Kimberlie Ryan's Hot Button Forum

Sexual orientation protected at Department of Labor

kim@ryanfirm.com (Kimberlie Ryan) — Tue, 03 May 2011 09:49:14 PDT

The U.S. Department of Labor announced last week its full commitment to implementing equal employment opportunity policies for all department employees and applicants, providing protections for various protected classes, including sexual orientation, which traditionally has had few express protections under federal law.

According to the DOL, the policies ensure equal protections for all employees and applicants regardless of race; color; religion; national origin; sex, including pregnancy and gender identity; age; disability, whether physical or mental; genetic information; status as a parent; sexual orientation; or other non-merit factor.

New, robust statements signed by Secretary Solis include updated policies on prohibiting discrimination on the basis of sex, including gender identity and pregnancy, according to the DOL.

"I am expressing my personal commitment to ensure that the U.S. Department of Labor is a model workplace, free from unlawful discrimination and harassment, which fosters a work environment that fully utilizes the capabilities of every employee," said Secretary Solis. "It is my goal that we achieve and maintain a high-quality, diverse workforce at all organizational levels throughout the department."

The Labor Department is required to issue annual written policy statements expressing the secretary's commitment to equal employment opportunity and a workplace free of discriminatory harassment, pursuant to 29 Code of Federal Regulations Part 1614, Federal Sector Equal Employment Opportunity, and the U.S. Equal Employment Opportunity Commission's Management Directive 715. The EEOC's directive identifies minimum requirements for the policy statements.

The statements issued by Secretary Solis articulate stronger protections and establish responsibilities to ensure meaningful adherence to equal employment opportunity throughout the department. They have been disseminated to all current employees and will be disseminated to new employees during orientation as well as to employees who are promoted into supervisory ranks.

The department's policies on equal employment opportunity and harassing conduct in the workplace can be viewed here and here.

English-Only Language Bans Scrutinized

kim@ryanfirm.com (Kimberlie Ryan) — Mon, 17 Jan 2011 15:25:05 PST

Language bans at work may be a subterfuge for national origin discrimination, according to Stuart J. Ishimaru, a Commissioner of the Equal Employment Opportunity Commission ("EEOC").

While speaking at an American Bar Association meeting recently, Commissioner Ishimaru raised concerns that language bans at work may discriminate against workers based on their place of birth, native language, culture, or ancestry.

He supports close scrutiny of so-called English-only work rules. Based on the EEOC's examination of current trends in workplaces across the country, he noted that these claims may be increasing as tensions over immigration debates continue to escalate.

Discrimination based on a person's accent also is considered by the EEOC as a "hot topic" nationally. At the same time, "political forces" have attempted to cut funding to the EEOC, targeting these particular language claims, according to Commissioner Ishimaru. These politics are just dirty and mean.

Commissioner Ishimaru observed the rising numbers of workers in American workplaces who speak languages other than English. Yet many employers are responding not with measures to promote inclusion and understanding, but by adopting policies that illegally seek to ban or limit languages.

Fear and prejudice too often motivate language bans at work. Those who claim that such bans and restrictions are intended to "promote harmony" and "cooperation" among employees should evaluate the negative impact these divisive and hurtful policies have on the souls of the workers, and ultimately on the companies' bottom lines.

The denigration is obvious in many work sites where the rules are implemented in demeaning and humiliating ways.

For example, in a lawsuit I handled against the Colorado Central Station Casino, the sworn deposition testimony of several workers confirmed that they were told that they could not speak Spanish on their break time, during lunch, or even to give directions to workers hired by the casino before they had learned English. These new immigrants were afraid to say a word and performed arduous physical housekeeping tasks in complete isolation and utter silence.

Get in the closet. When the bi-lingual supervisors asked how they should give instructions to these workers, management told them that if they "had" to speak Spanish they had better do it in the janitor's closet, according to the testimony of several workers.

Used their skills. In an ironic twist, the testimony revealed that the company nevertheless required bi-lingual workers to perform an additional service when the bosses needed it - to translate for Spanish-speaking customers - for no additional compensation or even a bit of gratitude.

Language bans hurt. Employers would be wise to recognize the talents and skills of their workers and help stop the fear and bigotry promoted by "us-them" language bans.

A path toward understanding. Some enlightened and proactive companies offer voluntary language classes in Spanish and English to immigrants and natives as part of their benefit plans. Some even compensate their workers for time spent in the classes! This develops their workers' skills and is a step toward creating true cooperation.

As one of my favorite law professors used to say - a word to the wise on that score should be sufficient - promote harmony through understanding and education. Silence the language bans.

Innocent Positives: Patients Fired for Medical Marijuana Treatments

kim@ryanfirm.com (Kimberlie Ryan) — Fri, 07 Jan 2011 20:24:23 PST

Here's the link to an article I wrote for Kush Magazine, Innocent Positives: Patients Fired for Medical Marijuana Treatments. Check out page 103.

Medical Marijuana and Colorado Unemployment Benefits

kim@ryanfirm.com (Kimberlie Ryan) — Mon, 20 Dec 2010 16:15:17 PST

Employees who are fired for exercising their Colorado Constitutional rights to treat their debilitating medical conditions with medicinal marijuana should not be penalized by the State that authorizes medical use under the Colorado Medical Marijuana Registry Program.

Yet, the State of Colorado Industrial Claims Appeals Office is depriving some patients of unemployment benefits after they are wrongfully fired and seek unemployment insurance, which is designed to help workers who are fired through no fault of their own.

Here's a news clip that may be of interest from an interview with 9News this morning. What do you think?

Does the Constitution Apply to Corporations?

kim@ryanfirm.com (Kimberlie Ryan) — Tue, 12 Oct 2010 18:04:40 PDT

What do you think?

Employers and Medical Marijuana

kim@ryanfirm.com (Kimberlie Ryan) — Mon, 26 Jul 2010 19:50:07 PDT

Employers should follow the lead of the federal Veteran's Administration.

This month the VA announced that it will draw a "clear distinction between the use of illegal drugs and legal medical marijuana."

The VA will not penalize medical marijuana patients who are treating validly under their states' laws.

Similarly, employers should revise their workplace drug policies to make a clear distinction between the use of legal medical marijuana and illegal drugs with no legitimate medical purposes. They should distinguish between treatments and abuse.

Some managers are being forced by corporate headquarters to fire workers who treat at home with medical marijuana, when they know that these workers have been stellar performers with absolutely no problems at work.

Employers are losing valuable employees because of their outdated "zero tolerance" drug policies that fail to account for legitimate medical treatments.

These unenlightened policies are based on false information from outdated stereotypes of medical marijuana that ignored the scientific proof that marijuana is safe and beneficial and treats a multitude of illnesses and pain.

