Microagressions as an adverse action

A "microaggression" is a subtle, often unintentional comment or action that conveys bias or discrimination against a marginalized group. For example, asking a person of color, "How did you get this job?" telling a colleague with an accent, "Your English is so good," or scheduling team-building activities at bars, knowing some employees don't drink for religious reasons.

In the right circumstances, however, microaggressions can also amount to an adverse action that supports a workplace retaliation claim.

Consider the recent case of Uchitel v. Solid Waste Services. 

Trump illegally guts the EEOC of its Democratic members

Remember last week when I told you that Trump would try to dismantle all of our federal workplace discrimination laws?

Well, the first shoe has just dropped—right on the EEOC’s neck.

Late yesterday, news broke that Trump fired two Democratic EEOC Commissioners, Jocelyn Samuels and Charlotte Burrows. This move leaves only two Commissioners on the five-member EEOC: Republican Andrea Lucas (whom Trump had previously named acting chair) and Democrat Kalpana Kotagal and no quorum. Without a quorum, the EEOC is now paralyzed—unable to issue rules, provide legal guidance, or direct staff to take key enforcement actions like pursuing litigation.

Missing time sheets doom employee's overtime claim

One of the most challenging tasks is proving a negative. Yet, this is precisely the problem employers face when defending wage-and-hour cases in which employees allege off-the-clock work. The employer argues that time records define the boundaries of the paid workday, while the employee contends they should be compensated for work performed outside of those clock-ins and clock-outs.

For example, consider Osborne v. JAB Management Services, a case recently decided by the 7th Circuit. Tara Osborne worked remotely as a technical support specialist for JAB, providing on-call support to its customers. As a salaried remote worker, she had the flexibility to design her own schedule. While she did not track any time worked over 40 hours per week, Osborne claimed she worked an average of 10 hours per day and 15 hours of overtime per week, including weekends.

The 7th Circuit affirmed the trial court's dismissal of Osborne's lawsuit for unpaid overtime. 

Taking from your employees' tip pool? It's illegal

It’s Dry January, and brewery owners are feeling the pinch. You might be tempted to supplement your income by dipping into your employees’ tip pool. That would be a huge mistake. It isn’t just bad form to take your employees’ hard-earned tips. It’s also illegal.

Under the FLSA, owners, managers, and supervisors are strictly forbidden from taking any part of pooled tips. There are no excuses.

Is Trump coming after Title VII next?

"Dad, did Trump just get rid of workplace discrimination laws?" That's the question my daughter asked me yesterday.

She was referring to his Executive Order entitled, Ending Illegal Discrimination and Restoring Merit Based Opportunity.

To answer Norah's question, no, that EO did not get rid of workplace discrimination laws. Instead, it dismantled federal Diversity, Equity, and Inclusion programs and placed all federal DEI employees on unpaid leave. It also rescinded Executive Order 11246, originally signed by President Lyndon Johnson in 1965, which prohibited federal contractors from discriminating based on race, color, religion, sex, or national origin, and further removing their affirmative action obligations in that regard.

WIRTW #744: the 'London Calling … the podcast' edition

In the latest episode of The Norah and Dad Show, we recap our family Christmas holiday to London. Here are links to everything we mention in the episode. 

• Hux Hotel
• Peter Pan Cup
• The Beatles Magical Mystery Walking Tour
• Third Man Records
• Arsenal Tickets
• Afternoon Tea at the Goring
• Atticus Blue (Leicester Square busker)
  
• Hawksmoor Seven Dials
• The Original Ted Lasso Tour
• Reale Camiceria (the "unofficial" Ted Lasso store)
• The Prince's Head Pub
• Camden Market 
  

You'll find the episode on Apple Podcasts, Spotify, YouTube, Amazon Music, Overcast, the web, and anywhere else you get your podcasts. 

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

Neurodivergence is not an excuse for racism

"He's on the spectrum" is not an excuse for racism.

I've seen more than one person attempt to justify Elon Musk's Nazi salute, or dismiss it, citing his Asperger's syndrome, a form of autism spectrum disorder.

I call 🐂💩!

Bigotry, racism, and antisemitism are not symptoms of Asperger's or autism. They are, however, hallmarks of being a bigot, racist, or antisemite.

