Robin Shea

Robin Shea

Constangy, Brooks, Smith & Prophete, LLP

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“Significant harm” not needed for discriminatory transfer claim, SCOTUS says

Just a little harm will do. On Wednesday, the U.S. Supreme Court unanimously ruled that Title VII does not require a plaintiff to show that a discriminatory transfer to another position caused her to suffer “significant” or...more

4/19/2024  /  Adverse Employment Action , Civil Rights Act , Employee Transfers , Employer Liability Issues , Employment Litigation , Hiring & Firing , Lateral Transfers , Muldrow v City of St Louis , SCOTUS , Sex Discrimination , Title VII

When employers are sorry

The unconditional offer of reinstatement. Are you perfect? So am I. But I’ve been told that there are people in the world who sometimes make mistakes. Sometimes employers do things that they think they have a perfect right...more

2/23/2024  /  Back Pay , Demand Letter , Employer Liability Issues , Equal Employment Opportunity Commission (EEOC) , Reinstatement , Termination , Wage and Hour

Preferred pronouns and the aging workforce

What takes priority? There was a social media storm this week after a large non-profit organization terminated a volunteer after the volunteer questioned the point of having preferred pronouns in signature blocks. The woman...more

2/16/2024  /  Age Discrimination , Diversity , Employer Liability Issues , Equal Employment Opportunity Commission (EEOC) , Nonprofits , Social Media , Transgender , Volunteers , Wage and Hour

Want to fire your employee for FMLA fraud?

Don't shoot from the hip. Let's say you have an employee who is in Week Six of "employee's own serious health condition" leave under the Family and Medical Leave Act. Her co-worker comes to you and tells you that the...more

1/19/2024  /  Employer Liability Issues , Family and Medical Leave Act (FMLA) , Hiring & Firing , Retaliation , Termination , Wage and Hour , Workplace Investigations

"Quiet firing": A bad idea

Better to have the courage of your convictions. I'm sure you've heard of "quiet quitting," when an unhappy employee does the bare minimum to get by and keep drawing a paycheck, but doesn't care much about the job beyond...more

10/27/2023  /  Constructive Discharge , Documentation , Employer Liability Issues , Hiring & Firing , Poor Job Performance , Severance Pay , Unemployment Benefits , Wage and Hour , Working Conditions , Wrongful Termination

What's in that new EEOC guidance on workplace harassment?

It's worth a read. The U.S. Equal Employment Opportunity Commission recently released a proposed Enforcement Guidance on Harassment in the Workplace, and it's quite good. Don't let the length intimidate you. If you aren't an...more

10/6/2023  /  Anti-Harassment Policies , Bostock v Clayton County Georgia , Comment Period , Complaint Procedures , Corporate Counsel , Corrective Actions , Employee Rights , Employee Training , Employer Liability Issues , Equal Employment Opportunity Commission (EEOC) , LGBTQ , Pregnancy , Pregnant Workers Fairness Act , Religious Accommodation , Religious Expression , Sexual Harassment , Transgender , Workplace Harassment Guidance

Reasonable accommodation for driving to the office? Are you kidding?

That's one way to get employers to allow remote work. We all know that employers with 15 or more employees are covered by the Americans with Disabilities Act and may have to provide reasonable accommodations to allow...more

9/15/2023  /  Americans with Disabilities Act (ADA) , Disability , Employer Liability Issues , Equal Employment Opportunity Commission (EEOC) , Essential Functions , Reasonable Accommodation , Telecommuting , Wage and Hour

As expected, SCOTUS makes it tougher for employers to refuse religious accommodations

After last week’s Supreme Court decision in Groff v. DeJoy, employers should prepare to seriously entertain, and grant, more employee requests for religious accommodation. Gerald Groff, an Evangelical Christian postal...more

7/5/2023  /  Americans with Disabilities Act (ADA) , Civil Rights Act , De Minimis Claims , Employer Liability Issues , Equal Employment Opportunity Commission (EEOC) , Groff v DeJoy , Religious Accommodation , Religious Discrimination , SCOTUS , Substantial Burden , Title VII , Undue Hardship

Rule 1 in beating an age claim: Get your story straight.

