Discrimination

EEOC Lawsuit Reminds Employers To Exercise Caution In Planning And Executing Holiday Parties

As the holiday season approaches, it is a good time for employers to review their policies and take preventative measures to ensure festivities do not get out of hand at office holiday parties.  The dangers of blurring the lines between professional conduct and holiday celebrations was demonstrated in a recent case out of the United States District Court for the Eastern District of California.  The lawsuit alleges that following an office holiday party, a managerial employee invited several co-workers to a second location to continue celebrating.  It further alleges that toward the end of the night, the manager and one of his reports ended up alone in the hotel room and the manager sexually assaulted her.

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Can You Hear The Whistle Blowing?: CFTC Releases 2019 Annual Report

The U.S. Securities Exchange Commission (“SEC”) and Commodity Futures Trading Commission (“CFTC”) administer whistleblower claims under the Sarbanes-Oxley Act of 2002. While the SEC has jurisdiction to regulate U.S. securities markets, the CFTC regulates the U.S. derivatives markets, which includes futures, swaps, and certain types of option contracts. In October, the CFTC’s Whistleblower Office (“WBO”) released its 2019 Annual Report (the “Report”) to two congressional subcommittees to provide insights into its whistleblower program and customer education initiatives. The Report provides an overview of the tips received by the WBO from October 1, 2018-September 30, 2019 (the “reporting period”), highlights several of the whistleblower awards from the past year, and discusses the WBO’s efforts to educate stakeholders about its whistleblower program. READ MORE

Can’t We Just Agree?: California Codifies It’s Hostility Towards Arbitration With AB 51.

On October 10, 2019, California Governor Gavin Newsom signed into law Assembly Bill 51 (AB 51) prohibiting mandatory workplace arbitration agreements. AB 51 adds Section 12953 to the Government Code and Section 432.6 to the Labor Code. AB 51 applies to contracts entered into or modified after January 1, 2020. READ MORE

Say What? NLRB Seeks Guidance on Workplace Protections for Profane or Offensive Speech.

As states continue to pass legislation focused on the workplace, employers should be mindful that federal agencies are also continuing to regulate the workplace even in the absence of new federal legislation, especially with respect to when disputes arise regarding compensation and working conditions. Section 7 of the National Labor Relations Act (“Act”) arguably protects an employees’, including non-union employees’, rights to engage in concerted activities, including circumstances where an employee’s profane language or sexually- or racially- offensive speech is legally protected. Following criticism from the judiciary, the National Labor Relations Board (“NLRB”) announced this month it is now seeking input on the scope and applicability of this protection. READ MORE

SCOTUS to Finally Decide if Sexual Orientation and Gender Identity Are Protected by Title VII

On April 22, 2019, the U.S. Supreme Court granted certiorari in a trio of employment discrimination cases for which the Court’s forthcoming rulings—expected to be published by June 2020—could ultimately settle whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation and gender identity. The three cases that the high court agreed to hear are Bostock v. Clayton Cnty. Bd. of Comm’rs, No. 17-1618 (filed May 25, 2018), Altitude Express, Inc. v. Zarda, No. 17-1623 (filed May 29, 2018), and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, et al., No. 18-107 (filed July 20, 2018). The first two cases involve sexual orientation specifically, while the third case pertains to gender identity. READ MORE

Must-See Viewing: NYC Sexual Harassment Video Training Released

The New York City Commission on Human Rights (“NYCCHR”) released its long anticipated model anti-sexual harassment training on April 1, 2019.  The City’s model training satisfies all of the training requirements under both New York State and City laws, although the training is geared to educate viewers as to the broader sexual harassment protections afforded to workers by the New York City laws.  READ MORE

Hut-Hut-Hike: The Second Circuit Tackles Hostile Work Environment Claims Under the ADA

In a case of first impression, the Second Circuit has held that hostile work environment claims are cognizable under the American with Disabilities Act (ADA).  In Fox v. Costco Wholesale Corporation, No.17‐0936‐CV (2d Cir. Mar. 6, 2019), the Second Circuit joined the Fourth, Fifth, Eighth, and Tenth Circuits to recognize this cause of action under the ADA.  The court also provided useful guidance on when teasing may or may not suffice to establish a hostile work environment. READ MORE

Confidentiality Optional: New Jersey Nixes NDAs and Arbitration for Discrimination and Harassment Claims

In the wake of the #MeToo movement, lawmakers nationwide proposed legislation with expressed goals of preventing future sexual harassment scandals. Many proposed bills expired in committee and only a select few became law. New Jersey’s Senate initially proposed S-121 in January 2018. Governor Phil Murphy just signed it into law on March 18, 2019 (full text here). READ MORE

New York City: Employment Actions Based On Hairstyle May Be Unlawful Race Discrimination

On February 18, 2019, the New York City Commission on Human Rights (NYCCHR) announced new enforcement guidance deeming certain actions taken based on an individual’s hair or hairstyle – whether at work, at school, or in public spaces – a form of racial discrimination. READ MORE