Can I Secretly Record A Conversation At Work?

I thought I'd discuss a question today that I'm asked all the time in my law practice: Can I record a conversation with my employer?

Unfortunately, there's no easy answer to this question, and a mistake can land you in jail. Illegal tape recording can have both criminal and civil penalties. My advice is almost always: When in doubt, don't.

Still, many employees want to record a boss or HR at work, and there are good reasons to do so. If you have a sexual harasser, it's handy to catch them red-handed. It's hard to deny something a judge or jury can hear in the harasser's own voice. Some employees want to record meetings with HR to make sure they get all the important information or to have evidence of the reason given for termination or discipline. Other employees want to get evidence of discrimination or other illegal practices of the employer. Sadly, while you can go to jail if you illegally record a conversation, even of a bigot, there is no law making workplace discrimination a crime in the U.S.

Here's what you need to know about recording conversations at work:

All-party consent: Eleven states, California, Connecticut, Florida, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington, require all parties to the conversation to consent to being taped. Illinois' all-party consent law was found to be unconstitutional. Hawaii, a one-party consent state, requires all-party consent if the device is installed in a private place. Massachusetts bans "secret" recordings. These laws are sometimes referred to as "two-party consent" laws, but if there are three people in the conversation, all three must consent. The Digital Media Law Project has a handy state-by-state resource here. The Reporter's Committee for Freedom of the Press has another detailed state-by-state guide here.

Expectation of privacy: You can almost always record conversations in public areas, because the courts say there's no "expectation of privacy" in those places. Whether or not you are a party to the conversation, if it's out there in public, you may be allowed to tape it. Here's where it gets tricky. Many courts have held that there's little or no expectation of privacy in the workplace. There are cases saying, for instance, that a party to a conference call has no expectation of privacy. If you're in a group meeting at work, is there an expectation of privacy? Possibly not.

As an example, cases in my home state of Florida on the expectation of privacy at work say things like: "Society does not recognize an absolute right of privacy in a party's office or place of business." "[A]lthough defendant may have had reasonable expectation of privacy in his private office, that expectation was not one which society was willing to accept as reasonable or willing to protect." "Society is willing to recognize a reasonable expectation of privacy in conversations conducted in a private home. However, this recognition does not necessarily extend to conversations conducted in a business office."

The problem I have with relying on cases like these to tape at work is the use of weasel-words like "necessarily" and "absolute" and "reasonable." These cases are very fact-specific and that means a court could still find that your boss or coworker had an expectation of privacy. If you get it wrong, you can end up in jail. 

If a meeting is held with a large group of employees, doors open so others can hear or wander in, then I feel pretty comfortable that there's no expectation of privacy. Otherwise, I suggest talking to an employment lawyer in your state about making such a recording.

Unfair Labor Practices: The National Labor Relations Board has waffled on whether employers can ban all recordings at work. In 2015, they said no, such recordings can't be banned. Then in 2021 they said sure, employers can ban recordings. This current board would probably say recordings can't be banned. But since the case law changes depending on who appointed board members, I wouldn't risk criminal prosecution based on this.

Retaliation: If you record a conversation to document illegal discrimination or illegal harassment (we're talking harassment or discrimination based on race, age, sex, religion, national origin, disability, pregnancy, or other protected category, not bullying), then you may or may not be protected against retaliation by your employer. The courts have split on this issue. Depending on your state, your employer may be allowed to fire you for recording a conversation at work.

One-Party Consent: If your state is a one-party consent, you still have to be a party to the conversation in order for a recording to be legal. If you aren't, you can't just place a recording device somewhere at work to record secretly. That's illegal in every state.

Phone Calls: The all-party consent states all make recording phone calls without consent of all parties illegal. There's no expectation of privacy exception for phone calls. Fifteen states require all-party consent of phone calls. The one-party consent states that ban such recordings are Delaware, Illinois, Oregon, and Vermont. A state-by-state guide is here.

To summarize, you can probably tape a conversation at work that you're part of as long as you live in one of the 39 one-party consent states. You can also possibly tape a conversation that's in a public area (lobby, office or conference room with doors open, stairwell). You can maybe tape a conversation in the office behind closed doors. Only 35 states allow recording of phone calls with one-party consent. If you get it wrong, you're in big trouble, so be careful.

My best recommendation in all-party consent states continues to be, when in doubt, pull out your recorder and turn it on. Say, on the recording, "You don't mind if I tape this do you?" If the other person or people say they don't mind, keep recording. If anyone objects, turn it off. Pull out a pad of paper and a pen and take good notes instead. No potential case against your employer is worth risking jail time.

