september 24, 2008
WEEK 4 OF TAKE BACK LABOR DAY

Week Three Roundup

On Labor Day, September 1, we launched the Take Back Labor Day blog project on the new and improved Today's Workplace blog.
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Workplace Fairness: Hot or Not? (Jen Nedeau): It is the oldest adage in advertising: sex sells. But when does selling products with sex go too far? In late August, LUSH Cosmetics led a protest against environmentally damaging product packaging by encouraging shoppers to go ?naked? by purchasing products free of packaging. While this is a cute concept for a company whose products traditionally lack the common saran wrap sequence seen with other bath and beauty wares ? the company also asked their employees to get naked to promote the cause. Comment
Barriers to Justice: Examining Equal Pay for Equal Work (Part II) (Cyrus Mehri): BATTLING DISCRIMINATION IN THE WORKPLACE: THE LONG HARD JOURNEY FOR WORKERS: During the last 15 years, I have interviewed hundreds of employees in dozens of companies. Invariably, they contact counsel as a last resort after exhausting all internal channels within a company. The vast majority of employees remain extraordinarily loyal to their companies despite significant discrimination in the workplace. Many victims of discrimination do not want to believe they are discriminated against and only reach this sad conclusion reluctantly. Comment
Barriers to Justice: Examining Equal Pay for Equal Work (Part I) (Cyrus Mehri): TESTIMONY OF CYRUS MEHRI BEFORE THE COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE: I am asked today to provide a practitioner's perspective on employment discrimination claims in our federal courts, including pay discrimination claims. Let me say at the outset, that as a practitioner, I find Lilly Ledbetter's story to be a compelling example of what is wrong with the system. In her case, the federal courts reached a decision that is entirely out of touch with the American workplace ? requiring that she file an EEOC charge based on what she did not know, nor could have reasonably known, at that time regarding pay inequity. Her hard-fought trial victory vanished, and the factual findings of the jurors who heard her evidence firsthand counted for nothing. Unfortunately, Ms. Ledbetter's experience in the federal courts is far from isolated. It typifies the uphill battle that American workers face. Comment
Developments in Workplace Protections for LGBT Employees (Ilona Turner): A significant new frontier in the employment discrimination field is finding ways to protect employees who are fired, denied a promotion, or harassed just for being lesbian, gay, bisexual, or transgender (LGBT). Already, 12 states and the District of Columbia prohibit discrimination based on sexual orientation as well as gender identity and expression. (Another eight states have legal protections only for sexual orientation discrimination.) Those laws protect not only lesbian, gay, and bisexual employees, but also transgender employees?those whose internal sense of themselves as male or female (their ?gender identity?) and/or the way they express that gender identity through their appearance, clothing, or behavior (their ?gender expression?) differs from the anatomical sex they were designated at birth. Comment
Working Harder for Less Mocks the American Dream (Tula Connell): Worsening unemployment. Millions of home foreclosures. Two-income households unable to support families. America's workers are facing economic disasters so severe, even the national media is paying attention. But the current crisis has long roots. America's working families have been suffering through what is now a generation-long stagnation of wages and rising economic insecurity. Steps must be taken immediately to shore up our flagging economy and provide much-needed assistance to working families. Comment
this week in the courts
Chicanos Por La Causa, Inc. v. Napolitano ?(Ninth Circuit; No. 07-17272, 07-17274, 08-15357)
Decision Date: September 17, 2008
In a facial challenge to the legality of the Legal Arizona Workers Act (LAWA), judgment in favor of the state is affirmed where: 1) LAWA is not expressly preempted by the federal Immigration Reform and Control Act of 1986 (IRCA) which allows state regulation through licensing law; 2) LAWA's requirement that employers use federally voluntary E-Verify technology is not impliedly preempted by IRCA; and 3) LAWA's provisions regarding employers' right to dispute findings of employee authorization to work do not facially violate due process.
Kelley v. City of Albuquerque ?(Tenth Circuit; No. 05-2309, 05-2317)
Decision Date: September 17, 2008
In an action claiming that defendants retaliated against plaintiff-former Albuquerque assistant city attorney in violation of Title VII and state law, rulings for plaintiff are affirmed where: 1) plaintiff was an employee as defined by Title VII, as the immediate adviser exemption was inapplicable; 2) her participation as a defense attorney in an EEOC mediation constituted protected activity within the meaning of Title VII and state law; 3) the city forfeited its challenge regarding a causal connection between her participation in the EEOC proceedings and her termination; and 4) there was no error in instructing the jury or in denying summary judgment. However, summary judgment for the city on a class-of-one Equal Protection claim is affirmed as the class-of-one theory is not legally cognizable where, as here, a public employee claims that she has been treated differently than other employees.
Hesse v. Town of Jackson ?(Tenth Circuit; No. 07-8032)
Decision Date: September 15, 2008
In an employment termination case brought by a former town attorney against the town's mayor, administrator, clerk, and one of its council members, denial of qualified immunity for defendants is reversed where: 1) neither a state statute, a town ordinance and resolution, nor an employment contract, provided plaintiff with a constitutionally protected property interest in continued public employment; 2) for purposes of a free speech claim, plaintiff's heated conversation with a town administrator did not enjoy First Amendment protection as it occurred pursuant to his official duties; and 3) defendants' eavesdropping on the conversation did not constitute an illegal search and seizure as he had no reasonable expectation of privacy in his work-related, run-of-the-mill quarrel in his office.
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