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SHRM Newsletter: EEOC Says Sexual Orientation Bias Banned by Federal Law
Posted on Dec. 1, 2014

This is Utah SHRM Legal-mail no. 2014-21 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:

EEOC SAYS SEXUAL ORIENTATION BIAS BANNED BY FEDERAL LAW

-  LGBT CHARGES UP, ACCORDING TO THE EEOC

-  INTERESTING INFORMATION ITEMS FROM EEOC ANNUAL REPORT

-  EEOC/NLRB WARN EMPOYERS ABOUT USING SOCIAL MEDIA IN HIRING

-  EMPLOYER HIT WITH $185 MILLION PREGNANCY BIAS VERDICT

EEOC SAYS SEXUAL ORIENTATION BIAS BANNED BY FEDERAL LAW: In briefs filed with courts and in various other statements, the Equal Employment Opportunity Commission (EEOC) is taking the position that current federal law already prohibits employer discrimination based on sexual orientation. The EEOC asserts that bias based on sexual orientation is often biased based on gender, which is already a protected class. For example, the EEOC argues that an employee who is discriminated against because he has a same sex attraction is a victim of illegal gender stereotyping if that bias is based on the notion that men should not date or be attracted to other men. In another ruling involving a claim of bias by a federal employer, the EEOC concluded that an employee’s status as transgendered was also protected by existing law because it was based on sex and gender or stereotypes about the same. Although many courts do not appear to fully-accept the EEOC’s emerging view, the agency has instructed its investigators to apply these concepts in resolving charges. Thus, employers should expect that the EEOC will be much more accepting of sexual orientation and gender identity administrative charges than was the case in the past. The EEOC also will likely look to litigate more of these types of claims in hopes the courts will also adopt this view.

LGBT CHARGES UP, ACCORDING TO THE EEOC: Not surprisingly, given the point made just above, the EEOC is reporting a significant increase in charges involving LGBT (Lesbian, Gay, Bisexual, Transgendered) issues. The spike is attributed to court decisions and the EEOC’s position recognizing a sex stereotyping theory (i.e. adverse job actions said to be based on an employer’s belief that an employee does not act in conformance with society’s expectations for persons of that gender).

INTERESTING INFORMATION ITEMS FROM EEOC ANNUAL REPORT: The EEOC’s fiscal year ends in September, and shortly thereafter the agency issues an annual report detailing its activities. The current report notes a continuing downward trend in the total number of new charges filed annually, e.g. about 87,000 charges filed in the most recent year compared to almost 100,000 a few years ago. The EEOC secured $296.1 million in monetary relief for alleged victims of employment discrimination in private sector and state and local government workplaces through mediation, conciliation and other administrative enforcement. According to its report, the agency obtained id="mce_marker"44.6 million in benefits for individuals through mediations alone.  EEOC filed 133 merits lawsuits during FY 2014. This included 105 individual suits, 11 non-systemic class suits, and 17 systemic suits.

EEOC/NLRB WARN EMPOYERS ABOUT USING SOCIAL MEDIA IN HIRING: The EEOC has joined forces with the National Labor Relations Board (NLRB) in warning employers about the hazards of using, in the hiring process, information about applicants obtained from social media. Both agencies caution that there is a lot of information available on social media that an employer should not be considering at the application stage, including such things as race, religion, union viewpoints/activity, etc. Officials from both agencies reminded employers that such information cannot be used even if it is obtained by the employee disclosing it online, as opposed to responding to a question from an employer.

EMPLOYER HIT WITH $185 MILLION PREGNANCY BIAS VERDICT: A national auto parts company has been hit with a huge verdict from a jury in California federal court in a pregnancy discrimination case. The plaintiff alleged that she was demoted and then terminated from a management position because she was pregnant. One of the key facts was that her manager urged her to step aside after she announced her pregnancy. The jury awarded her id="mce_marker"85 million in punitive damages, as well as over $800,000 in compensatory damages, including over $500,000 in wage loss. The award represents a new record for a single employer case.

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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.

Awards and Recognition

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Chambers 2011 Attorney

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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