Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Thursday, July 28, 2022

Did A Computer Reject Your Job Application? You May Have A Disability Discrimination Claim

 Some large employers have left their hiring, promotion, and firing decisions up to computers instead of real humans. And while that may be more efficient, it may also be causing them to reject disabled applicants. EEOC has issued a guidance on The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees. The guidance provides examples of when computers can cause disability discrimination.

EEOC lists some types of employment screening tools that employer use which could cause disability discrimination. These include "resume scanners that prioritize applications using certain keywords; employee monitoring software that rates employees on the basis of their keystrokes or other factors; “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements; video interviewing software that evaluates candidates based on their facial expressions and speech patterns; and testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test."

Per EEOC, the most common ways that an employer’s use of these decision-making tools could violate the ADA are:
The employer does not provide a “reasonable accommodation” that is necessary for a job applicant or employee to be rated fairly and accurately by the algorithm. 
The employer relies on an algorithmic decision-making tool that intentionally or unintentionally “screens out” an individual with a disability, even though that individual is able to do the job with a reasonable accommodation. “Screen out” occurs when a disability prevents a job applicant or employee from meeting—or lowers their performance on—a selection criterion, and the applicant or employee loses a job opportunity as a result. A disability could have this effect by, for example, reducing the accuracy of the assessment, creating special circumstances that have not been taken into account, or preventing the individual from participating in the assessment altogether.
The employer adopts an algorithmic decision-making tool for use with its job applicants or employees that violates the ADA’s restrictions on disability-related inquiries and medical examinations.

EEOC provides multiple examples of how these violations might occur:

  • [A] job applicant who has limited manual dexterity because of a disability may report that they would have difficulty taking a knowledge test that requires the use of a keyboard, trackpad, or other manual input device. Especially if the responses are timed, this kind of test will not accurately measure this particular applicant’s knowledge. In this situation, the employer would need to provide an accessible version of the test (for example, one in which the applicant is able to provide responses orally, rather than manually) as a reasonable accommodation, unless doing so would cause undue hardship. If it is not possible to make the test accessible, the ADA requires the employer to consider providing an alternative test of the applicant’s knowledge as a reasonable accommodation, barring undue hardship.
  • An example of screen out might involve a chatbot, which is software designed to engage in communications online and through texts and emails. A chatbot might be programmed with a simple algorithm that rejects all applicants who, during the course of their “conversation” with the chatbot, indicate that they have significant gaps in their employment history. If a particular applicant had a gap in employment, and if the gap had been caused by a disability (for example, if the individual needed to stop working to undergo treatment), then the chatbot may function to screen out that person because of the disability.
  • Another kind of screen out may occur if a person’s disability prevents the algorithmic decision-making tool from measuring what it is intended to measure. For example, video interviewing software that analyzes applicants’ speech patterns in order to reach conclusions about their ability to solve problems is not likely to score an applicant fairly if the applicant has a speech impediment that causes significant differences in speech patterns. If such an applicant is rejected because the applicant’s speech impediment resulted in a low or unacceptable rating, the applicant may effectively have been screened out because of the speech impediment.
  • [S]ome employers rely on “gamified” tests, which use video games to measure abilities, personality traits, and other qualities, to assess applicants and employees. If a business requires a 90 percent score on a gamified assessment of memory, an applicant who is blind and therefore cannot play these particular games would not be able to score 90 percent on the assessment and would be rejected. But the applicant still might have a very good memory and be perfectly able to perform the essential functions of a job that requires a good memory.
  • [S]ome pre-employment personality tests are designed to look for candidates who are similar to the employer’s most successful employees—employees who most likely work under conditions that are typical for that employer. Someone who has Posttraumatic Stress Disorder (“PTSD”) might be rated poorly by one of these tests if the test measures a trait that may be affected by that particular individual’s PTSD, such as the ability to ignore distractions. Even if the test is generally valid and accurately predicts that this individual would have difficulty handling distractions under typical working conditions, it might not accurately predict whether the individual still would experience those same difficulties under modified working conditions—specifically, conditions in which the employer provides required on-the-job reasonable accommodations such as a quiet workstation or permission to use noise-cancelling headphones. If such a person were to apply for the job and be screened out because of a low score on the distraction test, the screen out may be unlawful under the ADA. Some individuals who may test poorly in certain areas due to a medical condition may not even need a reasonable accommodation to perform a job successfully.
  • [S]uppose that an employer uses an algorithm to evaluate its employees’ productivity, and the algorithm takes into account the employee’s average number of keystrokes per minute. If the employer does not inform its employees that it is using this algorithm, an employee who is blind or has a visual impairment and who uses voice recognition software instead of a keyboard may be rated poorly and lose out on a promotion or other job opportunity as a result. If the employer informs its employees that they will be assessed partly on the basis of keyboard usage, however, that same employee would know to request an alternative means of measuring productivity—perhaps one that takes into account the use of voice recognition software rather than keystrokes—as a reasonable accommodation.
  • [I]f a personality test asks questions about optimism, and if someone with Major Depressive Disorder (“MDD”) answers those questions negatively and loses an employment opportunity as a result, the test may “screen out” the applicant because of MDD.

