Case on Point

Should Workplace Bullying be Unlawful?

Kristin Case — Wed, 20 Mar 2013 20:52:19 GMT

Tomorrow I will be speaking on a panel with other attorneys at the American Bar Association's Labor and Employment Law Mid-Winter meeting in Miami about Workplace Bullying.

Eight states are currently considering anti-bullying legislation. The text of the draft legislation in these states is either identical to or based in large part on the Healthy Workplace Bill--created by the Workplace Bullying Institute. Not surprisingly, New York seems to be best positioned to actually pass such a law.

Do we need anti-bullying legislation? Consider the following:

The Society of Human Resources Management conducted a 2011 study in which half of all employers reported knowing about bullying in their workplaces. Most of the reported bullying consisted of shouting, cursing, name-calling, malicious gossip, rumors and lies. Twenty percent of the bullying occurred on social media.

In one of my first jobs here in Chicago I worked for a managing partner who epitomized a bully. I was a brand new lawyer and he regularly screamed and cursed at me, called me names like stupid and idiot, got drunk in the office (which increased his screaming and insults) and further berated me and threatened my job just for fun. He did this to other young lawyers (both male and female) too so it was not personal to me but, at the time, it sure felt like it. I left after a year of working there solely because of his behavior and the awful working environment it created. His fellow partners knew he acted like this but did nothing to stop him. Years later, I have no doubt that he is still doing this. Silver lining--that ridiculous working environment is what lead me to want to represent employees.

Opponents of anti-bullying legislation think that tolerating such behavior should all be in a days' work and that anything that would ban such conduct would mean mandating civility in the workplace. Opponents also worry that, if passed, these statutes would lead employees to bring legal claims every time a manager or co-worker raises his voice or looks at them wrong.

An examination of the HWB reveals, however, that it is not so scary. In fact, in an effort to actually get the bill passed, it seems the drafters have gone out of their way to create hurdles for plaintiffs seeking to bring these claims. For one, the definition of bullying is a steep one and, for another, aggrieved employees would have to show medical evidence of harm resulting from the bullying (something that is not required by any of the anti-discrimination laws).

So should we have anti-bullying legislation? As an employee rights attorney I certainly think so and having previously worked with a bully I, personally, understand the toll that such a workplace can take on you. I was fortunate in that I had a law degree and could easily find another job. A lot of employees--especially these days--are not so fortunate.

The proposed legislation of the HWB does not mandate civility in the workplace. It seeks to eliminate abusive treatment. And, regardless, workplaces should be civil, shouldn't they? We are not a bunch of Neanderthals are we? Being an employee should not mean leaving your dignity at the door nor should it mean risking your health to keep your job. In our practice we have first-hand knowledge of the stress-induced illnesses that can result from working in a hostile working environment. We see it with our clients every day.

More information on anti-bullying legislation can be found at www.healthyworkplacebill.org. If you are interested in supporting such legislation, this website will give you information about how to contact your representatives.

Yahoo! Ban on Telecommuting – Should Other Companies Follow Suit?

Kendra L Kutko — Tue, 12 Mar 2013 16:22:58 GMT

Many have likely heard about the latest decision from Marissa Mayer, CEO of Yahoo!, to implement a new company policy prohibiting employees from working from home. This announcement has already sparked a good deal of public debate, especially from the business community, as to whether such a policy will actually benefit or inhibit worker productivity and company profitability.

From an employment lawyer’s perspective, this decision also begs questions as to whether such a policy is likely to have some discriminatory implications.

While many workers, both men and women alike, take advantage of work-from-home /telecommuting policies, these policies often lend themselves to accommodating specific subsets of the working population—subsets who may fall under statutory protections. For instance, telecommuting or work-from-home arrangements may constitute a reasonable accommodation for individuals with disabilities. These types of circumstances may arise, for instance, where an employee undergoes surgery and requires a period of post-surgery recovery time at home or where an employee suffers from a condition like cancer that requires regular or periodic treatment such as chemotherapy that does not prevent the employee from performing the essential functions of his or her job, but may otherwise interfere with a typical 9 to 5 day in the office.

And, in our tech-savvy workplaces where people can conduct business remotely through servers, email, phone, Skype, video conference, or similar platforms, working from home has become increasingly feasible and reasonable. In its Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, the EEOC has long recognized that working-from-home can constitute a reasonable accommodation for qualified individuals with disabilities.

