This article was written by Barbara E. Hoey and Diana R. Hamar, and originally posted to Kelley Drye’s Labor Days Blog.

As we enter the 3rd year of the #MeToo movement, all signs point towards another year of heightened legal activities in the area of gender discrimination and gender equality. Sexual harassment claims will continue to garner news headlines, but there are bigger threats for employers. For many employers, 2019 will be less about whether their female employees are being harassed, and more about whether they are being treated fairly and equally.

What’s the difference you ask? The answer is everything else outside of harassment, including pay equity, opportunity equality, and fair treatment for employees who are pregnant and new parents.

There is no greater indication of this heightened focus on equality than the 116th Congress, which has a record number of women serving. Naturally, legislation aimed to combat gender inequality will be at the forefront. In this post, we identify the legislative and legal trends employers should pay attention to in 2019 as we declare it “The Year of the Woman.”
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This post was written by Matthew C. Luzadder and Janine Fletcher and originally posted on Kelley Drye’s Labor Days Blog.

Medical marijuana occupies a gray space within the United States. Marijuana is an illegal drug under federal law and is included on the Drug Enforcement Administrations’ Schedule I, along with heroin and LSD. The drugs on this schedule are considered to have “no currently accepted medical use and a high potential for abuse.” In spite of the federal prohibition, thirty states have passed some form of legislation allowing for the medical use of marijuana.

This conflict between state and federal law may cause employers confusion—especially in states with expansive disability protections. For example, the New Jersey Law Against Discrimination (“NJLAD”) which provides extensive protections for individuals with disabilities. The New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”) supplements the NJLAD by stipulating that employees using marijuana for a medicinal purpose are considered to have a disability and such use is protected. These protections, of course, do not force employers to allow employees to use marijuana at work but do pose a dilemma when it comes to workplace drug testing. Many companies require employees to pass drug tests for federally prohibited narcotics. However, the NJLAD requires employers to provide reasonable accommodations to disabled individuals. Since the NJCUMMA classifies medical marijuana users as disabled, is a drug test a violation of their accommodations?


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This post was written by Barbara E. Hoey and originally posted on Kelley Drye’s Labor Days Blog.

On Friday, July 27, after a 3 week trial in Manhattan , a jury awarded $1.25 million in damages to Enrichetta Ravina, a former professor at Columbia University Business School, who claimed that she was denied tenure

This blog was originally posted on Kelley Drye’s Labor Days Blog and written by Barbara E. Hoey and Alyssa Smilowitz.

Marijuana remains illegal under federal law. However, there are many states, and a few cities, which have legalized medical and recreational marijuana – creating challenges for employers, as these laws “sprout up” (pun intended) across the country.

Also, prior to now, the caselaw was quite clear – an employer could discipline an employee for lawful use of marijuana. See Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015). But the law appears to be changing, as recent cases indicate that courts are beginning to recognize that employees who are lawful users of marijuana are entitled to some protection.
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This post was written by Barbara E. Hoey and originally posted on Kelley Drye’s Labor Days Blog.

As many of us settle into September, with fond memories of our summer vacations, do not think that the federal agencies were on a hiatus. In fact and despite predictions that the EEOC under the new administration would be less aggressive in enforcing the discrimination laws, the Commission has been very active and did not take much of a summer vacation.

A survey of recent enforcement actions brought and settlement by the EEOC illustrate that the agency is still aggressively prosecuting cases, and continues to be focused on several key areas namely: combatting disability discrimination, proper accommodations and treatment of pregnant employees, and claims of systemic gender discrimination in company policies.

EEOC Sues Accuses Employer of Firing Worker With Breast Cancer
In late August, the EEOC sued the Illinois Action for Children (IAC), alleging that the IAC unlawfully fired an employee who was out on leave for breast cancer treatment, violating the Americans with Disabilities Act and the Civil Rights Act of 1991.

This case highlights the danger of standing behind a strict leave policy and denying requests for leave extensions.

The plaintiff, Myrnie Brown, had worked for the IAC for two years, when she was diagnosed with breast cancer and requested, and was granted, a leave that would span June through October 1, 2015. She later requested an extension of that leave to November when her doctor ordered follow-up treatments. IAC denied that extension and fired Brown.

Interestingly, Brown was eventually rehired, but had been out of a job for over 6 months. Clearly, the rehiring did not save the day for the IAC, as the EEOC contends that it failed to accommodate Brown by not considering an extension of the leave as a reasonable accommodation.

EEOC Chicago district regional attorney Greg Gochanour said, “Anyone suffering from breast cancer has enough to face and overcome without her employer violating federal law and denying her adequate leave to combat her illness. When such a situation sadly occurs, the EEOC is ready to step in and fight for people who are fighting discrimination as well as cancer.”

– We will have to wait and see where that case goes.
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This post was written by Barbara E. Hoey and Steven R. Nevolis and originally posted on Kelley Drye’s Labor Days Blog.

The blogs and networks have been buzzing over the past few days with news that a senior software engineer at Google – James Damore – had taken it upon himself to write and post on an internal Google mailing list a ten page memo, explaining his theory on why Google’s efforts to diversify its workforce were not working. In his words, Google’s “politically correct mononculture” had reached the point where efforts to create diversity by hiring and promoting more women (and other under-represented groups) was actually hurting the company.  Implicit in his criticism was what seemed like an undercurrent that men were somehow better suited than women for many tech jobs, and that Google was hiring or promoting women over men, even when the woman might not be the best person for the role.

In the course of this memo, Damore made a number of openly sexist and stereotypical comments about women, which many employees of both sexes took great offense to.  Most disturbing was his core view, that the reason women did not succeed in tech jobs was “biological”.

For instance, he opined:

  • that women were more apt to have a stronger interest in “people rather than things” and that tech was an industry which focused on things
  • that women had a higher level of “agreeableness”, which is why they had a harder time negotiating salary
  • that women had “higher anxiety/lower stress tolerance”

Finally, he theorized that the reason there were not more women in leadership roles at tech companies was because they did not have the same “drive for status” or to succeed as men did.

Damore also was very critical and dismissive of Google’s diversity programs, training, and other company initiatives aimed at helping women and diverse employees advance.

The memo of course went viral, and was soon circulating outside of Google and all over the world.

Putting aside the fact that Damore’s views were perpetuating stereotypes and that any dialogue with a woman who has risen to a leadership role or managed large projects at work, while also managing a home and family will tell him – a woman’s ability to multi-task, handle stress, and desire for success knows no bounds. However, the immediate question that Google’s senior management had to confront was how to react to this memo. Many employees, male and female, were greatly offended by the memo and felt that it did not accurately reflect the opinions and culture of most people at the company. More fundamentally, many felt that this memo was openly hostile to, and advanced stereotypical views of, women at Google. It also perpetuated the myths and challenges that tech companies like Google face, as they work on bringing more women into senior positions. Moreover, as many who follow this area know, the Department of Labor is currently suing Google for salary discrimination, and there have been rumors of class actions looming against companies in this industry. See Anita Hill, Class Actions Could Fight Discrimination in Tech, THE NEW YORK TIMES (Aug. 8, 2017). Given this backdrop, the company needed a strong response.


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