5th Circuit rejects the “ultimate employment decision” test for workplace discrimination claims

"Female employees are not given full weekends off and can only receive weekdays or partial weekends off."

Is this policy legal or illegal? 

Getting your termination ducks in a row

Just because someone engages in protected conduct doesn't mean you can't fire them. It just means you better have your ducks in a row when you do so.

Case in point: the saga of Nicole Oeuvray and the Art Directors Guild. Oeuvray, who served as the guild's accountant for 16 years, had been one of leaders of a campaign to organize the guild's employees into a labor union.

WIRTW #683: the “here comes the flood” edition

Lord, here comes the flood

We'll say goodbye to flesh and blood

If again the seas are silent in any still alive

It'll be those who gave their island to survive

– Peter Gabriel, "Here Comes the Flood"

That songs has been playing on a loop in my head for the past few days. That's how long it's been since my house flooded. A supply line to our master shower burst, causing my kitchen ceiling to resemble the Bellagio Fountains (but upside-down). 

T he here of our story is my 15-year-old son, Donovan, who was home with no adults. The rest of us were driving home from our daughter's doctor appointment. D-man FaceTimed me to show me the rushing waters. I pulled over into the nearest parking lot and, also via FaceTime, walked him through how to shut off the water from the main.

Without D-man's quick thinking the flood would have been a lot worse. As it stands, we will need a whole new kitchen, along with new carpet both upstairs and in our basement, some new bathroom cabinets, and I'm sure lots of other stuff.

Needless to say, it's been a week.

Here's what I read this week that you should read, too.

There is no such thing as free speech at work

"Having successfully settled my case with ESPN/Disney, I have decided to leave so I can exercise my first amendment rights more freely."

-vs-

"ESPN and Sage Steele have mutually agreed to part ways. We thank her for her many contributions over the years."

Those are two vastly different statements published by (now former) ESPN anchor Sage Steele and her former employer.

ESPN's statement is standard vanilla for a company announcing someone's departure.

Sage Steele's statement, however, is borderline dangerous because it continues to foster a myth that private sector employees enjoy First Amendment rights at work.

Steele's lawsuit against ESPN followed her removal from the air two years ago after a series of controversial public comments about vaccine mandates ("to mandate … is … sick … and … scary"); female sports reporters and sexual harassment (women need to "be responsible" and it "isn't just on players and athletes and coaches to act a certain way"); and former President Barack Obama's racial identity ("I think that's fascinating considering his Black dad was nowhere to be found, but his White mom and grandma raised him").

Let me say this one more time, loudly, for the people in the back:

THERE IS NO SUCH THING AS FREE SPEECH AT WORK.

The First Amendment to which Sage Steele refers prohibits the government from restricting speech, not private employers — "Congress shall make no law … abridging the freedom of speech…."

Yes, there are some limited exceptions to the lack of workplace free speech rights — government workers; complaints about discrimination; protected concerted activity under the National Labor Relations Act; and the few states that grant speech rights to all employees.

But otherwise, no one should operate under the mistaken impression that they can flap their gums about whatever they want without workplace consequences. People like Sage Steele who continue to perpetrate the fallacy of workplace free speech are doing everyone (including themselves) a grave disservice.

Despite what SCOTUS said about collegiate affirmative action, corporate DEI efforts are still legal

Last week, a federal court judge dismissed a lawsuit filed by a conservative shareholder against Starbucks challenging the company's diversity, equity, and inclusion policies. He called the lawsuit "frivolous."

In 2020, Starbucks decided that it needed a greater representation of BIPOC (Black, Indigenous, People of Color) employees. As a result, it announced a policy that aimed to increase company-wide BIPOC representation to at least 30% in five years. Its efforts included implementing a leadership accelerator program for BIPOC employees, linking executive compensation to meeting DEI goals, and granting funds to community nonprofits.

National Center for Public Policy Research, which owns around $6,000 in Starbucks stock, sued, claiming those policies require the company to make race-based decisions in violation of state and federal civil rights laws. Explaining the lawsuit, the NCPPR said that setting "goals for the number of 'diverse'—meaning not-white—employees it hires … is outright racial discrimination."

Not all reasonable accommodation standards are created equally

Consider this example, and then let's talk.

Lydia works as a cellar person in a brewery. The essential functions of her job include the ability to lift up to 40 lbs. and to move kegs that weigh as much as 160 lbs. She delivers a note from her doctor that says, "No lifting or moving more than 10 pounds."

What are this employer's obligations to offer her a reasonable accommodation for her lifting and moving restrictions? It depends on the medical reason.

Pregnant Workers Fairness Act and pregnancy loss

Missy, a newly hired server in the taproom of a brewery, suffers a miscarriage and asks her manager for ten days of leave to recover. As a new employee, Missy has not yet accrued any paid leave. The employer is too small to be covered by the FMLA and does not have a policy providing any unpaid leave.