Recent studies confirm that marijuana is a safer alternative to some of the pharmaceuticals that produce horrific side effects, often far worse than the original disease. Yet some employers are stuck in the old mentality that falsely lumped medical marijuana in with narcotics as an unsafe treatment, or worse yet, just a drug to be abused.

It is unethical to deprive patients of very beneficial medical treatments based on the fear of abuse. Any drug can be abused. Would it be logical to deprive people of prescription medications since they can be abused? Would it be right to deprive them of their jobs?

Employers can step up now and follow the lead of the VA in recognizing the difference between state-sanctioned medical marijuana treatments and illicit drugs. State-sanctioned medical marijuana should be treated as other medical treatments, and should not be used to deprive good workers of their livelihoods.

VA Recognizes Legal Medical Marijuana

kim@ryanfirm.com (Kimberlie Ryan) — Fri, 23 Jul 2010 08:54:04 PDT

The federal Veteran's Administration will not penalize Veterans for using medical marijuana by depriving them of other necessary medicines, according to a July letter issued by the US Department of Veteran Affairs Under Secretary for Health Robert Petzel, M.D.

Testing positive for marijuana would not preclude a Veteran from receiving other medications for pain management in a Department of Veterans Affairs (VA) facility, if a Veteran obtains and uses medical marijuana in a manner consistent with state law.

The authorized use of medical marijuana should not be defined as "illegal drug use," according to the VA Under Secretary.

"Standard pain management agreements should draw a clear distinction between the use of illegal drugs, and legal medical marijuana," says Under Secretary Pelzel.

The VA further instructs that the individual health care provider retains the discretion to prescribe, or not prescribe, opioids in conjunction with medical marijuana. The health care provider has the authority to determine the medications on clinical grounds.

The Veteran would need to inform his provider of the use of medical marijuana, and of any other non-VA prescribed medications he or she is taking to ensure that all medications, including opioids, are prescribed in a safe manner, according to Under Secretary Dr. Pelzel.

The provider will take the use of medical marijuana into account in all prescribing decisions, just as the provider would for any other medication, according to the VA.

"This is a case-by-case decision, based upon the provider's judgment, and the needs of the patient."

The VA is right about one thing - medical marijuana patients should not be treated as criminals, nor should they be deprived of their medically necessary treatments.

This guidance is important because it reaffirms that at least one administration within the federal government recognizes that medical marijuana, when used validly under state law, is a medical decision best left to the physician and the patient and should not be treated as a criminal matter. It is a health care decision.

Colorado Constitutional Rights to Medical Marijuana

kim@ryanfirm.com (Kimberlie Ryan) — Wed, 02 Jun 2010 19:15:02 PDT

The Colorado Constitution provides positive rights to citizens, which include affirmative defenses to prosecution under state laws for qualified use of medical marijuana. The rights guaranteed by the Colorado Constitution are much more expansive than just affirmative defenses, as I read the Constitution.

The Colorado Constitution guarantees positive rights to medical marijuana by providing the following rights:

1. Right to medical use of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

2. Right to acquisition of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

3. Right to possession of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

4. Right to production of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

5. Right to transportation of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

6. Right to medical use of marijuana paraphernalia by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

7. Right to acquisition of marijuana paraphernalia by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

8. Right to production of marijuana paraphernalia by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

9. Right to transportation of marijuana paraphernalia by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

10. Rights to possess, acquire, possess, produce, transport up to 2 ounces of marijuana by qualified patient. COLO. CONST. art XVIII, § 14, 4(a)

11. Rights to possess, acquire, possess, produce, transport up to 6 plants by qualified patient. COLO. CONST. art XVIII, § 14, 4(a)

12. Right to acquisition of marijuana paraphernalia by caregivers for patients under the age of 18. COLO. CONST. art XVIII, § 14, 6; 6(i)

13. Right to protection of physician rights or privileges for acts authorized by Constitution. COLO. CONST. art XVIII, § 14, 2(c)

14. Right of physicians to advise a patient about risks and benefits of use of medical marijuana. COLO. CONST. art XVIII, § 14, 2(c)(by affirmative defense)

15. Right of physicians to advise a patient that she might benefit from medical use of medical marijuana. COLO. CONST. art XVIII, § 14, 2(c)(by affirmative defense)

16. Rights of physicians to provide medical documentation to patient for acquisition of medical registry card. COLO. CONST. art XVIII, § 14, 2(c); 2(b)(1); 3(1)

17. Rights to protections for property interests of a property owner for property seized by law enforcement. COLO. CONST. art XVIII, § 14, 2(e)

18. Rights to immediate return of patient or caregiver property after seizure upon described conditions. COLO. CONST. art XVIII, § 14, 2(e)

19. Right to assert affirmative defense for qualified patients from prosecution under state drug laws. COLO. CONST. art XVIII, § 14, 2(b)

20. Right to assert affirmative defense for physicians from prosecution under state drug laws. COLO. CONST. art XVIII, § 14, 2(c)

21. Right to confidential registry maintained by state health agency. COLO. CONST. art XVIII, § 14, 3

22. Right to participation in Colorado Medical Marijuana Registry program. COLO. CONST. art XVIII, § 14, 3(c), 8(9)

23. Right to obtain registry ID Card from state health agency on demonstration of qualification. COLO. CONST. art XVIII, § 14, 3(c)

24. Right to timely action by state health agency. COLO. CONST. art XVIII, § 14, 3(d)

25. Right of citizens to automatic participation in Medical Marijuana Registry on expiration of 35 days of application in absence of notification of denial of application. COLO. CONST. art XVIII, § 14, 3(d)

26. Right of primary caregiver to control acquisition of marijuana for patients under 18. COLO. CONST. art XVIII, § 14, 6(i)

27. Right of primary caregiver to control frequency of use of marijuana for patients under 18. COLO. CONST. art XVIII, § 14, 6(i)

28. Right of primary caregiver to control dosage of marijuana for patients under 18. COLO. CONST. art XVIII, § 14, 6(i)

29. Right of patients to petition state health agency to add other debilitating conditions. COLO. CONST. art XVIII, § 14, (9)

30. Right of physicians to petition state health agency to add other debilitating conditions. COLO. CONST. art XVIII, § 14, (9)

31. Implied rights to accommodation of medical use of marijuana outside of the workplace. COLO. CONST. art XVIII, § 14, 10(c)

Additional rights affirmatively granted to primary caregivers via affirmative defense:

32. Right of primacy care-giver to engage in medical use of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f)

33. Right of primary care-giver to assist in acquisition of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f).

34. Right of primary care-giver to assist in possession of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f).

35. Right of primary caregiver to assist in production of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f).

36. Right of primary caregiver to assist in transportation of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f).

37. Right of primary caregiver to assert an affirmative defense to prosecution. COLO. CONST. art XVIII, § 14, 2(b).

This makes Colorado unique among the states passing medical marijuana statutes.