Inconsistencies were fatal to this employer. It's a well-established principle in discrimination law that an employer can be done in by "shifting explanations" for actions taken against an applicant or employee. A recent...more

5/19/2023  /  Age Discrimination , Employer Liability Issues , Employment Discrimination , Equal Employment Opportunity Commission (EEOC) , Job Applicants , Wage and Hour

Workplace holiday party quiz -- Version 2022!

Booze, wage-hour, workers' comp . . . we have it all! Can you believe that we haven't had a workplace holiday party quiz since 2015? It's true! That must mean it's time for a new one....more

12/9/2022  /  Employer Liability Issues , Holiday Parties , Holidays , Wage and Hour , Wine & Alcohol

Suit based on notice of intermittent FMLA absences will go to trial

Employers, don't be too rigid about employee notice requirements. Weird case from the U.S. Court of Appeals for the Sixth Circuit. Imagine this: You're the HR manager at a manufacturing facility. An hourly employee has...more

11/18/2022  /  Absenteeism , Employer Liability Issues , Family and Medical Leave Act (FMLA) , Hiring & Firing , Human Resources Professionals , Interference Claims , Retaliation , TPAs , Unions , Wage and Hour

EEOC's proposed Strategic Plan seems heavy on litigation, light on mediation

Comments being accepted thru Dec. 5. The U.S. Equal Employment Opportunity Commission has issued a draft Strategic Plan for 2022-26, and is inviting public comments through Monday, December 5....more

11/11/2022  /  Conciliation , Discrimination , Employee Training , Employer Liability Issues , Employment Discrimination , Equal Employment Opportunity Commission (EEOC) , Harassment , Mediation , Public Comment

How not to prove "welcomeness" in a sex harassment case

Employers, know your limits. As most of our readers know, for inappropriate behavior to be "sexual harassment,” it has to be "unwelcome" to the recipient....more

10/14/2022  /  Anti-Harassment Policies , Employee Training , Employer Liability Issues , Sexual Harassment , Workplace Romances

Is Biden about to make marijuana legal?

If so, what will that mean for employers? Yesterday, President Biden announced that he was pardoning everyone who was criminally convicted of simple possession of marijuana under federal law. He's also asked state...more

10/7/2022  /  Americans with Disabilities Act (ADA) , Controlled Substances , Criminal Convictions , Decriminalization of Marijuana , Department of Health and Human Services (HHS) , Drug Testing , Employer Liability Issues , Governor Pardons , Joe Biden , Marijuana , Presidential Pardons , Reasonable Accommodation

Employer seeking "Kens and Barbies" must face trial on bias claims

Sheesh. I would think so! Here's a story for you: Some investors bought an apartment complex in Houston with the plan to fix it up and flip it. They decided the Property Manager wasn't doing a good job, so they fired...more

9/30/2022  /  Employer Liability Issues , Equal Employment Opportunity Commission (EEOC) , Family and Medical Leave Act (FMLA) , Hiring & Firing , Pregnancy Discrimination , Property Managers , Racial Bias , Sex Discrimination , Summary Judgment

ABCs of Employment Law: Employment at will

So misunderstood! NOTE FROM ROBIN: Earlier this year, I began a series of very basic explanations of the federal laws that govern the workplace. The first installment covered discrimination in general, and the second...more

9/16/2022  /  ADEA , Americans with Disabilities Act (ADA) , Anti-Discrimination Policies , At-Will Employment , Discrimination , Documentation , Employer Liability Issues , Employment Contract , Family and Medical Leave Act (FMLA) , Hiring & Firing , Termination , Title VII , USERRA , Wage and Hour

Is more EEOC litigation on the way?