EEOC has some specific suggestions to help you assure you're being assessed fairly:
If you have a medical condition that you think might qualify as an ADA disability and that could negatively affect the results of an evaluation performed by algorithmic decision-making tools, you may want to begin by asking for details about the employer’s use of such tools to determine if it might pose any problems related to your disability. If so, you may want to ask for a reasonable accommodation that allows you to compete on equal footing with other applicants or employees.

For example, if an employer’s hiring process includes a test, you may wish to ask for an accessible format or an alternative test that measures your ability to do the job in a way that is not affected by your disability. To request a reasonable accommodation, you need to notify an employer representative or official (for example, someone in Human Resources) or, if the employer is contracting with a software vendor, the vendor’s representative or the employer, that you have a medical condition, and that you need something changed because of the medical condition to ensure that your abilities are evaluated accurately.

Note that if your disability and need for accommodation are not obvious or already known, you may be asked to submit some medical documentation in support of your request for accommodation. To find out more about asking for reasonable accommodations, see Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada.

If you only discover that an algorithmic decision-making tool poses a problem due to your disability after the evaluation process is underway, you should notify the employer or software vendor as soon as you are aware of the problem and ask to be evaluated in a way that accurately reflects your ability to do the job, with a reasonable accommodation if one is legally required.

If you have already received a poor rating generated by an employer’s use of an algorithmic decision-making tool, you should think about whether your health condition might have prevented you from achieving a higher rating. For example, might a disability have negatively affected the results of an assessment, or made it impossible for you to complete an assessment? If so, you could contact the employer or software vendor immediately, explain the disability-related problem, and ask to be reassessed using a different format or test, or to explain how you could perform at a high level despite your performance on the test.

If you have a disability and are getting rejected by computers, or if you are  being assessed by means that include computer algorithms, then you might consider contacting an employee-side employment attorney to find out about your rights.

Thursday, July 21, 2022

Some Cool New Laws Pending In Congress That Will Help Employees If Passed

 It isn't all bad news out there. Some bills pending in Congress look hopeful for employees. Of course, they probably won't get through the deadlocked Senate, but hey, let's be optimistic. If you think these bills should become law, call your Senators and members of Congress.

Here are some of the pro-worker bills pending and the descriptions their sponsors have given them:

S.505 - Forced Arbitration Injustice Repeal Act - This bill prohibits a predispute arbitration agreement from being valid or enforceable if it requires arbitration of an employment, consumer, antitrust, or civil rights dispute.

S.3641 - Part-Time Worker Bill of Rights Act - This bill modifies various employment, leave, and pension rules with respect to part-time workers. Specifically, the bill removes the requirement that employees work a minimum number of hours during the preceding 12-month period before becoming eligible for family and medical leave.

The bill also sets the maximum length of service on which employers may condition the eligibility of part-time employees for a qualified pension plan (e.g., 401(k) retirement plan). Except as required by an applicable collective bargaining agreement, such service requirement may be no longer than two consecutive 12-month periods of at least 500 hours of service for part-time employees who have reached the age of 21 by the end of such period.

The bill further prohibits employers of more than 15 employees from setting disparate terms of employment or working conditions for part-time employees, including with respect to compensation, notice of work hours, and promotion opportunities. Additionally, the bill requires such employers to offer available, qualified part-time employees additional work hours before hiring new employees for such hours. Among other enforcement methods, employers must maintain three years of records for offers of additional hours and employee responses to such offers. The bill also provides a private right of action for employees to enforce the nondiscrimination requirements of this bill.

S.3642 - Schedules That Work Act - This bill provides employees with the right to request changes to their work schedules related to the number of hours they are required to work or be on call, the location of the work, the amount of notification about work schedule assignments, and fluctuations in work hours.