These are Constitutional rights.

Marijuana use remains illegal under federal law at this time.

This is provided for educational and informational use only and does not constitute legal advice in any particular situation. Every circumstance is different. If you have questions about your particular situation, you may wish to consider retaining legal counsel.

Can You Be Fired for Blogging?

kim@ryanfirm.com (Kimberlie Ryan) — Tue, 20 Apr 2010 01:54:22 PDT

Here's an interesting article I had forgotten . . .

Hooter's Sued for Tips and Breaks

kim@ryanfirm.com (Kimberlie Ryan) — Tue, 13 Apr 2010 09:06:04 PDT

The New York Times reports on a lawsuit against Hooter's by a young mother who says "she was shocked not by the randy customers, the short-shorts and the plunging necklines, but because she says she spent her own money for her uniforms, worked long shifts without breaks and did not get her share of tips." Wage and hour laws may provide some relief - or not - depending on whether she can prove her case. If the claims are true, do you think workers should have to pay for their uniforms? Read more of the New York Times article by Malia Wollan.

Waiting to Exhale: Medical Marijuana and Workers' Rights

kim@ryanfirm.com (Kimberlie Ryan) — Sun, 11 Apr 2010 18:42:50 PDT

Do you think medical marijuana patients should be forced to choose between their medicine and their livelihoods?

Here's a blurb from Alicia McNally's article in Law Week Colorado, covering a presentation I recently gave to the Colorado Bar Association, along with Chuck Passaglia. . .

DENVER — According to Chuck Passaglia of Littleton-based Employment Law Solutions, a positive drug test for marijuana isn’t sufficient evidence of whether an employee is “under the influence” on the job. . . . read the rest of the article:

“Positive Drug Test Doesn’t Prove Jack” For Employees With Medical Marijuana

Colorado Offers Computer Training to Thousands

kim@ryanfirm.com (Kimberlie Ryan) — Wed, 24 Feb 2010 05:30:00 PST

Microsoft is partnering with the Colorado Department of Labor and Employment and the statewide network of Workforce Centers to distribute 12,500 computer training vouchers.

Individuals who want to enhance intermediate level computer skills, can choose the learning path that best addresses their needs. There will be 5,500 vouchers offered for intermediate-level technology skills courses.

In these online courses, students can pursue training in WindowsVista, as well as programs from Microsoft Office which includes Outlook, Word, Excel, and PowerPoint. In addition, 1,500 vouchers will be offered to individuals who are on an IT career path and are interested in receiving training on advanced technical courses.

These courses will provide knowledge of advanced technology applications as server administration, web and application programming and other technical areas. Elevate America also offers 5,500 vouchers to individuals who are ready to take a proctored exam where their skills can be measured and certified.

Upon successful completion of the exam, they are certified by Microsoft through Certiport testing centers as proficient in the skills and are provided with career resources to find internships and permanent jobs.

“Because online programs allow so much flexibility - your ability to participate is not subject to the geographical and time constraints of an on-campus program – Elevate America is an excellent way to recession-proof a career in your spare time while working,” says Donald J. Mares, Executive Director of the Colorado Department of Labor and Employment.

“And if you see your job as vulnerable, this online coursework can strengthen your value to an employer.”

For those currently without a job, Elevate America is a way to forge a path back to the workplace.

“Not surprisingly,” Mares says, “computer skills have a direct link to the job market. There are no guarantees, of course, but enhanced education and training is always a good strategy for promoting career success.”

Elevate America is a part of Microsoft’s Unlimited Potential commitment, designed to provide technology training for up to 2 million people nationwide during the next three years. Learn more about Elevate America at: www.microsoft.com/elevateamerica or visit www.coworkforce.com.

Sears Pays $6.2 Million for Disability Cases

kim@ryanfirm.com (Kimberlie Ryan) — Tue, 23 Feb 2010 07:39:23 PST

235 Former Employees to Share Settlement Proceeds

The U.S. Equal Employment Opportunity Commission announced court approval of the distribution of a $6,200,000 compensation fund in the landmark Americans With Disabilities Act litigation between the EEOC and Sears, Roebuck & Co.

In its lawsuit against Sears, the EEOC had alleged that Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA.

The case resulted in the largest ADA settlement in a single lawsuit in EEOC history.

Under the terms of the decree, certain Sears employees who had been terminated under Sears’ workers’ compensation leave policy were asked to report to the EEOC the extent of their impairments, their ability to return to work at Sears, and whether Sears had made any attempt to return them to work.

Based on these criteria, the EEOC found that 235 individuals were eligible to share in the settlement.

The average award was approximately $26,300.

More than twenty claimants were found to be ineligible by the EEOC.

As with all EEOC litigation, none of the settlement fund will retained by the EEOC; all of it will be distributed.

EEOC Trial Attorney Aaron DeCamp noted that, in addition to the disbursement of settlement funds, the EEOC is seeing positive effects from the consent decree.

The EEOC litigation team included, EEOC attorneys John Hendrickson and DeCamp, Supervisory Trial Attorney Gregory Gochanour and Trial Attorneys Ethan Cohen, Deborah Hamilton and Laurie Elkin.

Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.

Fired for Looking Like Ellen DeGeneres?

kim@ryanfirm.com (Kimberlie Ryan) — Sun, 21 Feb 2010 00:04:56 PST

A worker fired for looking "too much like Ellen DeGeneres" may win sex her discrimination case. See Lewis v. Heartland Inns of America, L.L.C., et al., No. 08-3860 (8th Cir., Jan. 21, 2010)

Alleging that she lost a job she had done well, solely because of unlawful sex stereotyping, Brenna Lewis brought this action for sex discrimination and retaliation against her former employer Heartland Inns of America, its Director of Operations and its Human Resource Director based on Title VII and state law. Viewing the facts in the light most favorable to Lewis, the Court of Appeals for the Eighth Circuit stated the case this way:

Worker performs well

Heartland Inns operates a group of hotels, primarily in Iowa. Brenna Lewis began work for Heartland in July 2005 and successfully filled several positions for the chain for a year and a half before the actions at issue here.

She started as the night auditor at Heartland's Waterloo Crossroads location; at that job she worked at the front desk from 11:00 p.m. to 7:00 a.m. There were also two other shifts for "guest service representatives": the A shift from 7:00 a.m. to 3:00 p.m. and the B shift from 3:00 p.m. to 11:00 p.m.

Lewis' manager at Waterloo Crossroads, Linda Gowdy, testified that Lewis "did her job well" and that she had requested a pay raise for her. Heartland recorded two merit based pay raises for Lewis. The record also indicates that Gowdy received a customer comment praising Lewis.