9th Circuit Decision Proves Need For Laws Banning Prior Salary Inquiries

A few weeks ago I wrote that some states are passing laws banning prospective employers from asking applicants about their salary history. The reason lawmakers give for this law is that basing salary on an applicant's pay with another employer locks in discrimination. This practice particularly impacts women.

A recent case out of the normally very liberal 9th Circuit demonstrates the need for laws banning salary history inquiries. The Court found in Rizo v. Yovino that an employer may legally justify paying women less than men where it based pay solely upon 5% above prior salary. The Court said that, under the Equal Pay Act, prior salary could be a factor other than sex that justified a pay disparity. The appellate court overturned the district court's ruling in favor of the employee:

The district court determined that, under the Equal Pay Act, prior salary alone can never qualify as a factor other than sex, reasoning that “a pay structure based exclusively on prior wages is so inherently fraught with the risk . . . that it will perpetuate a discriminatory wage disparity between men and women that it cannot stand, even if motivated by a legitimate non-discriminatory business purpose.”

The appellate court analyzed the employer's justification for the pay disparity:

The County has offered four business reasons for using Standard Operation Procedure 1440, under which starting salaries are based primarily on prior salary: (1) the policy is objective, in the sense that no subjective opinions as to the new employee’s value enters into the starting-salary calculus; (2) the policy encourages candidates to leave their current jobs for jobs at the County, because they will always receive a 5% pay increase over their current salary; (3) the policy prevents favoritism and ensures consistency in application; and (4) the policy is a judicious use of taxpayer dollars. But, the district court did not evaluate whether these reasons effectuate a business policy or determine whether the County used prior salary “reasonably,” as required by Kouba.

The Court noted that other circuit courts had held, contrary to their ruling, that prior salary was not sufficient justification for gender pay disparities, citing Angove v. Williams-Sonoma, Inc., 70 F. App’x 500, 508 (10th Cir. 2003); Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995); Price v. Lockheed Space Operations Co., 856 F.2d 1503, 1506 (11th Cir. 1988); and Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1570–71 (11th Cir. 1988). So yay for my own 11th Circuit.

Here's what the Court directed the district court to do on remand:

On remand, the district court must evaluate the four business reasons offered by the County and determine whether the County used prior salary “reasonably in light of [its] stated purpose[s] as well as its other practices.” Kouba, 691 F.2d at 876–77. We emphasize that because these matters relate to the County’s affirmative defense rather than to the elements of the plaintiff’s claim, the County has the burden of persuasion. See Maxwell, 803 F.2d at 446. Thus, unlike in a typical case under Title VII involving the burden-shifting method of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the plaintiff does not have to present evidence that the County’s explanation for the pay differential is a pretext for intentional gender discrimination. Rather, it is up to the employer to persuade the trier of fact that its stated “factor other than sex” actually caused the salary differential, that the stated factor “effectuate[s] some business policy,” and that the employer used the factor “reasonably in light of [its] stated purpose as well as its other practices.” Kouba, 691 F.2d at 876–77. Of course, the plaintiff is free to introduce evidence of pretext (or any other matter that casts doubt on the employer’s affirmative defense) if it chooses to do so. Maxwell, 803 F.2d at 446.

This case was not a disparate impact case, so I wonder what would happen if the same set of facts were raised under the theory that a facially neutral practice of basing pay on prior salary alone has a disparate impact on women.

In the meantime, this case should give the legislators and lobbyists who are pushing laws to ban salary history inquiries some ammunition to prove that salary history inquiries are bad for women and are thus bad public policy.

Florida Democrats Take Another Swing At Pro-Employee Legislation (That Won't Pass)

Another legislative session coming up, some more pro-employee legislation that will not pass. But here’s what some Florida Democrats (okay, I didn’t check them all, but c’mon, what are the odds that any of the co-sponsors of any pro-employee laws are Republicans?) are trying to pass in 2016 to help Florida employees:

$15 minimum wage: SB 6 and HB 109 would raise Florida’s minimum wage to $15/hour

ERA: SCR 74 and HCR 8001 would ratify the Equal Rights Amendment. Better late than never.

Sexual Orientation: SB 120 and HB 45would add sexual orientation and gender identity to prohibited categories of discrimination in the workplace.

Social Media Privacy: SB 186 would prohibit employers from demanding your social media passwords.