There are certainly valid arguments as to why Yahoo! put forward this prohibition on telecommuting. Face-to-face interaction among employees can lead to increased solidarity, teamwork, collaboration, morale, innovation, and creativity among other benefits. However, it bears noting that any policy prohibiting telecommuting such as Yahoo’s will also need to carve out exceptions for employees where needed to avoid running afoul of statutes such as the Americans with Disabilities Act.

Furthermore, companies that are not located in more, temperate climates like California may need to consider other implications. When employees face inclement weather conditions such as those that, at times, transpire in Chicago or widespread illnesses like we have seen during this year’s flu season, blanket bans on telecommuting that prevent employees from minimizing their risks to such exposures may subject employees to increased health and safety hazards that could not only subject employers to unwanted liability, but may also actually impair worker productivity and efficiency.

Best Buy recently also jumped on the Yahoo! bandwagon and announced its intention to eliminate its work-from-home program.

As Yahoo! and other companies implement such telecommuting bans, it will be interesting to see how they apply these policies to employees within protected categories and honor any other legal obligations that may arise.

Representative Schakowsky Introduces the Part-Time Worker Bill of Rights Act of 2013

Kate Sedey — Tue, 05 Mar 2013 15:41:15 GMT

Last month, Illinois' own Janice Schakowsky introduced the Part-Time Worker Bill of Rights Act of 2013 to the U.S. House of Representatives. The Act addresses two incredibly important rights which part-time workers currently lack - protected leave to care for their own and their family members' serious illnesses and health insurance.

First, the Act seeks to eliminate the requirement of the Family & Medical Leave Act ("FMLA") that an individual work 1,250 hours over the previous 12 months to be eligible for protected FMLA leave. The FMLA is the federal law which provides that employers with 50 or more employees provide up to 12 weeks of protected leave to employees who have worked for the company for more than 1 year and for at least 1,250 hours in the preceding year. The leave is provided to care for, amongst other categories, the worker's own serious health condition, the worker's child or other family member's serious health condition, maternity leave, and paternity leave.

Unfortunately, because of the 1,250 hour requirement, most part-time workers are not entitled to the protected leave. This often results in part-time workers losing their jobs or being disciplined at work because they or their loved ones become ill and their attendance suffers. Representative Schakowksy's proposed legislation would remove that hour requirement so that any worker, full-time or part-time, who had worked for a company for at least one year would be entitled to FMLA protected leave.

Next, the Act seeks to eliminate the incentive for employers to refuse health insurance coverage to part-time employees. As you may recall, the Affordable Care Act penalizes employers who fail to provide health insurance coverage to full-time employees. Because there is no similar penalty pertaining to part-time employees, many fear that employers will simply start to decrease their employees' hours to just below the threshold of 30 hours, so that their full-time employees qualify as part-time employees and no penalty would apply. The Part-Time Worker Bill of Rights would create a similar penalty to employers who fail to provide insurance coverage to part-time employees which would hopefully have the two-fold effect of 1) encouraging employers to provide health insurance to their part-time staff and 2) discouraging employers from decreasing full-time staff hours.

There are a lot of great protections that could come of this Act were it to enacted and we strongly encourage you to call your congressional reps and urge that the legislation be brought up for a vote and passed. Perhaps more importantly, share this information with your friends and family out of state and help us try to gain more widespread support for the Act! To read the full text of the Act, click here: http://www.gpo.gov/fdsys/pkg/BILLS-113hr675ih/pdf/BILLS-113hr675ih.pdf.

Discrimination Against the Unemployed

Kate Sedey — Mon, 18 Feb 2013 17:58:43 GMT

There was another depressing article today about the difficulties individuals are facing finding work while unemployed, this one out of New York. Check it out at:

http://www.nytimes.com/2013/02/18/nyregion/for-many-being-out-of-work-is-chief-obstacle-to-finding-it.html?hp&_r=0

Unfortunately, this isn't new news but it is an excellent reminder that we need to push our representatives to pass new legislation in Illinois prohibitting discrimination against the unemployed. Call your legislators about SB 2153 today!