Good worker makes good impression

On or about December 7, 2006, Lewis began working various part time front desk shifts at Heartland Inns located near Des Moines, including at Ankeny and Altoona. At both locations she was valued by her direct supervisors. Her manager at the Altoona hotel, Jennifer Headington, testified that Lewis "made a good impression[.]"

She offered her a full time night auditor position after receiving telephone permission from Barbara Cullinan, Heartland's Director of Operations. Lori Stifel, Lewis' manager at the Ankeny hotel, testified in her deposition that Lewis did a "great job" in Ankeny, "fit into the [front desk] position really well" and was well liked by customers.

Stifel received permission over the phone from Cullinan on December 15 to offer Lewis a full time A shift position. Neither Headington nor Stifel conducted an interview of Lewis before extending their offers, and the record does not reflect that Cullinan ever told them a subsequent interview would be necessary.

Lewis accepted the offer for the A shift at Ankeny and began training with her predecessor, Morgan Hammer. At the end of December 2006 Lewis took over the job.

Looks too much like Ellen DeGeneres?

Lewis' positive experience at Heartland changed only after Barbara Cullinan saw her working at the Ankeny desk. As the Director of Operations, Cullinan had responsibility for personnel decisions and reported directly to the general partner of Heartland. She had approved the hiring of Lewis for the Ankeny A shift after receiving Stifel's positive recommendation.

After seeing Lewis, however, Cullinan told Stifel that she was not sure Lewis was a "good fit" for the front desk.

Cullinan called Stifel a few days later and again raised the subject of Lewis' appearance.

Lewis describes her own appearance as "slightly more masculine," and Stifel has characterized it as "an Ellen DeGeneres kind of look."

Lewis prefers to wear loose fitting clothing, including men's button down shirts and slacks. She avoids makeup and wore her hair short at the time. Lewis has been mistaken for a male and referred to as "tomboyish."

Cullinan told Stifel that Heartland "took two steps back" when Lewis replaced Morgan Hammer who has been described as dressing in a more stereotypical feminine manner.

Not "pretty" enough to work at the front desk?

As Cullinan expressed it, Lewis lacked the "Midwestern girl look." Cullinan was heard to boast about the appearance of women staff members and had indicated that Heartland staff should be "pretty," a quality she considered especially important for women working at the front desk.

Cullinan also had advised a hotel manager not to hire a particular applicant because she was not pretty enough.

Job description doesn't mention appearance

The front desk job description in Heartland's personnel manual does not mention appearance. It states only that a guest service representative "[c]reates a warm, inviting atmosphere" and performs tasks such as relaying information and receiving reservations.

Ordered to overnight shift?

In her conversation with Stifel about Brenna Lewis, Cullinan ordered Stifel to move Lewis back to the overnight shift.

Stifel refused because Lewis had been doing "a phenomenal job at the front desk[.]"

The following week, on January 9, 2007, Cullinan insisted that Lori Stifel resign.

Around this time, Heartland informed its general managers that hiring for the front desk position would require a second interview.

Video interviews required?

Video equipment was also purchased to enable Cullinan or Kristi Nosbisch, Heartland's Human Resource Director, to see an applicant before extending any offer.

When Lewis' former manager at Altoona, Jennifer Headington, raised a question about the new arrangements, Cullinan answered that "[h]otels have to have a certain personification and appearance."

Cullinan met with Brenna Lewis on January 23, 2007. At this point Lewis had held the front desk job for nearly a month after Cullinan's initial approval of her hire for the position. The record contains no evidence of any customer dissatisfaction with Lewis or her service.

Nevertheless, Cullinan told Lewis at the meeting that she would need a second interview in order to "confirm/endorse" her A shift position. Lewis was aware from Lori Stifel of what had been said about her appearance, and she protested that other staff members had not been required to have second interviews for the job. Lewis told Cullinan that she believed a second interview was being required only because she lacked the "Midwestern girl look."

She questioned whether the interview was lawful, and she cried throughout the meeting.

Cullinan wanted to know who had told Lewis about the comment and asked whether it was Lori Stifel. Thereafter Cullinan talked about the need for new managers when revenue is down like in Ankeny, where Stifel was the manager. Lewis responded that recent policy changes by Heartland, including bans on smoking and on pets, might explain the loss in revenue. Cullinan then encouraged Lewis to share more of her views about the new policies and took notes on what she said.

She loses her job

Three days later, Lewis was fired.

Lewis does not challenge Heartland's official dress code, which imposes comparable standards of professional appearance on male and female staff members, and her termination letter did not cite any violation of its dress code.

Gender stereotypes to blame

The theory of her case is that the evidence shows Heartland enforced a de facto requirement that a female employee conform to gender stereotypes in order to work the A shift. There was no such requirement in the company's written policies.

Excuses for firing

In its termination letter to Lewis, Heartland asserted that she had "thwart[ed] the proposed interview procedure" and exhibited "host[ility] toward Heartland's most recent policies[.]" Lewis denies those charges and denies that those were the real reasons for her discharge.

There were no customer complaints about Lewis' performance as a desk clerk. Nor had there been any disciplinary action against her before she was fired.

Lewis asserts that Heartland terminated her for not conforming to sex stereotypes and contends that this conduct violated Title VII of the Civil Rights Act of 1964.

Court of Appeals reinstates case

Heartland was not entitled to prevail on summary judgment unless it showed that plaintiff Brenna Lewis had not produced direct or circumstantial evidence which could reasonably support an inference of discrimination, according to the court.

Proving discrimination

Title VII prohibits an employer from "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of . . . sex.

Discrimination occurs when sex "was a motivating factor for any employment practice, even though other factors also motivated the practice."

To make a prima facie case of sex discrimination, Lewis had to show that:

(1) she was a member of the protected group;
(2) she was qualified to perform the job;
(3) she suffered an adverse employment action; and
(4) circumstances permit an inference of discrimination."

Such a showing creates a presumption of unlawful discrimination, requiring Heartland to produce a legitimate nondiscriminatory reason for its employment action.

Sex stereotyping can violate federal law

The U.S. Supreme Court has decided that sex stereotyping can violate Title VII when it influences employment decisions.

Other courts have also found sex specific impositions on women in customer service jobs such as this one illegal.

Stereotype 1: What women "should"wear

For example, violations of Title VII occurred in separate cases where:

1. a female lobby attendant was terminated for refusing to wear a sexually provocative uniform;

2. where only women employees were compelled to wear uniforms; and

3. where only female flight attendants were required to wear contact lenses instead of glasses.

Stereotype 2: Women "should" be thin

In a more recent example, in the Ninth Circuit in 2000, an airline policy requiring female flight attendants to be comparatively thinner than male attendants was found discriminatory.

Stereotype 3: Women "should" be more feminine

In Price Waterhouse, where a female senior manager was denied partnership, partners involved in their decision had referred to her as "'macho'" and in need of "'a course at charm school.'"