Employers must negotiate in good faith with employees who make such requests and comply with certain work schedule notice and split shift pay requirements for retail, food service, cleaning, hospitality, or warehouse employees.

H.R.6762 - Special Inspector General for Law Enforcement Act - there is no description by the sponsor yet, but this would provide whistleblower protections for law enforcement employees who report wrongdoing by colleagues, ending the blue wall of silence.

H.R.7489 - Time Off to Vote Act - This bill requires an employer, upon the request of an employee, to provide the employee with a minimum of two consecutive hours of paid leave in order to vote in a federal election.

The employer may determine the two-hour period, excluding any lunch break or other break.

Taking such leave shall not result in the employee losing accrued employment benefits.

The bill makes it unlawful for an employer to interfere with the right to take such leave or for an employer to discriminate against an employee for taking such leave. Further, the bill makes it unlawful for any employer to retaliate against an employee for (1) opposing any practice made unlawful by this bill; (2) filing a charge, or instituting or causing to be instituted any proceeding, under or related to this bill; or (3) testifying or preparing to testify in an inquiry or proceeding relating to such leave.

The bill specifies penalties for employers who violate these provisions.

H.R.2243 - Fair Pay Act of 2021 - This bill requires employers to provide equal pay to employees for comparable or equivalent work.

Specifically, employers may not discriminate against employees on the basis of sex, race, or national origin with respect to payment of wages or other conditions of employment for jobs that, although dissimilar, the requirements of which are equivalent, when viewed as a composite of skills, effort, responsibility, and working conditions. However, employers may pay different wages in accordance with seniority systems, merit systems, systems that measure earnings by quantity or quality of production, or factors that the employer demonstrates are reasonably job-related, or further legitimate business interests. The bill allows compensatory or punitive damages for violations of this prohibition.

The bill prohibits an employer from (1) discriminating against any individual who opposes any act or practice made illegal by this bill or for assisting in an investigation, or (2) discharging or discriminating against any employee who inquires about or discusses another employee's wages.

The Equal Employment Opportunity Commission must assist employers, labor organizations, and the general public in implementing these provisions.

S.2390 - Support Through Loss Act - This bill provides employees with 24 hours of paid leave time each year for an absence resulting from a pregnancy loss or other specified circumstance related to pregnancy, fertility, or an unsuccessful assisted reproductive procedure or adoption match.

Employers must notify each employee about the availability of this paid leave and may not discriminate or discharge an employee for exercising or attempting to exercise the right to such paid leave.

The bill provides for enforcement of this requirement by the Department of Labor and through civil action brought by an employee or individual.

Further, the bill requires specified federal agencies to conduct research and publish information about pregnancy loss and related evidence-based treatment options.

H.R.1065 - Pregnant Workers Fairness Act - This bill prohibits employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions. A qualified employee is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position, with specified exceptions.

Specifically, the bill declares that it is an unlawful employment practice tofail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity's business operation;
require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

The bill sets forth enforcement procedures and remedies that cover different types of employees in relation to such unlawful employment practices.

H.R.3610 - Flexibility for Working Families Act - This bill allows an employee to request from an employer a temporary or permanent change in the terms or conditions of the employee's employment if the request relates to (1) the number of hours the employee is required to work, (2) the times when the employee is required to work or be on call for work, (3) where the employee is required to work, or (4) the amount of notification the employee receives of work schedule assignments. The bill sets forth certain employer duties with respect to such requests.

The bill prohibits an employer from interfering with any rights provided to an employee under this bill. An employee may file a complaint with the Department of Labor for any violations of such rights. Labor shall investigate and attempt to resolve such complaints and may issue orders making determinations and assessing civil penalties or awarding relief for alleged violations. The bill provides for judicial review of such orders, including in federal courts of appeal.

Labor and certain federal agencies and offices shall provide information and technical assistance to employers, labor organizations, and the general public regarding compliance with this bill.

The Wage and Hour Division of Labor must issue guidance on compliance with providing a flexible work environment through changes in employee terms and conditions of employment as provided in this bill.

The requirements of this bill are applicable to certain classes of employees, including employees of the Government Accountability Office and the Library of Congress.The Equal Employment Opportunity Commission must provide examples of reasonable accommodations that shall be provided to affected employees unless the employer can demonstrate that doing so would impose an undue hardship.