Supreme Court Will Again Address the Question of "Mixed Motive" Versus "But For" Causation in Employment Cases

Kate Sedey — Wed, 23 Jan 2013 14:55:40 GMT

Just last week, the United States Supreme Court agreed to hear the case of University of Texas Southwestern Medical Center v. Naiel Nassar which presents the following question:

Whether Title VII's retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

In a 2009 decision (Gross v. FBL Financial Services, Inc.), the Court ruled that the Age Discrimination in Employment Act required but for causation (as opposed to mixed motive) and, since that time, the Federal Courts of Appeals have been divided as to whether that standard of causation should apply to all employment related claims (in other words: disability discrimination claims, retaliation claims, etc.) or whether the ruling should be limited to age claims.

The Seventh Circuit Court of Appeals, the appellate court presiding over our local federal district courts, has repeatedly applied Gross to other types of employment claims, including claims under the Americans With Disabilities Act and First Amendment Retaliation Claims under Section 1983 - making the burden of proof for those claims much more difficult. However, a number of other Circuit Courts of Appeals have refused to require but for causation in the context of other types of employment claims.

The Supreme Court is now poised to rule on whether Title VII retaliation claims require but for causation and, presumably, to clarify for all of the Circuits how far the Gross decision should reach. This is one to keep an eye on as the Court's decision is sure to cause waves, regardless of which way the ruling falls.

I can tell you, though, that these employee advocates will be keeping their fingers crossed for a win for motivating factor causation!

Catch Twenty-Two for Workers with the Flu.

Kate Sedey — Tue, 15 Jan 2013 17:06:20 GMT

I heard a really interesting news piece on my way into work this morning highlighting the difficulty for workers suffering from the flu who have no paid sick leave to utilize. By all accounts, this is one of the worst flu seasons the country has seen and public health officials are urging the sick to stay home from work to avoid spreading the virus further. But for those with no paid sick leave, heeding that advice and choosing to stay home sick could mean risking their jobs.

Click here to read the full article which makes it clear why we need to focus on ensuring that every worker in the country has access to paid sick leave: http://www.wbez.org/sections/work/flu-upon-us-call-sick-or-not-call-sick-104918.

Kristin Case and Kate Sedey Again Voted "Rising Stars" By Super Lawyers

Kate Sedey — Mon, 14 Jan 2013 23:55:25 GMT

Kristin Case and Kate Sedey have once again been voted "Rising Stars" by the Illinois Super Lawyers Association. This title is awarded annually to attorneys recognized by their peers in the legal and judicial profession as amongst the top 5% of practitioners in their state. Ms. Case was again nominated for her work in the field of employment and labor and Ms. Sedey was nominated for her work litigating employment-related matters. Ms. Case has now been voted a Rising Star every year since 2010 and Ms. Sedey since 2012.

You can visit their Super Lawyer profiles at:

http://www.superlawyers.com/illinois/lawyer/Kristin-M-Case/cfd6bfb4-5d4d-42af-bff3-4eed18b39076.html
http://www.superlawyers.com/illinois/lawyer/Kate-Sedey/fe6951ed-193d-4420-b053-84030edb9a7c.html

For more information about the Super Lawyers organization or the Rising Star selection process, please go to:

http://www.superlawyers.com/about/selection_process.html

Employers Should Think Twice before Demanding Access to their Employees’ Facebook Pages!

Kendra L Kutko — Thu, 20 Dec 2012 21:04:29 GMT

It has become commonplace for tech-savvy employers to use Facebook, Twitter, LinkedIn and other social media to vet job applicants and monitor their current workforce. As plaintiff’s employment lawyers, we have seen employers use social media to drudge up claims of misconduct, violations of company policy, breaches of contract, or even violations of law to support disciplinary investigations, termination decisions, and lawsuits or counterclaims against their employees or former employees.

However, a recent amendment to the Illinois Right to Privacy in the Workplace Act, which takes effect, January 1, 2013, should make employers think twice before relying on social media when gathering information about prospective and current employees. The Amendment makes it “unlawful for any employer to request or require any employee or prospective employee to provide any password or other related account information in order to gain access to the employee’s or prospective employee’s account or profile on a social networking website or to demand access in any manner to an employee’s or prospective employee’s account or profile on a social networking website.” 820 ILCS 55/10(b)(1). This newly-adopted prohibition adds quite a bit of teeth and clarity in protecting employee privacy rights in our social media culture, where clear expectations of what is private and what is not seem increasingly vague and nebulous.

Employees should note that this Amendment does not prohibit employers from obtaining information about prospective or current employees that already exists in the public domain or on social media accounts that are not password protected. This new law highlights the importance of always choosing the strictest privacy settings on any social media account. If employees do so, they should be protected under this new amendment.