Unemployment and Domestic Violence: SB 188 protects employees who leave or lose jobs due to domestic violence from being disqualified for unemployment benefits.

Paid Sick Leave: SB 294 and HB 205 would require state and local governments with at least 9 employees to provide paid sick leave to employees. Why only government employers? I'm really not sure that's what the sponsors meant to do, but that's what it says employers are.

Paid Family Leave: SB 384 and HB 603 would require employers to provide paid leave similar to FMLA for birth or adoption of a child and care in the first year, but it applies to employees who work at least 20 hours a week, applies to employers with at least 15 employees, and would permit up to 6 weeks of protected leave. Creates a rebuttable presumption that any demotion or discharge taken within 90 days against an employee who takes leave is a violation.

Ban the Box: SB 448 and HB 353 would prohibit employers from asking about criminal history in initial employment applications.

If you support any of these bills, start calling and writing your legislators now. Especially the Republicans. If any of these proposed laws get overwhelming support, they may just have a chance. My prediction: DOA.

What Does It Mean Now That My Employer Has A Religion?

Or, Crazy Stuff The Supreme Court Did While I Was On Vacation

So there I am in California, land of actual employee rights, when I see the Supremes ruled on a case involving Hobby Lobby.  As I'm reading the opinion, I'm thinking maybe I just have vacation brain. I can't be reading this right. Then I look to see what Justice Ginsberg said in the dissent and I realized I wasn't misreading the opinion. Here's what she said about it:

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.

Hm. What does this mean? A corporation can have a religion now? Yep. Although this decision was about closely held corporations (think family-owned), the Court didn't limit the decision in any way. They left open the possibility that larger corporations can now find religion.

This case was about the Religious Freedom Restoration Act, which included corporations in the definition of a "person," so maybe it was just a congressional screw-up. The Court said that a company with owners that had a sincerely-held religious belief that life begins at conception didn't have to provide health insurance coverage under the Affordable Care Act.

Although Justice Alito said in the majority opinion that the government has a compelling interest in providing equal opportunity in the workforce regarding race, he failed to mention, for instance, gender. He certainly didn't mention any compelling interest in preventing sexual orientation discrimination, which may be what this is really about.

The Hobby Lobby case didn't address the gender discrimination involved in denying coverage for contraception, but you can bet there will be a case filed against them soon for sex discrimination on this very issue. And the female employees should probably win it.

I think there will be quite a few unintended consequences of this decision. Here are some things we don't know:

• Can a Christian Science-owned corporation refuse to provide coverage altogether?
• Can a Rastafarian-owned corporation refuse to provide coverage for employees who aren't using medical marijuana?
• Can an ethical vegan-owned corporation refuse to provide coverage for carnivores?
• Can a corporation refuse to hire women because of a sincere belief that women belong in the home?
• Can a corporation refuse to promote women because of a sincere belief that women should be subordinate to men?
• If a corporation holds the religious beliefs of its owners, does that make it easier to pierce the corporate veil and prove the company and owners are one and the same?
• Did the Supreme Court just approve the use of Sharia law by Muslim-owned corporations?
• How long will it be before corporation-persons demand the right to vote?

I guess we'll soon see all of these issues litigated in a courthouse free-for-all that will be terrible for everyone but the lawyers.

Does Your Religion Excuse Homophobic, Racist or Sexist Behavior At Work?

When I wrote the piece about Duck Dynasty's Phil Robertson and his suspension for making racist and anti-gay comments in an interview done to promote his show, many readers told me that Mr. Robertson should be protected by religious discrimination laws. After all, the argument went, he was only expressing his religious beliefs about gays.

Bob
Tt is not freedom of speech, it is freedom of RELIGION--what Phil said was congruent with what the Bible says. Violation of the free exercise clause is the issue, not speech. Can you imagine firing an employee because they expressed atheist beliefs or supported Obama and his queer minions?????

Even though employers have to accommodate religious beliefs at work, do religious discrimination laws allow you to express your beliefs that "the gay lifestyle," and gay marriage are sinful? Are you allowed to tell your female coworkers that women belong in the home and should be subordinate to men? Can you dig out old Jeff Davis's views of the Bible to share with your African-American co-workers?

I write about the legal issues involved in determining how much religious expression at work is protected, and when it isn't in my latest article at AOL Jobs.