She was advised that to become a partner she should "'walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.'"

According to the court, such stereotypical attitudes violate Title VII if they lead to an adverse employment decision.

Like the plaintiff in Price Waterhouse, Lewis alleges that her employer found her unsuited for her job not because of her qualifications or her performance on the job, but because her appearance did not comport with its preferred feminine stereotype.

Other circuits have upheld Title VII claims based on sex stereotyping subsequent to Price Waterhouse.

4. Stereotype 4: Men "should" be masculine men

The Sixth Circuit's Smith case concerned a fire fighter who was born male but subsequently came to identify as a woman. When he began "to express a more feminine appearance" at work, he was told by colleagues that he was not "masculine enough[.]" His superiors then "devise[d] a plan" to terminate him, including an order that he submit to multiple psychological evaluations. If he did not consent, "they could terminate Smith's employment on the ground of insubordination."

Lewis similarly alleges that Heartland imposed a second interview and then used her objection to it against her when its real reason for terminating her was because she lacked the "Midwestern girl look" and was not pretty enough to satisfy Cullinan.

As the Sixth Circuit concluded in Smith, an adverse employment decision based on "gender non- conforming behavior and appearance" is impermissible under Price Waterhouse.

5. Stereotype 5: Women with children aren't committed enough

Likewise, in Chadwick, the First Circuit found a decisionmaker's explanation why the plaintiff had not received a promotion evidence that the decision was motivated by an illegal sex stereotype that women would prioritize child care responsibilities over paid employment. Chadwick, 561 F.3d at 42 (with four young children she had "'too much on her plate'"); see also id. at 44.

The Second Circuit similarly concluded in Back that the statement that a mother who received tenure "'would not show the same level of commitment [she] had shown because [she] had little ones at home'" showed discriminatory intent in the tenure decision. Back, 365 F.3d at 120.

6. Stereotype 6: Blondes are dumb

The Seventh Circuit found remarks characterizing conduct of a woman employee as "'you're being a blond[e] again today'" probative of sex discrimination in Lust v. Sealy, Inc., 383 F.3d 580, 583 (7th Cir. 2004).

Stereotyping comments may be evidence of discrimination

Cullinan's criticism of Lewis for lack of "prettiness" and the "Midwestern girl look" before terminating her may also be found by a reasonable factfinder to be evidence of wrongful sex stereotyping, according to the court.

She need not produce evidence that she was treated differently than similarly situated males, according to the court.

Courts "consistently emphasize that the ultimate issue is the reasons for the individual plaintiff's treatment, not the relative treatment of different groups within the workplace." Back, 365 F.3d at 121.

As the Supreme Court explained in Connecticut v. Teal, 457 U.S. 440, 453-54 (1982), "[t]he principal focus of [Title VII] is the protection of the individual employee, rather than the protection of the minority group as a whole."

Comparative evidence is not the exclusive means by which a plaintiff may establish an inference of discrimination.

Critical issue is sex based differential treatment

The touchstone inquiry remains whether circumstances permit a reasonable inference of discrimination, according to the court.

A woman alleging sex discrimination need not prove that men were not subjected to the same challenged discriminatory conduct or show that the discrimination affected anyone other than herself.

As the Sixth Circuit succinctly stated, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex.

According to the court, Lewis need only offer evidence that she was discriminated against because of her sex. "The question is whether Cullinan's requirements that Lewis be "pretty" and have the "Midwestern girl look" were because she is a woman. A reasonable factfinder could find that they were since the terms by their nature apply only to women."

The company's excuses don't fly

The court also found that evidence that Heartland's reason for the termination were pretextual include:

1. the fact that Lewis had a history of good performance at Heartland;

2. she had no prior disciplinary record and had received two merit based pay raises;

3. the two individuals who supervised her during the majority of her employment at Heartland both stated that they had no problem with her appearance, and

4. at least one customer had never seen customer service like that Lewis had provided.

On this record, a factfinder could infer a discriminatory motive in Heartland's actions to remove Lewis, according to the court.

Could a jury find sex discrimination?

The court clarified that at this stage of the case, the question is not whether Lewis will prevail on her claim but rather whether she has offered sufficient evidence from which a reasonable factfinder could find that she was discriminated against because of her sex.

The court then concluded that she has, for "an employer who discriminates against women because . . . they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex."

Sex stereotypes insufficient

Companies may not base employment decisions for jobs such as Lewis' on sex stereotypes, just as Southwest Airlines could not lawfully hire as flight attendants only young, attractive, "charming" women "dressed in high boots and hot-pants. "

As the Supreme Court stated, "we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group."

She could win?

In sum, the court concluded that Lewis has presented sufficient evidence to make out a prima facie case on her claims for sex discrimination and retaliation and a sufficient showing at this stage that Heartland's proffered reason for her termination was pretextual.

The Court of Appeals sent it back for a jury trial. Who knows what the jury will say.

Do you agree with the Court's analysis?

Jury to Decide Whether Law Protects Gay Man from Workplace Harassment

kim@ryanfirm.com (Kimberlie Ryan) — Tue, 20 Apr 2010 03:16:37 PDT

On Friday, the U.S. Third Circuit Court of Appeals ruled that a gay man claiming that he was harassed at work based on sexual stereotyping may have a jury decide whether the harassment was because of his gender.

Federal law protects workers from discrimination on the basis of gender stereotypes, but it does not currently provide express protection based on sexual orientation.

This case is important because it recognizes that gay workers can be protected by federal law too, in that harassment of gay and straight workers is prohibited if the harassment is based on stereotypes of how they should act or look based on their gender.

"There is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not," wrote 3rd Circuit Judge Thomas M. Hardiman.

Paula Reed Ward wrote an excellent article about this case, and you can read more here in the Pittsburgh-Post Gazette.

Severance Agreements: To sign or not?

kim@ryanfirm.com (Kimberlie Ryan) — Tue, 18 Aug 2009 09:05:11 PDT

Many employers offer departing employees money or benefits in exchange for a release or “waiver,” of liability for all claims connected with the employment relationship, including discrimination claims under the civil rights laws enforced by the Equal Employment Opportunity Commission (EEOC).

Employers want to keep from getting sued be departing employees, so these waivers can be very important to them, even if they make it sound like these are "just a few minor papers you need to sign" to close out your job and get a check.

While it is common for senior-level executives to negotiate severance provisions when initially hired, other employees typically are offered severance agreements and asked to sign a waiver at the time of termination.

When presented with a severance agreement, many employees wonder: Is this legal? Should I sign it?

The EEOC has posted some guidance on this issue to help workers recognize some of their rights and potential pitfalls that can arise from signing severance agreements without enough information.

This guidance is only general information, and if your company offers you a severance agreement, you would be well advised to seek legal counsel for your particular situation.

