Who Needs Halloween? Sexual Harassment and Election Season

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rockoffsabrinapresnell-2By Sabrina Presnell Rockoff

I come to you this beautiful October day with three scary topics you should likely avoid at any dinner party.  However, as an employment lawyer and breast cancer survivor, I’m going to tackle all of them:  Politics, sexual harassment and cancer.  I’ll start with the last topic first.  October is breast cancer awareness month.  As a survivor of stage 1 breast cancer, I’m living proof that early detection saves lives.  So if you or your loved one has been putting off a mammogram or checking something that seems worrisome, STOP!  Make an appointment today.  It matters – a lot.

Now, on to the other two … This election is testing many of the fundamental ideas we all believe in as Americans:  democracy, patriotism, equal rights and freedom of speech.  Keeping our opinions to ourselves this election season has become increasingly difficult.  Without offering my own opinion on the candidates, one thing is very clear:  sexual harassment is front and center in this election in a way it has not been since the early 1990s.  And history shows us that when sexual harassment is at the forefront of political discussion, we all had best take note. The EEOC reported that charges filed alleging sexual harassment increased by over 60 percent the year following the Clarence Thomas confirmation hearings.  While I would argue, based on my own experience, that companies are now in a much better position to address sexual harassment concerns and claims than they were 10 or 20 years ago, based on the current conversations being had on any cable news show, not all companies, even large, seemingly savvy companies, are doing it well.  You can find the most recent data regarding EEOC charges related to sex harassment here:  https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm

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Eighth Circuit: Heavy-Set Truck Drivers Can Be Forced To Undergo Sleep Exam

henson-andrewBy Andrew J. Henson

A recent Eighth Circuit opinion found that a trucking company could force heavy-set truck drivers to submit to a sleep apnea exam as a “business necessity,” avoiding liability under the Americans with Disabilities Act (ADA), possibly paving the way for future class-wide medical examination requirements that comply with the ADA.

In Parker v. Crete Carrier Corp., 2016 WL 5929210 (8th Cir. October 12, 2016), a trucking company required its drivers who had a Body Mass Index (BMI) of 35 or greater to get medical examinations to determine if they had Obstructive Sleep Apnea (OSA). Parker, a driver for the company, objected to the sleep apnea investigation requirement and gave his employer a note from his doctor, which stated that he did not believe the examination was necessary. When the trucking company refused to allow Parker to conduct any further driving without the examination, Parker sued under the ADA, alleging he was discriminated against for being “regarded as” having a disability. The court assumed without deciding that requiring a medical examination for people with a BMI in excess of 35 was sufficient to show an employer regarded an employee as having a disability and proceeded to whether the employer had an affirmative defense.

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Disaster Unemployment Assistance Available For 23 Counties In North Carolina

robin-sheaBy Robin Shea

In the aftermath of Hurricane Matthew, 23 North Carolina counties have been approved to receive federal Disaster Unemployment Assistance. Gov. Pat McCrory has directed the state Department of Employment Security not to enforce the one-week waiting period that normally applies to unemployment claims.

The eligible counties are as follows: Beaufort, Bertie, Bladen, Columbus, Cumberland, Dare, Duplin, Edgecombe, Gates, Greene, Harnett, Hoke, Hyde, Johnston, Jones, Lenoir, Nash, Pender, Pitt, Robeson, Sampson, Wayne, and Wilson.

Here are a press release from the DES and DUA FAQs.

Thanks very much to John Hoomani, chief counsel of the DES, and to Jessica Leaven, chair of the Labor and Employment Section of the North Carolina Bar Association, for sharing this information.

Remark Puts Maternity Leave Case Through Summary Judgment On Direct Evidence Theory

herrmannseanBy Sean F. Herrmann

In EEOC v. Dimensions Healthcare Sys., No. 15-2342 (D. Md. Sept. 2, 2016), the District of Maryland denied the defendant’s motion for summary judgment on the plaintiff’s Title VII and Pregnancy Discrimination Act claims. The court’s decision largely turned on a decision maker’s comment, which the court found could be direct evidence of discrimination.

In that case, the plaintiff sought a promotion into a management-level position, but the company chose a male candidate instead. When the plaintiff asked the decision maker to explain the choice, the decision maker said that the company chose the man because of his “management background.” There was evidence that the plaintiff had reason to be suspicious of this explanation, so she asked again. This time, the decision maker allegedly explained, “Well, like I said, he has a management background. Plus, you were on maternity leave for a while.” Following this meeting, the plaintiff learned that the decision maker was alleged to have previously demoted female employees who had been out on maternity leave.

