On Friday, July 27, after a 3 week trial in Manhattan, a jury awarded $1.25 million in damages to Enrichetta Ravina, a former professor at Columbia University Business School, who claimed that she was denied tenure and forced to resign in retaliation for complaining that a senior professor, Geert Bekaert, had sexually harassed her.  Professor Bekaert will owe her $500,000 in punitive damages, and Columbia will owe $750,000 in punitive damages.

Ravina first prevailed Thursday on her retaliation claims against Bekaert and against Columbia based on his conduct.  The jury also held Thursday that Bekaert, but not Columbia, could be held liable for punitive damages.  Jurors rejected Ravina’s gender discrimination claims against both.  The money verdicts then came in on Friday.

Interestingly, the jury found that there was no sexual harassment or gender discrimination.  The verdict was on the retaliation claims.  The jury also did not give the plaintiff the back pay and front pay she had sought.  They awarded only punitive damages, against both defendants.
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In the past two weeks, we saw two major decisions in the area of LGBTQ rights in the workplace.

First, the Second Circuit in New York held that Title VII does prohibit discrimination based on sexual orientation. Zarda v. Altitude Express, Inc., No. 15-3775, 2018 WL 1040820 (2d Cir. Feb. 26, 2018). In Zarda, the New York court overturned past precedent and held that the late Donald Zarda, a skydiving instructor who claimed that he was fired because he was gay, had a viable claim of gender discrimination under Title VII.

Second, the Sixth Circuit Court of Appeals reversed a district court’s decision on EEOC v. R.G. &. G.R. Harris Funeral, rejecting the notion that religious beliefs offer an excuse or reason to discriminate. This case took a sharp turn last week when the court held that the Harris Funeral Home had violated Title VII when it terminated Aimee Stephens, a transgender female employee, because she wanted to wear a skirt to work. No. 16-2424 (6th Cir. March 7, 2018). Ms. Stephens transitioned from male to female and the owner of the home (Thomas Rost) claimed that it violated his religious beliefs to allow plaintiff, a biological male, to wear a skirt to work. Ms. Stephens was ultimately fired over this issue. The District Court agreed with Mr. Rost citing the Religious Freedom Restoration Act (RFRA), which entered final judgment on all counts in the Funeral Home’s favor in August 2016.

On appeal, the Sixth Circuit found that Mr. Rost’s Christian beliefs did not override the employee’s right to express her gender. Thus, even considering the employer’s rights under the RFRA, Mr. Rost did not have the right to dictate his employee’s attire. In other words, Ms. Stephens had a right to wear a skirt to work and therefore, was unlawfully terminated.
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Earlier, we blogged about James Damore, an engineer at Google who was terminated for his memo, which openly expressed his belief that women were not “biologically suited” for certain types of positions and criticism of the company’s efforts to diversify its work force.

The engineer challenged his termination by filing a charge with the

Marijuana remains illegal under federal law. However, there are many states, and a few cities, which have legalized medical and recreational marijuana – creating challenges for employers, as these laws “sprout up” (pun intended) across the country.

Also, prior to now, the caselaw was quite clear – an employer could discipline an employee for lawful use of marijuana. See Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015). But the law appears to be changing, as recent cases indicate that courts are beginning to recognize that employees who are lawful users of marijuana are entitled to some protection.

It is a trend that employers need to watch.
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Over the past year, we have all watched the garish spectacle of various sexual harassment scandals take down powerful men in media, Silicon Valley, and most recently Hollywood, where allegations of Harvey Weinstein’s lurid conduct have engulfed the industry.

And we have read a lot of typical advice from law firms in the wake of all this: make sure you have the right policies in place, train your managers and staff, have a robust complaint procedure, and investigate all claims and respond promptly when harassment is reported.

Here’s the rub: pretty much every organization languishing under sexual harassment allegations in the past year had all that. You can bet that every company ensnared in these scandals had the right policies and procedures in place, had done sexual harassment training, had an HR department that was ready to respond. And all that preparation avoided . . . absolutely nothing. So your human resources people and legal professionals may be thinking, “We’ve got policies and complaint response procedures in place, so we’re set, right?”

Wrong.

Where is the disconnect? Why do these things keep happening? And with the orgy (pun intended) of recent publicity, what do you do to keep your company from being the next media pariah?


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Title VII of the Civil Rights Act prohibits discrimination based on race, color, sex, national origin and religion. While the first four categories often dominate the news headlines and court dockets, the fifth category — religion — should not be underestimated.

Possibly due to the U.S. Supreme Court’s June 2015 Abercrombie decision — a religious

President Trump likes to mix it up.  Mix everything up, like the National Football League and the First Amendment.

Wait. What?

