For over 40 years, race discrimination claims have been primarily asserted by minority employees: African-Americans, Hispanics, and members of various other racial or ethnic groups. On the rare occasion when a white employee alleged discrimination, it was called “reverse discrimination.” The U.S. Commission on Civil Rights, composed of six conservative Republicans and two liberal Democrats, has increasingly placed the spotlight on discrimination against whites.

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Yesterday, significant parts of Arizona’s new and controversial immigration law were ruled invalid by a federal judge. (Read here.) Undoubtedly, there will be an appeal, so who knows what will eventually happen? Not many people disagree with the proposition that there should be a federal overhaul of immigration law. But Congress isn’t about to act on this before the November elections, and it’s unlikely Congress will act on it after the elections.

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According to the New York Times, manufacturers are desperate to hire workers again. In Cleveland, where 40,000 manufacturing jobs were lost during the Great Recession, only 4,500 jobs have been added since the first of this year. More would have been added if manufacturers could find qualified applicants. In one company, six machinests are urgently needed to run computer numerical control machines. Fifty people applied for these jobs, but none were qualified. None!

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On October 14, 2009, I did a post on the value of zero tolerance policies: 0. The recent firestorm surrounding the forced resignation of Shirley Sherrod by the U.S. Department of Agriculture validates the 10/14/09 post as well as anything possibly could. Most of what has been written about the Sherrod debacle has focused on race and politics. This post focuses on employment and human resources issues. (For a similar post, see Dan Oswald.)

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The City of Chicago administered a written examination to 26,000 applicants as part of its hiring process for entry-level firefighters. After scoring the tests, the results were grouped into three categories: applicants who scored 89 or above deemed “well qualified”; applicants who scored between 65 and 88 deemed “qualified”; applicants who scored lower than 65 deemed as having failed the exam. The “well qualified” group consisted of 75.8% white and 11.5% African-American. African-American applicants filed suit, contending that the cutoff scores had a disparate impact on racial minorities.

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There’s been much commotion over Debrahlee Lorenzana’s claim she was sexually harassed at Citibank for being too sexy. (Here, here, and here.) It brought to mind Right Said Fred’s 1991 hit I’m Too Sexy. The tongue-in-cheek song is about a model, and, though sung by a male, one could surmise that he’s actually singing about a female whose so sexy, she won’t give him the time of day. “I’m too sexy for my love . . . shirt . . . shirts . . . Milan . . . New York . . . Japan . . .  your party . . . my car . . . hat . . . cat . . . this song.”

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One of the most important employment law cases which will be decided by the U.S. Supreme Court during its next term is Staub v. Proctor Hospital. It involves a theory of discrimination law known as “cat’s paw.” The Supreme Court has accepted cat’s paw cases previously, because the various U.S. Circuit Courts of Appeals are divided on the meaning and application of this theory.  However, the cases have always been settled or withdrawn before the Court has had a chance to render a decision. The Court has accepted the Staub case but not before Elena Kagan filed a brief in her role as Solicitor General, requesting that the Court do so.

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I read this on the Employment Law Post and chuckled. When the top 10 reasons why supervisors don’t need basic legal training were listed, that was intended to be funny and to make a point. The list doesn’t contain anything new, but we’ve all heard these reasons before and a lot of other ones as well. And, of course, the point is that there is no good reason for not providing managers and supervisors basic legal training.

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As reported in the WSJ Law Blog (which links to other news reports about this matter), drug maker Novartis has been hit with a verdict of $37 million in compensatory damages and another verdict of $250 million in punitive damages. The company was found guilty of sex discrimination in denying female employees, particularly pregnant employees, the same pay as comparable male employees, opportunities for promotions and more. It’s possible that Novartis could be hit with additional damages. This may be the largest jury verdict ever in an employment case.

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A male professor at the University of Cork in Ireland has been disciplined with two years of intensive monitoring and counseling after discussing a scientific paper with a female colleague. The paper titled “Fellatio in fruit bats prolongs copulation” offended the female professor, who was also given a copy. She claimed sexual harassment. Though an investigation found that no sexual harassment had occurred, the university’s president censured the male professor by imposing the two-year discipline, which has the effect of preventing the male professor from obtaining tenure.