Another Great Decision - this one for workers with disabilities!

Kate Sedey — Tue, 11 Sep 2012 11:33:51 GMT

Just last week the Seventh Circuit overruled an older decision and held that the Americans with Disabilities Act requires employers to transfer workers with disabilities to vacant positions for which they are qualified. In EEOC v. United Airlines, the court held that a policy which allowed disabled individiuals to apply for transfers to vacancies, but which only guaranteed preferential consideration and possibly an interview rather than guaranteeing the transfer, was not in keeping with the Supreme Court's interpretation of the ADA. This is great news for employees and provides yet another avenue for reasonably accommodating individuals who are hindered in the workplace as the result of a disability.

To read the full decision, click here: http://www.ca7.uscourts.gov/tmp/LF0DBJXQ.pdf

Great New Case Law for Employees Bringing FMLA Interference Claims

Kate Sedey — Fri, 07 Sep 2012 14:01:26 GMT

^{A new Seventh Circuit decision, Pagel v. TIN, Inc., 2012 WL 3217623 (7th Cir. Aug. 9, 2012), creates great case law for employees bringing FMLA interference claims.  The plaintiff in the suit, a sales employee, began suffering shortness of breath and other unexplained symptoms in the summer of 2006. Between July and October, he was hospitalized on several occasions to undergo tests and was ultimately diagnosed with septal wall ischemia.  During this time, Mr. Pagel missed several days of work for related doctor’s appointments and tests. Each time, he notified his supervisor of his need for leave and gave his employer enough information regarding the nature of his symptoms, tests, and treatments that the employer could have determined that he was suffering from an FMLA-qualifying condition.
Two months into this time frame and just days before a scheduled angioplasty, Mr. Pagel's boss called a meeting with him to discuss Mr. Pagel's declining performance and decreased productivity as compared to his peers.  Significantly, the numbers which his supervisor had used to assess his per-day sales calls and other daily performance metrics included days on which Mr. Pagel had been absent under FMLA-protected leave. Regardless, Mr. Pagel was told that if he did not improve his performance, he faced possible termination. Several weeks later, Mr. Pagel's supervisor called to schedule a sales call observation (or "ridealong") for the following day, despite that company policy required that sales people be given one week's advance notice of such observations. Ultimately, Mr. Pagel, who had been undergoing a pet scan the day his boss notified him of the ridealong, was unable to fully prepare and the sales call was a failure.  One week later, Mr. Pagel was terminated for his declining productivity and his poor performance on the ridealong.
Mr. Pagel filed suit alleging that his employer had interfered with his FMLA rights and retaliated against him for exercising those rights. The lower court granted summary judgment in favor of the employer, holding that Mr. Pagel's poor performance on the ridealong was sufficient justification for his termination. However, the Seventh Circuit reversed that decision, making some important statements about FMLA interference claims.
First, the Court explicitly stated that "the FMLA does not require an employer to adjust its performance standards for the time an employee is actually on the job, but it can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave." This means that an employer cannot judge an employee's productivity or performance over the course of any given day, week, or month without first accounting for any time which the employee was out of work using FMLA-protected leave. While this seems like a no-brainer, I can't tell you the number of clients we have had whose employers fail to take that off-the-job time into consideration when assessing performance and then justify terminations with skewed or improperly calculated data.
Second, the Court acknowledged that when an employer holds an employee using FMLA leave to higher standards than other employees (in this case giving Mr. Pagel just one day to prepare for a ridealong rather than the required week), it looks "suspicious" and could be interpreted as "setting [the employee] up to fail." The Court held that a jury should be allowed to consider this evidence and make their own reasonable interpretations as to whether the employer was merely looking for a way to justify the termination. This, again, seems to be explicit court recognition of a common sense notion - that when an employee is not given adequate (or at least equal) time to prepare or perform, that could be evidence that an employer does not want to see that employee succeed - and, at a minimum, a plaintiff should be allowed to present that evidence to a jury and let his peers consider the issue.
The FMLA often presents complicated and thorny legal issues over which employers and employees can be legitimately confused. This decision, however, helps interpret the Act with a straightforward, common sense approach; one which I hope will help employers better implement the Act's protections and employees better understand their rights.
Click here to read the full decision:
http://scholar.google.com/scholar_case?case=12755460087412542482&hl=en&as_sdt=2,14}

