographic videotapes on a VCR in his office, and surfed pornographic websites on her computer while she was out of the office.


When she complained, the professor got wind of it and retaliated by taking away work and refusing to speak to her.

She filed suit over the hostile work environment and retaliation.

The federal appeals court covering New York, Vermont and Connecticut decided the mere presence of porn in the workplace alters the status of women, and is relevant to assessing whether the work environment is a hostile one, which is an issue a jury must decide.


Disability doesn’t have to be sole reason for firing

A federal worker could sue for disability discrimination even though he couldn’t show that his disability was the sole reason for his dismissal.

The worker suffers from a disease that causes developmental abnormalities, including shortness of limbs and deformed joints. In addition to leaving him visibly disabled, the condition limits the motion of his limbs. For example, it’s hard for him to use a computer keyboard.

He sued for disability discrimination after he was fired from his job with the


U.S. Department of Education. The government contended he was fired for poor performance, but the worker claimed the government broke the law even if his disability was merely a motivating factor in the decision to terminate him.

The government balked, arguing the worker was required to show that he was terminated solely because of his disability. Citing similar decisions, the federal appeals court covering Texas, Louisiana and Mississippi disagreed, and allowed the worker’s suit to go forward.


Non-compete signed after hire date invalid

Whether a non-competition agreement is enforceable is an ongoing area of dispute between employers and their workers.

For the most part, courts are reluctant to uphold such agreements if they restrict employment options for too long or too broadly.

A recent ruling suggests that courts will not enforce such an agreement if an employer has the employee sign it after the hire date, and if the employee receives no measurable benefit in return.

In the case, a Montana company hired a salesman for its organic produce business. Three months later it promoted him to sales manager. A month later, he signed a non-compete agreement.

The man was eventually laid off, and he started his own produce business


in the same region and solicited his former employer’s clients.

His former company sued, claiming he was violating the non-compete agreement. It argued the agreement was enforceable because it had continued to employ him and pay his salary subsequent to the signing of the contract.

But the Montana Supreme Court ruled the contract was invalid because the company didn’t provide anything tangible in exchange – such as a raise or promotion, or even any additional training or promise of continued employment.

Continued employment alone is not enough to support the contract, the court said, pointing to a similar ruling in Washington.


Verbal notice sufficient under Family Medical Leave Act

A worker did not have to formally request time off under the Family Medical Leave Act in order to exercise his rights under the law, according to recent court ruling.

The worker has a chronic heart condition. He verbally notified his supervisor that he may need future surgery. He had already missed about six weeks of work for a quintuple bypass surgery.

Soon after providing the verbal notice, he began receiving negative performance reviews. He was fired before learning if surgery was necessary.

He sued, claiming the employer interfered with his rights under the


FMLA. The employer argued that he failed to formally request leave under its FMLA policy.

The federal appeals court covering Pennsylvania, New Jersey and Delaware ruled in favor of the employee.

The court said the employer had sufficient notice of the man’s intent to exercise his rights under the FMLA. He told the employer of his continuing health problems, as well as the need for monitoring, and the possibility of additional surgery. Although he was not certain he would need surgery, he told the company what he knew.

The court noted that two other federal appeals courts have made similar rulings.


Putting on, taking off safety gear is compensable

Courts around the country are continuing to rule on the issue of whether the donning and doffing of safety and sanitary clothing is compensable time.

In a recent decision, a federal court in Wisconsin ruled in favor of meat processing workers. The court said putting on and taking off protective equipment – such as hard hats, safety glasses, freezer coats, sanitary steel-toed boots, earplugs and aprons – was not merely “changing clothes.”

Some of these items had to be put on before the workers punched in on the time clock, and some were put on after


the workers had punched in for work.

The workers argued that under federal law they should be paid for the entire time required for donning and doffing the safety and sanitary equipment.

The court agreed, saying the equipment is closely related to their work, and is meant to protect the workers from job hazards. The equipment is put on immediately before they enter the production area, the court noted. Company policy also requires the workers to wear the equipment.

Other federal courts around the country have made similar rulings.


Employer doesn’t have to eliminate all religion-work conflicts

Under Title VII, employers have to make “reasonable accommodations” for workers regarding any conflicts between their religious beliefs and work schedules.

However, according to a recent court ruling, an employer doesn’t have to go so far as completely eliminating any religion-work conflict.

A driver for UPS asked for an accommodation that would enable him to complete his work on Fridays by sundown to observe the Sabbath. His manager informally accommodated the request by splitting package loads with other drivers on Fridays, but determined a permanent solution would adversely impact operations.

One Friday, the driver returned some packages he hadn’t delivered by


sundown, and was terminated for abandoning his job.

He sued UPS, saying it hadn’t accommodated his religious beliefs and UPS had discriminated against him.

UPS argued that minimizing the conflict satisfied federal law.

A federal appeals court agreed with the company, saying UPS was required under the law to make “serious efforts” to accommodate the conflict between work demands and the employee’s sincere religious beliefs. However, at the same time, the employee has to be flexible and accommodate work demands, the court said.

Two other federal appeals courts have reached contrary decisions.

This newsletter is designed to keep you up-to-date with changes in the law. For help with these or any other legal issues, please call our firm today.

The information in this newsletter is intended solely for your information. It does not constitute legal advice, and it should not be relied on without a discussion of your specific situation with an attorney.