tag:blogger.com,1999:blog-50968651303174052102024-03-18T23:12:07.309-04:00Ernie the EEO NerdDave Wattshttp://www.blogger.com/profile/00191069895324990997noreply@blogger.comBlogger235125tag:blogger.com,1999:blog-5096865130317405210.post-86444758103786903012020-09-06T15:19:00.005-04:002024-02-28T18:49:49.280-05:00Bostock and Transgender Bathroom Access: A Simple Explanation Why Courts Are WrongRecently, two U.S. courts of appeals mistakenly relied on Bostock v. Clayton County to conclude that denying bathroom access to transgender individuals consistent with their gender identity is unlawful sex discrimination -- Grimm v. Gloucester County School Board (4th Cir. Aug. 26, 2020) and Adams v. School Board (11th Cir. Aug. 7, 2020). A simple example illustrates why these Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-76704461113345662982020-08-05T00:27:00.003-04:002020-08-05T11:48:55.990-04:00Gogel v. Kia: When are HR employees protected against retaliation?On July 29, 2020, in Gogel v. Kia Motors Manufacturing of Georgia, Inc., the full Eleventh Circuit ruled that Andrea Gogel did not engage in protected activity under Title VII of the Civil Rights Act of 1964 when she purportedly encouraged or "recruited" another employee to file an employment discrimination suit against the company. As a result, firing her for this conduct did not violate Title Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-32662557247589045212020-04-08T01:09:00.000-04:002020-04-08T01:34:06.571-04:00Babb v. Wilkie: A Hollow Victory for Federal Employees
In Babb v. Wilkie, No. 18-882 (U.S. Apr. 6, 2020), the Supreme Court held that a federal employee alleging age discrimination can prevail even if age was not a but-for cause of the final personnel action being challenged.
Although nominally ruling for the petitioner, a longtime employee of the Department of Veterans Affairs, the Court has in reality handed a significant win to federalErnie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-86669547393524778262020-04-05T14:54:00.002-04:002020-04-05T17:33:22.199-04:00Can someone be too old to be a professional driver or pilot?A few days ago, the EEOC filed a lawsuit alleging that a job applicant was denied a position as an airport shuttle driver because of his age. As reported by media sources, the applicant was 79 years old and met the general job requirements but was denied the job because the employer's insurance policy did not cover drivers 75 and older. The EEOC's suit raises the obvious question of whether -- Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-48026454907942558552020-03-14T17:15:00.000-04:002020-03-14T17:15:27.001-04:00Why the Women's National Team Soccer Players Should Lose Their Equal Pay Act Suit
The U.S. Soccer Federation suffered a backlash after arguing in a legal filing that the Women's National Team should not prevail on their claim under the Equal Pay Act because female players have less "skill" and less "responsibility" than their male counterparts. Whether the skill and responsibility required for female players are equal to those required for their male counterparts is Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-23136839965601181942020-02-29T18:56:00.000-05:002020-03-01T11:45:06.072-05:00Rizo v. Yovino on Remand: Pure Nonsense
On February 27, 2020, on remand from the Supreme Court, the Ninth Circuit issued its long-awaited new en banc decision in Rizo v. Yovino, No. 16-15372, holding that an employer may not rely on salary history under the Equal Pay Act to justify a salary differential between workers of the opposite sex performing equal work.
The underlying principle makes sense in theory -- women's wages Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-79825819306762942982019-10-10T19:43:00.002-04:002019-10-22T23:06:26.003-04:00Oral Arguments in the Supreme Court LGBT Cases: Saturday Night Live Pat, Social Upheaval, and Potential Middle Ground (Updated 10/22/19)
The oral arguments in Bostock v. Clayton County and R.G & G.R. Harris Funeral Homes v. EEOC gave both sides reason for hope, but as with most arguments, the outcome is uncertain. Typically, the issue is framed as whether the employers win or LGBT advocates win. A third option in which the Supreme Court adopts a middle ground position is also a possibility, however. As discussed belowErnie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-86521605768838702272019-09-23T13:32:00.001-04:002019-09-23T13:32:37.850-04:00Bi Visibility Day and the Bisexual HarasserIn observation of Bi Visibility Day, here's what I consider the best discussion of my favorite legal quandary -- the bisexual harasser:
Harassment is reprehensible, but Title VII was passed to outlaw discriminatory behavior and not simply behavior of which we strongly disapprove. The artificiality of the approach we have taken appears from the decisions in this circuit. It is "discrimination" ifErnie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-90413368577590208822019-09-22T13:03:00.001-04:002019-09-23T12:29:33.437-04:00Gay Wedding Cakes and Invitations: Balancing LGBT Rights and Free Expression
In Brush & Nib v. City of Phoenix, the Supreme Court of Arizona held on September 16, 2019, that a civil rights ordinance prohibiting sexual orientation discrimination could not be used to force Joanna Duka and Breanna Koski, the owners of Brush & Nib Studio, to create custom-made wedding invitations celebrating a same-sex wedding in violation of their religious beliefs. The Human Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-27390210505298417912019-09-13T00:25:00.000-04:002019-09-13T00:25:17.844-04:00What does the adverse action standard have to do with whether federal law prohibits LGBT discrimination?
