When Is Racist, Offensive Speech OK?

On June 5, the NLRB ordered an employee be re-hired after he was terminated for his “racist, offensive and reprehensible” speech.

As many of you know from my seminars, the hottest area of employment law today is the NLRB decisions. Pursuant to the National Labor Relations Act, an employee is protected from termination if he/she engages in protected (regarding the terms and conditions of employment) and concerted (with other employees) activity. The NLRA does not, however, give employees a right to defame, disparage or otherwise criticize their employer or to engage in discriminatory conduct.

In this recent case, the employee was caught on video saying racist comments to black employees. He was terminated for violating the company’s anti-harassment policy. But the NLRB ordered his reinstatement because he made the comments while he was engaging in protected concerted activity on a picket line!  According to the Administrative Law Judge, the statements most certainly were racist, offensive and reprehensible, but they were not violent in character…coercive or intimidating to the exercise of his NLRA Section 7 rights.

Further, remarkably, the ALJ held that although the company’s anti-harassment policy covers this type of conduct as a terminable offense, the harassment policy makes no reference to conduct on a picket line. So, the employee is protected.

PLEASE make sure that your anti-harassment/discrimination/retaliation training includes NLRB decisions….

Contact me to learn how ERS can customize affordable training options that meet your specific needs and train your staff on how best to avoid an employee claim.

When Is A Disability Obvious?

In disability cases where an employee needs an accommodation, the employee is generally required to advise the employer of the extent of the disability and request an accommodation. Then, it is up to the employer to engage in an interactive process to determine what, if any, accommodations can be made.

But, in rare cases, if the disability is “obvious,” courts have said that the employer should have known that an accommodation was necessary and, therefore, should have started a dialogue with the employee.

In a case filed last week, a former JetBlue pilot is seeking $15M after he was arrested for interfering with a flight crew for running down the aisles and forcing the crew to subdue him, but was found not guilty by reason of insanity. He claims that only after his arrest did he learn that he suffered from a “complex partial brain seizure” due to a childhood head injury.

He is alleging that management should have known he had a medical problem because he (1) failed to show up for a required crew meeting; (2) didn’t answer his phone; (3) eventually showed up disheveled and disoriented; and (4) nearly failed a preflight check (but didn’t). How many of your employees could possibly fit this description?

Does this mean that you must start to ask each employee who misses a meeting if they need an accommodation under the ADA? Of course not. And I expect that JetBlue will prevail in this case, especially since prior to this incident there were no signs of any issues that they could reasonably have foreseen.

As I do in my presentations, I present the most extreme type of examples in an effort to remind you to pay attention to detail in the not so extreme cases that you see everyday.

Contact me to learn how ERS can customize affordable training options that meet your specific needs and train your staff on how best to avoid an employee claim.

Transgender Recognized Under Title VII

In a memo dated December 15, 2014, the U.S. Justice Department announced that it will interpret Title VII to protect discrimination claims based on gender identity, including transgender workers, reversing an earlier position.

This means that the government can now bring claims against state and local public employers based upon transgender discrimination. It does NOT apply to private employers…..yet; although the EEOC has previously announced its opinion that discrimination against transgender employees is covered under Title VII’s protection of “sex/gender.”

My best advice is to treat transgender employees as you would any other employee. The best way to ensure this treatment is proper training of managers.  No company wants to be part of the history making case extending the protection to private employers under Title VII.


Contact me to learn how ERS can customize affordable training options that meet your specific needs and train your staff on how best to avoid an employee claim.


California Training on “Abusive Conduct”

Effective January 1, 2015, California employers will be required to incorporate training to supervisors on “abusive conduct” as part of the required sexual harassment training.

The new law, AB2053, defines “abusive conduct” as:

Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.

As you can see, the definition is broad and allows for various legal interpretations…which, as a result, demands live training to explain how to comply.  And, perhaps most important, it does not include any requirement that the abuse be associated with a protected characteristic.

I have added AB2053 to my training sessions for 2015. I urge you to review your policies and training schedules and
Contact me
to learn how ERS can customize affordable training options that meet your specific needs and train your staff on how best to avoid an employee claim.

NJ Ban the Box

New Jersey Governor Christie signed the “The Opportunity to Compete Act”, also known as Ban the Box. Beginning January 1, 2015, companies with 15 or more employees will be forbidden from advertising that people with criminal records cannot apply for a job opening. Covered companies also cannot inquire about criminal history, from the time an applicant inquires about an opening, until the first job interview is completed.

After that, the applicant’s criminal history can be discussed based upon the job as previously permitted.

Covered employers that violate the law will be fined $1000 for a first violation, $5000 for a second violation, and $10,000 for each one after that. But, aggrieved individuals do not have the right to sue.

How can employers prepare for Ban the Box? If you haven’t already done so, now would be a good time to starting changing your employment applications. Also, be sure to remind anyone who has any responsibility for hiring, up to the initial interview process, not to inquire about criminal history.