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She’s Too Sexy For Her Job

The all-male Supreme Court of Iowa re-affirmed its holding that an employer did not engage in sexual harassment when an employee was fired by her boss because he found her sexually irresistible.  He was afraid that, if she remained employed, he would not be able to control the temptation to have a sexual relationship with her in violation of his marital vows.

The Court held this was not because of her gender but because of his “feelings” specific to the employee.  But wouldn’t that same analysis apply to quid pro quo harassment?  Quid pro quo harassment occurs, among other circumstances, where an employer fires a particular employee because she or he refuses to submit to “sexual feelings” that a manager has for her or him.

In both cases, the manager’s actions are based on feelings.  In both cases, those feeling relate directly to gender.

How can it be unlawful to terminate an employee because she won’t pull down a manager’s zipper but lawful to terminate an employee because the manager is afraid he will pull down his own zipper?

Not everything unfair is unlawful.  But, in this case, I would be surprised if the unfairness were not deemed unlawful by the EEOC under federal law. 




What's Behind The Surge in Disability Claims?

I am pleased to post my most recent article for Fortune/CNN on the surge in ADA claims:

Thank you.




Guilty Without Bad Intent: The EEOC and Adverse Impact (June 18)

Register for webinar re-offered due to popular demand, here.



Guilty Without Bad Intent: The EEOC and Adverse Impact

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On April 13, 2011, the Mayor of the City of Philadelphia signed an Ordinance entitled “Fair Criminal Record Screening Standards” which establishes requirements for the screening of criminal records by certain employers within the City of Philadelphia and limits an employer’s ability to consider arrests and convictions of job applicants.  The stated purpose of the legislation is to “give the individual with a criminal record an opportunity to be judged on his or her own merit during the submission of the application and at least until the completion of an interview.”

The Philadelphia Ordinance applies to city agencies and private employers of 10 or more people (employees) in the City of Philadelphia. However, even if an employer is covered by the Ordinance, it applies only to applicants who are applying for jobs in the City of Philadelphia.

The Ordinance makes it unlawful for an employer to make any inquiry about, to take any adverse action against any person on the basis of or to require any person to disclose or reveal any arrest or criminal accusation, not then pending, which did not result in a conviction.

The Ordinance goes a step further and limits the ability of an employer to consider even criminal convictions as part of the early stages of the application process.  The Philadelphia Ordinance makes it unlawful for employers in the City of Philadelphia to make any inquiry regarding or to require any person to disclose or reveal any criminal convictions during the application process, which begins when an applicant inquires about employment and ends when an employer has accepted an employment application.

What’s more, the employer cannot make an inquiry regarding or require a person to disclose or reveal any criminal convictions before and during the first interview either.  If the applicant voluntarily discloses any information regarding his or her criminal convictions at the interview, the employer may discuss the criminal conviction disclosed by the applicant.

The Ordinance becomes effective ninety days after it was signed into law, in other words, on July 13, 2011.

Violations of the Ordinance will carry a fine of up to $2,000 per violation.  Further, it is inevitable that violations of the Ordinance will be argued as the basis for wrongful failure to hire claims.

What This Means For Employers

 Employers in Philadelphia will need to remove from their Applications for Employment any questions about criminal convictions (except where required by another law, in which case a separate application with an appropriate question consistent with the legal requirement must be developed for such applicants only).

Employers in Philadelphia who wish to inquire about criminal convictions will need to develop a criminal conviction inquiry form (focusing only on convictions) to give to applicants who have completed their first interview and to whom they wish to extend either a second interview or a job offer.

In this regard, employers should be careful to avoid the temptation to give the criminal conviction form to all applicants immediately following their initial interview to make things easier administratively. Why obtain information about applicants in whom you have no interest? Applicant may assume--and argue--the information was the basis for adverse action (even though it was not). At  a minimum, there is the cost of defense. 

Philadelphia employers must consider not only the Fair Criminal Record Screening Standards Ordinance, but also the Pennsylvania Dissemination of Criminal History Records Information Act, which restricts when Pennsylvania employers can consider criminal records and includes notice requirements.

Under the Pennsylvania Dissemination of Criminal History Records Information Act, employers can consider felony and misdemeanor convictions only if they relate to the applicant's suitability for the job for which he or she has applied.   Further,  the employer may be precluded absolutely from considering arrest records (which have not resulted in convictions) as part of the pre-employment process.

Further, both the EEOC and PHRC have released guidance which states that disqualifying applicants due to arrest or conviction records may have a disparate impact on certain racial and ethnic groups, and therefore, have suggested similar (but not identical) factors which should be considered before making any adverse employment decision upon a criminal record.

Employers need to be particularly careful of per se rules (for example, individuals with felonies are disqualified from employment for all jobs).  These rules maximize consistency but also may serve as the basis for class actions alleging disparate impact.

According to the National Employment Law Project, at least five (5) major civil rights lawsuits were filed against employers for blanket prohibtions relating to criminal convictions.

If you have questions about how the various laws affect criminal conviction checks, please feel free to contact me at 215-979-1869 or

This blog should not be construed as legal advice or as pertaining to specific factual situations.







The Unintended Adverse Consequences of the ADA

When I was in college, I had an incredible professor who used to talk about the “unanticipated evil consequences of virtuous social action.” I had no idea what he meant but he sounded so regal that I wrote down what he said every time until it become indelibly etched in my mind.

I heard my professor’s voice when I read the EEOC’s new regulations on the ADA as amended. While the ADA is indeed virtuous social action, it is now even riskier than before to try to help an employee whom you suspect has a physical or mental problem unless he or she asks for help first and here’s why.