Court Says Lactation Is Related to Pregnancy, Refrains From Saying, "Duh"

I wrote about a really stupid case out of Texas where a federal court said that "lactation is not pregnancy, childbirth, or a related medical condition," and thus decided that "firing someone because of lactation or breast-pumping is not sex discrimination."  I was irked, to say the least. Lactation not related to pregnancy and childbirth? Really?

Well, the 5th Circuit Court of Appeals which, to its credit, refrained from saying, "Well, duh," has unanimously ruled that lactation is, indeed, related to pregnancy and is therefore covered by Title VII. EEOC reports this about the decision: "The Fifth Circuit noted the biological fact that lactation is a physiological condition distinct to women who have undergone a pregnancy.  Accordingly, under Title VII and the Pregnancy Discrimination Act, firing a woman because she is lactating or expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason. The case was remanded back to the lower court for a trial on the merits."

Personally,  I think the 5th Circuit should be applauded, not only for its common sense, but for the fact that it did not openly mock the lower court's ruling. I wouldn't have had that much self-control.

I should also point out that almost all employers are required to provide nursing mothers with break time to pump breast milk, along with a private space that isn't the restroom to do so. The Fair Labor Standards Act requires this, so employers who fire moms for lactating may also run afoul of this law, even if they aren't large enough to be covered by Title VII.

I rarely get to say this, so: Hooray for common sense in the courts!

An Employment Lawyer's Debate Questions for President Obama

This is the first in a series that I am doing along with a group of employment attorneys around the country. Management and employee side attorneys will be providing their own debate questions for the Presidential and Vice Presidential candidates this week. The first candidate is President Barack Obama.

Here are some questions I’d ask the President at the debates if I had a chance:

The very first piece of legislation you signed into law was the Lilly Ledbetter Fair Pay Restoration Act, empowering women to recover wages lost to discrimination by extending the time period in which employees can file claims. You’ve also advocated for passage of the Paycheck Fairness Act, which would have required employers to demonstrate that any salary differences between men and women doing the same work are not gender-related. Plus, you convened a National Equal Pay Task Force to ensure that existing equal pay laws are fully enforced. Why do you feel so strongly about the need for pay equity in America and what do you think about the Republican party’s strong opposition to your efforts toward pay equity?

Then I’d probably ask:

Your opponent wrote an editorial saying we should let the automobile industry go bankrupt rather than bail them out during the worst part of the recession. Do you think the bailout was worth it, and are you glad you saved over a million jobs and supported an industry that has added hundreds of thousands of new jobs when most industries are cutting workers?

I’d follow up with:

You’ve said that you believe people who work full time should not live in poverty. Before the Democrats took back Congress, the minimum wage had not changed in 10 years. Although Congress did raise the minimum wage during your administration, the minimum wage’s real purchasing power is still below what it was in 1968, and full time minimum wage workers are mostly below the poverty line. You’ve said you want to further raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit. Why do you think it’s important to make sure that full-time workers can earn a living wage that allows them to raise their families and pay for basic needs such as food, transportation, and housing?

Then I’d ask:

You repealed Don’t Ask Don’t Tell, which limited gay and lesbian Americans’ right to serve in the military and be honest about their sexual orientation. You’ve also instructed the Justice Department to stop enforcing the Defense of Marriage Act, and you are in favor of the Respect for Marriage Act, which would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as other couples. Why do you think it’s important to treat gays and lesbians with respect and to end discrimination against them, and what more will you do to ensure equality for all Americans?

I’d end with:

Most Americans probably think they’re entitled to some sick time off of work, yet three out of four low-wage workers have no paid sick leave. You’ve said you support efforts to guarantee workers seven days of paid sick leave per year. Why do you think it’s unfair that a single mom playing by the rules can get fired or lose wages because her child or she gets sick, and what do you plan to do to ensure paid sick leave for all American workers?

There are, of course, lots more questions I could ask. I think the choice between the candidates as far as workplace issues is crystal clear.


Here's another perspective, from Robin Shea, a management-side employment lawyer.

How Do I Prove I'm Paid Less Than My Male Co-Workers?

A recent article in Newsweek discussed the continuing pay gap between men and women, and suggested some reasons why women still make less than their male colleagues. Another recent story discussed how female doctors are paid less than male doctors. I'm not going to argue here whether or not the pay gap is real. Instead, I want to discuss that, at least in some workplaces, women are paid less than men for the same work. The Newsweek article contained a disturbing statement: "But in many workplaces, discussing pay is frowned upon; in some, it's a dismissible offense. So, like Ledbetter, women often don't know when they're getting paid less than men." Lilly Ledbetter, the pay discrimination victim who lost her case and inspired a law, found out about how much less she made than her male colleagues when she got an anonymous note.