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In two cases filled with what some would call legal mumbo jumbo (but important nonetheless), the U.S. Supreme Court has ruled unanimously (!) in favor of employees. In Hardt v. Reliance Standard Life Insurance, the Court found that an employee was entitled to recover attorneys fees under the Employee Retirement Income Security Act (ERISA). In Lewis v. City of Chicago, the Court determined that discrimination charges had been timely filed with the Equal Employment Opportunity Commission (EEOC), allowing the employees to proceed with their race discrimination lawsuit. (For good summaries, see Ross Runkel, here and here.)

A Hooters waitress in Michigan claims that she’s been put on probation and told to lose weight if she wants to keep her job. The server, standing five feet, eight inches, and weighing 132 pounds, says she’s devastated and looking for a lawyer. Hooters says it imposes no weight restriction on its employees. “Our practice of upholding an image standard based on appearance, attitude and fitness for Hooters girls is both legal and fair. It is not unlike the standard used by the Dallas Cowboy Cheerleaders or the Radio City Music Hall Rockettes.”

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In the New York Times article referenced in my immediately preceding post, the new research on performance reviews spills over into the subject of proper supervision in the workplace. Most employment lawsuits have a supervisor or manager at their center. That doesn’t always mean that the supervisor has done something wrong, but many times, it means exactly that. Although HR generally shepherds the performance review process, supervisors and managers make the process work — or not. If a performance review is completed by a bad supervisor, it’s much more likely to get you in trouble than serve any useful purpose.

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Ever asked someone at work, “What’s wrong?” It’s a common question in all parts of life. In the workplace, we’re sometimes reluctant to ask. It may be because we really don’t want to know or fear a long explanation. It may be because we’re afraid we’ll find out something we’re not supposed to know. It may be because we’re just not big on communication.

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According to a female TV reporter in New York, she was sexually harassed by male co-workers and then fired because she complained about it. There was no dispute that a picture of the reporter had been doctored to portray her with cartoonishly blown up, large breasts. The reporter also said she was called “Big Butt Booty” and was on the receiving end of sex jokes. The trial against her employer, a Time Warner-owned cable news channel, lasted two weeks.

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The case of Dukes v. Wal-Mart isn’t new. Filed a decade ago by six women on behalf of all female employees of Wal-Mart, it claims that the company pays women less than men for the same jobs, that female employees receive fewer promotions than men, and that female employees have to wait longer for promotions than men. In a 6-5 decision, the 9th Circuit Court of Appeals has ruled that the case should move forward as a class action. Wal-Mart is likely to appeal to the U.S. Supreme Court.

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Some employers have agreements with their employees that if there’s a dispute, it will be submitted to arbitration. This has always been a matter of controversy, as lawyers who represent employees argue that an employee shouldn’t be forced to give up her right to go into court. Not all employers and their lawyers think that these agreements are necessarily good. Before an employer goes down that path, it should think carefully about all the implications and seek legal counsel.

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The first answer that comes to mind is: You don’t wait. That could be misinterpreted, however, so some explanation is in order. An answer that certainly doesn’t come to mind is: You wait a long time; or You wait for something else to happen; or You wait as long as you like, because it doesn’t matter how long you wait.

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According to a recent NPR report, the Paycheck Fairness Act (click here for summary) is making some progress toward passage in Congress. The Act builds on the Equal Pay Act (passed in 1963 when women earned 59% of men’s wages). To some extent, it would also supplement the Lilly Ledbetter Fair Pay Restoration Act (the first piece of legislation signed by President Obama), although some observers believe that the Ledbetter Act has done little to narrow the gender wage gap.

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In Colwell v Rite Aid Corp., the Third Circuit Court of Appeals might provide a preview of what it’s going to be like under the Americans with Disabilities Act Amendments Act (ADAAA), even though the Colwell case arose before the ADAAA became effective and was decided under the old ADA. In deciding this case, the Third Circuit makes it clear that it is applying the old ADA, not the new ADAAA. However, it seems unlikely that any court can decide a disability discrimination case these days, regardless of whether it was filed before or after the ADAAA’s effective date, without at least subconsciously taking into account that a new day has dawned for disability discrimination cases.

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