A lesson on ADA compliance

What happens when an employer fails to take an employee's disability seriously? It might look a lot like the case of Sutherland v. Peterson's Oil Service.

This recent First Circuit decision offers a crash course on the perils of ignoring an employee's requests for accommodations—and the consequences of getting it wrong.

WIRTW #743: the 'snowball at Santa' edition

If your employee is caught in a viral video calling an opposing fan the "c-word" at a football game, should he lose his job? Does it make a difference if your company is in the business of DEI consulting?

This story just played out following the Eagles playoff win over the Packers last weekend.

Ryan Caldwell, an employee at BCT Partners—a firm specializing in DEI—was captured on video during the game directing the vulgar and misogynistic insults toward a female Packers fan. The video quickly went viral to the tune of more than 31 million views. The public backlash was significant and swift.

The Eagles organization responded by banning Caldwell from their stadium for life. BCT Partners conducted an internal investigation and terminated Caldwell's employment, stating that his behavior was "vile, disgusting, unacceptable, and horrific," and stood in direct opposition to the company's core values of respect, dignity, and inclusion. Caldwell then issued a public apology, but added that the video "does not reflect the full context of what transpired," and that his actions "were not without provocation."

This incident serves as a stark reminder of the importance of aligning employees' behavior with a company's values, both on and off the clock. By proactively addressing these issues in real time, employers can mitigate risks, uphold their reputations, and foster a positive workplace culture that reflects their mission and values.

Three more points to make:

1. This is not a free speech issue. Private-sector employees have zero free speech rights in the workplace in this context. Regardless, freedom of speech does not equal freedom from consequences.

2. It is irrelevant whether this employee works for a DEI firm or any other company. His behavior was abhorrent, could damage the company's reputation, and is grounds for termination. The identity of his employer is just the ironic icing on the cake.

3. The employee's apology rings quite hollow. I don't care about the "context" of what happened or how he was "provoked." If you respond to provocation by calling a woman that awful word, that's who you are, period. And I certainly don't want you working for me.

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

SCOTUS eases burden of proof for employers in FLSA exemptions cases

Big news for employers: The Supreme Court just made it easier to defend against Fair Labor Standards Act exemption claims by employees.

In E.M.D. Sales v. Carrera, the Court unanimously ruled that employers only need to meet the preponderance of the evidence standard—not the heightened clear-and-convincing standard—when proving that an employee is exempt from the FLSA's overtime requirements.

An expensive lesson on pay-equity compliance

Mastercard has agreed to pay $26 million to settle allegations that it systematically underpaid thousands of female, Black, and Hispanic employees. The settlement resolves claims that the company underpaid 7,500 female, Black, and Hispanic workers compared to their male and white counterparts for performing the same or similar work.

As this case illustrates, allegations of systemic pay discrimination hit hard—financially and reputationally. As an employer, you can and should take steps to ensure fair pay practices. Not only because it's the right thing to do, but because it's critical to avoid costly lawsuits and foster a workplace of trust and respect.

This is how NOT to respond to employee complaints

JP Morgan is making waves with its decision to bring employees back to the office five days a week starting in March. But what's making even more waves is its reported crackdown on employee communication about this decision on the company intranet.

Let's talk about why that's problematic from both a legal and practical standpoint:

ADA covers more than those who are limited in their ability to work

What happens when an employer ignores the definition of "disability" under the ADA? A lawsuit—and a lesson in what not to do. A recent 6th Circuit decision highlights how important it is to get the definition right—and why denying a reasonable accommodation like a job transfer can land you in legal trouble.

WIRTW #742: the 'london calling' edition

"What do think about going to see an Arsenal match for Christmas?" That question—which my wife posed to me over a glass of wine a couple of months ago—birthed our 2024 Christmas holiday.

I work so that I can afford to travel. It's what feeds and restores my soul. The world is so vast and so interesting, and I want to see and experience it all. The five days we just spent in as a family in London was exactly what my soul needed.

Here are my top five highlights.

     1. Arsenal. If you're a sports fan and have never experienced a Premier League match live, you're missing out. The stadium was electric from start to finish. Bonus points for an Arsenal 1-0 win. Double bonus points for witnesses a proper British argument between Arsenal and Ipswich fans on the walk back to the Tube following the match. ("Have fun playing Swansea next year!") Triple bonus points for Donovan's first cider.

