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
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
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
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
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
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
Presence of porn in workplace enough for
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
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
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
Disability doesn’t have to be sole reason
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
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
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
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
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
The court noted that two other federal appeals
courts have made similar rulings.
Putting on, taking off safety gear is
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
Employer doesn’t have to eliminate all
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
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
He sued UPS, saying it hadn’t accommodated his
religious beliefs and UPS had discriminated against him.
UPS argued that minimizing the conflict satisfied
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
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