News for November 21, 2016

Featured this week:

In state law news:

Featured this week:

Discharged 59-year-old Washington Post employee’s race, age discrimination claims revived
Reversing summary judgment in favor of the Washington Post, the D.C. Circuit found that not only could a reasonable jury conclude the paper’s proffered nondiscriminatory reason for firing a 59-year-old African-American employee—willful neglect of duty and insubordination—was not the actual reason for his termination, there was also evidence of intentional discrimination, including allegations that his supervisor was "edgy" and "condescending" to him as compared to his white colleagues (DeJesus v WP Co LLC, DCCir, November 15, 2016, Wilkins, R.).

Jury to decide if female worker was fired for sexual comments or in retaliation for confirming coworker harassment
A steel manufacturing company that, shortly after investigating whether a male coworker engaged in sexual harassment by showing a female employee a picture of a penis, decided to also fire the female employee due to her own alleged sexual conduct at work, was denied summary judgment on her Title VII retaliation claim. Though she had not complained of harassment, there was no evidence management would have learned of the allegations had she not confirmed she was sexually harassed, so the federal court in Ohio could not find, as a matter of law, that the company’s proffered reason was non-retaliatory. Moreover, the male trainers who found her conduct egregious had originally referred to it as "mill humor," had never complained, and appeared to have engaged or even initiated some of the banter (Frazier v AK Steel Corp, SDOhio, November 8, 2016, Black, T.).

Court adopts EEOC theory that sexual orientation bias encompassed by Title VII’s ‘because of sex’
Allegations that a health care company’s telemarketing manager regularly called a gay male employee "‘fag,’ ‘faggot,’ ‘f***ing faggot,’ and ‘queer,’" and made statements such as "f***ing queer can’t do your job" and "I don’t understand how you f***ing fags have sex," were sufficient to state a Title VII sex discrimination claim, a federal district court in Pennsylvania held, adopting the EEOC’s reasoning that Title VII’s "because of sex" provision prohibits discrimination on the basis of sexual orientation and refusing to dismiss the claims on behalf of the male employee. The court also pointed out that when bringing suit on its own behalf, the EEOC has statutory authority to expand a charge based on its reasonable investigation, which is what happened here as it initially investigated sex harassment charges brought by five female coworkers who worked for the same manager (EEOC v Scott Medical Health Center, WDPa, November 4, 2016, Bissoon, C.).

No ADA violation for refusal to reassign worker who wasn’t medically released for even light duty
A hospital did not violate the ADA when it rejected a patient care technician’s application for reassignment to a clerical job while she was medically "off work" due to a back injury, and then terminated her when she failed to respond to its offer to apply for extended personal leave. Dismissing on summary judgment the ADA claims brought by the EEOC on her behalf, a federal court in Texas determined that she was not "otherwise qualified" since at the time she applied for the position, she undisputedly had not been released to return to work in any capacity. Moreover, she did not seek reassignment as a "last resort" since she didn’t explore other accommodations first, such as resuming light duty or seeking additional accommodations for her regular job (EEOC v Methodist Hospitals of Dallas dba Methodist Health System, NDTex, November 4, 2016, Fish, A.).

New information page launched for veterans with disabilities
Caring for veterans returning from service is not only an expression of gratitude but a moral obligation. The EEOC is expanding employment opportunities for those who served our country by vigorously enforcing the law and increasing outreach to employers and veterans communities, thereby reducing barriers that prevent veterans from fulfilling their potential.

USCIS rolls out new Form I-9
U.S. Citizenship and Immigration Services (USCIS) has published a revised version of Form I-9, Employment Eligibility Verification. The new version (dated 11/14/16) must be used by employers beginning January 22, 2017. Until then, employers may continue to use either the version dated 03/08/2013 N or the new version.

Research reveals uneven views on work-life balance
BLS reports consumer prices up 0.4 percent in October

BLS reports consumer prices up 0.4 percent in October
The Consumer Price Index for All Urban Consumers (CPI-U) increased 0.4 percent in October on a seasonally adjusted basis, the U.S. Bureau of Labor Statistics reported November 17. Over the last 12 months, the all items index rose 1.6 percent before seasonal adjustment.

Real average hourly earnings increase 0.1% in October, BLS reports
Real average hourly earnings for all employees increased 0.1 percent from September to October, seasonally adjusted, the U.S. Bureau of Labor Statistics reported November 17. This result stems from a 0.4-percent increase in average hourly earnings being nearly offset by a 0.4-percent increase in the Consumer Price Index for All Urban Consumers (CPI-U).

In state law news:

Voters in Alabama and Virginia weigh in on guaranteeing “right to work” in the state constitution
Although already on the books, initiatives on the ballots in Alabama and Virginia sought to set the issue of right to work firmly into the state constitution during the 2016 General Election on November 8. The constitutional amendment was approved by voters in Alabama, but Virginia voters said no.

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Special Report

CareerBuilder conducts survey looking at costs of bad hires, finds more than 1 in 4 employers do not conduct background checks of all new employees

According to a new CareerBuilder survey, 75 percent of employers said they have hired the wrong person for a position, and of those who had a bad hire affect their business in the last year, one bad hire costs them nearly $17,000 on average. And while most employers (72 percent) background check every new employee before they are hired, more than 1 in 4 (28 percent) do not.

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