More information about severance agreements is also available on a previous Hot Button post, Severance Agreements: What Workers Should Know.

Source: See the EEOC's Guidance on Understanding Waivers of Discrimination in Employee Severance Agreements.

EEO-1 Reports Due in September

kim@ryanfirm.com (Kimberlie Ryan) — Mon, 31 Aug 2009 07:53:27 PDT

The Employer Information Report EEO-1, otherwise known as the EEO-1 Report, is required to be filed with the U.S. Equal Employment Opportunity Commission's EEO-1 Joint Reporting Committee.

The EEO-1 Report – formally known as the "Employer Information Report" – is a government form requiring many employers to provide a count of their employees by job category and then by ethnicity, race and gender. The EEO-1 report is submitted to both the EEOC and the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP).

The filing deadline for the 2009 EEO-1 Survey is September 30, 2009. Notification letters were mailed to employers beginning in July 2009.

According to the US EEOC, the preferred method for completing the 2009 EEO-1 reports is the web-based filing system. Online filing requires you to log into your company's database with a Login ID and Password. All companies should receive 2009 EEO-1 filing materials by mail no later than mid August 2009.

For more information, see the EEOC's EEO-1 FAQ's.

Housekeepers Harassed, EEOC Sues

kim@ryanfirm.com (Kimberlie Ryan) — Mon, 06 Jul 2009 08:11:34 PDT

All workers have the right to work in an environment free of discrimination and daily harassment

said EEOC Regional Attorney Anna Park in connection with the EEOC's lawsuit against Simon Property Group, filed last week.

The EEOC alleges that Simon Property Group subjected a class of Hispanic employees to a hostile work environment while they performed custodial and janitorial duties at the Forum Shops at Caesar Palace in Las Vegas.

The harassment began in 2005, when the housekeeping shift lead was hired, and ended when he was terminated for reasons related to the harassment, according to the EEOC.

The housekeeping shift lead referred to housekeepers and other Latino employees as “wetbacks,” “tacos,” and “burritos” and repeatedly told them to “go back to Mexico” – among other things charges the suit.

The EEOC says he also told the Latinos that Mexicans have “inferior intelligence and capability in comparison to whites, and that is why whites are in power."

This alleged conduct violates federal anti-discrimination law, Title VII of the Civil Rights Act of 1964.

Simon Property Group owns and/or manages various shopping malls throughout the country, including the Forum Shops at Caesars Palace in Las Vegas.

The EEOC seeks lost wages, compensatory and punitive damages, and injunctive relief to prevent and correct any future workplace discrimination.

Source: EEOC

Federal Court Picks Announced

kim@ryanfirm.com (Kimberlie Ryan) — Tue, 30 Jun 2009 08:56:40 PDT

Washington, D.C. – Today, U.S. Senators Mark Udall and Michael Bennet announced they have forwarded the names of six Coloradans to President Obama to fill two federal District Court vacancies created by Judge Lewis Babcock’s decision to assume Senior Judge status, and the more recent resignation of Judge Edward Nottingham. The Senators’ letter to President Obama and the list of candidates is below.

The Senators made their decision jointly, and after three days of interviews with prospective nominees. They relied heavily on the advice of a diverse, bipartisan advisory panel made up primarily of lawyers with federal court experience and co-chaired by former Colorado Supreme Court Justice Rebecca Kourlis, and Hal Haddon, a prominent Colorado lawyer.

The Senators’ selection system followed a model endorsed by the American Bar Association and embraced increasingly by Senators from other states around the country. As requested by President Obama, they submitted three names for each vacancy.

“I am proud to forward the names of these six extremely well-qualified Coloradans to serve on the U.S. District Court. Each of these individuals would serve with honor on the bench,” Senator Udall said.

“Federal judges are appointed for life. For that reason, this was an extremely rigorous selection process. And I want to thank our bipartisan advisory panel for their hard work and assistance.”

“I want to thank Senator Udall for his leadership in this judicial selection process and the judicial advisory panel for their expert work and advice,” Senator Bennet said.

“The panel conducted a thorough evaluation of these outstanding candidates. Each of these individuals is well-qualified and would serve with distinction on the District Court.”

The Senators’ letter to President Obama follows:

The Honorable Barack Obama President The White House 1600 Pennsylvania Avenue, N.W. Washington. D.C. 20500

Dear Mr. President:

We appreciate this opportunity to send you the names of six distinguished Coloradans for your favorable consideration to fill two Article III judicial vacancies in the U.S. District Court for Colorado.

Over the last few months, we have listened to, and met with, a number of very qualified and experienced Coloradans in an effort to send you a group of exceptional people who are not only well-qualified to serve as federal trial court judges, but who also have the qualities of intellectual depth, judicial temperament and life experience to make significant contributions to the administration of justice in our federal court. In making the following recommendations, we have not only relied on our own impressions of the applicants, we also relied upon the considered advice and judgment of a diverse, bipartisan advisory panel we convened for this purpose in April.

We also met jointly with the individuals we have recommended and are confident that each of them is superbly qualified to serve with honor and distinction on the federal bench.

For the vacancies created by Judge Lewis Babcock’s decision to assume Senior Judge status and Judge Edward Nottingham’s resignation, we recommend:

Christina Habas – Judge, 2nd Judicial District, State of Colorado; former partner, Bruno, Bruno & Colin, P.C., Denver; former partner and associate, Watson, Nathan & Bremer, P.C., Denver.

Morris Ben Hoffman – Judge, 2nd Judicial District, State of Colorado; former partner, Mosley, Wells, Johnson & Ruttum, P.C., Denver.

Richard Brooke Jackson – Chief Judge, 1st Judicial District, State of Colorado; former partner, Holland & Hart LLC, Denver.

William Martinez – Partner at McNamara, Roseman, Martinez & Kazmierski, LLP, Denver; former Regional Attorney, U.S. Equal Employment Opportunity Commission, Denver District Office.

Lael Montgomery – Judge, 20th Judicial District, State of Colorado; former County Judge, Boulder County, Colorado; former Deputy District Attorney, 20th Judicial District.

John F. Walsh – Partner at Hill & Robbins, P.C. in Denver; former partner in the Denver office of Holland & Hart, LLP; former Assistant United States Attorney, Central District of California, Los Angeles.

We had the opportunity to meet a number of remarkable and dedicated individuals during the review process for these two vacancies. While there were many talented people to recommend, we believe these names will give you a professionally diverse and well-qualified set of potential nominees to choose from.

With warm regards and respectfully submitted,

Mark E. Udall

Michael Bennet

cc: Senator Patrick Leahy, Chairman, U.S. Senate Judiciary Committee Senator Orin Hatch, Ranking Member, U.S. Senate Judiciary Committee White House Counsel Greg Craig

Source: Sen. Udall

Country club sued harassed workers

kim@ryanfirm.com (Kimberlie Ryan) — Mon, 29 Jun 2009 06:52:46 PDT

A country club charged with severe sexual harassment and racial discrimination responded by wrongfully suing the harassed workers!

