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News for May 14, 2012Featured this week:
In state law news:Featured this week:Participation in internal investigation unconnected to EEOC proceedings is not protected activity under Title VII's participation clause; Faragher/Ellerth affirmative defense unavailable when sexual harasser is employer's alter egoFacing two questions of first impression, the Second Circuit has affirmed dismissal on summary judgment of an HR director's Title VII retaliation claim because the internal sexual harassment investigation she conducted was unconnected to an EEOC charge or proceeding and, thus, was not protected activity under Title VII's participation clause (Townsend v Benjamin Enterprises, Inc, 2ndCir, May 9, 2012, Koeltl, J). The circuit court also affirmed the lower court's determination that the alleged harasser, the sole vice president of the company, was an alter ego of the employer and, therefore, the employer was precluded from relying on the Faragher/Ellerth affirmative defense. The lower court's related jury instructions and its award of attorneys' fees to an employee who prevailed at trial on her sexual harassment claim were likewise upheld. Concurring, Judge Lohier wrote separately, urging Congress to extend Title VII's participation clause protection to internal investigations. Narcoleptic employee's request for altered work schedule to minimize commute time not a reasonable accommodation; gender bias claim also fails because no adverse actionA female employee with narcolepsy, who resigned after her employer refused her request to alter her work schedule to minimize her drive to and from work, was unable to pursue her claims of disability and gender bias under Title VII, the ADA and Michigan law, ruled the Sixth Circuit (Regan v Faurecia Automotive Seating, Inc, 6thCir, May 10, 2012, Martin, B). Affirming the district court's dismissal of the employee's claims on summary judgment, the appeals court concluded, on a matter of first impression, that the ADA does not require an employer to accommodate an employee's commute, and therefore the employee's request was not reasonable. Moreover, her gender bias claim failed because she failed to establish that the denial of her request constituted an adverse action or that she was constructively discharged. Where some facts as to improper conduct undisputed and employer had knowledge, HWE claim could advance; employee demonstrated that change in job responsibilities sufficient to proceed on retaliation claimWhile there were disputes as to more egregious conduct, an employer and its employee agreed that a coworker engaged in inappropriate conduct and the employee provided ample evidence to support her hostile work environment claims under federal and state law, ruled a federal district court in Connecticut. (Belfiglio-Martley v Waterford Country School, Inc, DConn, May 7, 2012, Kravitz, M). There was evidence that the several supervisors and executives had either actual or constructive knowledge of the coworker's conduct, the court found. Moreover, the employee's retaliation claim survived summary judgment because she demonstrated that changes to her job responsibilities were adverse employment actions. However, neither her constructive discharge claim nor her negligent infliction of emotional distress could advance. Widespread knowledge of female employee's pregnancy was relevant to showing that the decision-maker in her non-hire was aware of her conditionA pregnant sales representative who brought claims of gender and pregnancy bias under New Jersey's anti-bias law based on her non-selection for another position was allowed to present evidence of her coworkers' knowledge of her pregnancy to show that the decision-maker was also aware of her condition, a federal district court in New Jersey ruled, denying Abbott's motion in limine (Wolpert v Abbott Laboratories, DNJ, May 7, 2012, Simandle, J). The court also refused to exclude evidence concerning the sales rep's qualifications for the position and her subsequent performance in another position. African-American employee who alleged race discrimination at job site led to anxiety disorder sufficiently pled ADA claim based on employer's refusal to transfer himAn African-American employee of the Philadelphia water department who contended that race discrimination and harassment by his supervisors led to a disabling anxiety disorder withstood the city's motion to dismiss his federal and state law disability bias claims, ruled a federal district court in Pennsylvania (Lucas v City of Philadelphia, EDPa, May 2, 2012, Buckwalter, R). The employee sufficiently pled that he was qualified for the essential functions of his position. Majority of companies do not measure retirement plan effectiveness, Wells Fargo study showsLess than half of U.S. employers are taking steps to measure retirement plan success or measure whether employees are on track for retirement, according to recent research from financial services provider Wells Fargo. The 2011 Wells Fargo Retirement Plan Sponsor Survey found that 50 percent of companies have not measured their employees' progress, while 32 percent said that they are "analyzing plan participation, balances, and deferral rates." America's employers controlling health care costs, improving employee lifestyles with wellness initiativesSeven in 10 American employers offer wellness initiatives such as flu shots, health screenings, and weight management programs that are directly attributable to improving the lives of their employees, according to the International Foundation of Employee Benefit Plans' (IFEBP) survey, Wellness Programs and Value-Based Health Care. Legislation introduced in House would expand protections for pregnant workersLegislation was introduced in the House of Representatives May 8 that would expand protections for pregnant workers. Sponsored by Representatives Jerrold Nadler (D-NY), Carolyn Maloney (D-NY), Jackie Speier (D-Calif), and Susan Davis (D-Calif), the Pregnant Workers Fairness Act (H.R. 5647) has 63 co-sponsors. Federal legislation would bar employers from requiring employees, applicants to provide access to password-protected accountsLegislation introduced in the Senate on Wednesday, May 9, would bar employers from requiring employees or job applicants to provide password information for social media and email accounts as a condition of employment. The Password Protection Act (S. 3074) was introduced by Senators Richard Blumenthal (D-Conn.), Chuck Schumer (D-N.Y.), Ron Wyden (D-Ore.), Jeanne Shaheen (D-N.H.), and Amy Klobuchar (D-Minn.) in order to curb the growing practice and was drafted in consultation with major technology companies and legal experts. In state law news:Alabama immigration debate heats up—againA year after approving the toughest state anti-immigration legislation in the country, Alabama lawmakers want to revise the law to make it easier to comply with and enforce. But their efforts have rekindled the same emotional fight that was so contentious in the first place. Connecticut Senate passes legislation allowing home care, daycare providers to collectively bargain; bill goes to governor for signatureThe Connecticut Senate voted 22-14 on Thursday May 3 to approve legislation (H.B. 5433) that would give collective bargaining rights to certain home care workers and daycare providers. The state's governor, Dannel P. Malloy, has said he will sign the bill and praised the senate for its passage, noting that workers in the industries have long sought the right to organize. You are subscribed to CCH® NetNews, sponsored by CCH INCORPORATED. Click here to unsubscribe. 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