Category Archives: Sex Discrimination

Accessing Pornographic Websites, Quirky Question # 109

Quirky Question # 109:

We recently discovered that one of our company’s computers was used to access pornographic websites.  Many different employees had access to this computer, but we believe we know who is responsible.  In part, our conclusion is based on the fact that he is the only male employee who has access to that computer. We’re thinking about terminating his employment based on our impressions.  Frankly, we would rather be sued by him than by our female employees who use that computer, a number of whom complained about the pornographic websites that now often pop up on the computer.  Any risks associated with terminating the male employee? Answer→

Guest Article, Forensic Psychiatric Evaluations of Emotional Distress Claims, Part 2

CONTRASTS IN CLAIMS: EVALUATING EMOTIONAL DISTRESS—Part II— A “False Claim”

Barbara Long, M.D., Ph.D., A.B.P.N.
Employment law Title VII claims often include claims of significant emotional distress allegedly caused by inappropriate remarks, touches, and other behaviors in the workplace.  When a supervisor, as opposed to a coworker, has been the alleged instigator of the reportedly offensive behavior, emotional distress claims are frequently enhanced because of the “power differential” between the supervisor and supervisee.  Evaluating the validity of such emotional distress claims can be challenging.  This paper, which is Part 2 of a series on Evaluating Emotional Distress Claims, will describe how expert psychiatric forensic consultation can assist in determining which claims may have merit and which may be false, the ultimate determination to be made by the trier-of-fact.

Answer→

Guest Article, Forensic Psychiatric Evaluations of Emotional Distress Claims

CONTRASTS IN CLAIMS:

EVALUATING EMOTIONAL DISTRESS—Part I—the “Eggshell Plaintiff”

Barbara Long, M.D., Ph.D., A.B.P.N.

Employment law Title VII claims often include allegations of significant emotional distress allegedly caused by reportedly inappropriate remarks, touches, and other behaviors in the workplace.  When a supervisor, as opposed to a coworker, has been the alleged instigator of the reportedly offensive behavior, emotional distress claims are frequently enhanced because of the “power differential” between the supervisor and supervisee.  Evaluating the validity of such emotional distress claims can be challenging.  This paper will describe how expert psychiatric forensic consultation can assist in determining which claims may have merit and which may be false, the ultimate determination to be made by the trier-of-fact. Answer→

Changes to Nation’s Employment Laws

Dorsey’s Analysis of Changes to the Nation’s Employment Laws

The advent of the Obama Administration is likely to result (and already has resulted) in sweeping changes to federal labor and employment laws and, accordingly, the relationship between employers and their employees. As we approach the 100th day of the new Administration, we have compiled a user-friendly summary guide to several key pieces of labor and employment legislation that are either pending before or likely to be revisited by the 111th Congress. Among other things, these laws underscore the Obama Administration’s stated commitments to strengthening anti-discrimination protections, repositioning the work/family balance, and reinvigorating unions. We will continue to monitor these and other legislative developments and will issue updates to ensure our clients stay ahead of the curve on impending changes. Answer→

Sexual Harassment, Ancient Info, Quirky Question # 82

Quirky Question # 82:

I am the HR director for a mid-sized company.  A number of years ago, one of our employees complained about sexual harassment from a senior executive in the Company.  We investigated and found corroboration for a number of her allegations.  The investigation also revealed that other employees had been mistreated by the executive.

We addressed the situation at that time, though we did not terminate the executive.  Nevertheless, I thought the issues were behind us.  Now, the same employee has filed a new complaint against the same executive.  She’s dragging in all of the issues that arose more than five years ago.  Can she do that?  I’m not a lawyer but I thought referencing these kinds of ancient problems was barred by the statute of limitations?  The complaining employee also has stated somewhat vaguely that she also may assert “common law claims.’  (Sounds to me like she has lawyered up.)  What might these claims be?  Your guidance is appreciated. Answer→

Withdrawal of Job Offer to Transsexual, Quirky Question # 68

Quirky Question # 68:

We recently filled a position with a highly qualified applicant.  After we made him an offer, he informed us that he soon would be undergoing a sex change operation.  He said that when he started the job, he would be a male, but within a month or two, his operation would be complete and he would be reporting to the job as a woman. We concluded that our company just did not need the complication this situation presented.  Therefore, we withdrew the offer and offered the position to another, admittedly less qualified, individual.  Any problems with our decision? Answer→

Conflicts Between Religion and Other Discriminatory Prohibitions, Quirky Question # 58

Quirky Question # 58:

I read with interest your last question about a company’s obligation to accommodate an individual’s religious beliefs, assuming that it would not cause an undue hardship to the employer.  We have a slightly different problem.  One of our employee’s religious beliefs would appear to be in conflict with our anti-discrimination prohibitions.

