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SHRM Newsletter- Expected Ban on Federal Contractor Sex Orientation Bias
Posted on Jun. 18, 2014

This is Utah SHRM Legal-mail no. 2014-11 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

CONTENTS:

-  EXPECTED BAN ON FEDERAL CONTRACTOR SEX ORIENTATION BIAS

-  FEDERAL COURT DISMISSES RACE BIAS CLAIMS IN LAYOFF CASE

-  RETALIATION CLAIM TO GO TO TRIAL

-  ALLOWING THEFT A REASONABLE ACCOMMODATION?

-  EEOC SAYS DO NOT FORCE EMPLOYEES TO SAY THEY LOVE EACH OTHER

EXPECTED BAN ON FEDERAL CONTRACTOR SEX ORIENTATION BIAS: The White House has announced that President Obama is preparing an executive order that will ban federal contractors from engaging in discrimination based on sexual orientation or gender identity. The order likely will be signed sometime in late June or early July of 2014. Although there is no law prohibiting such discrimination nationally, about half the states also prohibit private employers from engaging in job discrimination based on a person’s sexual orientation or gender identity. No such state-wide ban exists under Utah law, but almost twenty different Utah cities and counties have enacted ordinances prohibiting such discrimination within those jurisdictions. These include: Salt Lake City, Salt Lake County, Park City, Summit County, Taylorsville, West Valley City, Marriott – Slaterville, Murray, Midvale, Moab, Grand County, Ogden, Logan, Alta, Harrisville, Springdale, South Salt Lake, Perry City and Washington Terrace.

FEDERAL COURT DISMISSES RACE BIAS CLAIMS IN LAYOFF CASE: A federal appeals court has dismissed race discrimination claims filed against an employer in a steel manufacturing company layoff. The laid off African-American plaintiff-employee alleged he was more senior than several white employees who were not laid off. The court found that the employer had implemented a system for analyzing employee skills and versatility and thus relied on legitimate, nondiscriminatory reasons in choosing to retain more skilled and versatile workers over the more senior plaintiff. The case is a timely reminder to employers contemplating layoffs. The best way to reduce the risk of losing a discrimination claim is to apply clear, job-related and legitimate factors when distinguishing between employees and to carefully document the analysis and the reasons for choosing to keep one employee over another.

RETALIATION CLAIM TO GO TO TRIAL: A federal judge in California has ordered a jury trial in an employee’s claim that he was fired just days after saying he would support a co-worker’s sexual harassment lawsuit. The case involved a hotel finance director who announced support for a fellow employee’s harassment claim against the hotel’s human resources director. Several days later, the finance director was fired, allegedly for poor performance and failing to supervise breaks. However, there were factual disputes about whether the finance director had even been counseled about alleged performance problems and the HR director could not identify any other supervisors who had been fired for failing to supervise employee break time even though abuse was widespread throughout the hotel. Moreover, before he engaged in protected conduct, the finance director had been told his job was not at risk. Such confusion was sufficient, along with the short interval between the protected action and the termination, to justify a jury trial the court concluded.

ALLOWING THEFT A REASONABLE ACCOMMODATION? A California federal court has ordered a jury trial in a case where an employee with diabetes ate some of the employer’s food, due to her low blood sugar, and was fired as a result. The employer at issue- a food and drug store- had a “no grazing” policy, meaning the employees could not eat the company’s products without paying for them. The employee in question, claiming she was having a diabetes attack, ate a bag of potato chips without paying for them and thus was fired. The court concluded that whether or not the employer should have reasonably accommodated the small theft was a jury issue.

EEOC SAYS DO NOT FORCE EMPLOYEES TO SAY THEY LOVE EACH OTHER: The Equal Employment Opportunity Commission (EEOC) recently filed a lawsuit against a New York company for religious bias because the company allegedly imposed a belief system that required employees to pray, burn candles and tell each other “I love you.” The employer’s belief system, interestingly named “Onionhead” (not sure why that particular name was chosen) espoused a principle of “harnessing happiness” and included activities such as group prayer, dim lighting, discussing personal matters with colleagues and expressing love for others. Some employees objected to the practices, one expressing displeasure over a spa weekend when employees allegedly had to be together all the time, hold hands and chant. Various employees alleged they suffered retaliation (some termination of employment) when they said they did not really want to join in the expression of this employer’s belief system. In filing its lawsuit, the EEOC noted that “religious and spiritual practices may indeed provide comfort and community to many people, it is critical [for employers] to be aware that federal law prohibits employers from coercing employees to take part in them.”

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Author

mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

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Michael Patrick O'Brien
 

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012