“This serious and ongoing harassment of women was unconscionable enough. Then these defendants made a bad situation worse by punishing the victims for engaging in protected activity,” said EEOC Acting Chairman Stuart J. Ishimaru.

“This kind of retaliation is plainly illegal, even if it is cleverly disguised as a supposedly legitimate lawsuit.” he added.

The country club will pay up to $690,000 to settle two lawsuits, charging sex and race discrimination and retaliation, brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced last week.

Federal District Judge Rebecca Pallmeyer has entered a consent decree resolving the two lawsuits against Chateau Del Mar, Inc. and Hickory Properties, Inc., known as Hickory Hills Country Club. Under the decree, the defendants are required pay $590,000, including attorneys’ fees, to a class of women who endured a sexually hostile work environment and retaliation, and, in addition, up to another $100,000 to African American applicants who were denied hire because of their race.

In the government’s first suit, filed on March 25, 2008 under Title VII of the Civil Rights Act of 1964, the EEOC alleged that the principal and manager of the facility sexually harassed a class of women employees over a period of years and refused to hire African American applicants.

Female employees were called derogatory names and belittled as well as enduring sexual advances and, in some instances, physical assaults, the EEOC said.

Shortly after three of the women filed their own private federal lawsuit for sex discrimination on October 24, 2007 (captioned Curry, Knable, & Raddatz v. Chateau Del Mar, Inc., Steven Gianakas, and Hickory Properties, Inc., No. 07 C 6021), Chateau Del Mar and Steven Gianakas sued them in Illinois state court.

The country club's seven-count complaint against the women alleged a wide variety of claimed wrongs, including, but not limited to, physical and mental injuries, “tripping and pushing Gianakas,” breach of fiduciary duty, and destroying property. (Chateau Del Mar and Steven P. Gianakas v. Knable, et al, Circuit Court of Cook County No. 2007L012463.)

The circuit court of Cook County dismissed the lawsuit Chateau Del Mar and Gianakas had filed against the women.

Then the EEOC filed a second lawsuit on against Chateau Del Mar for retaliation, and three individual private plaintiffs joined EEOC’s retaliation case.

The judge signed a consent decree to resolve both the discrimination and retaliation cases on June 16.

In addition to providing for monetary relief to victims, the decree will prohibit Chateau Del Mar and Hickory Hills from engaging in sex or race discrimination or retaliation, and require that they hire an independent monitor to accept and investigate charges of discrimination and train all of their employees on federal anti-discrimination laws.

Further, Chateau Del Mar and Hickory Hills will be required to place an advertisement in the Southtown Star newspaper seeking job applicants who were rejected based on their race from March 6, 2005 to the present. EEOC will determine who is eligible for relief.

“These defendants have marketed themselves as a venue for family celebrations such as weddings and receptions and have enjoyed considerable patronage from the African American community,” said John Hendrickson, regional attorney of the EEOC’s Chicago District Office.

“So the instances of discrimination in this case were particularly troubling. But we are cautiously optimistic that the consent decree spells the beginning of the end of on-the-job sex and race discrimination at Chateau Del Mar and Hickory Hills.”

EEOC Supervisory Trial Attorney Diane Smason, who with Trial Attorney June Calhoun litigated the case, said,

“The decree itself provides for monetary relief for victims of sex discrimination, and we now look forward to delivering appropriate compensation to individuals who come forward and identify themselves as victims of race discrimination.”

The cases were filed in the U.S. District Court for the Northern District of Illinois and are captioned EEOC v. Chateau Del Mar, Inc. and Hickory Properties, Inc., No. 08 C 1720, and EEOC, Curry, Knable & Raddatz v. Chateau Del Mar, Inc., No. 08 C 5388.

The individual plaintiffs were represented by Timothy Nolan of the Nolan Law Office.

Chateau Del Mar and Hickory Hills Country Club are part of the Hickory Hills Resort, which also includes Condessa Del Mar, another banquet facility in Alsip, Ill., and PGN Fun, a miniature golf course and arcade, also in Hickory Hills.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.

Source: The U.S. Equal Employment Opportunity Commission

Judge Sotomayor Nominated for US Supreme Court

kim@ryanfirm.com (Kimberlie Ryan) — Tue, 26 May 2009 13:53:48 PDT

Here's an e-mail I received from President Obama today (I know lots of people got it, but it's still fun to say) . . .

introducing Judge Sonia Sotomayor, his nominee for the United States Supreme Court:

"Kim --I am proud to announce my nominee for the next Justice of the United States Supreme Court: Judge Sonia Sotomayor.This decision affects us all -- and so it must involve us all. I've recorded a special message to personally introduce Judge Sotomayor and explain why I'm so confident she will make an excellent Justice.

Please watch the video, and then pass this note on to friends and family to include them in this historic moment.

Judge Sotomayor has lived the America Dream. Born and raised in a South Bronx housing project, she distinguished herself in academia and then as a hard-charging New York District Attorney. Judge Sotomayor has gone on to earn bipartisan acclaim as one of America's finest legal minds.

As a Supreme Court Justice, she would bring more federal judicial experience to the Supreme Court than any Justice in 100 years. Judge Sotomayor would show fidelity to our Constitution and draw on a common-sense understanding of how the law affects our day-to-day lives.

A nomination for a lifetime appointment to the highest court in the land is one of the most important decisions a President can make. And the discussions that follow will be among the most important we have as a nation.

You can begin the conversation today by watching this special message and then passing it on:http://my.barackobama.com/SupremeCourt

Thank you,

President Barack Obama."

A more detailed bio from the White House is available here:

I can't wait to learn more about Judge Sotomayor. Watch for future blog posts!

Peace on Memorial Day

kim@ryanfirm.com (Kimberlie Ryan) — Mon, 25 May 2009 04:55:00 PDT

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION

PRAYER FOR PEACE, MEMORIAL DAY, 2009

For over two centuries, Americans have defended our Nation's security and protected our founding principles of democracy and equal justice under law. On Memorial Day, we honor those who have paid the ultimate price in defense of these freedoms.

Members of the United States Armed Forces have placed our Nation's safety before their own for generations. From the first shots fired at Lexington and Concord to the current conflicts in Iraq and Afghanistan, these brave patriots have taken on great risks to keep us safe, and they have served with honor and distinction.

All Americans who have enjoyed the blessings of peace and liberty remain in their debt. As we remember the selfless service of our fallen heroes, we pray for God's grace upon them. We also pray for all of our military personnel and veterans, their families, and all those who have lost loved ones in the defense of our freedom and safety.

