News for October 15, 2018

Featured this week: In state law news:
Featured this week:

Black applicant with arrest record advances Title VII challenges to Census Bureau's criminal background check process
An African-American applicant with an arrest record advanced Title VII claims challenging the U.S. Census Bureau's criminal background check process used to screen for temporary employment prior to its 2010 census, which required applicants with arrest records to produce official documentation within 30 days. Denying in part the government's motion to dismiss, a federal district court in Florida ruled that he plausibly alleged claims of both disparate treatment and disparate impact. However, his due process claim relating to his purported lack of proper notice surrounding a now-settled class action that had been brought in a New York district court was dismissed without prejudice. (Easterling v U.S. Department of Commerce, MDFla, October 9, 2018, Steele, J.)

PDA claim supported by termination two weeks after employee gave birth
A federal district court in Illinois denied summary judgment on an employee's Pregnancy Discrimination Act (PDA) claim based on evidence that her supervisor reacted negatively to her pregnancy and she was fired less than two weeks after giving birth. Also, though the employer claimed she was terminated for failing to return when her FMLA leave expired on July 30, she claimed she didn't know she was supposed to return that day because HR approved her leave request through September 22 and there were no employer communications otherwise. The employer's FMLA leave policy setting a 12-week maximum was not dispositive. The employee's ADA claim failed because she did not show a substantial limitation in a major life activity and a long-term leave of absence is not a reasonable accommodation. Her FMLA claim failed because she could not show she was entitled to the FMLA's protections. Most of her state-law claims failed but her Illinois Human Rights Act claim survived on the same analysis as her PDA claim. (Scheidt v Floor Covering Associates, Inc, NDIll, September 28, 2018, Dow, R.)

Distance prof had to walk between classes supports Rehab Act claims
An English professor whose ability to walk was limited by an on-the-job injury and arthritis, and who requested accommodations that included having classrooms scheduled close to one another, will proceed with two Rehabilitation Act claims, a federal district court in Maryland ruled. The remainder of her claims, including claims under the ADA and the Maryland Fair Employment Practices Act, however, were dismissed based on a variety of procedural flaws, including failure to exhaust administrative remedies and untimeliness. The defendants' motion to dismiss was granted in part. (Edwards v Montgomery College, DMd, October 9, 2018, Chuang, T.)

Let go as part of reorg, female IT worker shows her complaints may have been why
Fired by a health system as part of its reorganization after she complained about a vice president's discriminatory conduct toward women, a female IT worker survived summary judgment on her Title VII and state law sex discrimination and retaliation claims, a federal district court in Pennsylvania ruled. The court found it disputed whether the health system's offer of another position in lieu of termination was a demotion. There was evidence that senior management wanted to fire her after she complained about the vice president, the criteria of the reorganization continually changed, and objective information about the employee's past performance, which her supervisor rated highly, was not used. (Surman v UPMC Presbyterian Shadyside, WDPa, October 9, 2018, Fischer, N.)

Suits alleging sexual harassment up 50 percent-plus in FY 2018
The #MeToo movement, with its continuing impact, has certainly affected the EEOC. In its fiscal year 2018, the federal agency filed 66 harassment lawsuits, including 41 that included allegations of sexual harassment, according to preliminary data released by the agency on October 4. Those numbers reflect more than a 50 percent uptick in suits challenging sexual harassment over suits in FY 2017.

Survey highlights increasing importance of non-traditional benefits
A survey released by TriNet found that 91 percent of respondents at small and medium size businesses (SMBs) view non-traditional benefits as an important aspect of their job satisfaction. According to the survey, non-traditional benefits include perks such as flexible work schedule, commuter benefits, unlimited paid time off, paid volunteer time, remote work options, etc.

BLS reports unemployment rate declines to 3.7% in September
The unemployment rate declined by 0.2 percentage point to 3.7 percent in September, and total nonfarm payroll employment increased by 134,000, the U.S. Bureau of Labor Statistics reported October 5. The number of unemployed persons decreased by 270,000 to 6.0 million. Over the year, the unemployment rate and the number of unemployed persons declined by 0.5 percentage point and 795,000, respectively.

CPI for all items rises 0.1% in September as shelter index continues to rise
The Consumer Price Index for All Urban Consumers (CPI-U) increased 0.1 percent in September on a seasonally adjusted basis after rising 0.2 percent in August, the U.S. Bureau of Labor Statistics reported October 11. Over the last 12 months, the all items index rose 2.3 percent before seasonal adjustment.

Real average hourly earnings increase 0.3% over the month in September
Real average hourly earnings for all employees increased 0.3 percent from August to September, seasonally adjusted, the U.S. Bureau of Labor Statistics reported October 11. This result stems from a 0.3-percent increase in average hourly earnings combined with a 0.1-percent increase in the Consumer Price Index for All Urban Consumers (CPI-U).

In state law news:

California issues new requirements for accommodating nursing mothers in the workplace
California's Labor Code requires employers to make reasonable accommodation for nursing mothers to express breast milk for the employee's infant child by providing the employee with the use of a room or other location, other than a toilet stall, close to the employee's work area to allow the employee to express breast milk in private.

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Special Report

SHRM looks at #MeToo one year later: One-third of executives have changed their behaviors

One year ago, the news of Harvey Weinstein broke and the #MeToo movement sparked a nationwide conversation. Since then one-third of executives have altered their actions to avoid behaviors that could be perceived as sexual harassment, according to new data from SHRM, the Society for Human Resource Management. These changes in behavior have resulted as executives witness how sexual harassment affects staff and the company bottom line.

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