Acknowledging the changing composition of our workforce and customers, our company instituted a diversity initiative.  As part of that effort, we display posters of some of our diverse employees (an African American, a woman, a Hispanic, an older employee, a disabled employee, and a Gay employee who is very active in our GLBT efforts).

Shortly after the posters were displayed, a long-term employee placed a quotation from the Bible in an overhead bin in his cubicle in large letters.  The quoted passage stated:  “If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination; they shall surely be put to death.”

Co-workers who sit by or have to pass by the employee’s cubicle have complained about the quotation as being contrary to the diversity and anti-harassment policies of the company.  They correctly point out that displaying this Bible quotation also appears to be in conflict with Minnesota’s prohibition of discrimination based on sexual orientation.  When we approached the individual, he explained that he is a devout Christian who believes he must expose homosexuality as evil.

What recommendations do you have for resolving the conflict between our company’s obligations to prevent sexual orientation discrimination and our company’s obligation to accommodate different religious beliefs. Answer→

Termination for Infertility Treatments, Quirky Question # 53

Quirky Question # 53:

I read with interest your Quirky Question # 46, regarding the issue of whether an employer can fire an employee for having an abortion.  I have a slightly different inquiry.  Could we fire an employee because of her infertility treatments?  I ask because we need to reduce our workforce slightly and one of the employees we are considering has been recently involved in in vitro fertility treatments.  She’s missed quite a bit of work and it seems likely that she will miss more.  Given that fact, we’d rather retain other employees in comparable positions.

Since both men and women alike may suffer from infertility, our decision is not based on sex.  Any thoughts? Answer→

Firing An Employee for Having an Abortion, Quirky Question # 46

Quirky Question # 46:

We are a privately held company that runs a large software sales organization.  The family that started our company and that still dominates its executive ranks has conservative values.  Among those issues about which the owners feel strongly is the abortion issue.  They do not believe that women should have abortions under any circumstances.

One of our employees who was pregnant recently learned that there were serious problems with her unborn child.  Although her own life would not have been in jeopardy had she carried the child to term, her physicians recommended that she terminate the pregnancy.  She and her husband agonized over this decision but decided to follow the medical recommendations.

I am the HR Director and I have now been instructed to terminate our employee’s employment.  No explanation has been offered for why the company wants to discharge her.  I do know, however, that she has not previously had any performance problems.  To the contrary, she always has been highly regarded, a fact that is reflected in her glowing annual performance appraisals.  Moreover, the discharge decision is not being motivated by any economic downturn.  Our company is exceeding our year’s financial goals and no other employees are being laid off.

My instincts tell me the directive I have received is motivated by the fact that our employee decided to have an abortion, though no one specifically provided that explanation to me.  Nevertheless, this directive just does not sit well with me.  If I terminate her employment when she returns from the leave associated with the medical procedure and the funeral of her child, will I be exposing the company to risk? Answer→

Sexual Harassment — Activities Outside the Workplace, Quirky Question # 32

Quirky Question # 32:

I am an attorney in the Law Department of an advertising agency.  I recently learned in a roundabout way that one of our female employees is a motorcycle enthusiast.  For the last few years, she has taken time off from work to attend the motorcycle rally in Sturgis, South Dakota.  This year, someone at work was surfing the Web and looked at various Sturgis websites.  (I’ve since learned that there are more than 1000 Sturgis websites, many of which contain photos.)  Our employee was pictured in photos on a number of the Sturgis websites and in many of them she is not wearing much (if any) clothing.  Some of the photos are quite suggestive.

One of our employees downloaded several of the photos and circulated them via email to other employees in our office.  One employee is using one of the pics as the “wallpaper” on his computer.  A number of our employees have been asking our Sturgis enthusiast about her experience and what “really goes on at Sturgis,”  Not all of the questions are in good taste.  Other employees (mostly, but not exclusively, male) have been teasing our employee quite a bit (sometimes crudely) about her Sturgis trip.  She recently reported to me that she finds their comments both offensive and irritating.  My initial reaction was “What did you expect?”, but I did not express that sentiment to her.  I’ve informally asked some of the guys to tone it down, but I’m not sure I’m getting through to them.  What recommendations would you make regarding how this should be handled? Answer→