The bill prohibits state immunity under the Eleventh Amendment to the Constitution from an action for a violation of this bill.

H.R.842 - Protecting the Right to Organize Act - This bill expands various labor protections related to employees' rights to organize and collectively bargain in the workplace.

Among other things, it (1) revises the definitions of employee, supervisor, and employer to broaden the scope of individuals covered by the fair labor standards; (2) permits labor organizations to encourage participation of union members in strikes initiated by employees represented by a different labor organization (i.e., secondary strikes); and (3) prohibits employers from bringing claims against unions that conduct such secondary strikes.

The bill also allows collective bargaining agreements to require all employees represented by the bargaining unit to contribute fees to the labor organization for the cost of such representation, notwithstanding a state law to the contrary; and expands unfair labor practices to include prohibitions against replacement of, or discrimination against, workers who participate in strikes.

The bill makes it an unfair labor practice to require or coerce employees to attend employer meetings designed to discourage union membership and prohibits employers from entering into agreements with employees under which employees waive the right to pursue or a join collective or class-action litigation.

The bill further prohibits employers from taking adverse actions against an employee, including employees with management responsibilities, in response to that employee participating in protected activities related to the enforcement of the prohibitions against unfair labor practices (i.e., whistleblower protections). Such protected activities includeproviding information about a potential violation to an enforcement agency,
participating in an enforcement proceeding,
initiating a proceeding concerning an alleged violation or assisting in such a proceeding, or
refusing to participate in an activity the employee reasonably believes is a violation of labor laws.

Finally, the bill addresses the procedures for union representation elections, provides employees with the ability to vote in such elections remotely by telephone or the internet, modifies the protections against unfair labor practices that result in serious economic harm, and establishes penalties and permits injunctive relief against entities that fail to comply with National Labor Relations Board orders.

This is only a sampling of pro-employee laws that could be passed and that are pending right now. It isn't that we don't know how to protect employees. It's that we don't. Talk to your elected officials about these pro-employee laws, and vote well in November and beyond.

Thursday, July 14, 2022

Department Of Labor Gives Examples of Illegal Retaliation

The U.S. Department of Labor has provided a guidance that gives specific examples of what constitutes illegal retaliation. The complete guidance is here. Some specific examples they provided are:

Example 1: Employee calls WHD about overtime. 

Nelson works as a cook at a restaurant and contacts WHD confidentially to inquire about overtime pay. Nelson tells another cook what he learned from WHD and his co-worker tells someone on the wait staff. Later that day their manager overhears two wait staff talking about the call and terminates Nelson’s employment. In this scenario, terminating Nelson’s employment because he contacted WHD (or was suspected of contacting WHD) would be prohibited. WHD may investigate or Nelson may file a private cause of action seeking appropriate remedies, including, but not limited to, reinstatement, lost wages, and liquidated damages. 

Example 2: Employee asks for additional break time to express breast milk. 

Aisha is a new mother who works for a call center. She uses her lunch break to express breast milk and needs additional time to finish pumping before she is able to return calls at her work station. Her boss complains when she is late returning from lunch and tells her she cannot use any time beyond her meal break for “personal stuff.” When Aisha asks if she has a right to take another break for pumping later in the day, her boss sends her home for the rest of her shift without pay. In this scenario, Aisha was sent home for attempting to exercise her rights under the FLSA. After investigating, WHD, in addition to requiring the employer to provide the requisite time and space for nursing mothers in compliance with the law, determines Aisha may also be entitled to back pay and liquidated damages for wages she lost when her boss sent her home in retaliation for requesting a break. 

Example: Worker penalized for using FMLA leave to care for child. 

Jaime takes approved FMLA leave to care for his seven-year-old daughter when she is in the hospital overnight and recovering from surgery. Jaime returns to work as scheduled but receives three negative attendance points for the days he used FMLA leave. Under his employer’s no fault attendance plan, employees are allocated points for every absence from work, regardless of the reason for the absence. Employees are disciplined when they accrue a set number of points, and employees who accrue more than ten points in a calendar year may be terminated. 2 A state employee’s private right of action may be limited by the sovereign immunity provision of the Eleventh Amendment. Id. 6 In this scenario, assigning attendance points to Jaime’s FMLA-protected leave days would be prohibited. Under the FMLA’s anti-retaliation provisions, an employer may not use the taking of FMLA leave as a negative factor in employment actions and may not count FMLA leave days under no fault attendance policies. In an investigation, WHD would require that the employer remove the attendance points from Jaime’s employment record for the days he used FMLA leave to care for his daughter. 