Jack Osbourne Fired, Alleges Disability Discrimination Against NBC

Kate Sedey — Tue, 21 Aug 2012 22:21:06 GMT

Those of you who follow Hollywood gossip may have heard in the last few weeks that Jack Osbourne, son of rat-biting Ozzy, has accused NBC of discrimination. If you are so inclined, you may read about it here: www.huffingtonpost.com/2012/08/13/jack-osbourne-stars-earn-stripes_n_1772085.html

Jack was diagnosed earlier this year with Multiple Sclerosis. Prior to that, NBC had, apparently, hired him for a reality show called “Stars Earn Stripes” in which Hollywood people compete in military-like exercises. According to Jack, NBC terminated him from this show after learning of his MS, believing the challenges to be too dangerous for him. Jack contends that he could perform all of the exercises and that doing so was not any more of a danger for him than for others.

This is a common problem our clients with disabilities or other medical conditions often face: an employer’s discriminatory (and medically baseless) assumptions about what the employee can and cannot do. It is not clear whether or not Jack claims to meet the definition of disabled under the ADA (being limited in one or more major life activity) but it does not matter. The Americans with Disabilities Act (ADA) prohibits discrimination against those not only with disabilities that rise to that definition but also against those who are not disabled but who (incorrectly) are perceived to be so by their employers. The second category is far less recognized by employers than the first and can create big problems for employers.

While they should not have to, it is a good and practical idea for employees with medical conditions to educate their bosses on how their conditions affect them. Despite certain assumptions, most conditions are not one-size-fits-all and most usually present in a wide and vast array of different ways in different people. Sometimes the most serious presentations are what people tend to remember, even if those tend to be rarest. For employees who wish to continue with their jobs despite their conditions (which is the vast majority of our clients) taking the time to educate superiors might head off the type of situation Jack Osbourne now faces.

Kristin M. Case

Glaring Inequalities for Gay and Transgender Workers!

Kate Sedey — Thu, 19 Jul 2012 23:33:53 GMT

Thanks to GLAAD for putting together the info-graphic below. We think it very clearly sums up what remains one of the biggest voids in workplace civil rights protections of our time. As one individual posted on Facebook today regarding this issue, "Who says things are equal in this country?"

New Employee-Friendly Guide to the Family & Medical Leave Act

Kate Sedey — Wed, 11 Jul 2012 15:28:33 GMT

The Department of Labor's Wage and Hour Division has just published a new guide to the Family & Medical Leave Act (or the FMLA). The guide, entitled "Need Time? The Employee's Guide to the Family & Medical Leave Act" is aimed at making the intricate and often confusing language of the FMLA and the related regulations more accessible - so that employees can answer their own basic questions about their rights.

To download the Guide, visit: http://www.dol.gov/whd/fmla/employeeguide.pdf.

Please Call Your Senators and Ask That They Vote YES on the Paycheck Fairness Act

Kate Sedey — Tue, 05 Jun 2012 13:11:32 GMT

The Paycheck Fairness Act is up for a vote in the Senate today with some strong opposition. I am saddened that we even have to have this conversation anymore and that it is not common sense that something should be done to fix the fact that women in this country make 70 cents to every dollar earned by a man.

We ask that you please call your senators today before 2:15 Eastern Time and urge them to vote YES on the Paycheck Fairness Act and take another step towards closing that gap!

EEOC Issues New Recommendations on Use of Criminal Records, Disparate Impact Discrimination Based on Race and National Origin

Kate Sedey — Thu, 31 May 2012 17:24:52 GMT

The EEOC has issued new guidance on an employer’s use of arrest and conviction records in making employment decisions. While the guidance does not create any new legal protections, it explains that consideration of arrest and conviction records may often create disparate impact liability based on race and national origin discrimination given that African American and Hispanic men have a statistically higher rate of incarceration than white men.

The Commission’s new guidance suggests that employers should develop a targeted screening mechanism to consider whether excluding applicants based on a criminal history is actually job-related. In other words, an employer should consider whether an applicant with a particular arrest or conviction record poses any risk to the particular job for which he has applied. This inquiry should consider the nature of the arrest or conviction, the duties of the job, and the amount of time which has passed since the incident. Further, the Commission advises employers on several best practices, including that employers should limit inquiries into criminal records to records which are consistent with business necessity and keep any information provided strictly confidential.

