News for July 28, 2014

Featured this week:

In state law news:

Featured this week:

Sexually charged comments, but not sex on desk, revive HWE claim
Though the regular use of a substance abuse counselor’s desk for sex by night-shift employees at a maximum security prison in Indiana was egregious, subjectively offensive, and severe, it did not support her hostile work environment claim where there was no evidence that the harassment was caused by her gender, a Seventh Circuit panel stated. However, based on the constant barrage of sexually charged comments directed toward her, the court reversed a district court’s grant of summary judgment in favor of her employer as to this claim. While it affirmed summary judgment on her retaliation claim, her sex discrimination claim, in which she alleged that she was treated differently than a male coworker with whom she was having an affair when she was terminated and he was allowed to resign and continue working for an outside contractor, was also revived. (Orton-Bell v State of Indiana, 7thCir, July 21, 2014, Manion, D)

‘Southern sounding’ name no proof employer knew applicant’s race
A hiring coordinator’s comment that a successful African-American candidate’s name “sounded southern” was not sufficient for a jury to conclude that the coordinator felt the candidate fit the stereotype of the “overly-accommodating African-American from the American South,” the Seventh Circuit stated in rejecting an unsuccessful African-American applicant’s contention that, from that comment, a jury could find the coordinator knew the race of several candidates and that her claims to the contrary were false. Observing that the applicant relied on “unsupported, and at times farcical, speculation” in her attempts to prove pretext, the appeals court affirmed the dismissal on summary judgment of her claim that she was discriminated against on the basis of race when she was not hired by the county employer for an economic support specialist position. (Matthews v Waukesha County, 7thCir, July 22, 2014, Rovner, I)

Separation from harasser, firing harasser not reasonable accommodations for anxiety
An employee who was allegedly harassed by a foreman established that his harassment-triggered anxiety was a “disability” under a post-ADAAA analysis (but not as to pre-ADAAA events), ruled a federal district court in New York. However, summary judgment was granted on the non-accommodation claim because the employer’s attempts to separate the two did not work and getting rid of the foreman would not be a “reasonable” accommodation. The employee’s hostile work environment claim also failed because he did not show he was singled out for harassment based on a disability. (Whalen v City of Syracuse, NDNY, July 15, 2014, Kahn, L)

Veterinarian’s EPA claim survives without job titles or classifications of comparators
A federal district court in New York denied a motion to dismiss a veterinarian’s Equal Pay Act claim that her employer paid a male veterinarian in the same specialty with less experience and seniority, with fewer responsibilities, and working fewer days per week, $50,000 more per year. The court found that the employee stated a claim under both the EPA and state law because she explained the content of the jobs, compared responsibilities of the individuals, alleged working conditions in each position, and identified the experience and qualifications of the employees. (Chiaramonte v Animal Medical Center, SDNY, July 22, 2014, Failla, K)

Even best employers face challenges with FLSA, SHRM tells House subcommittee
The Fair Labor Standards Act (FLSA) needs to meet the needs of today’s workplace and ensure workplace flexibility, the Society for Human Resource Management (SHRM) said July 23 in testimony before the Workforce Protections Subcommittee of the U.S. House Committee on Education and the Workforce.



Five things employers need to know about prescription painkiller use
The number of people overdosing from opioid prescription painkillers is staggering, killing 45 people each day. Twenty-three percent of the workforce has misused prescription painkillers, according to the National Survey on Drug Use and Health, making opioid use a serious threat to employee safety. Even when employees are taking opioid painkillers at the correct dosage with a valid prescription, subtle impairment may compromise workplace safety.



CPI for all items rises 0.3% in June as gasoline prices rise; food inflation eases, BLS reports
The Consumer Price Index for All Urban Consumers (CPI-U) increased 0.3 percent in June on a seasonally adjusted basis, the U.S. Bureau of Labor Statistics reported July 22. Over the last 12 months, the all items index increased 2.1 percent before seasonal adjustment.



BLS reports real average hourly earnings unchanged in June
Real average hourly earnings for all employees was unchanged from May to June, seasonally adjusted, the U.S. Bureau of Labor Statistics reported June 22. This result stems from a 0.2 percent increase in the average hourly earnings being offset by a 0.3 percent increase in the Consumer Price Index for All Urban Consumers (CPI-U).



In state law news:

Illinois enacts “ban the box” law
Illinois Governor Pat Quinn on July 19 signed legislation that prevents criminal background checks until after an applicant is deemed qualified for a job. The law, part of Governor Quinn’s agenda to ensure all workers in the state are treated fairly, is intended to help ex-offenders secure employment in the private sector and become productive members of society.



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Special Report

New Executive Order bars LGBT bias and requires affirmative action by federal contractors, expands federal employee rights


Despite protections in some states and localities, “in too many states and in too many workplaces, simply being gay, lesbian, bisexual or transgender can still be a fireable offense,” President Obama said during a ceremony on July 21, 2014, where he signed an executive order (EO) banning discrimination against LGBT employees by federal contractors. The new EO amends the existing EO 11246 to add sexual orientation and gender identity to the list of categories of federal contractor employees protected from discrimination and also to the list of categories of employees in regard to which covered federal contractors must take affirmative action to ensure equal employment opportunity. It also amends the existing EO 11478 to ensure that federal employees, who are already protected on the basis of sexual orientation, are now formally protected from discrimination based on gender identity as well.


“This is not speculative, this is not a matter of political correctness — people lose their jobs as a consequence of this. Their livelihoods are threatened, their families are threatened,” the President remarked. “In fact, more states now allow same-sex marriage than prohibit discrimination against LGBT workers. So I firmly believe that it’s time to address this injustice for every American.”



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