Tuesday, June 26, 2012

ENDA Update

Earlier this month the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing to discuss the merits of the bipartisan Employment Non-Discrimination Act (ENDA) (H.R. 1397, S. 811), legislation that would create comprehensive employment anti-discrimination protections for individuals based on their sexual orientation or gender identity.  ENDA has had a long, bumpy road in Congress for obvious reasons but is again making progress and has President Obama's support. 

Wisconsin, under the Wisconsin Fair Employment Act (WFEA), is one of 21 states that currently have policies banning discrimination based on sexual orientation.  The EEOC has been creative in attempting to find protection in the absence of an enacted ENDA in protecting gender identity, change of sex and/or transgender status when it determined in Macy v. Holder that a transgender woman’s claim of employment discrimination based on gender identity, change of sex and/or transgender status is cognizable under Title VII of the Civil Rights Act

Even though employees in Wisconsin have ENDA-like protection, given Governor Walker's repeal of the law that had afforded claimants under the WFEA the chance to seek punitive and compensatory damages, ENDA would provide the same remedies available under Title VII providing further protection for Wisconsin employees.

EEOC Sues Lighting Company For Failure to Hire Applicant Over Religious Beliefs

In a case of all the terribly wrong things to ask in a job interview, the Equal Employment Opportunity Commission (EEOC) has filed suit against Voss Lighting, a  Lincoln, Nebraska-based supplier of lighting products, when it did not hire an applicant for a supervisory position allegedly over the applicant's responses to the employer's heavy religious questions during an interview.

Religious discrimination claims are relatively rare and Voss' actions are incredibly bizarre, as alleged.  From the EEOC press release on the suit (EEOC v. Voss Electric Company d/b/a Voss Lighting, Civil Case No.: 12-CV-330-JHP-FHM):

Throughout the application process, both managers made numerous inquiries, both subtle and overt, into Wolfe’s religious activities and beliefs. They asked Wolfe to identify every church he has attended over the past several years; where and when he was “saved” and the circumstances that led up to it; and whether he “would have a problem” coming into work early to attend Bible study before clocking in.

At Wolfe’s second job interview, the EEOC said, Voss’s branch manager became upset over Wolfe’s truthful responses to the religious questioning. Despite being considered qualified for the position, which involved no religious duties or responsibilities, Wolfe was denied employment on the basis of his religious beliefs.

Apparently Voss Lighting has a highly-religious culture that requires employees adhere to certain religious beliefs that have absolutely no bearing on the business of selling lighting products.  Pre-litigation settlement efforts failed so suit was filed.  It'll be interesting to see the outcome if it reaches a jury!

6th Circuit Holds Substantial Evidence Supports NLRB's Conclusion That Charge Nurses Were Not Supervisors

A very common issue under the National Labor Relations Act (NLRA) is whether an employee is employed as a "supervisor" as supervisors are excluded from the right to unionize and bargain collectively under the NLRA.  In Frenchtown Acquisition Co., Inc. v. NLRB, Case Nos. 11-1418/1499 (6th Cir. June 20, 2012), the Court of Appeals for the Sixth Circuit was presented with the issue of whether "substantial evidence supports the National Labor Relation Board's conclusion that the charge nurses emploted at Frenchtown's long-term-care and rehabilitation services facility are not supervisors under the National Labor Relations Act (NLRA)." 

The U.S. Supreme Court in NLRB v. Kentucky River River Community Care, Inc., 532 U.S. 706 (2001) developed a three-part test for determining supervisory status.  The NLRB has developed its own intepretations of the SCOTUS' ruling in Kentucky River and using that test and interpretation, found the charge nurses in Frenchtown to not be supervisors for purposes of the NLRA though the party asserting supervisory status bears the burden of proving that status by a preponderance of the evidence. 

The opinion provides an excellent analysis into the fact-intensive inquiry of supervisory status and is worth the read.

Tuesday, June 12, 2012

More Reason NOT to 'Friend' Coworkers on Facebook

Allen Smith over at SHRM.org has an article on the recent federal case out of Virginia involving a deputy sheriff who was terminated after "Liking" the page of his boss' opponent in an upcoming election.  The deputy claimed his "Like" was protected speech protected under the First Amendment but the district court disagreed holding merely "Liking" a Facebook page is insufficient speech to merit Constitutional protection.  The rest of Allen's article can be found here and is incredibly worth a read!

Monday, June 11, 2012

Recent EEOC Settlements

--Dallas, Texas trucking company to pay $50,000 to settle disability discrimination suit after refusing paraplegic two promotion opportunities.   

--A Detroit, Michigan health center to pay $35,000 to settle religious discrimination suit after firing an employee who was a Jehovah's witness who requested an accommodation of days off that so she could attend spiritual meetings and participate in field service as a part of her sincerely held religious belief.

--Chapman University to pay $175,000 to settle sex discrimination case after denying female professor tenure.

--A Miami, Florida hospice care provider to pay $65,000 to settle a disability discrimination lawsuit after failing to reassign Registered Nurse Eveline Chery to a vacant position for which she was qualified after she became unable to perform the responsibilities of her current position due to her disability, high blood pressure.  Instead, Vitas required her to compete for the position with other applicants.  She applied and competed for the vacancy, but was not selected by Vitas.  

--A Davidson, Maryland garden center to pay $50,000 to settle disability discrimination lawsuit for firing a worker because he has hemophilia.