by Owen H. Laird
This Summer, The Harman Firm Blog is running a series of articles on mental health in the American workplace. Millions of Americans suffer from a wide range of mental health issues, be they diagnosed or undiagnosed, treated or untreated, living with the stigma surrounding mental illness and the lack of understanding about these disorders. The variety and severity of these conditions runs the gamut from relatively minor issues to disabilities so severe they are completely debilitating. But they are too often overlooked. With that in mind, we will undertake a comprehensive analysis of how mental health issues – both arising out of the context of employment discrimination and those arising independently – affect workers, employers, lawyers, legislators, and the courts.
People with mental health issues make up an important segment of the workforce: they work in every sector of the economy and at every level – from the mail room to the boardroom.
On the third Monday of January each year, we observe Martin Luther King Jr. Day, an occasion to remember, reflect on, and do our best to promote the vision for which Martin Luther King Jr. fought and died. Yet, as a nation, our remembrance of Dr. King’s work often ignores (or, perhaps, those with the power to write history, decided to elide) some of the core goals and values of his activism—among them, his commitment to anti-poverty work, labor organizing, and workers’ rights, issues he viewed as inextricable from his civil rights activism.
While U.S. states and employers now observe Martin Luther King Jr. Day, this was not accomplished easily or without resistance. While President Ronald Reagan officially recognized Martin Luther King Jr. Day as a U.S. holiday in 1983, he initially opposed the holiday (citing “cost concerns”), despite a petition to Congress with more than six million signatures in favor of the holiday. Though President Reagan ultimately passed Martin Luther King Jr. Day into law, it was not actually observed until three years later, and many states continue to resist doing so; in fact, the holiday was not officially observed in all 50 states until 2000. Even today, several states—including Alabama, Mississippi, and Virginia—still choose to “combine” Martin Luther King Jr. Day with observances of holidays recognizing Confederate generals Robert E. Lee and Stonewall Jackson.
The U.S. Equal Employment Opportunity Commission (EEOC), which promotes equality and diversity in the workplace by enforcing federal laws prohibiting employment discrimination, strongly closed out the 2017 fiscal year with 202 actions, 184 merits lawsuits, and 18 subpoena enforcement actions—nearly 100 more lawsuits than in 2016. In fact, the EEOC filed more lawsuits in the last three months of 2017 than it did during all of 2016, with 88 in September alone.
While claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) still account for most of the agency’s filings, the EEOC brought 77 cases under the Americans with Disabilities Act (ADA) this year, making the ADA the second most active statute. Between 2015 and 2016, the EEOC’s disability charges increased by 6 percent and were the third largest category of charges filed: retaliation – 42,018 (45.9 percent); race – 32,309 (35.3 percent); disability – 28,073 (30.7 percent) (Most filings include multiple charges, explaining how the above adds up to more than 100%). It follows that now, in 2017, disability claims make up a larger portion of the EEOC’s docket.
On September 5, 2017, the Tenth Circuit reversed the district court’s decision in EEOC v. CollegeAmerica Denver, Inc., allowing the Equal Employment Opportunity Commission to proceed with its interference claim against CollegeAmerica.
On September 1, 2012, after Debbi Potts’s resignation as campus director for CollegeAmerica, a private college based in Salt Lake City, she and CollegeAmerica entered into an agreement which provided that CollegeAmerica would pay her $7,000 in exchange for her waiving any claims against CollegeAmerica (Ms. Potts had asserted that CollegeAmerica owed her $7,000 in unpaid bonuses), refraining from personally contacting any governmental or regulatory agency with the purpose of filing any complaint or grievance against CollegeAmerica, and refraining from disparaging the reputation of CollegeAmerica.
On July 5, 2017, Pennsylvania’s Judicial Conduct Board announced that Judge Michael R. Muth, a magisterial district judge for the East Stroudsburg Borough of Monroe County, Pennsylvania, is facing ethics charges after multiple court clerks complained about his viewing of pornography in his judicial chambers. Several court clerks claim that, while passing by Judge Muth’s desk over the last four years, they saw him watching videos and viewing pictures of women performing sexual acts on each other. Judge Muth’s computer was allegedly in plain view of the clerks passing by, and Judge Muth apparently made no attempts to hide what he was watching when a clerk entered his chambers.
Over half of working men, and one-third of working women, admit to watching porn on the job. Although no one has raised sexual harassment charges against Judge Muth, X-rated habits can lead to hostile work environment claims and sexual harassment claims under Title VII of the Civil Rights Act of 1964 (“Title VII”). In Patane v. Clark, the Second Circuit found that a plaintiff stated a hostile work environment claim where she observed her superior viewing pornography, handled pornography when opening her supervisor’s mail, and discovered that her supervisor had viewed “hard core” pornography on her own working computer. The presence of pornography in the workplace and plaintiff’s forced interaction with the pornography were enough for the Second Circuit to deem that the plaintiff adequately pled a hostile work environment claim based on sex.
Owen H. Laird, Esq.
The tech companies of California’s Silicon Valley are playing an ever-expanding role in the world economy and redefining how people live their lives. However, in recent years, many of these companies have come under fire for their treatment of their workers, whether for overuse of “independent contractors” or numerous allegations of racism or sexism in the predominantly white, male field. Numerous lawsuits have been filed by current and former workers of all stripes, and class actions brought on behalf of entire classes of workers; one of the most broad-reaching actions addressing discrimination in Silicon Valley is not a single or multi-plaintiff lawsuit but an investigation by the United States Department of Labor into a potential gender pay disparity at Google.
Google is not only one of the wealthiest and most powerful companies in Silicon Valley, it is also a federal contractor, which means it must grant the Department of Labor access to information about its compliance with federal anti-discrimination and equal opportunity laws. The Department of Labor requested information on roughly 21,000 of Google’s employees as part of an investigation into a potential gender pay gap at the company. The Department of Labor’s investigation stems from pay disparities among Google employees identified in 2015.
by Harrison Paige
In Martin v. SIMOS, the District Court for the Middle District of Pennsylvania ruled that Pennsylvania’s Criminal History Records Information Act (“CHRIA”) only protects employee applicants from criminal conviction discrimination, not those who are already employed. SIMOS, an insourcing solution job center, terminated Robert Martin, who was hired through SIMOS to unload trucks for Lowe’s, because of his criminal history. Martin brought suit against SIMOS, claiming that SIMOS had violated the CHRIA.
When applying, Martin disclosed his criminal history and was told he was “good to go,” starting work at Lowe’s shortly thereafter. Not long after his hire, Martin was suspended because a female employee alleged that he had harassed her. Although the allegations turned out to be false and Martin returned to work, a human resources representative told him only one day after he returned that he would be terminated because of his criminal history. About a week after that conversation, SIMOS terminated Martin’s employment.
Hello, readers of the blog! My name is Shelby, and I have been working as a legal intern at The Harman Firm, LLP, for the past five months. In that time, I hope you’ve been able to read some of my posts about employment law and workers’ issues. Today is my last day, and I wanted to leave you with some insights about my time here.
The Harman Firm is small, but I benefited from this experience because I got to work closely with everyone. To be honest, I was extremely nervous when starting this position. I had never worked in a law office before and am glad The Harman Firm believed in my capabilities and gave me this chance to work as their legal intern.
Given the result of last night’s election, we at The Harman Firm are concerned that employers may feel free to follow Donald Trump’s lead with respect to their treatment of employees. We want to remind workers in New York and elsewhere that legal protections against discrimination still exist.
If your employer forbids you from entering the workplace because of your religion, contact The Harman Firm, LLP.