     2. Ted Lasso Tour of Richmond. This was a pilgrimage for us. It was so cool to see the famous sites from the show, including Ted's apartment door, the Ted/Beard bench, and the pub. Bonus points for lunch at the "Ted Table" in the pub following the tour.

     3. Afternoon Tea at the Goring. The poshest of posh. Also, a perfect way to celebrate my wife's birthday. Bonus point for their offering of gluten-free service for my Celiac son, which was identical to our full-gluten service.

     4. The Holiday Lights. London is beautifully festive for the Christmas holiday. We soaked in as much as we could through the massive crowds. Bonus points for Norah picking up a busker's tambourine and jamming along for a song. Double bonus points for stumbling across what has to have been the worst Christmas display in London.

     5. Watching the Peter Pan Cup. It's a 100-yard swimming race held in Hyde Park every Christmas morning since 1864. It was a wonderfully local way to spend our post-arrival Christmas morning while we waited for our hotel room to be ready. Bonus points for our morning stroll through Hyde Park and Kensington Gardens with many Londoners and their dogs.

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

The "R-word" is making a comeback

According to Rolling Stone magazine, the "R-word" is making a comeback as part of a hard-right online trend using it to slander those who do not agree with their politics.

The resurgence of the "R-word" as a slur is more than offensive—it's harmful. It perpetuates stigma, dehumanization, and exclusion, particularly for individuals with intellectual and developmental disabilities.

This isn't about ignorance. Everyone knows why that word is ugly. Its recent resurgence in mainstream discourse, fueled by social media and some high-profile offenders, is a deliberate attempt to provoke and devalue. It's not just juvenile name-calling; it's a message—one that says some people are less deserving of respect, dignity, or a voice.

Avoid "mommy-track" stereotypes with your female employees

"If she returns…" That statement is among the allegations that Chloe Koprucki makes against her former employer, Broadridge Financial Solutions, in a just-filed sex discrimination and FMLA lawsuit. In sum, Koprucki claims that the company "mommy tracked" her after her return from maternity leave.

The "mommy track" refers to the unspoken career path many working mothers find themselves on, where they are passed over for promotions or opportunities because of assumptions about their priorities or commitment. High-profile lawsuits by women at companies like Ernst & Young, Jones Day, and others have brought attention to how this practice can create serious legal risks for employers.

The 1st nominee for The Worst Employer of 2025 is … The Menstrual Marauder

"We can't hire you. You'll be absent too much due to your monthly cycle." That's the text Rahdia Green received from a hiring manager at a gym owned by Equinox Holdings after she requested to reschedule a second-round interview for a front desk job.

Green, who suffers from endometriosis, asked to delay the interview by a few days because of severe menstrual pain. Instead of accommodating her request, the gym declined to interview her further and hired a male applicant with no prior experience—despite Green's years of relevant experience working in similar roles at other gyms.

Costco's masterclass on responding to DEI backlash

It's not easy to stand firm in today's polarized world, but Costco just showed everyone how it's done.

Recently, Costco's board rejected a shareholder proposal aimed at rolling back its DEI (diversity, equity, and inclusion) initiatives. Instead, the company doubled down on its commitment to making its workplaces inclusive and equitable.

In a statement, the retail giant wrote: "Our Board has considered this proposal and believes that our commitment to an enterprise rooted in respect and inclusion is appropriate and necessary. Our success has been built on service to our critical stakeholders: employees, members and suppliers. Our efforts around diversity, equity and inclusion follow our code of ethics."

Predictably, the backlash came fast, with calls for a boycott from some corners. Unlike many other companies, however, Costco didn't buckle under the pressure of a right-wing boycott. Instead, it stood its ground for what it believes in.

’Twas the Employment Law Night Before Christmas (2024 edition)

In what has become an annual tradition for my final post of the year, I bring you the holiday classic, 'Twas the Employment Law Night Before Christmas … tweaked for 2024.

To all of my readers, connections, and followers, new and legacy, thank you all for reading, commenting, and sharing throughout the year. Please have a happy and, most importantly, healthy and safe holiday season. I'll see everyone in 2025 with new content to kick off the new year, including a fresh batch of Worst Employer nominees.

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The Worst Employer of 2024 is…

The votes have been counted. The WINNER of The Worst Employer of 2024 is...