Whether you think the President defies convention strategically or blunderingly, Trump is more a force of nature than a familiar political type, unabashedly tweeting on topics that are at least arguably Presidential (we will “totally destroy” North Korea) to just plain weird for a President to tweet about (Nordstrom has been unfair to his daughter), even assuming that a tweeting President is itself normal.

So what to make of his speech last week at a rally in Huntsville, Alabama, about the NFL? In case you were in cryogenic hibernation and missed it, President Trump attributed the NFL’s decrease in ratings to player protests and called for the firing of NFL players who call attention to racial injustice by kneeling during the national anthem. Not satisfied that just firing players engaged in social protest would be enough, President Trump also called for football fans to boycott NFL games unless the league fires or suspends players who refuse to stand for the national anthem. President Trump tweeted that players “must stop disrespecting our flag and country.”

Now back to the “force of nature” comment. It is possible that we’ve become so accustomed to the unaccustomed with President Trump that we miss what, at least from a Constitutional perspective, was happening there:  the President, speaking as the President (in other words, a high-level mouthpiece of the federal government) was: 1) demanding that private employers fire employees on the basis of political expression; 2) urging citizens to boycott private businesses who do not fire employees who engage in political expression; and 3) undoubtedly impacting the professional viability for those employees who have chosen to engage in government-condemned political expression.

“Ok,” you might say, but (as we’ve heard ad nauseam), “this was just Trump being Trump,” which really means nothing, as if saying that an elected official was just acting out of whatever momentary impulses he had is all the analysis we need.  So let us put the question to you more clearly:  when the President, not purporting to speak as a private individual (even if he could do that), tells private employers to fire employees because he thinks they are unpatriotic; tells customers to damage the businesses that do not fire employees as demanded; and makes statements that may hurt the professional careers of the people he wants fired, do the private citizens and businesses have claims against the government?
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As many of us settle into September, with fond memories of our summer vacations, do not think that the federal agencies were on a hiatus. In fact and despite predictions that the EEOC under the new administration would be less aggressive in enforcing the discrimination laws, the Commission has been very active and did not take much of a summer vacation.

A survey of recent enforcement actions brought and settlement by the EEOC illustrate that the agency is still aggressively prosecuting cases, and continues to be focused on several key areas namely: combatting disability discrimination, proper accommodations and treatment of pregnant employees, and claims of systemic gender discrimination in company policies.

EEOC Sues Accuses Employer of Firing Worker With Breast Cancer
In late August, the EEOC sued the Illinois Action for Children (IAC), alleging that the IAC unlawfully fired an employee who was out on leave for breast cancer treatment, violating the Americans with Disabilities Act and the Civil Rights Act of 1991.

This case highlights the danger of standing behind a strict leave policy and denying requests for leave extensions.

The plaintiff, Myrnie Brown, had worked for the IAC for two years, when she was diagnosed with breast cancer and requested, and was granted, a leave that would span June through October 1, 2015. She later requested an extension of that leave to November when her doctor ordered follow-up treatments. IAC denied that extension and fired Brown.

Interestingly, Brown was eventually rehired, but had been out of a job for over 6 months. Clearly, the rehiring did not save the day for the IAC, as the EEOC contends that it failed to accommodate Brown by not considering an extension of the leave as a reasonable accommodation.

EEOC Chicago district regional attorney Greg Gochanour said, “Anyone suffering from breast cancer has enough to face and overcome without her employer violating federal law and denying her adequate leave to combat her illness. When such a situation sadly occurs, the EEOC is ready to step in and fight for people who are fighting discrimination as well as cancer.”

– We will have to wait and see where that case goes.
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The blogs and networks have been buzzing over the past few days with news that a senior software engineer at Google – James Damore – had taken it upon himself to write and post on an internal Google mailing list a ten page memo, explaining his theory on why Google’s efforts to diversify its workforce were not working. In his words, Google’s “politically correct mononculture” had reached the point where efforts to create diversity by hiring and promoting more women (and other under-represented groups) was actually hurting the company.  Implicit in his criticism was what seemed like an undercurrent that men were somehow better suited than women for many tech jobs, and that Google was hiring or promoting women over men, even when the woman might not be the best person for the role.

In the course of this memo, Damore made a number of openly sexist and stereotypical comments about women, which many employees of both sexes took great offense to.  Most disturbing was his core view, that the reason women did not succeed in tech jobs was “biological”.

For instance, he opined:

  • that women were more apt to have a stronger interest in “people rather than things” and that tech was an industry which focused on things
  • that women had a higher level of “agreeableness”, which is why they had a harder time negotiating salary
  • that women had “higher anxiety/lower stress tolerance”

Finally, he theorized that the reason there were not more women in leadership roles at tech companies was because they did not have the same “drive for status” or to succeed as men did.

Damore also was very critical and dismissive of Google’s diversity programs, training, and other company initiatives aimed at helping women and diverse employees advance.

The memo of course went viral, and was soon circulating outside of Google and all over the world.
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