Employment LawEmployment Law Update

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“ME TOO” MOVEMENT NOT SLOWING ACCORDING TO EEOC.  Earlier this month, the U.S. Equal Employment Opportunity Commission (EEOC) released its preliminary 2018 sexual harassment data.  So far in 2018, The EEOC has filed 66 harassment lawsuits, including 41 that included allegations of sexual harassment.  This represents a 50% increase in similar suits over last year.  While this increase likely reflects a change in the agency’s focus, the EEOC also reports that charges filed with the EEOC alleging sexual harassment have increased as well.  This increase in sexual harassment charges (12% over last year) undoubtedly reflects heightened awareness among employees regarding workplace harassment.  Finally, the EEOC reports that its recovery on sexual harassment cases increased from $47.5 million in 2017 to $70 million in 2018.  EEOC chair Victoria Lipinic indicates that she does not anticipate a slowdown in these types of claims anytime soon.  The EEOC’s new data underscores the importance of regular training on harassment issues.  The EEOC has training resources on its website and any good employment attorney should be able to provide training as well.  The authors of this update are also happy to assist with your training needs.

MEDICAL MARIJUANA IN UTAH.  Utah voters are currently deciding whether to approve a ballot initiative known as Proposition 2, which, if passed, would legalize marijuana use in the state for individuals with certain qualifying conditions.  Proposition 2 has been predictably controversial, so in an effort to bridge the gap between the two sides, Utah’s governor Gary Herbert called for a special session of the Utah Legislature to discuss a new “shared vision” on medical marijuana.  The proposed compromise is reflected in a draft bill.  Of particular interest to employers, is an employment non-discrimination provision that makes it illegal for an employer to take an adverse action against an employee or job applicant “solely for the individual’s status as a medical cannabis cardholder, unless failing to do so would cause the employer to lose a monetary or licensing-related benefit under federal law.” The bill is available online here:  https://le.utah.gov/Documents/UtahMedicalCannabisActDraft100418.pdf. At first blush, this prohibition appears to only protect cardholders from discrimination based on their possession of a marijuana card; thus, leaving the door open for employers to take adverse action against employees for use of marijuana.  However, a Rhode Island court recently construed a similar state law to protect a legal medical marijuana-using applicant from employment discrimination based on her inability to pass a drug test.  In that case, the employer argued that they did not decline to hire the applicant because of her status as a cardholder, but because of her inability to pass a mandatory pre-employment drug screen.  The court characterized this argument as “incredulous” and noted that the employer “would have the Court believe that a patient cardholder might never use medical marijuana.”  The entire opinion is available here:https://www.courts.ri.gov/Courts/SuperiorCourt/SuperiorDecisions/14-5680.pdf.  While this opinion deals with a different state statute and is not binding on Utah courts, it nevertheless highlights the difficult issues employers will need to work through if Utah expands the legal use of marijuana.  Watch for future legal updates on this issue as it develops.

NON-BINARY GENDER MARKERS ON LEGAL DOCUMENTS COMES TO UTAH.  The Salt Lake Tribune recently carried a story about a Utah resident who successfully petitioned a Utah Court for a legal gender change.  This is nothing new, in 2018 alone, the Utah Office of Vital Records and statistics processed 61 gender change requests (up from nine in 2012).  What set this case apart was the petitioner’s request for a gender change, not from Female to Male, but to an “X” designation, which the Petitioner felt best represented their non-binary identity.  Utah State Senator Todd Weiler intends to present a bill in 2019, which would standardize gender sex designations and which will allow for an “X” gender designation.  If the bill passes, employers and HR professionals may encounter more applicants and employees who prefer to identify their gender as something other than male or female.  Employers should proceed with caution in such situations and should err on the side of accommodating an employee’s preferred gender identity because, unlike federal statute, the Utah Antidiscrimination Act expressly prohibits discrimination based on an employee’s gender identity.

PREGNANCY DISCRIMINATION: WHAT NOT TO DO.  A Jersey Mike’s Subs manager recently made the news, and it wasn’t for assembling the perfect Jersey Shore’s Favorite (provolone, ham and cappacuolo).  The cautionary tale began when the manager hired an employee who, unbeknownst to the manager, was four months pregnant.  After putting in a few days work on the sandwich assembly line, the employee told her manager the happy news.  The manager responded by firing the employee and, to make matters worse, he did it in a text message, writing: “Hello I am sorry to inform you but it’s not going to workout [sic] with Jersey Mikes.  It’s not a good time for us to have someone leaving for maternity leave in several months anyways.  You also failed to tell me this during our interview.  Good luck to [you]” This story is a good reminder to employers.  First, don’t discriminate against employees because they are pregnant.  Second, (to repeat) don’t discriminate against employees because they are pregnant.  Third, if you are going to fire an employee because they are pregnant (which you should never do), don’t do it via text message and don’t include the company’s name in the body of the text message.  Fourth, don’t discriminate against employees because they are pregnant.  It would be nice if this story had a happy ending for someone other than a plaintiff’s employment lawyer, but it doesn’t.  The manager reportedly resigned and Jersey Mike’s offered the pregnant employee her job back, which she declined.  Instead, she apparently plans to sue.

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