Must the brewery grant Missy her requested ten days of post-miscarriage leave?

Historically, the answer could have been no.

WIRTW #682: the “horse hockey” edition

Lou Grant. Leslie Knope. Dr. Mark Greene. Captain Merrill Stubing. Even Michael Scott. The history of television is littered with great bosses. Earlier this week my friend Suzanne Lucas asked her vast LinkedIn network to name their choice for the “best” tv boss. Her choices were District Attorney Adam Schiff and Lieutenant Anita Van Buren, from Law & Order.

My choice: Colonel Sherman T. Potter, who adroitly and compassionately led M*A*S*H's 4077 for the series' final 8 seasons.

What made Col. Potter the best boss?

First and foremost, he always had his team's back, no matter what. He took ownership of his group and shouldered the blame whenever something went wrong. As the 4077's leader, the buck stopped with him, period. Which is not to say that his unit didn't have accountability. To the contrary, he always held his people accountable inside his unit, even as he defended them to everyone outside. When his people screwed up (as they often did), he made sure they understood and that it never happened again.

Col. Potter also embodied much of the best qualities of a good boss. His integrity was unmatched and unquestioned. He always encouraged everyone in his command to be the best versions of themselves and led by example. He knew when to use humor to lighten a situation and when to put the screws to him team. And, most importantly, he never forgot that his doctors, nurses, and other charges weren't soldiers by trade but were stuck in the middle of war zone. It's his empathy and compassion that stands out the most from all of his other admirable qualities.

And that's why Sherman Potter is the correct answer as the best tv boss of all time.

Who is your choice? Share in the comments below.

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Here's what I read this week that you should read, too.

$2.6 million reasons why it’s illegal to fire a gay employee

Yesterday, a federal jury in Columbus returned a $2.6 million verdict in favor of Stacey Yerkes, a former Ohio State Highway Patrol employee who claimed that she was constructively discharged (forced to quit based on intolerable and unreasonable working conditions) because of her sexual orientation.

Despite what he says, Elon Musk will not pay your legal bills if you’re fired for Xing

"If you were unfairly treated by your employer due to posting or liking something on this platform, we will fund your legal bill. No limit. Please let us know."

Elon Musk tweeted (xed?) that note Saturday night to his 152 million followers on his platform. Thus far it’s been liked close to 850,000 times, quoted or retweeted more than 165,000 times, and viewed nearly 130 million times.

And it's complete and total rubbish.

Work and religion aren’t a Reese’s Peanut Butter Cup

Everyone's relationship with God — whether you call that deity God, Yahweh, Jesus, Allah, Vishnu, Buddha, the Flying Spaghetti Monster, something else, or nothing at all — is personal. I have no opinion on your spiritual relationship, as should you have none on mine. Thus, I get mad whenever someone tries to shove their religious beliefs down my throat. Not only do I not care, but I can guarantee that you will not change my mind. Proselytism is one small step removed from fanaticism, and rarely, if ever, has anything good come from religious fanaticism.

I share the above as prologue to today's discussion, which focuses on a Title VII lawsuit the EEOC recently settled with Aurora Pro Services, a North Carolina residential home service and repair company, alleged to have required employees to participate in religious prayer sessions as a condition of employment. 

WIRTW #681: the “excel-lent” edition

To be the man (or woman), you've gotta beat the man (or woman).

And to beat the man (or woman), you've gotta be really, really good at pivot tables and the xlookup function.

Earlier this morning, ESPN2 aired the Microsoft Excel World Championship.

You read that correctly — the world championship of spreadsheeting.

How in the world does one convert Microsoft Excel into a competitive sport? The answer is by tasking competitors to use Excel to solve complex puzzles. The eight contestants are provided "cases" to solve. Past examples include computing all of the possible outcomes and rewards for a slot machine or all of the possible combinations of license plate numbers. Contestants are then provided 30 minutes to answer a series of questions related to each case worth up to 1,000 points; the most points wins.

It's fascinating and compelling to watch, and I made sure to tune in before I left for work this morning. No spoilers on who won. I know you can find a replay and I want you to discover the joy of this event all on your own.

So here's my fun Friday question for everyone — If given the opportunity, what aspect of your job would you turn into a competitive sport? Mine would probably have something to do with Lexis searches … or maybe a race to make a filing deadline?

No wrong answers. Please share in the comments below.

Here's what I read this past week that you should read, too.

NLRB resets the rules on employee handbooks … yet again

Yes, we need to talk about employee handbooks and the NLRB … again. 

Yesterday, the Board decided Stericycle, Inc., and announced its 5th (at least) new and different standard in the past 25 years as to when a workplace policy (such as those in employee handbooks) violate employees' rights to engage in protected concerted activity under the National Labor Relations Act to talk between and among themselves about their terms and conditions of employment.