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EEOC Publishes Guidance On Accommodations For Mental Health Conditions And Finalizes New EEO-1 Reporting Form

mcknightmichaelBy Michael D. McKnight

The EEOC published two items last week of interest to employment counsel:

First, in the September volume of its Digest of Equal Employment Opportunity Law, the EEOC provided some rare insight into the way it views discrimination on the basis of mental health conditions under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.  Although the publication is aimed at government agencies, the guidance details the types of accommodations the EEOC expects of employers for employees or applicants with mental health conditions.

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EEOC v. Catastrophe Management Solutions: Title VII Does Not Prohibit Race Discrimination Based On Mutable Characteristics

Murray,JoeJoseph S. Murray IV

In the 50 years since Congress enacted Title VII, scientists, contemporary thinkers, and society in general have reassessed the concept of race. No longer do we view race solely in terms of biology (immutable characteristics). We now understand that race includes social context, culture, and life experiences (mutable characteristics). While society’s understanding of race has changed, Title VII’s original definition — or lack thereof — remains stuck in 1964. Whether a racial characteristic is mutable or immutable matters, as the Court of Appeals for the United States Court of Appeals for the 11th Circuit recently reminded the EEOC: Title VII only protects against discrimination based on immutable characteristics. EEOC v. Catastrophe Mgmt. Solutions, No. 14-13482, 2016 U.S. App. LEXIS 16918 (11th Cir. Sep. 15, 2016).

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Knowing When a Bonus Must Be Included In Overtime Pay

murphyfletcher2By Murphy H. Fletcher

Everyone likes a bonus, right?  Employees enjoy receiving them, for obvious reasons, and employers use them as a means of rewarding employee achievements and increasing morale.  But while paying employees a bonus can seem like a relatively straightforward benefit, depending on how the employer structures the bonus, the bonus can have long-reaching affects by increasing a non-exempt employee’s regular rate of pay for overtime purposes.

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Fourth Circuit Approves Legislative Prayer

willjamisonEditor’s note:  On Oct. 31, 2016, the 4th Circuit Court of Appeals agreed to re-hear the case en banc.  Oral arguments are tentatively scheduled for Jan. 24-26, 2017.

By Will Jamison

On March 4, 1789, the First United States Congress met in Federal Hall in New York City.  The air was (probably) thick with dust from the street and powder from their wigs.  With the ink still drying on the U.S. Constitution, the actions of that First Congress shed light on how the founders of our nation interpreted the supreme law of the land…that is, according to our U.S. Supreme Court.

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Tully v. City of Wilmington: The Constitution Requires Public Employers To Play By Their Own Rules

parkerkaty-2By Katy Parker

The North Carolina Court of Appeals recently ruled that a police officer has a valid property and liberty interest in requiring his employer, the City of Wilmington, to comply with its own established promotional process.

When Corporal Kevin Tully of the Wilmington Police Department sat for the sergeant’s test in fall of 2011, he felt pretty good about his chances for promotion.  Aside from being named “Wilmington Police Officer of the Year” for 2011 and receiving several other commendations and awards, Corporal Tully is also an avid student of police policy and procedure, and the United States Constitution.  He is often the guy that other officers go to with questions about the finer points of Fourth Amendment search and seizure law.  After taking the test, Corporal Tully felt even better, feeling certain that he had answered most of the questions correctly.  And so it was quite a shock when Corporal Tully was informed that he had failed the test.  He asked for copies of the answers, as he is entitled to do under WPD policy.  Upon receipt of the answer key, Corporal Tully immediately realized that the answer key was wrong – and that the so-called “correct answers” on questions related to Fourth Amendment search and seizure issues were actually based on outdated law.

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Arbitrability Of Arbitration: Judge Takes Backseat to Arbitrator in 9th Circuit Uber Case

kornbluthmichaelBy Michael A. Kornbluth

Last week the U.S. Court of Appeals for the 9th Circuit held that whether or not a contract should be arbitrated was a question to be decided by an arbitrator, not a judge. In Mohamed v. Uber Technologies, 15-16178 (9th Cir. Sept. 7, 2016), the circuit court used scathing language in reversing the district court, which had held that the issue of arbitrability was properly before  the district court and went on to determine that the arbitration clause at issue was unconscionable.

This case originated in 2015 in the U.S. District Court for the Northern District of California, where a number of Uber drivers filed a class action against Uber and a few other companies, alleging violations of the Fair Credit Reporting Act, the Massachusetts Consumer Credit Reporting Act, and the California Consumer Credit Reporting Agencies Act, for improperly using consumer credit information to effectively terminate the plaintiffs’ ability to work for Uber.

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