If you aren't lucky enough to get a note from someone brave enough to tell you that you're a victim of discrimination, how do you go about proving pay discrimination? Here are eight ways you can find out if your male colleagues make more than you for the same work:

To read more, see the rest of my article in AOL Jobs.

Arizona Employers Want to Ask Employees About Sex Lives, Contraceptives

I sometimes comment that Florida is the center of weirdness in the universe, and that point is hard to refute when we house face-eating zombies and giant anacondas. However, Arizona keeps trying to give us a run for our money on the weirdometer. Arizona legislators proposed a bill recently that would allow employers, if they so choose, to require female employees to provide proof that they weren't using contraceptives for purposes of, erm, sex.

That's not quite what actually passed and got signed, but Arizona now has a law that allows employers to refuse to provide insurance coverage for birth control pills that aren't issued for medical reasons.

Rep. Debbie Lesko's version wanted to provide an exemption for any employer who claimed religious beliefs or moral objections to contraceptives. The final version narrowed this exemption to any entity whose articles of incorporation "clearly state that it is a religiously motivated organization and whose religious beliefs are central to the organization's operating principles."

The original version also let employers mandate the employee provide proof to them, but the signed version apparently only allows insurance companies to collect the proof of medical necessity.

I won't even research what Arizona is saying about insurance coverage of Viagra.  If any of my faithful readers know, I'd be curious. I'm willing to bet that men don't have to jump through the same hoops as women. But maybe I'm being overly pessimistic.

I can think of quite a few problems employers who do ask about employee contraceptives might run into. Sex discrimination, sexual stereotyping, privacy issues, HIPAA violations, disability discrimination - the list goes on. It will be interesting to watch what happens with this very weird law.

Strippers Have Rights Too

There have been two recent stories about strippers and discrimination in the news lately.

Sarah Tressler is a journalist who worked her way through journalism school stripping. Her newspaper employer fired her when they found out she was moonlighting as a stripper. She claims gender discrimination. The newspaper says they fired her for failing to disclose it on her application. Her double life was uncovered by a rival paper. It probably didn't help that she was blogging about her exploits.

An Indiana stripper has filed sexual harassment charges against her employer. She alleges severe physical and verbal sexual harassment.

While many sexual harassers (and their employers) seem to think that "she asked for it" is a defense, it's not. Just because a woman takes her clothes off for a living does not mean that she welcomes groping and sexual advances from her employer. Whether she works for Hooters, as a professional sports cheerleader, or as a stripper, women who dress and act sexy for a living can't be sexually harassed. If advances are unwelcome, they are illegal. The employer must create a safe workplace, free from sexual harassment. While being leered at may be part of the job, being groped isn't.

Now, going back to Tressler, I guess it depends on the totality of the facts. If the judge and/or the jury finds that the employer requires disclosure of an employee's full employment history and/or second jobs, and they fire everyone who doesn't disclose, the employer may be able to convince them it had a legitimate reason for the firing. If not, then the question will be whether men have had similar jobs and weren't fired.

For instance, if they say it's her blog they don't like, then if other male bloggers haven't been fired, it could be sex discrimination. If men have worked as waiters wearing skimpy outfits, as dancers for bachelorette parties, or posing for pinup calendars and weren't fired, then the newspaper will have a hard time proving she wasn't singled out due to her gender.

Strippers and other women (and men) who have jobs that require little or no clothing still have rights. Those rights include the right not to be discriminated against and the right not to be sexually harassed. There is no stripper exemption to Title VII.

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!

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 . . .

Top 10 Things You Need to Know If You're Sexually Harassed at Work

You're not alone if you are confused about workplace sexual harassment. You may suspect you're being sexually harassed but aren't sure what to do. Or maybe you're being harassed because of your gender and don't realize what you're experiencing is illegal sexual harassment.

Here are the top ten things you need to know about sexual harassment at work:

1. Don't quit.

Many employees quit as soon as the first incident of sexual harassment occurs. They're too embarrassed or scared to go back. That's perfectly understandable, but if you quit, you might be giving up your sexual harassment claims. The Supreme Court says that,  read more at AOL Jobs . . .