To see the EEOC’s exhaustive recommendations, visit: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

Progress for Transgender Employees Seeking Protection from Discrimination in the Workplace

Kate Sedey — Tue, 29 May 2012 14:08:38 GMT

Just last month the Equal Employment Opportunity Commission issued a landmark ruling impacting the status of transgender employees in the workplace. In Mia Macy v. Eric Holder (No. ATF-2011-00751), the Commission held that intentional discrimination against an employee because that individual is transgender is, “by definition, discrimination based on sex” and therefore in violation of Title VII of the Civil Rights Act of 1964.

In December of 2010, Mia Macy applied for a vacant position with the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives. Ms. Macy, who was then still presenting as a man, was certified as a National Integrated Ballistic Information Network Operator and as a BrassTrax Ballistics Investigator. She was particularly qualified for the vacancy and, after several conversations with the Bureau regarding her experience and credentials and the position’s salary and benefits, she was told that the position was hers pending completion of a background check.

Two months later, and before completion of the background check, Ms. Macy informed the Bureau via email that she was in the process of transitioning from male to female and she provided them with a name change (from her formerly male name to her current female name). Just five days later, the Bureau informed Ms. Macy that the position was no longer available due to federal budget reductions. She later learned that this was not true and, instead, the Bureau had hired another non-transgender candidate to fill the vacancy.

Ms. Macy filed a complaint with the Bureau’s Equal Employment Opportunity office alleging that she had been discriminated based on sex, gender identity, and sex stereotyping. The office responded that claims for gender identity discrimination could not be adjudicated before the EEO; thus, only her claims for discrimination based on her female gender and for sex-stereotyping would be investigated. However, on appeal, the Commission held that claims of discrimination based on transgender status are cognizable under Title VII’s prohibitions on sex discrimination.

The Commission explained it’s very straightforward reasoning:

“When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment ‘related to the sex of the victim.’ This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person. In each of these circumstances, the employer is making a gender-based evaluation, thus violating the Supreme Court’s admonition that ‘an employer may not take gender into account in making an employment decision.’” (internal citations omitted).

This decision fills a void which has been glaringly apparent in federal protections for employees for some time now. While Title VII has long prohibited discrimination against employees based on “sex,” federal courts have been divided on whether or not sex or gender discrimination encompasses discrimination against transgender individuals, or those with gender identity disorder. Although this decision is not binding on the federal courts, Commission decisions are often given great deference by the courts in interpreting the federal discrimination laws. Additionally, the Commission’s decision is binding on EEOC field offices (which investigate and conciliate complaints that private employers have discriminated) as well as all federal department and agency EEO offices (which adjudicate similar complaints for federal employees).

While we certainly still need formal federal protections for transgender employees (either from the legislature or the Supreme Court), this decision is a huge step in the right direction and is incredibly encouraging.

Female Soldiers File Suit to Abolish Gender-Based Combat Restrictions

Kate Sedey — Thu, 24 May 2012 14:04:38 GMT

The U.S. military’s restriction barring women from combat is under fire. Just yesterday, two female soldiers filed a lawsuit against Defense Secretary Leon Panetta, amongst others, alleging that the gender-based restriction violates their rights to equal protection under the law in violation of the Fifth Amendment of the U.S. Constitution.

There are slight differences between the Army the Department of Defense policies restricting women from combat (both of which are at issue in the lawsuit), but essentially they both prohibit females from serving in “direct ground combat” units. Direct ground combat units are defined as any unit “engaging an enemy on the ground with…weapons, while being exposed to hostile fire and to a high probability of direct physical contact with the hostile force’s personnel.” This type of combat, the policies explain, “takes place well forward on the battlefield,” and is generally referred to as front-line combat.

Although 14.5% of active members of the U.S. military today are women, the goal of this restriction is to keep women off the front-lines of combat. However, Command Sergeant Major Jane Baldwin and Colonel Ellen Haring argue that “the linear battlefield no longer exists” and there is “no forward area” in modern-day warfare. As a result, the modern military has adopted new strategies and tactics and women are increasingly exposed to combat regardless of being kept out of traditional front-line roles such as infantry, armor, and special forces.

Thus, they argue that the restriction on females in combat serves little purpose anymore and, instead, merely acts as an obstacle to their advancement in the military. By keeping women out of positions regardless of their qualifications and desire to fill those roles, the policy “restricts their current and future earnings, their potential for promotion and advancement, and their future retirement benefits.”

Baldwin and Haring have asked the U.S. District Court for the District of Columbia to issue a permanent injunction barring the military from further enforcement of the policies keeping women out of direct ground combat and prohibiting the military from making any assignment and training decisions on the basis of gender alone.

