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By Leah Kessler and Walker G. Harman, Jr.

On February 2, 2019, Chicago police officers assigned to Marshall High School repeatedly used a stun gun on 16-year old Dnigma Howard.  When Howard tried to defend herself by grabbing the gun, a police officer hit her with his closed fist. As a result of this abuse, Howard suffered physical and emotional damages.

This serious and sad case raises the question as to why the police were stationed at the school in the first place—an issue Chicago Public Schools (CPS), like many other city school systems, has been grappling with for some time.  According to the National Center for Education Statistics, there are approximately 50,000 officers and an 39,000 security guards working in the nation’s 84,000 public schools. “But having officers present in classrooms and cafeterias has created its own set of concerns — about the criminalization of typical teenage misbehavior, about the discriminatory enforcement of vague laws, and about the excessive use of physical force against children in school spaces where they should be able to feel safe,” said Emma Brown from the Washington Post.

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By Walker G. Harman, Jr.

Contrary to popular belief, the Me Too movement is not so new.  Beginning nearly 15 years ago, it was established to “help survivors of sexual violence, particularly Black women and girls, and other young women of color from low wealth communities, find pathways to healing.”  The original founders had a vision to address both the “dearth in resources” for survivors of sexual  violence” (emphasis added) and to “build a community” of advocates, politicians, lawyers, social workers and others to develop a grassroots approach to addressing and redressing sexual violence at its core.

Now, over a decade later, with many celebrities spear-heading the movement, thousands upon thousands of woman (and even some men) have come forward to say Me Too.  So, what does Me Too actually mean?  It seems via popular sentiment that the utterance of  Me Too signifies that the speaker is also a survivor or a victim of sexual violence.  However, sexual violence is generally associated with illegal conduct (both civil and criminal), such as rape, molestation, offensive touching, sexual harassment, and other vile and abhorrent conduct.  That is, the underlying conduct with a claim of sexual violence is so intrusive and offensive, that it gave rise to criminal and/or civil liability.  Keeping with the movement’s original intent and to this day, the official organizers of the Me Too movement describe the purpose as “helping those who need it to find entry points for individual healing and galvanizing a broad base of survivors to disrupt the systems that allow for the global proliferation of sexual violence.”

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Edgar M. Rivera

On April 1, 2019, the United States Department of Labor (“DOL”) announced a proposed rule to narrow the definition of “joint employer” under the Fair Labor Standards Act (“FLSA”).

The FLSA allows joint employer situations where an employer and a joint employer are jointly responsible for the employee’s wages.  This issue frequently arises when a business obtains temporary workers through a staffing agency—creating a question of which entity qualifies as the temporary worker’s employer or whether both companies may be deemed as joint employers.  If a joint employer relationship is found to be present, both employers must meet labor requirements and, therefore, both may be held liable for alleged labor practice violations.

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Title VIII of the Civils Rights Act of 1964 (“Title VII”) prohibits all employers (with 15 or more  employees)  from discriminating against employees on the basis on sex, race, color, national origin and religion.  Claims brought under Title VII are enforced by the Equal Employment Opportunity Commission (“EEOC”) and privately by attorneys. One type of discrimination, however remains unactionable under Title VII: discrimination based on hair style.

Discrimination based on one’s hair style disproportionately affects people of color, specifically, black people who have afro-textured hair that has not been chemically straightened.  Historically, black hairstyles have been stereotyped as “unprofessional” in the workplace.  Moreover, employers have terminated employees based on an employee’s hairstyle, as was done in Bryan v. AEG Management Brooklyn, LLC, in which an African American woman was terminated for wearing her hair in a natural, untreated style.

In Bryan v. AEG, Tiffany Bryan, who was employed by the Defendant, AEG Management Brooklyn, LLC (“AEG”), preferred to wear her natural hair in the style of an afro.  Her employer requested that she wear headbands, reasoning that her hair style looked as if she “stuck her finger in a socket” or “was electrocuted.”  Bryan agreed to wear a headband. Yet, AEG still deemed her hair as inadequate and inappropriate for the job and requested that she wear a ponytail.  Bryan explained that the tension from ponytails gave her serious headaches and refused to oblige her employer’s request.  In response, AEG terminated Bryan.

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By Leah Kessler

On March 13, 2019, 19 current and former United Parcel Service, Inc. (“UPS”) employees brought a suit against UPS and five local managers and supervisors alleging race discrimination.  Covered by CNN, Slate, The Washington Post, The Hill, and other major media outlets due to both the severity of the allegations and UPS’s negligence in addressing its employees complaints of racial discrimination, this case has received national attention.

Dewayne Spears, et al. v. United Parcel Service, Inc., et al., Plaintiffs present a series of horrific racist acts going back to 2013—discriminatory behavior that UPS allegedly allowed to go on unchecked for decades.  In 2013, according to the suit, a Black UPS employee “received a copy of an electronic image depicting a gallows and hangman’s noose with a Black man’s effigy hanging from the noose, an image of a gorilla, and a target on the effigy.”  In 2016, one white employee directed the following texts to a Black co-worker as part of a group text: “If you feel down and out, the noose is loose,” “Can we buy another noose with the winnings” (in reference to possible lottery winnings), and “Like Clint Eastwood said, ‘Hang ‘em High.”  After the Black employee on the thread who had reported the comments filed a grievance, UPS denied the formal complaint had been made and, at no point, were any of the culpable workers punished for making the racially threatening comments.

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By Edgar M. Rivera, Esq.

On March 12, 2019, in Cyr v. Hannaford Bros. Co. LLC, the District Court of Maine denied summary judgment on an age-discrimination claim, reasoning that a jury could find that the proffered reason for Plaintiff Robert Cyr’s discharge was pretextual, given inconsistencies in the evidence regarding the Defendant Hannaford Bros. Co. LLC’s investigation and the supervisor’s ageist comment.

