Discrimination & Harassment

The Department of Labor (DOL) recently issued additional guidance to employers regarding the definition of “son or daughter” under the Family Medical Leave Act (FMLA) as it relates to an adult child. Under the FMLA, an eligible employee may take leave to care for a son or daughter who is 18 years old or older if the following four conditions are met: (1) the adult child has a disability as defined by the Americans with Disabilities Act (ADA); (2) he or she is incapable of self-care as a result of the disability; (3) he or she has a serious health condition; and (4) the adult child is in need of care due to the serious health condition. A lingering question has been whether the onset of the child’s disability had to occur prior to the child turning 18 in order for the adult child’s parent to be eligible for FMLA leave.
Continue Reading DOL Issues Guidance on Definition of “Son or Daughter” under FMLA

The Equal Employment Opportunity Commission (EEOC) recently issued a “Questions and Answers” sheet emphasizing that although Title VII and the Americans with Disabilities Act (ADA) do not expressly prohibit employers from discriminating against the victims of domestic violence, sexual assault, or stalking, these laws may create liability for employers in certain circumstances.

The document provides a number of illustrative examples of these potential pitfalls facing employers.
Continue Reading EEOC Issues Guidance on Potential Application of Title VII and ADA to Employees Who Have Experienced Domestic Violence, Sexual Assault, or Stalking

Earlier this month Senator Bob Casey (D-PA) introduced the Pregnant Workers Fairness Act to the Senate floor. The proposed bill, which would supplement the Pregnancy Discrimination Act enacted by Congress in 1978, borrows the reasonable accommodation framework of the Americans with Disabilities Act. Specifically, the bill would require employers to provide reasonable accommodations to employees limited by pregnancy, childbirth, or related medical conditions.
Continue Reading U.S. Senate Introduces Pregnant Workers Anti-Discrimination Bill

According to the Equal Employment Opportunity Commission, if current incarceration rates continue, 1 in 3 African-American men and 1 in 6 Hispanic men will be incarcerated during their lifetimes. The rate for white men is only 1 in 17. Given this disparity in incarceration rates, the EEOC has long been concerned that employer policies restricting hiring based on prior criminal convictions may unfairly deprive minorities of employment opportunities.

In Enforcement Guidance issued on April 25, 2012, the EEOC outlined its approach for determining whether an employer’s criminal history screening policies violate Title VII on the grounds of either “disparate treatment” or “disparate impact.”
Continue Reading EEOC Guidance Highlights the Risks of Using Criminal History Checks in Hiring

More and more employers are recognizing what employment attorneys have long known. The most prevalent type of employment discrimination claim is not one based on race, sex, religion, disability or age. Rather, it is one alleging unlawful retaliation. In fact, in 2010, for the first time ever, retaliation claims surpassed race discrimination claims to become the most common type of claim filed with the Equal Employment Opportunity Commission (EEOC). This trend is not expected to end anytime soon.

Just before the holidays, the United States Department of Labor released three new fact sheets offering further guidance to employers on the topic of retaliation under the Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).
Continue Reading Department of Labor Issues New Fact Sheets on Retaliation

Does your company’s leave policy call for an employee’s termination following the expiration of his or her leave entitlement?  Does your company charge “attendance points” against employees regardless of the reason for the absence?  Does your company require employees to be released to work without restrictions before they are permitted to return from a medical

This post was developed with the assistance of Kelly Horein, a Summer Associate with McNees Wallace and Nurick LLC. Ms. Horein will begin her third year of law school at Boston University School of Law in the fall, and she expects to earn her J.D. in May 2012.

According to the Equal Employment Opportunity Commission (EEOC), employees filed a record number of workplace discrimination charges last year. As a result, it is now more important than ever for employers to take steps to prevent unlawful discrimination and harassment in the workplace.

