Does Discrimination Still Exist? Of Course It Does

This piece by David Sirota in Salon struck a nerve with me. He makes the case that race discrimination still exists. Sad, but it's something that needs to be said over and over. I find the issue of whether any kind of discrimination still exists to be a continuing uphill battle when I represent employees in discrimination cases.

Truth be told, when I started handling employment discrimination matters 25 years ago, I figured I'd do it for a few years, then everyone would know the law and I'd have to find something else to do. Here I am, still handling discrimination cases. Instead of seeing them wane, I find that in some ways discrimination has gotten more blatant over the years.

Discrimination Exists

If you don't believe that discrimination exists, here are some facts that prove my point. Read more in The Huffington Post.



Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!

I'm Nominated to Lexis Nexis Top 25 Blogs!

Wow! Each year, LexisNexis honors a select group of blogs that set the online standard for a given industry.  Screw You Guys, I'm Going Home is one of the nominated candidates for the LexisNexis Top 25 Labor and Employment Law Blogs of 2011, featured on the Labor and Employment Law Community.

I'm incredibly honored to be included with such a great bunch of nominees. Lexis Nexis is inviting Labor and Employment law practitioners to comment on the list of nominees. If you’d like to support my nomination, please comment on the announcement post on the Lexis Nexis Labor and Employment Law Community.  You may click on the badge on the upper right hand of my blog and it will take you right there.

Each comment is counted as a vote toward the supported blog. To submit a comment, you need to log on to your free LexisNexis Communities account.  If you haven’t previously registered, you can do so on the Labor and Employment Law Community for free. The comment box is at the very bottom of the  blog nomination page. The comment period for nominations ends on September 12, 2011.  Lexis Nexis will then post the Top 25 Labor and Employment Law Blogs of 2011. Thereafter, the Lexis Nexis community will vote to choose the Top Blog through a Zoomerang survey. The final announcement will be made around the end of September. 

I'd sure appreciate your support. Good luck to all my fellow nominees!

My Company Is Involved In Illegal Activities. Can I Sue?

If you observe your employer engaging in certain illegal activities, you might be a protected whistleblower if you object to, refuse to participate in, or report the activities. In most cases, reporting illegal activities by fellow employees or supervisors against the company, like embezzlement or theft, won’t be protected. I won’t attempt to make an exhaustive list of every whistleblower statute, but almost all states have some. As a few examples, you’ll be protected if you report the following.

            Discrimination: if you report discrimination based on race, age, sex, religion, national origin, disability, genetic information, pregnancy, or color to HR, your supervisor, or EEOC.

            Safety violations: complaining to OSHA, seeking an OSHA inspection, participating in an OSHA inspection, and participating or testifying in any proceeding related to an OSHA inspection.

            Pollution: reporting pollution under various anti-pollution acts, or participating in or testifying in pollution investigations/proceedings.

            Securities fraud/shareholder fraud: providing information or participating in an investigation with the Securities Exchange Commission.

            Donna’s tips:

a.       Be careful if you’re reporting a coworker or boss ripping off the company, because you’re probably not a whistleblower. You can be fired if the company doesn’t like what you have to say. I’ve even seen employees accused of not reporting this type of behavior quickly enough.

b.      If you think something illegal is happening, look up the laws that apply and make sure you’re going to be protected before you report it.

c.       Sometimes to be protected you have to report the illegal activity to a government agency. Make sure you report it correctly so you’re covered.

If The Office Is Closed Due To A Hurricane, Am I Entitled To Be Paid?

With Hurricane Irene bearing down on the East Coast, I thought it would be important to address what the employer's obligations are if they close the office due to a natural disaster. Whether an employee is entitled to be paid when the office is closed depends on whether they are "exempt" salaried or not.

If an employee is salaried, it doesn't necessarily mean they are "exempt" from the requirements of the Fair Labor Standards Act. A federal regulation deals with this and other types of missed work for salaried exempt workers. Read more on AOL Jobs.




Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!

Employment Law Blog Carnival: Kindergarten Edition

The latest Employment Law Blog Carnival came out, hosted by the Ohio Employer's Law Blog. The theme? All I Really Need To Know About Employment Law I Learned in Kindergarten. Check out the latest and greatest blog posts by employment lawyers and HR people around the country. I'm there, as are many of my favorite blogs.