Today, as we commend their deeds, we also bear a heavy burden of responsibility to ensure that their sacrifices will not have been in vain. This means that, as we uphold the ideals for which many have given their last full measure of devotion, the United States must never waver in its determination to defend itself, to be faithful in protecting liberty at home and abroad, and to pursue peace in the world.

In respect for their dedication and service to America, the Congress, by a joint resolution approved on May 11, 1950, as amended (36 U.S.C. 116), has requested the President to issue a proclamation calling on the people of the United States to observe each Memorial Day as a day of prayer for permanent peace and designating a period on that day when the people of the United States might unite in prayer.

The Congress, by Public Law 106-579, has also designated 3:00 p.m. local time on that day as a time for all Americans to observe, in their own way, the National Moment of Remembrance.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim Memorial Day, May 25, 2009, as a day of prayer for permanent peace, and I designate the hour beginning in each locality at 11:00 a.m. of that day as a time to unite in prayer.

I also ask all Americans to observe the National Moment of Remembrance beginning at 3:00 p.m. local time on Memorial Day. I urge the press, radio, television, websites, and all other media to participate in these observances. I also request the Governors of the United States and the Commonwealth of Puerto Rico, and the appropriate officials of all units of government, to direct that the flag be flown at half-staff until noon on this Memorial Day on all buildings, grounds, and naval vessels throughout the United States, and in all areas under its jurisdiction and control. I also request the people of the United States to display the flag at half-staff from their homes for the customary forenoon period.

IN WITNESS WHEREOF, I have hereunto set my hand this twenty-second day of May, in the year of our Lord two thousand nine, and of the Independence of the United States of America the two hundred and thirty-third.

BARACK OBAMA
# # #

Whistleblower Seeks Protection for Federal Workers

kim@ryanfirm.com (Kimberlie Ryan) — Fri, 22 May 2009 13:07:52 PDT

One of my readers passed this letter along in response to my previous blog posting Stimulus Protects Some Workers.

As I mentioned, the stimulus law provides some remedies for workers in case they get fired or demoted or otherwise retaliated against for reporting fraud, abuse, or waste in how institutions actually spend the stimulus funds. But it does not protect federal workers.

Here's part of the letter, written by Bunnatine H. Greenhouse, Former Procurement Executive, U.S. Army Corps of Engineers, who reports that she faced retaliation after testifying in Congress last week:

"Dear Friends,

"I wrote to you last week that I would be testifying before the House Committee on Oversight and Government Reform because I believe that all employees should be protected from retaliation for reporting waste, fraud, and abuse. I did not expect that within hours of my testimony I would be subject to additional retaliation.

"At 6:23 p.m. I was forwarded an email written by the U.S. Army Corps of Engineers Chief of Staff stating that from now on, all testimony before Congress must be pre-approved by the Army Corps and that all oral testimony must conform to the approved written testimony.

"I am shocked by this blatant violation of the First Amendment. I said nothing improper during my testimony, I simply told the truth. I was testifying on my own time while I was on unpaid leave.

"I appeared at the invitation of Congress, to explain what happened when I reported improprieties surrounding the awarding of contracts to Halliburton-KBR just prior to the invasion of Iraq. The restriction imposed upon my right and the right of other federal employees to testify before Congress in our personal capacity free from restrain and censorship must stop NOW!"

See the rest of the letter here, urging that Every American should demand immediate passage of H.R. 1507.

Thanks to sbd for the tip!

Fired for No Makeup?!?!

kim@ryanfirm.com (Kimberlie Ryan) — Thu, 21 May 2009 10:05:46 PDT

"Shenoa Vild hates to wear makeup. Face goop is simply not for her. . . "

"She happens to think she has a naturally healthy, vibrant complexion. After meeting her, I have to agree. But Vild, a waitress, says her former boss had an entirely different opinion. He wanted Vild to wear makeup. She wouldn't. So, she says, she got canned."

This is from an excellent article by Michael Stetz Union-Tribune Columnist called Waitress says bare face led to firing. The article mentions the fact that in another case, the Ninth Circuit Court of Appeals threw out a lawsuit filed a few years ago by a woman in a similar situation but doesn't go into detail about the previous case. Here's a bit more for you . . .

The case was called Jespersen v. Harrah's Operating Co., Inc., 392 F.3d 1076 (9th Cir. 2004).

There, the court ruled that the female worker didn't show that the employer's dress code imposed an "unequal burden" on women because of their sex.

What? Are they kidding?

Women had to wear stockings.

Women had to wear nail polish.

Women had to wear their hair down and "teased, curled, or styled."

Women had to wear makeup, foundation, concealer and/or face powder.

Women had to wear blush and mascara "neatly in complimentary colors."

Women had to wear lip color "at all times."

Men had to have short haircuts and neatly trimmed fingernails.

Hello - even under the court's "unequal burdens" test, this screams of sex discrimination. On the face of it, these requirements impose an unequal burden based on sex alone. Talk about expensive! And time consuming! And goopy!

The requirements are clearly all about sex and have nothing to do with the job duties - to mix and serve drinks.

Not only that, but the court got it wrong in rejecting the argument that these requirements constitute illegal sexual stereotyping. Of course they do. They require women to conform to a false idea of beauty that applies only to women.

In fact, the policy forbid men from wearing make up. This confirms the fact that it is a sex-based stereotype.

And it's discrimination against men too.

The Ninth Circuit left open the possibility that another worker could challenge these kinds of rules, and I hope someone does. For one thing, the Ninth Circuit only applies to Oregon, Idaho, Montana, Nevada, California, and Arizona, so other circuits could rule differently (although some consider the Ninth Circuit to be one of the most progressive appeals courts in the country). Or another worker in that area could challenge a policy using the guidance provided by the Harrah's case.

Kudos to Shenoa Vild for daring to show her real face to the world and refusing to go with the goop. I, for one, am proud of this young woman for standing her ground. I just wish she didn't have to pay such a heavy price.

Hopefully a good employer will recognize her for her work. And her inner strength and beauty.

Thanks also to Michael Stetz for highlighting this important issue.

Think you know your rights on the job?

kim@ryanfirm.com (Kimberlie Ryan) — Mon, 18 May 2009 03:56:00 PDT

Do you understand your legal rights and responsibilities at work?

Find out how much you really know about job discrimination and the Equal Employment Opportunity Commision through its interactive Challenge Yourself! Tool.

Test your own knowledge of employment law. This tool discusses some common problems encountered by youth (and older workers) at work. You can start at the beginning and answer all of the questions or select one of the specific topics listed. Try it - it's fun!

Begin Challenge . . . or-Select a Topic . . .

Harassment

Retaliation

Sex/Gender Discrimination

Race/Color Discrimination

National Origin Discrimination

Religious Discrimination

Disability Discrimination

Age Discrimination

Learn More about EEOC