Example: Employee returns to work and her hours are cut in half. 

Deborah used FMLA leave from her job as a front desk clerk at a hotel when she suffered from migraine headaches that made it impossible for her to work. She was approved for FMLA leave and used it for three days in January and one day in February. In April, she had another episode, and used FMLA leave for two days. When she returned to work her new manager reduced her schedule from 40 hours to 20 hours a week saying they need workers who will show up every day. WHD completes an investigation and requires the hotel to return Deborah to her previous schedule and pay her for an additional 20 hours a week in wages for the duration of the period she worked the reduced schedule. WHD also requires the employer to pay Deborah an amount equivalent to her lost wages in liquidated damages. 

Example: WHD investigates and employer fires crew of agricultural workers. 

An employer houses 15 migrant agricultural workers in housing that is determined to be substandard. Workers sleep on the floor, have no electricity, use water from a garden hose, and have one hotplate for cooking that is shared among all of the workers. After a WHD investigator arrives at the location unannounced to inspect the housing conditions and interview workers, the employer fires all 15 workers because, “We don’t want any whiners on the team.” The employer does not pay the workers for their final week of work. In this scenario, WHD may pursue back pay, and reinstatement of employment for every worker, and civil money penalty assessments against the employer.

Example: Worker threatened with deportation. 

An employer participating in the H-1B visa program hired seven workers with H-1B visas to provide occupational, physical, and speech therapy services to patients in their homes. The employer deducted a monthly sponsorship fee from the pay of each worker with an H-1B visa. The employer required the workers to sign a form declaring that the deductions were for recouping personal loans it purportedly gave to the workers. When one worker refused to sign the document, the employer threatened him with deportation, criminal perjury, and threats of physical violence against his family in his home country. In this scenario, WHD may pursue back wages for the illegal deduction, civil money penalties against the employer for the retaliation, debarment from the H-1B program for two years, and other appropriate legal or equitable remedies. WHD also may, potentially, make a referral to the U.S. Department of Justice, Civil Rights Division, Immigrant and Employee Rights Section.2F 3

Example: Supervisor lies about employee’s performance history because of WHD interview. 

Charlotte is an employee at a vehicle assembly plant where WHD conducts an LVC compliance verification under the USMCA. She was instructed by her immediate supervisor to tell WHD representatives that she earns $16 an hour despite the fact that she actually earns $13.50 an hour. After the WHD representatives leave the worksite, Charlotte’s supervisor asks her what she said to WHD representatives. When Charlotte states that she told the truth, the supervisor fabricates a story of insubordination that results in the termination of Charlotte’s employment. Charlotte had no prior occurrences of corrective action and was otherwise in good standing with her employer. In this scenario, after investigating and verifying that Charlotte was retaliated against for cooperating with a WHD investigation, WHD may pursue lost wages, reinstatement, and the assessment of a civil money penalty.

Example: Federal contract worker’s promotion denied after they inquire about sick leave. 

Bernard works on a federal contract covered by EO 13706. He is a supervisor of maintenance services at a national park and is about to be promoted. When Bernard emails his employer, the contractor, asking about the availability of paid sick leave to attend his spouse’s upcoming medical appointments, his planned promotion is cancelled and he is rescheduled from working weekdays only to weekdays and weekend shifts. When Bernard asks about the changes, his manager states the changes were made so that he would have fewer responsibilities at work and more time available to help with his wife’s health care. A representative for the national park (the contracting agency) who communicates with Bernard about work orders during the week, contacts WHD on Bernard’s behalf. In this scenario, WHD may investigate to determine whether the maintenance contractor has violated the anti-retaliation provisions of the EO and its regulations. The employer may be required to grant Bernard the promotion and return him to his previous work schedule and duties. He may also receive back wages to compensate for any difference in wages received compared to the wages he would have received if the retaliatory actions had not occurred. 

Example: Contract worker asks about deductions from pay and is denied bonus.

Geri is a crewmember working on the construction of a new post office building for a federal contractor covered by EO 14026. Geri asks her company payroll department about deductions from her paycheck that may bring her earnings below $15.00 per hour. The payroll department refers her question to a corporate officer of the company who directs the payroll department to cancel Geri’s quarterly performance bonus. In this scenario, a retaliatory denial of the bonus would be prohibited by EO 14026. WHD may investigate, determine the employer violated the EO, and require payment of the bonus and other wages that may be due if the deductions were improperly made.

