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The Modern Workplace

The Modern Workplace

Posts in Diversity & Inclusion.
Many employers have implemented Diversity & Inclusion (D&I) programs over the last few years, often including training on topics such as implicit or unconscious bias. For some employers, those efforts may now be in peril. On September 22, 2020, the White House issued Executive Order 13950 entitled On Combating Race and Sex Stereotyping (EO 13950 or order). The orders stated purpose is to combat offensive and anti-American race and sex stereotyping and scapegoating. Private employers are not covered by EO 13950, but federal contractors and subcontractors (and recipients of ...
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Whether we realize it or not, we all have unconscious biases - even scientists who are trained to overcome them. Events of the last year have riveted our attention not only on a global pandemic, but also on race relations. Addressing this topic is important to us all - in our businesses and beyond. Unconscious bias training helps us understand why we harbor biases, how to avoid bad decision-making associated with those biases and how to promote greater inclusivity. 
The problem with unconscious biases is we don't see them. As Henry Thoreau said, "Many an object is not seen, though it falls ...
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"The Modern Workplace" has taken on a new meaning during this time when many employees are working from home, social distancing, and, often, balancing increased responsibilities for homeschooling, childcare and caring for older relatives. My modern workplace often includes Zoom meetings while my daughter watches cartoons or plays in the same room. Telephone calls are sometimes interrupted by a request for a snack. I have a friend who starts her workday after her children go to bed and goes to sleep herself around 3:00 a.m., just to get a few hours of sleep before her kids are up again at ...
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The Supreme Court recently heard oral argument in a series of cases that will determine whether federal employment discrimination protection extends to sexual orientation and gender identity. The Courts decisions in the cases could have a far-reaching impact on employers nationwide.


Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex and national origin. At issue in the trio of cases currently before the Court is whether sex applies to sexual orientation and gender identity. If it does, gay, lesbian, and transgender ...
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The trend of location specific employment laws is continuing. A new discrimination law and guidance have taken effect, respectively, in the state of New York and New York City, and a new discrimination law will take effect next month in the city of Portland, Oregon. Employers with multijurisdictional operations should continue to monitor location specific developments that may affect their operations.


New Yorks Gender Expression Non-Discrimination Act


Employers with New York operations should take heed of New Yorks Gender Expression Non-Discrimination Act (GENDA), which ...
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In December of 2018, the 8th Circuit Court of Appeals addressed the interaction between a reasonable accommodation under the Americans with Disabilities Act (ADA) and a work attendance policy holding that unauthorized absences under an attendance policy can be used to terminate an employee for whom accommodations are being made under the ADA. In Lipp v. Cargill Meat Solutions Corporation, the 8th Circuit affirmed dismissal of an employees lawsuit alleging her employer discriminated against her when it failed to accommodate her need for intermittent absences under the ADA and ...
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The U.S. Department of Labor (DOL) has been busy. It recently issuedsix new opinion letters on various compliance issues. As described below, four of the letters involve the federal Fair Labor Standards Act (FLSA) and two of the letters involve the federal Family and Medical Leave Act (FMLA). While DOL opinion letters are issued in response to a particular employers submission of a question to the DOL, employers that rely on a DOL opinion letter in setting their practices have a legal safe harbor defense if faced with, as applicable, a FLSA or FMLA legal challenge. That being said, courts ...
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In a unanimous decision last month, a three-member panel of the National Labor Relations Board (NLRB) found that a restaurant company violated the National Labor Relations Act (NLRA) when its New York City location fired four employees after the employees emailed other employees and managers to complain about, among other things, work schedules, the companys tip policies, and the managements treatment of employees.


The case arose after an employee wrote an email upon her resignation complaining about managements treatment of employees, tip policies, work schedules, and more ...
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With the violent protest events in Charlottesville, Virginia last weekend, it seems particularly timely to address a recent Eighth Circuit Court of Appeals decision on potential labor law protections for racist behavior. While Judge Beam of the Eighth Circuit opined that no employer in America can be forced to employ a racial bigot, he did not persuade the rest of the Courts panel in the recent Cooper Tire v. NLRB decision.
 