Most savvy human resource professionals know that they must maintain antidiscrimination policies with adequate reporting procedures to help avoid liability. However, it is just as important to train supervisors and managers regarding the implementation of those policies. Unfortunately, when times get tough, employers are often forced to cut costs and training is usually one of the first items on the chopping block. If your organization scaled back training during the economic downturn, it may again be time to rally support for supervisor training.

Effective training for supervisors and managers actually helps reduce costs in the long run, because it helps supervisors prevent claims before they are filed. The United States Supreme Court and the EEOC have emphasized the importance of supervisor training in the context of discrimination and harassment claims. Indeed, training is recognized under the law as an essential part of an "affirmative defense" to claims that supervisors engaged in harassment. If an employee alleges that harassment by a supervisor created a hostile work environment, then the employer may raise a two-part defense. An employer is not subject to strict liability for a supervisor’s conduct where the employer can show that (1) the employer took reasonable measures to prevent harassment and promptly correct it when it occurred and (2) the employee failed to take advantage of established mechanisms for filing complaints.

Human resources professionals can be instrumental in helping their employers take "reasonable measures to prevent harassment." However, the Third Circuit Court of Appeals, which covers Pennsylvania, has stated that in order to show that an employer took such reasonable measures, the employer must do more than simply adopt an antidiscrimination policy.


Continue Reading A Reminder Regarding the Importance of Supervisor Training

Does your Company make a practice of checking for local ordinances that prohibit discrimination in employment? It should! Employers may be most familiar with the primary state and federal anti-discrimination laws, such as the Title VII of the Civil Rights Act of 1964, the new Genetic Information and Nondiscrimination Act and the Pennsylvania Human Relations Act. The state

This post was contributed by Christopher Gibson, a Summer Associate with McNees Wallace and Nurick LLC.  Mr. Gibson will begin his third year of law school at Wake Forest in the fall, and he expects to earn his J.D. in May 2012

With unemployment in the United States hovering around 9.2%, human resources offices across the country are being bombarded with job applications like never before. The overworked employees of these often understaffed offices are charged with wading through a figurative sea of applications, all while dealing with the increasingly zany behavior of some applicants. According to CBS News, "[o]ne man sent a shoe to his prospective employer with a note that read, ‘I want to get my foot in the door.’ " Another "handed out personalized coffee cups, so no one would forget his name." In this high stress environment, some human resources professionals might see using social media as a quick and easy way of separating the wheat from the chaff – narrowing the field of possible applicants significantly in a short amount of time. But before signing into Facebook or pulling up your favorite search engine, keep in mind the immortal words of Clint Eastwood in Dirty Harry: "You feelin’ lucky?"

Every human resources staff member knows that, especially when interviewing a potential new employee, some topics are strictly off limits. Asking one of these "off limits" questions can put your company at serious risk of being sued for discrimination. The trouble is, by resorting to the use of social media, this kind of "off limits" information can be collected from a potential employee even before his or her interview.

Imagine for a moment that you are the director of human resources for a mid-sized paper supply company. You receive around fifty resumes in response to a job posting to fill the position of "Assistant to the Regional Manager." One applicant – Alex Jackson – catches your eye as one of the top applicants for the job. According to Alex’s resume, Alex has been working in the paper industry for around six years and has a bachelor’s degree in management from a New York Ivy League school. Alex has been published in several trade magazines, is active in the community and has excellent references.

You decide to pull Alex’s Facebook profile just to get a better feel for the applicant; what’s the worst that could happen, right?

As you expected, what you find is fairly innocuous – Alex is a 42 year old Caucasian female who is very active in the Catholic church. She has recently married and has a one year old son. Two of her recent wall posts read, "Going out to happy hour for the fourth night in a row! Can’t stop, won’t stop!" and "Please pray for my mother as she recovers from her most recent bout with cancer." Eventually, your organization decides to go in another direction and Alex is not interviewed or hired for the job.

So again, what’s the worst that could happen?


Continue Reading The Use of Social Media in Hiring Decisions: Tempting Fruit from a Poisonous Tree