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

Think Sexism Doesn’t Exist? Read This

I did a post on AOL Jobs about family responsibilities discrimination, and wow, was I shocked at the comments. When people get to comment on the Internet anonymously, their mental filter gets set in the “off” position sometimes. I know some judges and my colleagues on the management side think these kinds of attitudes don’t exist anymore. But employers tend to be on their best behavior in front of their lawyers and in court. They’re shocked that they could be accused of such a heinous act.

Well, here’s what some of those corporate clients and management-side discrimination defendants really think. Even after 25 years of practicing employment law, I didn’t expect employers and managers to post comments like these. I left off the user names to protect the guilty, but you can go to the post and see them for yourself.

How would you like to have this guy as your boss?:

Maybe you should have thought of that before you spread your legs and became a walking sperm bank. If you can't afford to take the time to deliver a baby, maybe you can't afford to have a child at all. A business is an entity designed to produce a product or service in order to produce a profit. It is not a social service agency, a rehab agency, or a day care. The business was not created in order to create jobs. The jobs come as a result of the success that the company has enjoyed as a result of producing it's product or services. You do not have a right to co opt my business interests in order to facilitate your desire to procreate or your failure to control your desires. Just keep pushing this feel good stuff onto business and watch your jobs flee to China and India.

Or this one?:

Pregnancy is a very temporary medical condition. But soooo many women take full advantage of it in the workplace and elsewhere, demanding to be treated in special ways and to be given a lot of slack when it comes to work production, dependability, reliability, attendance, and/or tardiness. This puts a lot of extra work on the shoulders of non-pregnant workers and the managers. "Is Susie Broodmare going to show up for work today? Or will she say she has to leave four hours early for a doctor's appointment for the third time this week? Will she say she feels uncomfortable so can't do her job at all today but expects full pay?" It's well past time for pregnant women to be held accountable for their decision to get pregnant so that it doesn't adversely affect others, especially in the workplace.

Susie Broodmare. How lovely. I wonder if that’s what he calls them in the exit interview.

This guy better have a very small company or he’s a defense lawyer’s nightmare:

As an employer, I think the running of my business comes before your personal problems and if I think I can hire someone better than you, more dedicated than you, with no medical or family problems, you're fired. Take responsibility for yourself and don't expect your employer to subsidize your lifestyle choices. Want to take off 12 weeks to have a baby? Than you better be absolutely brilliant at your job if you expect it to be there when you come back. Otherwise, someone else will be sitting in that chair. I don't owe you anything but the pay check you worked for and whatever else we agreed on when you were hired. Nothing more.

How about this one?:

This is pretty incredible. So I can apply for a job with a great big baby-belly and say, "I saw your help wanted sign, so I'm applying for your 15th position. Here's the deal. I'll let you train me and pay me, then as soon as I'm "line-ready" I'm taking off for as long as I see fit to have my kid leaving you short an employee AGAIN" and any business I walk into HAS to hire me or risk government BS? It's no wonder the corporate world is getting the Hell out of America!

This one is a real charmer, and smart too: “I dont think YOU have right in working in somebodyelse Company, than you become pregnant. Its your businnes and your partner businnes.. once you step out.. you need to use what you save. No mercy. Let's be real..... You want family (boths) have pay the price...”

This one posted lots of comments. Here are some of my faves: “Noone else but the employee is responsible for making sure that they are ready and able to work. If you want to work for a company with very lax absentee policies, then go find one. Society suffers when we have to assume the responsibility for those who do not prepare and plan for pregnancies/illness etc.”

AND

If they can't afford it, they shouldn't get pregnant. What ever happened to PLANNING a family? If one had to sacrifice and reduce a lifestyle, then that is what has to happen. Society cannot bear the responsibility for individuals. A womans husband can provide the income while she goes through pregnancy. Now we most certainly have couples who PLAN pregnancies knowing that they will get time off and other considerations, thus burdening our economy.

This one doesn’t like you if you’re pregnant or disabled: “If you have a family AWESOME!! But ON THE JOB! If at any time I feel your physical condition or health will impeede your ability to work efficently and professionaly then I will either let you go or simply not hire you.”

AND “If you are pregnant Sorry NOT hiring you. Not because I am thinking "oh god I will hire them only to loose them" But because again in MY business it is a safety issue. I can not afford the insurance claim if a dog jumps on you and hurts you or your unborn baby.” (He’s identified himself enough that some lawyer is probably issuing a subpoena for his IP address as we speak).

Bravo, management. Bravo. I hope your employees figure out you posted these comments and sue the stuffing out of you.