July 22, 2014

President issues order to protect LGBT workers

Posted in Discrimination, Gender / Sex, LGBT, Minnesota Human Rights Act, Sexual Orientation tagged , , at 2:08 pm by Tom Jacobson

White HousePresident Barack Obama on July 21, 2014 issued an executive order intended to protect the employment rights of LGBT employees of federal contractors.

Although some states, including Minnesota, already prohibit employment discrimination based on sexual orientation, not all do.  Therefore, President Obama said during the signing ceremony that he issued the order as a way “to address this injustice for every American.”

Unlike some legislation, such as the proposed Employment Non-Discrimination Act (“ENDA”) which was passed in 2013 by the U.S. Senate but which has since stalled in Congress, this executive order does not contain any exemptions based on religious beliefs.

The President also directed the U.S. Department of Labor to prepare regulations to implement the order. It is anticipated that advocates on all sides of the issue will offer significant input as the regulations are developed.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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April 30, 2014

Registration Open for 11th Annual Employment Law Update

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Conviction Records, Credit Checks, Criminal History, Discrimination, Fair Credit Reporting Act, Interactive Process, Minnesota Human Rights Act, Reasonable Accommodation, Religion, Sexual Orientation, Stereotyping, Training tagged , , , , , , , at 11:38 am by Tom Jacobson

Registration is now open for the Eleventh Annual West Central Minnesota Employment Law Update to be held on Thursday, June 12, 2014 at Alexandria Technical and Community College. This year’s event will cover:

  • Hot off the Press — Employment Law News You Can Use: presented by yours truly
  • Reasonable Accommodation and Fitness for Duty: A Practical Guidance on Real Work Problems: presented by attorney Penelope J. Phillips
  • Emerging Discrimination Issues in Employment Law: presented by attorney Mike Moberg
  • Ban the Box and Criminal Background Checks: Putting it All Together So That You Get it Right: presented by attorney Penelope J. Phillips
  • Bonus HR Session: Recruit, Motivate and Retain Your Workforce: presented by humorist and corporate trainer, Ted Schick

The event has been approved for 6.0 HRCI credits. Go to 2014 Employment Law Update Agenda for complete details and to 2014 Employment Law Update Registration to register. I look forward to seeing you on June 12!

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

March 26, 2014

Save the date!

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Conviction Records, Criminal History, Disability, Discrimination, Family and Medical Leave Act, Interactive Process, Leaves of Absence, Reasonable Accommodation, Sexual Orientation, Sick Leave, Sick or Injured Child Care Leave, Training, Unexcused Absence tagged , , , at 5:18 pm by Tom Jacobson

The eleventh annual West Central Minnesota Employment Law Update will be held Thursday, June 12, 2014 at Alexandria Technical and Community College. The morning session of the event is designed to inform employers about developing areas of employment law, and it will be presented by four attorneys who practice extensively in that area of the law: Tom Jacobson, Mike Moberg and Penelope Phillips.

The afternoon session will feature Ted Schick, who will educate and entertain with his presentation, “Recruit, Motivate and Retain Your Workforce.”

Comments from last year’s event:

  • “I attend yearly and look forward to it! Thanks!”
  • “I go to several conferences/seminars every year & this is the most informative of all.  Plus, the group is open & friendly — very nice! Thank you!”
  • “Overall — great day & worth the time!”
  • “Excellent program for the price.”

We hope you can join us on June 12! Stay tuned for registration, agenda and other details.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 28, 2013

Civil rights in Minnesota: setting the national agenda?

Posted in Age, Color, Commission Membership, Creed, Disability, Discrimination, Gender / Sex, Marital Status, Minnesota Human Rights Act, National Origin, Public Assistance, Race, Religion, Sexual Orientation tagged , , , , at 1:24 pm by Tom Jacobson

“judged … by the content of their character.” Dr. Martin Luther King, Jr.

It’s a cornerstone of our democracy that laws must change when they do not fit the needs of the majority. Today, the 50th anniversary of the March on Washington for Jobs and Freedom and Dr. Martin Luther King, Jr.’s iconic I Have a Dream speech, is the perfect opportunity to reflect on how there may be no better example of that principle than the ongoing struggle for civil rights for all Americans.

