Spousal Jealousy Provides Grounds for Discrimination Claim

In a decision of apparent first impression in New York, an appellate court has ruled that the sexual jealousy of an employer’s spouse may be considered gender discrimination under New York State and New York City law (Edwards v. Nicolai).  In this case, the husband and wife were co-owners of a chiropractic office.  The practice hired a female massage therapist and yoga instructor.  The husband was her direct supervisor.  The complaint alleged that during the course of plaintiff’s employment, her relationship with the husband was “purely professional.”  During the course of employment, the husband allegedly told her that his wife might become jealous because she was “too cute.”  Several months thereafter, the wife sent the employee a text message stating “You are NOT welcome any longer … DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” Soon thereafter, the employee claimed she received an email from the husband stating: “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.”

The trial court granted the employer’s motion to dismiss plaintiff’s claims of gender discrimination. However, the appellate court overruled the decision based on a prior decision which held that “adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination.”

Take away: Employers (especially those in New York) should give broad consideration to possible gender-based claims before taking adverse action against an employee where the gender of the employee is related to the employment action.

Top 5 Things to Know About Workplace Language Rules

The EEOC filed suit recently in the United Stated District Court for the Southern District of Texas alleging that an employer discriminated against non-Hispanic applicants by requiring that they be Spanish-speaking.  See EEOC v. Champion Fiberglass, Inc., Civil Action No. 4:17-cv-2226.  A copy of the Complaint can be viewed here. The EEOC alleges that this requirement has resulted in statistically significant underrepresentation of non-Hispanics in the employer’s workforce.  While this case is only in its early stage, employers should understand the EEOC’s position which can be summarized as follows:

  1. Rules must be  justified as a business necessity.
  2. Rules should be limited to ensuring that employers can operate safely and efficiently.
  3. Language control rules that extend to lunchtime and breaks rarely are justified.
  4. Rules controlling English (or other language) speaking may be justified for:

a. communications with customers or co-workers who only speak that language;

b. emergencies or other situations in which workers must speak a common language to promote safety;

c. cooperative work assignments in which the language is needed to promote efficiency.

5.   Employers may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences for violating it.

The EEOC has recently undertaken investigations of such rules even after parties have entered into a private settlement.  Employers are encouraged to review their language policies to determine if they are in compliance with EEOC guidelines.

Will Employers Have to Accommodate Employees Who Test Positive for Marijuana?

On July 17, 2017, the Massachusetts Supreme Judicial Court ruled that under the Massachusetts Anti-Discrimination law an employer may be required to accommodate an employee who is a current user of medical marijuana regardless of the employer’s drug free workplace and drug testing policies.  For a complete discussion on the ruling and tips on how to move forward, please click here.

Nurse’s Disability Discrimination Claims May Proceed to Trial, New Jersey Supreme Court Rules

A registered nurse employed by a New Jersey health care system for approximately 10 years may proceed to a jury trial with her disability and perceived disability claims under the New Jersey Law Against Discrimination, the Supreme Court of New Jersey has ruled. Grande v. Saint Clare’s Health Sys., 2017 N.J. LEXIS 746 (July 12, 2017).  For more information including lessons to be learned from the decision, click here.


When Are Law Firm Partners Not Partners?

The issue of who is a “partner” and thus not an employee continues to vex professional firms.   Layers, doctors, dentists and other professionals often consider themselves non-employees, at least until they suffer an adverse workplace decision.  Then, they may choose to describe their situation as employees, not non-employee owners.  The distinction between employee and “partner” or owner status is a factual one.


A Court recently directed that limited discovery be conducted to explore where the line should be drawn for claims under Title VII and FLSA protection.  Campbell v. Chadbourne & Parke LLP, 16-cv-6832 (Oetken, J.).   Finding that titles are not determinative of “employee” status, the parties were directed to conduct limited discovery as to the long established “Clackamas” factors including:

  • whether the firm can “hire or fire the individual or set the rules and regulations of the individual’s work,”
  • whether the individual reports to someone “higher” in the firm,
  • whether the individual “is able to influence” the firm, and
  • whether “the individual shares in the profits, losses, and liabilities” of the firm.

Telecommuting May Not Be A Reasonable Accommodation

The Fifth Circuit recently upheld the dismissal of a lawsuit against an employer who denied an employee’s request to telecommute on the grounds that regular attendance at work is an essential function of her job as a litigation attorney.  Credeur v State of Louisiana, 16-CV-30658 (5th Cir. 2017).  The employer did provide unpaid leave as an alternate and reasonable accommodation.


Given the proliferation of digital workspaces and telecommuting, well written job descriptions identifying whether attendance is an essential function are increasingly important.

Recent 7th Circuit Court of Appeals Case Demonstrates Importance of Documentation of the Interactive Process

On May 4, 2017, the U.S. Court of Appeals for the Seventh Circuit in Brown v. Milwaukee Board of School Directors affirmed the summary judgment dismissal of a former employee’s disability discrimination claim under the ADA.   While the employer consistently sought to find reasonable accommodations, plaintiff failed to engage in the interactive process because neither she nor her doctor clarified the extent of her restrictions despite the board’s multiple written requests.  

 Employers who engage in the interactive process in good faith, and document their efforts are much better positioned to prevail in failure to accommodate claims.


D.C. Circuit Court of Appeals Upholds the NLRB’s Revision to Its Back Pay Calculation Formula

On June 9, 2017, the U.S. Court of Appeals for the DC Circuit unanimously upheld the NLRB’s pro employee approach in King Soopers Inc. v. NLRB.   As previously reported, the NLRB revised its back pay calculation formula to allow employees full recovery for all reasonable interim employment and search-for-work expenses.