Thursday, October 30, 2014

U.S. Army Loses Landmark Transgender Discrimination Case

The U.S. Office of Special Counsel (“OSC”) has issued a decision after finding that the Army had engaged in “frequent, pervasive and humiliating” gender identity discrimination.

Tamara Lusardi was a civilian Army software specialist when she transitioned from male to female. Ms. Lusardi had previously served overseas for the Army. During the time of her gender transition, the Army interfered inappropriately with her choice of bathroom, referred to her with male pronouns, refused to call her by her new name and stopped giving her work. This conduct occurred after she had legally changed her name, her driver’s license, her security clearance, and had begun dressing as a woman. Ms. Lusardi complained that she was unable to sleep after being frozen out of work and being told to stop speaking to co-workers about her transition. Ms. Lusardi was required to use a single-user, gender-neutral bathroom because of concern that other employees were not uncomfortable around her.

The OSC ruled that coworker preferences alone will not “justify discriminatory working conditions.” Such preferences could work to reinforce the very stereotypes and biases that anti-discrimination laws were enacted to prevent. The bathroom limitation isolated Ms. Lusardi from other female employees. President Obama signed an executive order banning discrimination against lesbian, gay, bisexual and transgender employees who work for the federal government and federal contractors in July 2014. The Army has agreed to provide training with a focus on lesbian, gay, bisexual, and transgender issues to prevent this situation in the future. Ms. Lusardi is now also allowed to use the women’s bathroom and has been receiving more work.

Wednesday, October 29, 2014

Non-Compete Clause and the Sandwich Shop

Jimmy John’s has been asking minimum wage workers to sign non-compete agreements as part of their employment. Historically only high-level executives have signed non-compete agreements.

The agreements, leaked to the press by workers, prevent current employees from “perform[ing] services for….any business which derives more than 10% of its revenue from selling submarine, hero-type, deli-style, pita and/or wrapped or rolled sandwiches and which is located within three miles” of a Jimmy John’s sandwich shop for two years after leaving their employment. The Huffington Post created a map showing that the non-compete agreement amounts to a 6,000 square mile blackout area in 44 states and Washington D.C.

The legality of these agreements has yet to be adjudicated but is reported to be part of a proposed class action lawsuit. A Chicago attorney provided the following quote to Forbes: “Every state law is different on this issue, but the general idea is that it’d only be upheld if it’s reasonable. The test would be, is there a near-permanent customer base? No. Customers at Jimmy John’s are probably also customers at Subway.” So, although ambitious, it appears that Jimmy John’s may have to share its employees with the competition.

Tuesday, October 28, 2014

Immigration Judge Refuses To Accommodate Pregnant Attorney

Stacy Ehrisman-Mickle is an immigration attorney. Two young boys with immigration problems came into her office to hire her. Their case was scheduled to go before the immigration court on October 7, a date that would occur during Ms. Mickle’s maternity leave. Ms. Mickle filed a motion to delay the hearing, believing it would not be a problem since a couple of other judges had already granted similar motions for her based on verification from her doctor. The motion to delay was filed on September 8.

The court ruled on the motion October 2. Ms. Mickle was in the middle of her maternity leave at that point with her four week old baby. The judge denied her motion, leaving the court date as is. Without anyone to care for her baby, Ms. Mickle brought her daughter with her to the court appearance. She checked with her baby’s pediatrician who said it would be ok, provided the baby was carried on Ms. Mickle’s chest. During the hearing, the baby began to cry. The judge scolded her for bringing the baby to court and suggested that the pediatrician must be appalled that she brought her baby to court. Finally, the judge did agree to postpone the hearing until Ms. Mickle was cleared to return to work.

Ms. Mickle reported that she felt embarrassed and humiliated. She has filed a complaint against the judge. An investigation is pending. Another lawyer present in the courtroom confirmed the details of the story to the press.

Thursday, October 23, 2014

Update: CVS Severance Agreement Case Dismissed

The EEOC’s case against CVS in Illinois has been dismissed, albeit on a technicality.

CVS’ severance agreements were the subject of the litigation. Specifically, the EEOC believed that the fine print of the severance agreements would require employees to give up the right to sue in exchange for some benefits. The EEOC argued it violated Title VII for discouraging employees from enforcing those rights.

CVS sought to dismiss the case before trial, arguing that its severance agreements contained the same language commonly found in most agreements. The district court judge did not address the substantive merits of the claims by the parties. Instead the case was dismissed because the EEOC failed to engage in its legally mandated formal settlement discussions with CVS before filing the case. The EEOC was required to try and eliminate “any such alleged employment practice by informal methods of conference, conciliation and persuasion.” Trying to get around this obligation, the EEOC unsuccessfully argued that it had brought the suit under a different section where the company was “engag[ing] in a pattern or practice of resistance to the full enjoyment of rights” under Title VII.  As was evidenced by the dismissal, the court did not accept this argument.

Wednesday, October 22, 2014

California Employers: Anti-Bullying Now Part of Your Responsibility

California continues to expand the scope of an employer’s responsibilities by now including anti-bullying as part of sexual harassment training.

Current California law mandates that employers with over 50 employees must provide two hours of sexual harassment training and education at least every other year. That mandate will soon include training to prevent “abusive conduct.” “Abusive conduct” will be defined in the California Fair Employment and House Act as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to legitimate business interests.” Some of the examples provided are: “repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” Generally speaking, a single act is unlikely to be sufficient unless particularly egregious.

This new law, only a mandate for training, created no unique cause of action for “abusive conduct.” However, abusive conduct in the context of discriminatory acts directed at member of a protected class could be part of a lawsuit.