When it comes to civil rights, Minnesotans have historically been trend setters, not followers (see 150 Years of Civil Rights in Minnesota, Minnesota Department of Human Rights). For example, Minnesotans bravely fought and died in the 1863 Battle of Gettysburg, and efforts to protect the rights of  Jews and Native Americans date back to at least the 1930’s. Twenty years before Dr. King’s speech, Minnesota Governor Edward Thye created a commission to study discrimination and economic inequality. In 1946 Minneapolis Mayor Hubert H. Humphrey created the Mayor’s Commission on Human Rights, and two years later Minneapolis enacted the country’s first municipal fair employment law. The Minnesota State Act for Fair Employment Practices (which was the predecessor to the Minnesota Human Rights Act) pre-dated the federal Civil Rights Act of 1964 by nine years. When that state law was passed, the Minnesota Legislature declared:

[T]he public policy of this state is to foster the employment of all individuals in this state in accordance with their fullest capacities, regardless of their race, color, creed, religion, or national origin, and to safeguard their rights to obtain and hold employment without discrimination. Such discrimination threatens the rights and privileges of the inhabitants of this state and menaces the institutions and foundations of democracy.

Since its initial passage, the MHRA has of course been amended several times to add sex, marital status, status with regard to public assistance, membership or activity in a local commission, disability, sexual orientation, and age to its list of protected classifications. Some of those characteristics are now also protected by federal law,

In June I had the privilege of leading off a morning of presentations at the tenth annual West Central Minnesota Employment Law Update. To put things into perspective, I noted how the law is always playing “catch up.” That is, laws are passed in response to societal change. I suggested that if you want a glimpse into what our laws might look like in the future, pay attention to societal trends now. Let me take that a step further; to envision our nation’s future civil rights landscape, take a look at Minnesota today. But don’t look through rose-colored glasses, for much work still needs to be done to eliminate the vestiges of discrimination that continue to threaten the rights and privileges of the inhabitants of this state and nation and menace the institutions and foundations of democracy.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 15, 2012

Court Rejects Same-sex Harassment Claim

Posted in Discrimination, Gender / Sex, Sexual Harassment, Sexual Orientation, Stereotyping tagged , , at 10:56 am by Tom Jacobson

Last year I wrote about a case where a jury awarded a construction worker nearly half a million dollars in  a same-sex / gender stereotyping case (see Same-sex Harassment Costs Contractor $451K). That verdict has now been overturned.

The case was filed by the Equal Employment Opportunity Commission on behalf of Kerry Woods who alleged that his supervisor at Boh Brothers Construction Co., LLC harassed and taunted him.  According to the EEOC, the supervisor engaged in verbal abuse, made taunting gestures of a sexual nature and exposed himself. The EEOC also presented evidence that the supervisor harassed Woods “because he thought he was feminine and did not conform to the supervisor’s gender stereotypes of a typical ‘rough ironworker.'”

Boh Brothers appealed the verdict, and in a July 27, 2012 decision, the United States Fifth Circuit Court of Appeals vacated the judgment. The appellate court based its decision on a finding that there was “insufficient evidence that [the alleged harasser] ‘acted on the basis of gender’ in his treatment of Woods.”

Importantly, the court stopped short of rejecting all sex-stereotyping cases under Title VII:

There is the question raised in this appeal whether sex stereotyping is a cognizable form of same-sex harassment under Title VII. As the facts allow for resolution on narrower grounds, we leave that question for another day.

What you need to know:  Minnesota employers need to be careful to not assume that the Boh Brothers decision frees them from liability for same-sex harassment or gender stereotyping. The Boh Brothers case was decided by the United States Fifth Circuit Court of Appeals, but Minnesota is part of the Eighth Circuit Court of Appeals; therefore, the decision is not binding precedent here. It was also decided based on the specific facts of the case. Moreover, the Minnesota Human Rights Act expressly prohibits employment discrimination based on sexual orientation.; therefore, the outcome of the case may certainly have been different under Minnesota law.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 5, 2012

With Legitimate Business Reasons for Dismissal, Plaintiffs Can’t Always Get What They Want

Posted in At-will Employment, Color, Disability, Discrimination, Family and Medical Leave Act (FMLA), Gender / Sex, Legitimate business reason, Marital Status, National Origin, Pretext, Prima Facie Case, Race, Reduction in Force (RIF), Religion, Reprisal, Retaliation, Sexual Orientation, Termination for Cause, Wrongful Termination tagged , , , , , , , , , , , , , at 8:20 pm by Tom Jacobson

I’ve often advocated that regardless of whether an employment relationship is contractual (where the reasons and/or process for dismissal may be spelled out in an agreement) or at-will (where the employment can be ended with or without notice and with or without legal cause), the best practice is to have a legitimate business reason for discharging an employee. Three recent court decisions validate my point.