I Was Treated Differently From My Coworkers. Can I Sue For Discrimination?

            Most suits for non-harassment discrimination fall within the category of “disparate treatment.”  This means that you were treated differently than similarly situated employees under the same circumstances. You will have to prove:

            1.         You were in a protected category. These categories are race, age, sex, religion, national origin, pregnancy, color (meaning shade), genetic information and disability. Some states have other categories, such as marital status or sexual orientation.

            2.         You were treated differently than someone else in a different category under the same circumstances, or you were turned down for a position or promotion you were qualified for and it was given to a less qualified person.

            3.         You complied with the administrative requirements of filing with the correct agency.

            Your employer will have to come up with a so-called “legitimate reason” for the action they took. This doesn’t have to be a good reason, just one that might be motivated by something other than discrimination.

            Then, you’ll have to prove that the “legitimate reason” was really pretextual, and the real reason was discrimination. In the case of age discrimination, you’ll have to prove it was the only reason.

Donna’s tips:

a.       If your company is starting to document discipline on you, then keep good records of why their accusations aren’t correct.

b.      If you’re keeping notes, records or other documentation of discrimination, keep it in your purse or your pocket and take it home. Don’t leave it in a desk drawer. If you are fired, the company will keep it.

c.       Don’t assume your friends and coworkers will tell the truth. Most people will lie to save their jobs. Rely on your own documentation as much as possible.

Boss Boinking Coworker, Playing Favorites? Too Bad, Say Courts

            Say you have a coworker, Don Dashing. He’s an idiot. A screw up. Yet he keeps getting promotions, the best leads, the best shifts. Your female boss, Dahlia Desperate, clearly plays favorites. You have your suspicions, and one day you walk in on Don and Dahlia doing the horizontal bop on Dahlia’s desk. Aha! you cry. Suspicion confirmed! You run to Human Resources and file a sexual harassment complaint.

            You tell them that Don got the promotion you were most qualified for. Dahlia never hit on you, but if she had, and you’d been the one lighting up Dahlia’s life, you’d have gotten the job. Sexual harassment. Clear and simple. If you’d had sex with Dahlia, you’d have the job.

            The HR lady looks concerned. She’ll investigate immediately. You’re fired the next day.

            Should you start shopping for beachfront property? Did you just win the lottery? Nope. You probably lose. Here’s why.

            Cases like this one are called sexual favoritism. The courts say that the boss can favor someone they’re having sex with. In most cases, sexual favoritism is perfectly legal.

            Ron Miller, of the Wolters Kluwer blog, recently posted about two new sexual favoritism cases. In one, Zimpher v. Aramark Management Services, our employee hero walked in on his boss’s afternoon delight with a coworker. He reported it and was fired. The court said that, because what happened wasn’t sexual harassment, when he reported it he wasn’t protected from retaliation. Why wasn’t it sexual harassment or sex discrimination? Because the conduct he reported wasn’t directed at him or his status as a man. (Had he filed with EEOC, he’d have been protected from retaliation, even though he’d have had no basis for filing the charge of discrimination, but that’s another ridiculous part of employment law I’ll save for another post).

            In the other recent case, a woman complained about a sexual relationship in the workplace and was also retaliated against. Too bad, said the court. Since the affair and favoritism affected everyone, no matter their sex, it wasn’t sexual harassment. Because it wasn’t sexual harassment, she wasn’t protected from retaliation.

            This isn’t to say that all sexual favoritism is legal. The EEOC has issued a Policy Guidance (that the Courts can ignore if they want to) saying when it thinks sexual favoritism crosses the line. To summarize:

o   Boss plays favorites with consensual lover: legal;

o   Boss plays favorites with lover who was bullied into the relationship in exchange for favoritism: may be sexual harassment for other employees of the same gender as the lover;

o   Favoritism based on sexual favors in the workplace is widespread: may be sexual harassment for other employees of both genders.

o   Isolated instances of sexual favoritism: legal.

But, you argue, treating women (or men) as sexual playthings is discrimination, isn’t it? It’s demeaning to their gender. If the women who boink their supervisors get promoted, doesn’t that send the message to other women that sex is the only way to get ahead in the workplace? Yep. I agree. So far, many courts don’t agree. I won’t get into the legalese on this, but I can direct you to an excellent law review article on the topic if you want more information. Basically, it comes down to what state you live in. For instance, if you’re in California then some sexual favoritism is illegal. In my home state, Florida, it probably is not.