These are just a few examples they provide for retaliation. The agency also describes retaliation in general:

Retaliation occurs when an employer, including through a manager, supervisor, administrator or other agent, takes an adverse action against an employee because they engaged in a protected activity.

 Examples of protected activity include making a complaint to a manager, employer, or WHD; cooperating with a WHD investigation; requesting payment of wages; refusing to return back wages to the employer; complaints by a third party on behalf of an employee; consulting with WHD staff; exercising rights or attempting to exercise rights, such as requesting certain types of leave; and testifying at trial. 

Under many of the statutes enforced by WHD, an employee can be protected from retaliation even if the employee’s complaint to the employer or WHD is based on a mistaken belief that the employee’s rights have been violated. For example, if a worker believes, and so tells an employer, that he is owed overtime pay for the hours he worked, the worker has engaged in a protected activity, even if the worker’s belief that he is due overtime turns out to be mistaken because he has been correctly paid. 

An adverse action is any action that could dissuade an employee from raising a concern about a possible violation or engaging in other protected activity, such as filing a complaint or cooperating in a WHD investigation. An adverse action taken by an employer can take many forms, including termination; confiscating a worker’s passport or other immigration documents; disciplinary actions; threats to employees, their families or co-workers; reduction of work hours or rate of pay; shift changes or elimination of premium pay; blacklisting; and demotion. Adverse actions can be subtle, such as excluding an employee from a regularly scheduled meeting, or overt, such as intimidating employees to return back wages found due (“kickbacks”), threatening an employee with deportation, or terminating an employee. 

Bottom line: If you think you've been retaliated against for objecting to something illegal your employer did, for contacting a government agency, or for taking protected medical leave, you should talk to an employment lawyer in your state about your rights. 


Thursday, July 7, 2022

Does The First Amendment Mean Anti-Harassment Policies Are Illegal? Florida Court Says Yes

 In a what-the-frack moment, I took a look at what seems to be an opinion that has no relation to employment law, and realized that it has far-reaching implications. The 11th Circuit has ruled that the University of Central Florida's anti-harassment policy that applies to students violates the First Amendment.

Now, granted, as I've said before, the First Amendment only applies to governments. UCF is a government-run school. So this issue will only apply to governments. But it also seems to apply to anti-harassment policies that government employers might try to impose. And it might apply to other anti-harassment policies because of the way the Court analyzed the policy.

The issue was a student who wanted to say stuff like, "abortion is immoral," "government should not be able to force religious organizations to recognize marriages with whihc they disagree," "affirmative action is deeply unfair," and "a man cannot become a woman because he 'feels like one.'" The student said he was afraid to speak up because he might be disciplined under the university's discriminatory harassment policy, which prohibited harassment based on race, color, ethnicity, national origin, religion, non-religion, age, genetic information, sex, pregnancy, parental status, gender identity or expression, sexual orientation, marital status, disability, political affiliation, or veteran's status. 

The Court said that this policy violates the First Amendment because it is content-based, in that the "University must 'examine the content of the message that is conveyed to determine whether' it harasses another student 'based upon' any of a long list of characteristics." They said that, because it is content-based, it is subject to strict scrutiny, and that the policy is very broad. For instance, the Court points to language in the policy that says it's prohibited if the conduct "may be humiliating." 

They also said the policy is illegal because it discriminates on the basis of viewpoint, because it only prohibits speech that is discriminatory.

Well, duh. Of course an anti-harassment policy prohibits speech that is discriminatory. And for a court to say governments can't bar discriminatory speech opens up a can of worms for employment lawyers. Can a government discipline an employee who walks up to a Black coworker and says, "In my opinion, Black people should go back to being slaves," or who walks up to a pregnant coworker and says, "You shouldn't be allowed to work while you're pregnant or have children"? What if the person who says these things is a supervisor? 

So I say again, what the frack? If anti-harassment policies are going to be invalidated because they require employers to actually analyze what was said and whether it is discriminatory, then how can there ever be valid anti-harassment policies in government? And once the courts start saying viewpoint discrimination is illegal, then all bad actors have to do is phrase their discriminatory comments in the form of an opinion.

Will employment law be like Jeopardy? You only lose if you fail to phrase your statement in the form of an opinion?

If anyone can explain why this opinion isn't beyond outrageous, I'd love to hear from you.