In May 2019, the Department of Justice filed a little-noticed brief opposing the grant of certiorari in Forgus v. Shanahan and arguing that Title VII of the Civil Rights Act of 1964 covers any discriminatory change to a term, condition, or privilege of employment, even if it does not result in a significant detrimental effect. From an administration that has typically been hostile to civil Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-33076651486779106412019-09-04T22:18:00.000-04:002019-09-04T22:18:46.314-04:00Is it lawful for a religious organization to discriminate against LGBT employees?
An amicus brief filed by First Liberty Institute in the LGBT Supreme Court cases makes the same argument I've made previously, that a religious organization that discriminates against an LGBT individual based on religious objections to homosexuality or transgenderism falls under the religious organization exemption of Title VII of the Civil Rights Act of 1964.
This blog reflectsErnie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-67893007809912253552019-09-02T14:53:00.001-04:002019-09-02T15:32:26.468-04:00Velox Express: Does merely misclassifying employees as independent contractors violate labor law?
Samuel Gompers Monument
In Velox Express, Inc., the National Labor Relations Board concluded that Velox Express violated the National Labor Relations Act in firing a driver for complaining that she and other drivers were misclassified as independent contractors rather than employees, but the Board also concluded that the misclassification was not a standalone violation of the NLRA.In her Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-6295235002934577362019-08-31T13:10:00.000-04:002019-08-31T14:37:21.964-04:00Timing and Retaliation: Green v. City of Phoenix; Wellner v. Mentefiore Medical Center
Two recent cases illustrate the complexities in relying on timing to prove that retaliation was a but-for cause.
In Green v. City of Phoenix, No. CV-15-02570-PHX-DJH (D. Ariz. Aug. 26, 2019), Judge Diane Humetewa mistakenly rejected the plaintiff's retaliation claim for want of direct evidence:
Plaintiff relies entirely on temporal proximity to prove that his protected activity was the Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-75144945278757220922019-08-18T14:09:00.002-04:002019-08-18T14:09:43.895-04:00Naumovski v. Norris: The McDonnell Douglas Framework and But-for Causation
Grand Canyon Centennial - Ribbon Falls
In Naumovski v. Norris, 18-2663 (Aug. 12, 2019), the Second Circuit held that a plaintiff bringing a section 1983 claim alleging unconstitutional sex discrimination is required to establish that sex was a but-for cause, not merely a motivating factor, of the the challenged action. The court explained that, as under Title VII of the Civil Rights Act of Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-92083807791697440102019-08-17T15:10:00.001-04:002019-08-18T21:32:20.757-04:00Menaker v. Hofstra University: Standing Up for the Rights of the Accused in the #MeToo Era
Grand Canyon Centennial
Today's post is by guest blogger Dena Katz.
The Second Circuit's decision in Menaker v. Hofstra University, No. 18‐3089‐cv (Aug. 15, 2019), is a forceful reminder that men accused of sexual harassment need to be treated fairly. For decades, men's egregious sexual conduct has been ignored. The correct response, still, is not to assume that men are sexual harassers,Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-14357376441775890992019-08-14T18:59:00.000-04:002019-08-15T17:35:15.534-04:00New Hampshire v. Lilley: Will the Supreme Court "Free the Nipple"?Scotusblog has highlighted the cert. petition in New Hampshire v. Lilley, in which the New Hampshire Supreme Court held that a city ordinance prohibiting women from exposing their nipples in public is constitutional. Although other courts had rejected similar claims, the New Hampshire Supreme Court reached the odd conclusion that the ordinance is not sex-based even though it only requires women Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-72596361082170808782019-08-11T14:37:00.001-04:002019-08-11T22:28:43.154-04:00Grimm v. Gloucester County School Board: Is a transgender man a masculine woman or an effeminate man?