Sexual harassment cases are getting harder and harder to win (again, I’ll save it for another post). If you report something you think is sexual harassment to HR and it turns out not to have been sexual harassment, the employer is allowed to retaliate. If you fail to report sexual harassment and go straight to EEOC instead, your employer has a complete defense to your sexual harassment lawsuit. Catch-22 personified.

There oughta be a law . . .

H-1B Workers Have Rights Too

Over at Ask A Manager, Mike C. asked me this excellent question:

In my experience in the biotech industry, it always feels like the H1-B folks are indentured servants who are constantly afraid of being fired and deported. They’re generally expected to work for longer hours and seem to get less pay for their work.
What sorts of practices are legal/gray area/illegal regarding the treatment of H1-B visa holders? If I see illegal practices, who should they report complaints to?
Thanks for your consideration!

            Just because you’re here on a visa doesn’t mean you have no rights. The Immigration and Nationality Act gives workers who are here on work visas, and U.S. workers employed by an H-1B dependent employer, certain rights.

            H-1B workers have rights which include:

·         Copy of the Labor Condition Application: In this application, the employer must agree to pay the nonimmigrant workers at least the local prevailing wage or the employer's actual wage, whichever is higher; pay for non-productive time in certain circumstances; offer benefits on the same basis as for U.S. workers; provide working conditions for immigrant workers that will not adversely affect the working conditions of workers similarly employed; not employ an immigrant worker at a location where a strike or lockout in the occupational classification is occurring; notify the agency handling the visa applications of any future strike or lockout; and within 30 days before the date the application is filed, provide notice to the bargaining representative or employees of the employer's intent to hire H-1B, H-1B1, or E-3 workers.

·         Wages: The employer has to pay at least the same wage rate paid to similar US employees or the prevailing wage for the occupation, whichever is higher.

·         Non-productive time: If the employee can’t work due to the employer’s or worker’s lack of a license or permit, they still have to be paid for their time.

·         Fringe benefits: They must receive benefits on the same basis as other employees.

·         Penalties: There can be no penalty for leaving employment before an agreed date, but there can be “liquidated damages” under relevant state law for anticipated damages due to a breach of contract.

·         Rights as employees: Immigrant employees have the same federal, state and local rights as all employees under laws such as the Fair Labor Standards Act, Family and Medical Leave Act, Title VII (except they can’t bump an equally or better qualified U.S. worker from a job), COBRA, and other employment laws.

U.S. workers and applicants have rights if their employers also employ H-1B employees, which include:

·         Layoffs: They can’t be laid off within 90 days before or after the employer files a petition to employ an H-1B worker in an equivalent job.

·         Hiring priority: The employer must offer the job to any U.S. worker who applies and is equally or better qualified than the immigrant worker.

·         Wages: They must be paid wages at least equal to any H-1B worker in the same or equivalent position with similar experience.

            Both U.S. and immigrant workers have these rights:

·         Retaliation: Employers cannot intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any employee, former employee, or job applicant for disclosing violations of H-1B, H-1B1, or E-3 provisions or for cooperating in an official investigation of the employer's compliance.

·         Examine records: All employees have the right to examine the employer’s records that they are require to maintain regarding their compliance with the law.

            The Department of Labor has a detailed fact sheet about employer responsibilities, employee rights and penalties here. The Department of Justice enforces violations, and penalties can be severe.

What Can I Get If I Win A Case Against My Employer?

Most employment cases aren't going to be those big headline multi-million dollar awards. Usually, if you're lucky, you might recover lost wages and benefits. Very few cases result in big money for the former employee, so don't assume you have a winning lottery ticket as soon as a coworker makes a racist or sexist comment.

Damages are the monetary value of the losses that a judge or jury awards to you if you win a lawsuit. They have to have been reasonably foreseeable, and not speculative. Compensatory damages are those that compensate for the actual loss. Punitive damages are those which punish someone who commits an intentional tort to act as a deterrent to future such behavior.

In employment, different types of cases can result in different types of damages. Here are some of the types of damages you might see awarded:

Read more on AOL Jobs.



Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!