By way of background,  a disability is a physical or mental impairment that substantially limits one or more “major life activities.”  An employer cannot discriminate on the basis of: (i) current disability; (ii) past disability or (iii) perceived (regarded as) disability.

Perhaps the biggest expansion of the definition of disability relates to the “regarded as” disability prong.  More specifically, the law now provides that an individual may be regarded as having a disability if he or she is subject to adverse action because of an actual or perceived physical or mental impairment, regardless of whether the impairment limits or is perceived to limit a major life activity.

This is a very easy standard to meet. Indeed, in its new regulation, the EEOC all but invites individuals to bring claims under the “regarded as” prong without having to prove that the individual actually has or had an actual disability as defined by the ADA. And, here’s where the  unintended adverse consequences come into play.

Assume an employee’s performance is declining and you see what you believe to be is clinical depression based on personal experience or exposure.  Ask the person if they are depressed and their depression may lift when they realize that they now may have a viable “regarded as” disability claim if they subsequently are subject to an adverse employment action. The well-intended question creates an issue of fact for the jury as to what was the employer’s true motivation for the adverse action.

Employers need to train their managers to focus on performance or behavioral deficiencies without inquiring or speculating as to whether there is a physical or mental cause. This counsel is particularly important for health care and social service employers whose managers “know” that, at times, the workplace issue is but a symptom of some underlying physical or mental problem.

What should the manager do if the employee responds to counseling, discipline or an evaluation by disclosing a physical or mental accommodation? Stay tuned for my next blog!  

This blog should not be construed as legal advice or as pertaining to specific factual situations.


You Are Covered by GINA Even if You Don't Elicit Genetic Information

The EEOC’s final regulations under GINA take a broad and expansive view of the general prohibition on seeking genetic information.  For instance, the regulations make clear that an employer may violate GINA without a specific intent to acquire genetic information.

However, there is an exception to the general prohibition on seeking genetic information that is applicable to lawful requests by employers for medical information sought in the context of requested leaves and accommodations.  But this exception applies only if the employer affirmatively informs both employees and their healthcare providers from whom such information is sought that the employer is not seeking genetic information in response to its request for medical information.

The EEOC’s final regulations include suggested “safe-harbor” language to accompany or include on any FMLA (or related) medical certification forms in which a lawful request for medical information is made.  The purpose of the safe-harbor language is to inform employees and health care providers that the employer is not seeking, and neither the employee nor the health care provider should provide, any genetic information.

By including this safe-harbor language in any such requests for medical information, the employer is not liable under GINA if the employer is then (inadvertently) provided with genetic information in response to its request.  Of course, the safe harbor language does not insolate the employer from liability if the employer subsequently uses improperly the genetic information that was inadvertently disclosed to it.

The suggested safe-harbor language contained in the EEOC regulations is as follows:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law.  To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.  ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Employers will want to review their LOA and accommodation processes to make sure this language is included in all requests for medical information.

This blog should not be construed as legal advice or as pertaining to specific factual situations.


EEOC Continues Its Assault on Automatic Termination Provisions in LOA Policies

Last year, a federal district court in Illinois approved a settlement in the amount of $6.2 million between the EEOC and Sears Roebuck & Co.  The EEOC had brought a class action against Sears Roebuck & Co. claiming that it had violated the ADA by having an inflexible policy of terminating injured employees who had exhausted their workers’ compensation leaves rather than seeking ways to return them to work.  As part of the consent decree, Sears agreed that, prior to terminating an employee for exhausting their leave requirements, Sears would contact the employee to provide them with the opportunity to request potential accommodations, including possibly additional leave, to enable them to return to work. See for EEOC’s discussion of the Sears' settlement. Since then, both the EEOC  and private plaintiffs have filed a salvo of class actions, alleging that the following types of policies/practices violate the ADA: 

1. Automatic termination of employment upon expiration of FMLA

2. Automatic termination of employment upon expiration of STD benefits

3. Automatic termination of employment upon expiration of fixed medical leave beyond FMLA--for example, upon 26 weeks of leave.

Just this month, the EEOC settled another automatic termination case with a group of supermarkets for $3.2 million. t is the view of the EEOC that, rather than a rigid ‘inflexible’ automatic termination rule, there should be an interactive dialogue initiated by the employer about whether  additional leave is a reasonable accommodation under the circumstances.  The EEOC’s position does not automatically mean that the employee must be given additional leave in each of circumstances set forth above.  It means only that an individualized determination must be made. The same analysis arguably would apply to depriving employees of leave who do not qualify for FMLA. Many companies have medical leave policies independent of the FMLA with minimum service requirements, for example, 6 months. The EEOC’s analysis with regard to maximum leave provisions arguably applies equally to minimum service requirements. To avoid the time and expense of litigation, we recommend that employers revisit their FMLA and other leave policies and consider avoiding the kind of per se minimum and maximum requirements that invite class attack.  The result of individualized determinations may be some apparent inconsistencies that could result in individual discrimination claims but that risk must be balanced against the larger class action risk that goes with consistency flowing from per se rules. It’s risk selection, not risk avoidance. Please let us know if we can help with balancing these competing risks.

Pardon the formality, but this blog should not be construed as legal advice or as pertaining to specific factual situations.


Jonathan Segal

Business Ally. Help clients achieve business goals and manage legal risks. Areas of focus include: gender equality; wage and hour compliance; social media; leadership training; union avoidance; performance management; and agreements

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.