Let me set the stage by noting that in discrimination cases, the employee wants to prove that the employer’s actions were based on some unlawful discriminatory reason, such as age, race or gender.  The employer, of course, wants to prove that its decisions were based on entirely legitimate reasons. To balance these competing interests, the courts recognize a process that begins with the employee being required to present a legally-specified bare minimum of evidence suggesting that discrimination occurred. This is called the employee’s prima facie case. If the employee can do that, the burden shifts to the employer to present evidence that its actions were based on legitimate (non-discriminatory) business reasons. Once that’s done, the burden shifts back to the employee to present evidence that the employer’s stated reason is a pretext, which is basically a cover up for the true discriminatory motive. In legalese, this is referred to as the McDonnell-Douglas burden-shifting framework (named after the  United States Supreme Court’s 1973 decision in the case of McDonnell-Douglas v. Green).

The effectiveness of being able to establish a legitimate business reason played out recently in three separate cases. First, in Prody v. City of Anoka a former employee established a prima facie case of age discrimination under the federal Age Discrimination in Employment Act (ADEA) and the Minnesota Human Rights Act (MHRA). The employer then presented evidence that he was dismissed as a part of a reduction in force (RIF). Because the plaintiff could not establish pretext, the case was dismissed.

Next, in Bone v. G4 Youth Services, LLC the employee alleged age, race and Family and Medical Leave Act (FMLA) discrimination. As in the Prody case, the plaintiff was unable to show that the employer’s stated reasons for the discharge (failing to follow a directive, poor communication, losing the trust of employees, and refusing in general to accommodate employees’ requests) were a pretext for discrimination.

Finally, in Hilt v. St. Jude Medical S.C., Inc. the plaintiff claimed the employer fired her in violation of Minnesota’s Whistleblower Act. The employer presented evidence that the termination resulted from a RIF, and because the plaintiff could not establish that the RIF was a pretext, the court dismissed the case.

So, as these three cases illustrate, if you are an employee who feels you’ve been discriminated against, but your employer can demonstrate a legitimate business reason for its actions, You Can’t Always Get What You Want (thank you, Rolling Stones!).

What you need to know:  Regardless of the type of employment relationship, it is always an employer’s best practice to be able to rely on evidence to show that employment decisions are based on legitimate non-discriminatory reasons.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

March 19, 2012

Dharun Ravi Guilty in Tyler Clementi Cyber-bullying Case

Posted in Cyber Bullying, Employees' Privacy, Internet Policies, Negligent Retention, Sexual Orientation, Social Media in the Workplace, Social Networking tagged , , , , , at 10:02 am by Tom Jacobson

A jury has found Dharun Ravi guilty of 15 criminal charges stemming from the cyber-bullying of his Rutgers University roommate, Tyler Clementi. Ravi was charged with the crimes after he used a webcam to spy on Clementi and another man having sex in their dorm room. Shortly thereafter, Clementi committed suicide.  For more details on the underlying incident, see my October, 2010 post, Tyler Clementi Suicide: Lessons for HR – and for Us All.

Ravi was not charged with any crimes directly related to Clementi’s death, but he was charged with and found guilty of a number of crimes, ranging from invasion of privacy to lying to investigators and witness and evidence tampering.  For more information on the verdict itself, see NY Times article, Jury Finds Spying in Rutgers Dorm Was a Hate Crime.

What you need to know:  Although the case does not directly relate to the workplace, it does have employment law implications.  For example, many states, including Minnesota, recognize invasion of privacy as a legal claim. Therefore, it is entirely conceivable that such claims could be brought against an employer that allows its computers to be used for cyber-bullying.  Many states, including Minnesota, also allow claims to be brought against employers which negligently retain or fail to supervise employees who harm others; if the harm stems from cyber-bullying via a workplace computer, it is not too difficult to envision a negligence claim against the employer who allowed it to happen.  To reduce this risk, employers should adopt workplace technology / social media policies which prohibit the use of the company’s computer resources to commit cyber-bullying.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

January 12, 2012

Federal court reaffirms importance of harassment policies

Posted in Color, Disability, Discrimination, Employee Handbooks, Gender / Sex, Genetic Information, Harassment, Harassment, Marital Status, National Origin, Race, Religion, Sexual Harassment, Sexual Harassment, Sexual Orientation tagged , , , , , , , , , at 11:07 am by Tom Jacobson

I am often asked if employers must have a written policy prohibiting sexual and other forms of unlawful harassment. The short answer is no, for there is no statute, regulation or court decision mandating such policies. However, and it is a big however, implementing such policies is clearly the best practice. And, as reaffirmed by the United States Eighth Circuit Court of Appeals on January 11, 2012, having a written policy can be the key to successfully defending harassment charges.

