Recent trends reveal that employment retaliation claims are on the rise.  Further, courts are taking a hard line on offending employers accused of retaliation in employment.  A review of United States Supreme Court decisions in retaliation cases reveals a remarkable degree of agreement among the Justices.  Even conservative Justices who are considered supportive of business as a matter of judicial philosophy do not take kindly to retaliation against employees who have asserted workplace legal claims.

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In February 2003, North American Stainless (NAS) received notice that Miriam Regalado had filed an EEOC charge against it. Three weeks later, NAS fired Ms. Regalado’s fiancée, Eric Thompson. Mr. Thompson thereafter brought a Title VII retaliation claim against NAS in federal court in Kentucky. The trial court granted summary judgment in favor of NAS on the theory that Title VII did not allow “third party retaliation claims.” That decision was ultimately affirmed by the Sixth Circuit Court of Appeals. Earlier today, however, the U.S. Supreme Court reversed the Sixth Circuit and held 8-0 (the majority opinion was drafted by Scalia, with Kagan not participating) that Mr. Thompson’s suit could proceed even though it was not he who had engaged in protected activity under Title VII. A link to the decision is below. Bottom line — In 2006, the Supreme Court adopted a pretty broad standard for what types of employment actions could be retaliatory under Title VII. The Court has now used some of the rationale from that decision to essentially prohibit “associational retaliation.” (more…)

The EEOC’s final regulations for the Genetic Information Nondiscrimination Act have been out for a bit- (http://edocket.access.gpo.gov/2010/pdf/2010-28011.pdf).   However, we just found this clip:

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As part of its stepped-up enforcement process, the EEOC has recently filed a lawsuit under the ADA stemming from an employer’s administration of an alcohol test to an employee. http://www.eeoc.gov/eeoc/newsroom/release/10-5-10.cfm .Challenging the practice of U.S. Steel to administer random breath analysis tests to probationary employees, the EEOC takes the position that such tests run afoul of the Americans with Disabilities Act.  Consistent with prior EEOC guidance materials (http://www.eeoc.gov/policy/docs/medfin5.pdf), the Commission takes the position that alcohol tests are medical tests and are therefore limited by the ADA.  The facts of the U.S. Steel case appear somewhat tilted against the employer in that the employee allegedly had a medical condition that caused a false positive test result – a fact borne out by a confirmatory blood alcohol test.  Given that the ADA does not protect employees under the current influence of drugs or alcohol, the policy issues involved in this debate may prove interesting.

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The Equal Employment Opportunity Commission has reported an increase in the number of sexual harassment charges filed by men. In fact, between 1992 and 2008, the percentage of such charges doubled from 8% to 16%. The media has analyzed this development, opining that it results from the recession, more women in positions of power, more men willing to come forward with the charges, and mysteries yet unsolved (here and here). Fellow bloggers have also weighed in: Molly DiBianca, Workplace Prof Blog, Employment Law Post, Business Insider, and HealthChapter.

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The EEOC has disclosed two informal discussion letters about how two common hiring practices could subject employers to claims of discrimination. The first letter concerns the use of credit checks as a tool for making hiring decisions.

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You usually read about the Equal Employment Opportunity Commission hitting an employer for millions. But here’s a twist. The EEOC has been hit for $4.5 million in sanctions. Read Jon Hyman to get the full story.

According to the New York Times, a group of West African employees in Colorado has filed discrimination charges against Wal-Mart with the Equal Employment Opportunity Commission (EEOC). Some of the employees had worked for Wal-Mart for several years, claim they had never been disciplined or given bad performance reviews until recently, and contend they were fired because management wanted to get rid of them to give their jobs to local people who were out of work.

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About a year ago, I did a post on the U.S. Supreme Court’s decision in Crawford v. Metropolitan Government of Nashville and Davidson County. As noted in the post, the case was sent back to the trial court for a jury trial.

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Here’s a brief on few things that have happened while I’ve been loafing. Jobs continue to decline. Most people who have jobs hate them. Bonuses for the haves continue to increase. Employees continue to kill co-workers with guns. Guns have made their way into NBA locker rooms. The immigration fight continues, not to mention health care. Record number of discrimination charges are filed with the EEOC. The Man Gene is threatened by The Word Gene (yeah, right).

Yesterday, during a day-long virtual webinar sponsored by M. Lee Smith Publishers at which I was one of the presenters, the last question of the day from one of our virtual attendees went something like this: If a non-Christian employee objects to Christmas decorations placed in common areas by the employer and placed in individual workspaces by co-workers, do we have to remove the decorations?

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After saying last week that he would say no more about sexual romps with young female staffers, David Letterman decided to say more. See New York Times and Los Angeles Times.

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Thanks to Ross Runkel for the heads-up that the Equal Employment Opportunity Commission (EEOC) has recently filed over two dozen lawsuits in three days. As previously noted, it doesn’t necessarily take new legislation to cause a big increase in employment litigation. This is simply additional evidence that government agencies regulating employers are increasing their activity under the Obama Administration.

No, this isn’t an announcement made by the Equal Employment Opportunity Commission (EEOC) or some other government agency in the U.S. This is an announcement made by the Tokyo police. Why? Last year, more than 6,000 men were arrested for groping women on Japan’s crowded trains. It’s also reported that two-thirds of young women have been groped on public trains.

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The 14th annual Advanced Employment Issues Symposium (AEIS) is underway in Nashville, I again have the privilege of serving as moderator. The program will be repeated in Las Vegas on October 29-30. Call M. Lee Smith Publishers at 1-800-274-6774 for more information. Here’s a taste of what you can choose from if you attend.

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Around the time I began this blog, I predicted that age discrimination lawsuits would cause the biggest problem for employers as the baby boomer bubble continued to expand. Much has changed since then, but it still seems that age discrimination may be “the big one,” to use my words back then.

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The Columbus Dispatch reports that a barbecue restaurant owner in Reading, Ohio, is in trouble because of a life size mannequin right outside the restaurant’s front door. After the mannequin became a new customer greeter of sorts, business jumped 40%, but so did complaints.

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There are two cases from the Second Circuit in the category of retaliation and harassment which also consider allegations of unlawful discrimination. The primary holdings by Judge Sotomayor in these cases deal with retaliation and harassment and demonstrate her ability to delineate among various types of retaliation, harassment, and discrimination claims in which the lines are sometimes blurred. Her holdings also demonstrate that when she finds probable harassment or retaliation, there’s little doubt a reasonable jury could use the voluminous evidence in existence as a basis for also finding harassment or retaliation.

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The Equal Employment Opportunity Commission has released its “Employer Best Practices for Workers with Caregiving Responsibilities.” Check out Jon Hyman for a post on this development. It would be a good idea to pay close attention to what the EEOC has to say on this subject. From a litigation standpoint, it’s not a particularly good time to be any kind of employer these days, what with all the layoffs and such. If a jury thinks an employer is discriminating against an employee who puts family ahead of work, it could end up being a really bad day in court. (See also Delaware Employment Law Blog and Dan Schwartz.)

You’ve grown accustomed to employment lawyers preaching the necessity of having good documentation. It helps with the defense of a case. It refreshes the memory of key witnesses.

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