Seventh Circuit Opinion Highlights Importance of Proactively Addressing and Documenting Employee Performance

Every employer has faced the unfortunate experience of hiring an employee whose performance fell well below expectation. As highlighted in the Seventh Circuit’s recent Ferrill v. Oak Creek-Franklin Joint School District decision, employers faced with poor performing employees should carefully address and document such shortcomings to ward off potential Title VII charges. More ›

Delaware Follows Trend of Banning Compensation History Inquiries in Effort to Reduce the Gender Pay Gap

In a developing trend, Delaware followed Massachusetts, Oregon, New York City and Philadelphia, in enacting legislation directed at ensuring equal wages between genders.  On June 14, 2017, Governor John Carney signed legislation, which prohibits prospective employers from asking job applicants about their salary history.  The reasoning behind these laws is that wage disparities are perpetuated when current pay is based on past salary decisions that may have been based on gender.  Rather, employers are encouraged by these new laws to assess potential pay based solely on merit, experience of the job applicant and the market rates. More ›

The Seventh Circuit Clarifies Evidentiary Standards in Employment Discrimination Cases

In Ortiz v. Werner Enterprises, Inc., the Seventh Circuit stated in very clear terms that lower courts and parties to discrimination actions should not divide evidence into direct and circumstantial buckets under the familiar direct and indirect methods of proving discrimination under Title VII of the Civil Rights Act of 1964. The Court’s instruction should apply with equal force to claims brought under the Age Discrimination and Employment Act and the Americans with Disabilities Act. More ›

The Writing is on the Wall, Yet Seventh Circuit Holds Sexual Orientation Is Not a Protected Class Under Title VII

Earlier this week, the Seventh Circuit Court of Appeals held in Hively v. Ivy Tech Community College that Title VII does not protect employees or offer redress for discrimination based on sexual orientation.  As a result, discrimination against an employee based solely on sexual orientation is not prohibited by federal law, while discrimination against an employee based on gender non-conformity claims is prohibited. More ›

SCOTUS Aligns Application of Statute of Limitations in Constructive Discharge and Actual Discharge Cases

The U.S. Supreme Court held in Green v. Brennan that the statute of limitations for a constructive discharge begins to run on the date of resignation, not the date of the employer’s last discriminatory act, resolving a circuit split. As a result, in determining the deadline for filing a charge of discrimination with the EEOC, constructive discharge cases will be treated the same way as actual discharge cases. More ›

Where Do I Pee? "The Bathroom Corresponding to Your Gender Identity" Says the EEOC

Bathroom use by transgender individuals is today’s hot-button civil rights issue. The often strong and disparate opinions about the subject creates a conundrum for employers: How do we make everyone comfortable while ensuring a safe and inclusive environment? And how do we do that without violating the law? More ›

NY Transit Agencies Escape Vicarious Liability for Contractors Alleged Discrimination

It is not uncommon for companies to contract their daily business operations to third-party companies. In Motta et al v. Global Contact Services, Inc., the court addressed whether such relationships relieve the outsourcing company of any duties to address discrimination or harassment in the workplace. More ›

EEOC’s Updated Retaliation Enforcement Guidance Seeks to Expand the Reach of its Anti-Retaliation Laws

Effectively responding to employee discrimination complaints by current employees without running afoul of federal and state anti-retaliation laws presents a slippery slope for all employers. In fact, retaliation complaints make up nearly half of all discrimination charges filed with the EEOC today. Thus, it is critical that employers, their managers, supervisors, and employees understand who the laws protect and what constitutes retaliation.

On Thursday the EEOC sought to clarify these standards by issuing updated proposed enforcement guidance. The proposal is the first update to the EEOC’s Compliance Manual since 1998. The proposal was prompted by significant developments in the law and the marked increase of retaliation claims over the last eighteen years.

The 76-page proposal covers the definition of retaliation, the elements of a retaliation claim, interference claims under the Americans with Disabilities Act, remedies, and best practices.  Rather than summarize all of the above, I will highlight the most significant developments below. More ›

Security Guard Terminated After Incident with Psychiatric Patient Cannot Advance Discrimination Claims

The Sixth Circuit recently upheld a Michigan district court's decision to dismiss a 52-year-old African-American female security guard's age, race, and sex discrimination claims arising from her discharge following an incident with a combative psychiatric patient at the hospital where she worked. More ›

Sixth Circuit: No Gender Bias in Wage Difference between Male and Female Counterparts

In this case, the employee began working with the auto parts manufacturer when she was a student. After she graduated, she was hired as a test engineer with the same starting salary as the other engineering graduates. More ›