The case is Crawford v. BNSF Railway Co. In this case, BNSF had a “zero tolerance” policy on workplace harassment. Among other things, the policy defined the prohibited conduct, instructed employees to report complaints through one of five channels (one of which was an anonymous employee hotline), explained that  allegations would be investigated “promptly, impartially, and confidentially,” included guidelines explaining the ranges of discipline BNSF might apply to offenders, and contained a provision prohibiting retaliation for reporting discrimination. BNSF also trained employees on how to report harassment.

In this case, five employees alleged that they were victims of unlawful harassment by their supervisor. Specifically, they claimed that their supervisor engaged in a long litany of inappropriate behaviors ranging from fondling and sexual comments to requests for sexual favors, mimicked sex acts, and racial slurs.

Eight months after the alleged harassment began, the employees filed discrimination charges with the Nebraska Equal Opportunity Commission (NEOC) and the Equal Employment Opportunity Commission (EEOC).  One of the employees then reported the harassment directly to BNSF. BNSF conducted an investigation, which included interviewing four of the plaintiffs. Within two days, BNSF placed the supervisor on administrative leave. After completing its investigation less than two weeks later, BNSF informed the supervisor that he was being terminated, and the supervisor then chose to resign.

The general rule in such cases is that an employer is liable for the unlawful harassment committed by its supervisors unless it can show that: (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm.

Noting the existence of BNSF’s zero tolerance policy and its swift action after receiving the employees’ complaint, the court concluded that BNSF had exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Then, noting that the employees had not availed themselves of BNSF’s complaint procedure, the court also ruled that they had  unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Accordingly, the court held that it was appropriate to dismiss the employees’ claims. Importantly, the court stressed that “‘distribution of a valid antiharassment policy provides compelling proof’ that an employer exercised reasonable care to prevent and correct promptly harassing behavior.

Thus, the Crawford v BNSF case clearly illustrates that the best practice for employers is to implement and distribute harassment policies, for without them, employers will find it extremely difficult, if not impossible, to defend claims on the basis that they exercised reasonable care to prevent and correct promptly harassment.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

May 17, 2011

Same sex harassment costs contractor $451K

Posted in Discrimination, Employee Handbooks, Gender / Sex, Harassment, Sexual Harassment, Sexual Orientation, Stereotyping tagged , , , at 10:53 am by Tom Jacobson

A federal jury has awarded $451,000.00 to a male ironworker who was the victim of male-on-male sexual harassment.

The case was filed by the Equal Employment Opportunity Commission on behalf of Kerry Woods who alleged that his supervisor at Boh Brothers Construction Co., LLC harassed and taunted him.  According to the EEOC, the supervisor engaged in verbal abuse, made taunting gestures of a sexual nature and exposed himself. The EEOC also presented evidence that the supervisor harassed Woods “because he thought he was feminine and did not conform to the supervisor’s gender stereotypes of a typical ‘rough ironworker.'”

The EEOC also claimed that Boh Bros. retaliated against Woods after he reported the harassment.  The evidence indicated that Woods was transferred to another location, paid less, and then “laid off.”

Another important aspect of this case was the company’s failure to adopt a sexual harassment policy.  Boh Bros. had no policy defining or specifically prohibiting sexual harassment, and the harassing supervisor testified that prior to the lawsuit, he had never received sexual harassment training.  “The jury’s verdict signals to employers the importance of having robust sexual harassment policies and training in place, including in predominantly male workplaces,” said EEOC General Counsel P. David Lopez.

Another EEOC attorney, Jim Sacher, noted how “This case demonstrates the failure of this company to prevent and properly respond to a serious matter for the construction industry: male-on-male sexual harassment by a supervisor and under isolated working conditions.”

For additional details of the Boh Bros. lawsuit, see EEOC Obtains $451,000 Jury Verdict Against Boh Brothers Construction Co. For Male-On-male Sexual Harassment, http://1.usa.gov/lxvmre.  For information on related cases, see Ellen DeGeneres & Gender Stereotyping under Title VII, http://bit.ly/kudWku and Tomboy Firing Costs Company $50K, http://bit.ly/jRkzco.

If you would like more information about this topic, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

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