A transgender man is only entitled to use the men's bathroom if he is a man. But what does it mean to be a man? That question has been overlooked by LGBT advocates fighting for transgender bathroom access. It was also recently overlooked by Federal District Court Judge Arenda L. Wright Allen. On August 9, 2019, Judge Allen ruled that a Virginia county school board violated Title IX of the Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-77613565978967081132019-08-08T20:22:00.001-04:002019-08-08T20:40:33.493-04:00Electrolux Home Products: Pretext and Labor Law ViolationsA recent decision by the National Labor Relations Board in a case involving Electrolux Home Products correctly recognizes that even if an employer lied about why it fired someone, that does not necessarily mean that it fired the person because of anti-union animus in violation of the National Labor Relations Act. The dissent, by contrast, mistakenly contends that an employer violates the Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-72374690613608515912019-07-27T14:02:00.000-04:002019-07-28T13:55:55.255-04:00Quid Pro Quo Sexual Harassment and the Ridiculous Attack on Eugene Scalia
Theodore Roosevelt National Park
Today's post is by guest blogger Dena Katz.
The recent attack on Eugene Scalia, Trump's nominee to be Labor Secretary, belies an ignorance of the very legal concepts that his attackers purport to defend. In 1998, Scalia wrote an insightful and prescient law review article that criticized the legal doctrine of "quid pro quo sexual harassment," the Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-87313659374581172122019-07-20T13:36:00.002-04:002019-07-21T12:02:06.600-04:00EEO law and "Go Back Where You Came From"
Just for fun -- this EEOC tweet elicited a lot of reaction in light of Trump's "go back to where you came from" comments:
https://twitter.com/USEEOC/status/1150750405028175873
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.
Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-62563032852474081582019-07-04T11:42:00.001-04:002019-07-20T13:28:23.897-04:00Dress Codes and Gender Identity DiscriminationIn a Washington Post opinion piece, Thomas Rost defends his decision to fire Aimee Stephens, a transgender woman, from her position as a funeral director after she told him she would begin wearing a skirt to work. The Supreme Court will be taking on Stephens's claim this fall in the case of R.G. & G.R. Harris Funeral Homes v. EEOC. The EEOC has characterized this case as more broadly Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-25396995265772932272019-05-28T20:10:00.000-04:002019-05-29T16:22:31.779-04:00Does Obamacare prohibit discrimination based on gender identity?The recent announcement by HHS that it will roll back protections for transgender individuals under the Affordable Care Act illustrates the confusion regarding how sex discrimination overlaps with gender identity discrimination.
In concluding that sexual orientation discrimination and gender identity discrimination constitute sex discrimination, advocates have not argued that the term "sexErnie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-57156546350487643112019-05-26T00:44:00.003-04:002019-05-27T17:32:03.640-04:00EEOC v. North Memorial Health Care: What's the difference between denial of religious accommodation and retaliation?
The Fourth Circuit's decision in EEOC v. North Memorial Health Care provides helpful guidance on whether an employee who is denied a religious accommodation has a religious accommodation claim, a retaliation claim, or both.
In this case, Emily Sure-Ondara was given a conditional job offer, and she then revealed to the defendant that she wanted a religious accommodation because her Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-78290631500670856872019-05-24T20:50:00.003-04:002019-05-26T12:20:48.756-04:00Westmoreland v. TWC Administration: What is a LEGITIMATE reason for firing someone?In Westmoreland v. TWC Administration, the trial judge made a subtle but very significant error when he instructed the jury in an age discrimination case. According to the defendant, the plaintiff was not fired because of her age but because she improperly backdated a document. Clearly, this is a nondiscriminatory reason for firing someone, so if that's really why an employee was fired, she Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.comtag:blogger.com,1999:blog-5096865130317405210.post-21236506212860152342019-05-14T21:10:00.000-04:002019-06-16T17:27:18.839-04:00Richardson v. Chicago Transit Authority: Avoiding a Deluge of Obesity Discrimination Claims (Updated 6/16/19)
The Seventh Circuit heard oral arguments earlier today in the case of Richardson v. Chicago Transit Authority, which looks at the question of when discrimination based on obesity can be considered disability-based discrimination in violation of federal EEO law. Under the Americans with Disabilities Act, it's unlawful to discriminate against someone for having a physical impairment, so if Ernie the EEO Nerdhttp://www.blogger.com/profile/16462410369491341079noreply@blogger.com