We look forward to seeing how this case progresses. If you are interested in checking out the full federal complaint, the case is captioned Baldwin et al v. Panetta et al, No. 12-CV-00832, U.S. Dist. Ct., D.C.

President Obama Refuses to Sign Executive Order Protecting LGBT Individuals from Employment Discrimination by Federal Contractors

Kate Sedey — Mon, 23 Apr 2012 12:52:21 GMT

We cannot express how truly disappointed we are in the Obama administration’s failure to protect LGBT individuals’ rights to a discrimination-free workplace.

In early 2009, we were excited to read that President Obama’s employment law agenda included a focus on LGBT employees and explicitly promised to push for passage of the Employment Non-Discrimination Act (ENDA), a proposed federal statute which would afford LGBT employees the same protections from discrimination in the workplace as women, disabled and older individuals (to name just a few protected categories). However, since taking office, President Obama has done little to advance that goal. Instead, ENDA, which has been languishing in Congress for almost twenty years now in one form or another, remains un-passed.

Then, just a week ago, President Obama refused to sign an executive order which would have prohibited federal contractors from discriminating against LGBT employees. Significantly, while campaigning for President in 2008, Mr. Obama stated that he would support the repeal of a 1953 executive order issued by President Eisenhower which explicitly prohibited federal contractors from hiring gay employees. However, now, rather than making good on that claim, President Obama has refused to sign an executive order doing just that and has stated that he now believes it is more appropriate to wait for Congress to take action on this issue.

In a time when Mr. Obama has signed numerous executive orders under the mantra, “We can’t wait” – indicating that he will take action via executive orders where Congress refuses to take the necessary actions itself – it is unbelievable that President Obama has refused to take this step to protect LGBT employees in one small area of the workforce, an area which is arguably directly under the President’s control – federal contractors.

To make matters even more frustrating, I recently noticed in my Facebook feed that the President has published a chart showing what he refers to as the “three years of progress” he has made for the LGBT community. While there is no argument that the repeal of “Don’t Ask, Don’t Tell” was a big step forward, it is infuriating that he chose this moment to tout his support for the LGBT community after so recently indicating his unwillingness to stand up for their rights in the workplace.

In this day and age, when workplace discrimination (although it remains fairly rampant) has clearly been held to be unlawful and unpopular, it is infuriating that the President cannot at least take incremental steps to protect LGBT employees from that fate.

Department of Labor Begins Enforcing Breastfeeding Rules

Kate Sedey — Mon, 12 Mar 2012 15:40:15 GMT

The Patient Protection and Affordable Care Act is best known as President Obama’s effort to overhaul the American health care system. However, amongst its many provisions, the law created an obligation on employers to provide time and space for nursing mothers to express breast milk.

The law specifically requires that any employer with fifty or more employees provide working mothers a reasonable break every time they need to pump breast milk for one year after giving birth. Additionally, the employer must provide a private space, other than a bathroom, for this purpose.

While the Act was first signed into law in March of 2010, the Department of Labor has been wrestling with creation of rules and regulation for its enforcement for the last two years. Thankfully, despite that holdup, the Department has recently begun to enforce the law. Indeed, the DOL has issued 23 citations already against companies, including Dillard’s, Dollar General, Starbucks and McDonald’s, for failing to provide adequate time and/or space for working mothers to pump breast milk. These citations have resulted in fines, awards of back pay, and agreements from employers to comply with the law moving forward.

While the DOL continues to work on its final rules for enforcement, these recent citations are a good reminder to employers that the law is in effect and must be followed regardless.

To read more about this issue, visit the following link: http://lifeinc.today.msnbc.msn.com/_news/2012/01/04/9922427-breast-feeding-at-work-now-protected-by-law.

Illinois Family Medical Leave Act (House Bill 4724) Needs Your Support

Kendra L Kutko — Fri, 24 Feb 2012 20:18:02 GMT

Illinois law-makers have proposed important legislation to ensure that gay and lesbian couples in civil unions possess the same legal entitlement to take up to 12 weeks of unpaid leave from work to care for a child, parent, or spouse with a serious health condition as married couples already possess under the federal Family Medical Leave Act. Click below if you have any interest in supporting this significant step forward in civil rights:

http://action.aclu.org/site/MessageViewer?dlv_id=89302&em_id=86883.0