Probably. Employers, get ready. Will EEOC lawyers do an end run around the EEOC commissioners? If so, employers are likely to see more lawsuits with the EEOC as a plaintiff, which is never a good thing....more

8/26/2022  /  Employer Liability Issues , Employment Discrimination , Employment Litigation , Equal Employment Opportunity Commission (EEOC) , Pay Equity Laws , Political Parties , Retaliation

Gender dysphoria is covered by ADA, appeals court says

I'm not sure I agree. With all due respect. An issue that has been percolating for the past few years is whether gender dysphoria is a "disability" within the meaning of the Americans with Disabilities Act. I've posted on...more

8/19/2022  /  Americans with Disabilities Act (ADA) , Employer Liability Issues , Gender Identity , Sexual Orientation Discrimination , Transgender

Second-guessing the advice columns: Workplace bathrooms!

Everybody's favorite subject. Last week, Karla Miller -- the workplace advice columnist of The Washington Post -- had a fascinating letter with this problem: The letter writer is the only female working on a floor with...more

8/5/2022  /  Americans with Disabilities Act (ADA) , Disparate Impact , Employee Restrooms , Employer Liability Issues , Equal Employment Opportunity Commission (EEOC) , OSHA , Reasonable Accommodation , Wage and Hour

ABCs of Employment Law: The Fair Labor Standards Act (minimum wage)

NOTE FROM ROBIN: In March, I began a series of very basic explanations of the federal laws that govern the workplace. The first installment covered discrimination in general, the second installment covered religious...more

7/8/2022  /  After-Hours Work , Child Labor , Employer Liability Issues , Fair Labor Standards Act (FLSA) , Minimum Wage , Non-Exempt Employees , Off-The-Clock , Over-Time , Payroll Records , Recordkeeping Requirements , Wage and Hour

FMLA "interference" doesn't require denial of leave

The court is right, I think. A panel of the U.S. Court of Appeals for the Seventh Circuit issued an opinion on Wednesday that provides helpful clarification for employers and their leave administrators. ...more

6/3/2022  /  Denial of Benefits , Department of Labor (DOL) , Employer Liability Issues , Family and Medical Leave Act (FMLA) , Genuine Issue of Material Fact , Interference Claims , Termination , Wage and Hour

"Bald" insult is sexual harassment, UK tribunal says

Will this catch on in the States? A tribunal in the United Kingdom has reportedly ruled that insulting a man for being bald is sexual harassment. According to news reports, the tribunal was made up of three bald men....more

5/13/2022  /  Employer Liability Issues , Sexual Harassment , Tribunals , UK , Wage and Hour

ABCs of Employment Law: Retaliation

Just about every state or federal employment law has an anti-retaliation provision. Very simply put, anti-retaliation provisions are intended to protect individuals who either pursue their rights under the law, who assist...more

5/6/2022  /  Anti-Retaliation Provisions , Employer Liability Issues , Equal Employment Opportunity Commission (EEOC) , Material Adverse Effects , Protected Activity , Retaliation , Wage and Hour

Weed policy options for multi-state employers -- are there any?

As we all know, a growing number of states have legalized marijuana use to varying degrees. In some states, medical marijuana is permitted, but not recreational. In some states, anything goes. In some states, including New...more

4/29/2022  /  Americans with Disabilities Act (ADA) , Decriminalization of Marijuana , Drug Testing , Employer Liability Issues , Federalism , Hiring & Firing , Marijuana , Medical Marijuana , Multistate Employers

The $450,000 workplace birthday party

There was this disability discrimination issue . . . An employer who shall remain nameless had a tradition of throwing a little birthday party for each of its employees on their special day. The birthday of one employee...more

4/22/2022  /  Americans with Disabilities Act (ADA) , Civil Rights Act , Corporate Counsel , Disability Discrimination , Employer Liability Issues , Human Resources Professionals , Reasonable Accommodation , Social Anxiety Disorder , Termination , Wage and Hour , Workplace Violence
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