News for November 20, 2017

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

Male exec who opposed bias against women executives gets trial on Title VII retaliatory non-promotion claim
A male executive at a construction company, who was terminated after resisting discrimination against female executives who he had hired and promoted, produced evidence suggesting that the decisionmaker who gave a promised promotion to a less qualified candidate knew about the employee's protected activity and that there was a causal link to the employee being passed over for promotion. However, a federal district court in Colorado granted the employer's summary judgment motion on the employee's associational sex discrimination claim because the Tenth Circuit does not recognize that type of claim. (DonMoyer v Quanta Services, Inc, DColo, November 9, 2017, Matsch, R.)

'Too butch' employee advances claims of gender non-conformity, but not sexual orientation bias
A credit union employee who was purportedly told her appearance was "too butch," passed over for promotions due to her supervisor's animus toward lesbians, and told that she didn't believe in God since she was gay, plausibly alleged claims of gender non-conformity discrimination under Title VII and the Kentucky Civil Rights Act, but the federal court in Kentucky dismissed her sexual orientation discrimination claims. Her claims under a local ordinance prohibiting sexual orientation discrimination also failed because the ordinance did not create a private cause of action absent an agency notice that she had not received. (Hudson v Park Community Credit Union, Inc, WDKy, November 13, 2017, Russell, T.)

Employee fired days after announcing intent to take leave advances FMLA claims
An employee who was fired for falsifying company records days after receiving a positive performance review during which he allegedly told his supervisor he intended to arrange for upcoming FMLA leave can proceed to trial on his FMLA interference and retaliation claims, a federal district court in Missouri ruled, denying his employer's summary judgment motion. Fact disputes precluded the court from determining whether the employer's reason for terminating the employee had any basis in fact and whether the employer conducted an investigation into the employee's conduct in good faith and therefore, whether it honestly believed he falsified records. (Diamond v American Family Mutual Insurance Co, WDMo, November 9, 2017, Ketchmark, R.)

Nuclear facility security guard fired after hallucinatory episode can't advance regarded-as claim
Granting summary judgment against an armed security guard's federal and state law "regarded as" claims, a federal district court in New York found that his employer, a nuclear power plant operator, did not engage in unlawful disability discrimination when it revoked his security clearance and then terminated his employment after he experienced a hallucinatory episode he claimed was related to medication he was taking for an anxiety disorder. The employee was not a qualified individual at the time his employer terminated his "unescorted access authorization" (UAA), said the court, noting that a psychologist did not suggest his impairment was transitory or that he would be fit for duty once he stopped taking the medication. And because the UAA was an essential function of his job, he was not a qualified individual at the time he was terminated. (Silver v Entergy Nuclear Operations, Inc, SDNY, November 15, 2017, Seibel, C.)

Only 19 percent of employees report their experience at work matches their organization's employer brand
A new survey finds that only 19 percent of employees globally perceive a strong match between how their employer represents itself and what they experience. This match highlights a credibility gap that exposes employers to reputation risk. Closing the gap provides an opportunity for employers to more successfully drive recruitment, employee engagement and retention.

Increased number of workers calling in sick when they aren't
According to new CareerBuilder data, 40 percent of workers have called in sick in the last 12 months when they weren't, compared to 35 percent in 2016 and 38 percent in 2015. Female workers were more likely than their male counterparts to take sick days when they were well—43 percent to 35 percent respectively.

CPI for all items increases 0.1% in October as shelter index rises
The Consumer Price Index for All Urban Consumers (CPI-U) rose 0.1 percent in October on a seasonally adjusted basis, the U.S. Bureau of Labor Statistics reported November 15. Over the last 12 months, the all items index rose 2.0 percent.

BLS reports real average hourly earnings decrease 0.1% in October
Real average hourly earnings for all employees decreased 0.1 percent from September to October, seasonally adjusted, the U.S. Bureau of Labor Statistics reported November 15. This result stems from no change 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:

New York City expands paid sick leave law to cover domestic violence, sexual assault, stalking and trafficking survivors
On November 6, New York City Mayor Bill de Blasio signed legislation that expands current paid leave protections to domestic violence, sexual assault, stalking, and trafficking survivors. Approved by the City Council on October 17, Int. 1313-A expands the Earned Sick Time Act to permit victims of family offense matters, such as disorderly conduct and harassment, sexual offenses, stalking, and human trafficking to use earned "safe" hours in connection with that abuse. It also changes the name of the Act to the "Earned Sick and Safe Time Act."

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Special Report

New laws forbidding questions on salary history likely changes the game for most employers

A new survey by the Hay Group division of Korn Ferry shows that 65 percent of executives believe their organizations will be affected by new legislation aimed at closing pay gaps for women and other underserved populations. However, most don't believe the legislation will work.

A number of cities and states across the United States, including California, Massachusetts, Delaware and Oregon, are at various stages of enacting legislation that makes it illegal for employers to ask job candidates about their salary history and to use the information in making pay offers. New York City enacted legislation recently. Proponents say that basing pay on past wages can perpetuate the earnings divide. Whether or not these new laws improve gender pay equity remains to be seen. In fact, the majority of executives polled (65 percent) believe that the law will not, or only to a small extent, actually improve the gender pay equity situation in their organization.

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