In the Cooper Tire case, the Eighth Circuit Court of Appeals examined tensions between behavioral protections for picketing workers under the federal National ...
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Earlier this week, the U.S. Supreme Court reversed course and sent a case that it had previously accepted for review, Gloucester County School Board v. G.G., back to the lower appellate court. The case involves the question of whether a Virginia high school must, under the anti-sex discrimination provisions of Title IX, grant a trans-male student bathroom access based on his gender identity rather than his anatomy. When the case was accepted for review by the Supreme Court, one of the legal questions up for review was whether a 2016 U.S. Department of Education (DOE) guidance document ...

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As discussed in prior posts, the Equal Employment Opportunity Commission (EEOC) has a strategic enforcement agenda focused on expanding Title VII protections to encompass gender identity and sexual orientation. Courts are weighing in, with varied results. According to the EEOCs website, a number of federal courts have sided with the EEOCs interpretation of Title VII, primarily in the context of gender identity. On July 28, 2016, however, the U.S. Court of Appeals for the Seventh Circuit held that, under past Circuit precedent, Title VIIs anti-discrimination protections do not ...
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This week, the U.S. Equal Employment Opportunity Commission (EEOC) made the landmark announcement that it has sued two companies for sexual orientation discrimination under Title VII. On March 1, 2016, the EEOC filed suit against Scott Medical Health Center in federal district court in Pennsylvania and Pallet Companies d/b/a IFCO Systems in federal district court in Maryland.  Both cases allege that the defendant employers discriminated against the plaintiffs based on sexual orientation and, by doing so, violated Title VII of the Civil Rights Act of 1964. Title VII does not ...
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In the early days of 2016, the Equal Employment Opportunity Commission (EEOC) continues its strategic enforcement focus on LGBT rights. Last week, the EEOC filed an amicus brief in a U.S. Court of Appeals for the Eleventh Circuit case, Burrows v. College of Central Florida.  In its brief, the EEOC argued that employment discrimination based on an individual's sexual orientation is a form of sex discrimination and unlawful under Title VII of the Civil Rights Act.


In the Burrows case, the plaintiff, a college administrator, sued her former employer, claiming she was ...

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The U.S. Supreme Court announced another eagerly anticipated decision last Friday, ruling that gay and lesbian couples have a fundamental right under the U.S. Constitution to marry. The Courts decision in Obergefell v. Hodges follows decades of advocacy by groups favoring and opposing same-sex marriage, as well as ramped up legislative activity and court battles over the legality of same-sex marriage in recent years.

The cases before the Supreme court involved state laws from four states Kentucky, Michigan, Ohio, and Tennessee -- that defined marriage as the union of a man and a ...

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On Monday a federal jury in California awarded $185 million to a former AutoZone store manager who alleged that throughout her employment she had been discriminated against, demoted, and ultimately terminated because of her gender and in retaliation for complaining about discrimination. Rosario Juarez worked at an AutoZone retail store in San Diego from 2000 to 2008. Although she received promotions and advanced in positions within the store, these allegedly occurred only after she raised complaints about disparate treatment of women employees. 

After Juarez informed the ...

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As the world prepares this week for the start of the 2014 Winter Olympics, employers are being cautioned to address technology-induced liability. Many Fortune 500 companies have adopted policies banning employees' use of mobile devices while driving for work to avoid liability for a traffic accident caused by distracted-driving. The importance of workplace internet policies is also in the news this week, with an emphasis on policies that address an employers duty to report child pornography on a work device. You can read below about how to fight against technology-related ...

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Last Thursday, November 7, 2013, the U.S. Senate passed the Employment Non-Discrimination Act (ENDA) by a vote of 64-32. Similar to existing federal nondiscrimination laws, ENDA would be enforced by the EEOC and would prohibit most employers with 15 or more employees and labor organizations from taking adverse employment action or treating employees differently because of their actual or perceived sexual orientation or gender identity. Although this is a significant step forward for this bill, ENDA still faces tough opposition in the GOP-led House of Representatives, where ...
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Click here for a GPM eBenefits Alert on how yesterdays United States Supreme Courts decisions on same-sex marriage will impact employee benefits.

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The Supreme Court hears arguments today in the second of two landmark cases involving the national same-sex marriage discussion. The arguments are timely in the state of Minnesota, where an amendment to define marriage as solely between a man and a woman was defeated this past November and a same-sex marriage bill was recently introduced in the state legislature. 