In 1983, Cyr began his employment with Hannaford, a trucking company, as a dispatch supervisor.  In October 2015, Bruce Southwick became Cyr’s supervisor.  Later that year, Cyr confided in a coworker that he did not agree with the direction of the company and so was considering retiring in 2016.  When Southwick learned of that conversation, he asked Cyr about his retirement plans.  Then age 59, Cyr responded that he did not intend to retire until he was 67.

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By Bobbie M. James

According to the ILO, “Americans work 137 more hours per year than Japanese workers, 260 more hours per year than British workers, and 499 more hours per year than French workers.” Employees working long hours can experience numerous mental, physical and social effects. With the private sector showing no sign of reducing the work hours of its employees on its own and technology making it easier than ever to reach anyone anywhere at any time, it is no surprise that policymakers are seeking to improve work-life balance through legislation.  Countries such as Germany, Italy, and, most recently, France and the Philippines, have enacted “right-to-disconnect” policies, which prohibit contacting employees during non-work hours.  Now, the so-called “Do-Not-Disturb” movement is spreading across North America to Canada and the United States.

In March of 2018, New York City Council members introduced a proposed law prohibiting private employers with more than 10 employees from requiring their employees to check and respond to their work emails, or any other work-related communications, during non-work hours. Two exceptions to this proposed rule are employees working overtime and emergency matters.  Employers who break this law would be subject to fines of $250 per violation.  As of January 17, 2019, the law is currently with the Committee on Consumer Affairs and Business Licensing.

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Edgar M. Rivera, Esq.

On February 9, 2019, the Fourth Circuit in Parker v. Reema Consulting Services, Inc. reversed the district court by holding that an employer may be liable under Title VII for sex-based discrimination by participating in the circulation, and acting on, a false rumor that a female employee slept with her male boss to obtain a promotion.

In December 2014, Reema Consulting Services, Inc., (“RCSI”) hired Evangeline Parker as a clerk at one of its warehouse facilities.  After several promotions, in March 2016, RCSI promoted her to Assistant Operations Manager.  About two weeks after that promotion, she learned that several male employees were circulating an unfounded, sexually-explicit rumor that falsely portrayed her as having had a sexual relationship with a higher-ranking manager, Demarcus Pickett, to obtain her promotion.  The rumor originated with another RCSI employee, Donte Jennings, and the highest-ranking manager at the warehouse facility, Larry Moppins, participated in spreading it.

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By Edgar M. Rivera, Esq.

On January 29, 2019, in Gilberg v. California Check Cashing Stores, LLC, the Ninth Circuit held that a prospective employer violates the Fair Credit Reporting Act (FCRA)—an act passed in 1970 that regulates the collection of credit information and the access to credit reports to ensure fairness, accuracy and privacy of the personal information contained in files of credit reporting agencies—by including information on a disclosure form unrelated to rights protected by the FCRA. 

Desiree Gilberg applied for a job with California Check Cashing Stores, LLC (“CCC”).  As part of her application, Ms. Gilberg signed a separate form entitled “Disclosure Regarding Background Investigation.” This form contained not only a disclosure as required by the FCRA (stating that the prospective employer could obtain a consumer report on her) but also additional disclosure requirements for seven other states.  That is, the disclosure did not just include a summary of Ms. Gilberg’s rights under the FCRA, but also the rights of applicants who reside in several states based on additional, state-specific statutes.  Ms. Gilberg worked for CCC for five months before voluntarily resigning and then bring a suit alleging that CCC failed to make a proper FCRA disclosure.

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In Kleber v. CareFusion Corporation, CareFusion Corporation (“CareFusion”) denied job applicant, Dale Kleber, 58-years-old, the position of senior in-house counsel.  Mr. Kleber sued CareFusion for age discrimination, claiming that CareFusion’s policy of not hiring applicants with more than seven years of experience violated the Age Discrimination in Employment Act (“ADEA”).  The district court dismissed the claim, concluding that the ADEA did not allow job applicants to bring a disparate impact claim against a prospective employer.  A divided panel of the Seventh Circuit reversed the district court’s decision, and CareFusion appealed to the Seventh Circuit en banc, which upheld the district court’s decision.

In March 2014, Mr. Kleber applied for a position as senior in-house counsel at CareFusion. The job description required applicants to have “3 to 7 years (no more than 7 years) of relevant legal experience.”  Mr. Kleber was 58 at the time and had more than seven years of relevant experience.  CareFusion, however, passed over Mr. Kleber and instead hired a 29-year-old applicant who met, but did not exceed, the prescribed experience requirement.  Mr. Kleber sued, claiming that CareFusion’s policy of establishing the maximum years of experience for jobs, discriminates against older workers in violation of the ADEA, on the theory of disparate impact. Disparate impact occurs when policies, practices, rules, or other systems that appear to be neutral result in a disproportionate impact on a protected group.  On January 23, 2019, the Seventh Circuit en banc heard the case but did not consider whether CareFusion Corporation discriminated against Mr. Kleber on the basis of age because it found that § 4(a)(2) of the ADEA did not apply to Mr. Kleber at all.

The Seventh Circuit reviewed the original language of the statute, which “makes it unlawful for an employer to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.”  The Court held that this language “plainly demonstrates that the requisite impact must befall on the individual with ‘status as an employee’” and does not extend to applicants for employment.  Further, “common dictionary definitions confirms that an applicant does not have an employment status,” explained the Court.  As such, the Court reversed the panel’s decision and affirmed the district court’s decision to dismiss Mr. Kleber’s claim.

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