It's enough to give an HR practitioner or employment lawyer legal whiplash, and I'm not going to go through the history of all of these various disparate standards. If you want full history, you can read the Stericycle opinion or search the blog's archives.

What you really want, and need, is a summary of the new standard moving forward (and, as you'll soon discover, backward). Here it is.

The No Robot Bosses Act

"I, for one, welcome our robot overlords." 🙃

Consider this scenario. "You're a delivery driver and your employer's tracking algorithm determines you’re not performing up to its standards — and then sends you an email to let you know you've been fired without any warning or opportunity to speak to a human being." According to Senator Bob Casey, it is this example, along with others, that caused him to draft the the "No Robot Bosses Act."

If enacted, it would add protections for job applicants and employees related to automated decision systems and would require employers to disclose when and how these systems are being used.

Managing an overly sensitive employee

Floyd Sesson, a Black UPS parts mechanic, saw race discrimination in every turn within his workplace.

When UPS changed its policy to prohibit overtime for all parts mechanics, Sesson claimed that the policy unlawfully targeted him because of his race.

When Sesson complained to management about the overtime cuts, he claimed he further lost overtime in retaliation for his complaints.

When supervisors tried to manage Sesson, he claimed they were harassing him because of his race.

The 6th Circuit had little difficulty in affirming the dismissal of Sesson's discrimination, retaliation, and harassment lawsuit.

The time has come to legislate gluten-free food

"I'm gluten free…"

That's how my 15-year-old starts his order at every restaurant. He has Celiac disease and gets very ill anytime he eats gluten.

For the uninformed, Celiac disease is a genetic autoimmune condition that affects the gastrointestinal tract when gluten — a protein found in wheat, barley, and rye — is ingested. When someone with Celiac disease eats gluten, the lining of the small intestine is damaged. In Donovan's case he gets serious gastrointestinal symptoms, sometimes for days.

Thus, Donovan is very particular in what he eats and how he orders, as was the case last week at the Fargo Bar & Grill, a dinnertime stop we made while visiting family on the Finger Lakes last weekend.

WIRTW #680: the “walk up song” edition

Above the Law thinks that it's time for lawyers to have walk-up songs. 

History says that the walk-up song started at Old Comiskey Park in 1970, with the White Sox organist playing each player's home state song as they walked up to the plate. Over time, the tradition expanded to other ballparks and different music. 

What's the most famous walk-up song of all time? I'd argue Ricky "Wild Thing" Vaughn's "Wild Thing" (from the movie "Major League"). In real life? Mariano Rivera's "Enter Sandman"? Chase Utley's "Kashmir"? Trevor Hoffman's "Hells Bells"?

Which brings me back to the question posed by Above the Law: What would our lives be like if our own theme songs accompanied us while we work? 

It's a great question. I think mine would be "Career Opportunities" by The Clash. Driving guitar + a workplace theme = gold for this employment lawyer.

How about you? What walk-up song would you choose for your job?

Here's what I read this week that you should read, too.

6th Circuit opinion guts the validity of e-signatures on employment documents

"I never saw that agreement and I never signed it." That's all that Andrew Bazemore said under oath in defense of Papa John's claim that he was required to arbitrate his FLSA claim relating to an under-reimbursement of vehicle expenses.

The 6th Circuit held that Bazemore's otherwise unsupported declaration was enough to create an issue of fact as to the arbitrability of his claim. 

X marks the spot

There's nothing inherently illegal about naming one of your conference rooms "s3xy." If, however, your company has a history of allegations of sexual harassment and other sex discrimination, it's not the wisest choice.

"s3Xy" is among the names X (née Twitter) chose to rebrand the conference rooms inside its corporate offices. X's sister companies, SpaceX and Tesla, have a long history of defending sexual harassment lawsuits (and allegedly retaliating against the victims). All of these companies have one thing in common — Elon Musk.

WIRTW #679: the “Portugal. The Podcast” edition

It's been a hot minute since my daughter and I recorded an episode of our podcast, The Norah and Dad Show. It only took a Portuguese holiday to get us off our duffs to record. It was a trip more than three years in the making (thanks to Covid), and we made the most of it — 12 days spread across Porto, Peniche, and Lisbon. On the episode we share our favorites from each of our three stops, some restaurant recommendations, cool sights and sounds (peacocks!), and our overall impressions of an amazing country.

You'll find it wherever you get you podcasts, including Apple, Spotify, Google, Amazon, and on the web.

When you finished listening to The Norah and Dad Show, I have two additional podcasts I recorded this week that you should also check out: The World at Work Workspan Podcast (discussing the significance of SCOTUS's end-of-term flurry of opinions) and DriveThru HR''s Labor Relatedly (discussing the ongoing Hollywood labor strikes and what they mean for all employers).

Here's what I read this week that you should, too.