As the Supreme Court wrestles with the constitutionality of the Defense of Marriage Act and California's Proposition 8, it is important for employers in Minnesota to remember that although Minnesota does not recognize ...

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Anyone who picks up a newspaper knows that our world can be very violent, including domestic violence, sexual assault and stalking. Employers often see firsthand the impact of such violence on their employees. Most of the time, employers who learn that an employee is experiencing some form of domestic violence, sexual assault, or stalking will do what they can to help the employee manage the situation. Sometimes, however, employers of victims of violence react in a negative way. The Equal Employment Opportunity Commission (EEOC) has recently issued a guidance describing how the ...

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The work of those in highly visible positions (political figures, executives, business owners and litigants) is subjected to a great deal of public scrutiny. Women who are in these roles are no exception, and views about their performance, strengths, weaknesses and personality are widely discussed in the media. The articles below discuss some of the current technological and legal issues that have come up this week, both those involving women and the world at large.  
Technology and the Workplace

The Newest Tech Start-Ups and the Women Who Founded Them ...
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Recent news coverage of Republican Presidential Candidate Herman Cain reminds us that sexual harassment in the workplace is still a powerful issue.  The events alleged by Mr. Cain's former employees took place before social media emerged as the force it is today, so its doubtful that email, text messages, or other forms of electronic communication were relevant to the investigations done by the National Restaurant Association back in the 90s.  In todays technology-saturated workplace, however, any and all forms of electronic communication may be critical sources of information in ...
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Technology can change faster than policies, procedures and people. There is a gap between how generations work and communicate - yet they have to work together. The articles here focus on the newest ways we use technology in our lives and workplace, and whether the new is better than the old.
 
Technology and the Workplace
Only those 35 and Younger, Gen Y Capital Partners Fund Young Tech Entrepreneurs Only (TechCrunch)
When Will Employees be Replaced by Robots? In New York Casinos, Now. (Gizmodo)
Employees and Ipads: Bonuses, Gifts and Hearing Aid Adjusters? (Star Tribune)
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In its 2010 Term, the Supreme Court issued a number of interesting opinions on employment law topics such as class action lawsuits (invalidating a class action brought by 1.5 million current or former Wal-Mart employees), retaliation and Title VII (allowing a third-party to bring a retaliation claim because of association under Title VII) and immigration (allowing states to punish employers for hiring unauthorized workers).
The Courts 2011 Term has fewer high-profile employment law cases, but a few cases are worth watching, including:
Hosanna-Tabor Church v. EEOC is of ...
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Do you believe in the saying that bad things come in threes?  Well, at least for employers, that saying rings true this week given the announcement that the National Labor Relations Board (NLRB) has filed a third labor law complaint related to adverse employment actions allegedly based on Facebook postings by employees.  The increasing frequency with which the NLRB is seeking to enforce its stance on Facebook postings is further reason for employers to consider adopting carefully drafted social media and technology policies, related policies on solicitation and distribution in the ...
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This week, the National Labor Relations Board once again waded into the controversial waters of social media. Earlier this week, the Regional Director in Buffalo, New York issued a complaint against a nonprofit employer for its discharge of five employees based on statements made by the employees on Facebook. According to the NLRB's press release:
The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworkers allegation that employees did not do enough to help the organizations clients. The initial post ...
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You may be wondering what cats have to do with employment law. Well, last week the U.S. Supreme Court recognized the cats paw theory of employment discrimination for the first time, making it easier for employees to prove discrimination and for employers to get burned by legal liability. The phrase cats paw stems from an Aesop fable in which a monkey uses flattery to induce a cat to retrieve roasting chestnuts from a hot fire and then absconds with the chestnuts after the cat has burned its paws. Based on the fable, cats paw refers to a person who is unwittingly used to accomplish another's ...

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I'm not normally one to read advice columns in newspapers. However, Mondays Ask Amy column in the Star Tribune was right up my alley. The column tells the story of a customer service employee who was fired because an angry customer tweeted about her experience with the employee and got the attention of corporate headquarters.

This story comes on the heels of the news last week that a settlement was reached in the nationally publicized Facebook firing case. In that case, the NLRB filed a complaint against an ambulance service company that fired an employee for venting about her supervisor ...
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