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How an Employee's Military Service or Status Can Be the Basis for Discrimination

We often hear media reports about workplace discrimination involving gender, race, national origin, age, and disability that is all too common. But most Americans would be surprised to learn that each year thousands of employees are subjected to blatant and harmful discrimination simply because they are veterans or are currently serving in the Armed Forces - and this discrimination harms our national security by discouraging participation in the National Guard and Reserve.

Despite the well-publicized job skills that veterans and servicemembers offer - including leadership skills, education, training, values, and teamwork experience - many civilian employers believe that their employees' military duties are inconvenient to their businesses and some believe their employees shouldn't be allowed to take military leave and return to their civilian jobs without interruption. Fortunately, for more than 70 years, federal laws have protected the rights of American workers to serve in the military without losing their civilian jobs and to enforce their rights when they are subjected to discrimination or retaliation.

Karlo v. Pittsburgh Glass Works, LLC, No. 15-3435 (3d Cir. Jan. 10, 2017)

The Third Circuit, declaring a split with several other courts, holds that an ADEA disparate-impact case may allege discrimination against a subset of the protected group, here employees 50 and over. Prior decisions had held that such claims could be based only on the entire protected group - age 40 and over - but the Third Circuit panel holds that "their reasoning relies primarily on policy arguments that we do not find persuasive."

Article Co-Authored by Wendi Lazar Reveals Why Women Lawyers in BigLaw Earn Less Than Male Colleagues and Ways to Close the Pay Gap

Wendi Lazar has devoted her practice to representing employees and professionals, many of which have been subjected to discrimination and pay inequity in the workplace.

Recently, Wendi collaborated with Stephanie A. Scharf, founding partner of Scharf Banks Marmor LLC in Chicago (one of the nation's largest women-owned law firms representing corporate clients) and Michele Coleman Mayes, general counsel for the New York Public Library and chairwoman of the American Bar Association Commission on Women in the Profession, on an in-depth article describing the regular and systematic pay inequity that women lawyers experience within large law firms and often in midsize firms as well.

EEOC Gets Tough on Retaliation, Issues Final Enforcement Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued final "Enforcement Guidance on Retaliation and Related Issues" ("Guidance") which details how the federal agency will enforce anti-retaliation laws. This Guidance is the first major update to EEOC enforcement policy on retaliation in nearly 20 years, and reflects changes in employment law over the last two decades, particularly several landmark U.S. Supreme Court decisions. The updated Guidance also adds specific language regarding retaliatory actions under the Americans with Disabilities Act.

EEOC v. St. Joseph's Hospital, Inc., No. 15-14551 (11th Cir. Dec. 7, 2016)

Courts are split over whether, under the ADA, employers who are able to reassign incumbent employees to accommodate their disabilities must do so outside of a normal competitive, "best-qualified" application process. The Eleventh Circuit this week joined the fray, holding that employers do not need to abandon a so-called "best-qualified" policy for filling vacancies, even as a reasonable accommodation.

Blowing the Whistle on Antiwhistleblower Severance Agreements

The Securities and Exchange Commission is showing its commitment to keeping the lines of communication open between the SEC and whistleblowers willing to report wrongdoing. The SEC recently announced stiff penalties for two companies that included language in separation agreements that required employees to waive financial rewards they might be eligible for if they disclose employer wrongdoing to the SEC.

Big Data: The Rise of Talent Analytics is a Cause for Concern

Back in 2012, Forbes caused a stir when it published an article detailing how Target was tracking customer purchases so closely that it figured out a teen was pregnant before she had even told her parents. For many people, it was their first real glimpse of how big data - the ever-growing mass of our electronically-stored personal information - is being analyzed to predict behaviors and spot trends. The idea that a retailer could have such detailed knowledge of the most intimate aspects of our lives raised many concerns about how that information was being used.

Chief among those concerns was whether or not the rise of big data would lead to greater discrimination. Could someone, for example, be denied health insurance based on their grocery store purchases? What if they had their DNA analyzed by a geological service out of a benign interest in tracing their ancestry? Could that be used against them in an entirely unforeseen way?

What about the workplace? Could big data play a role in employment decisions? The answer to this appears to be yes -- and it's already happening.

Working Families in America Are Forced to Wait for a Raise

Yesterday, millions of American workers were denied a long overdue raise. On December 1, 2016, a U.S. Department of Labor (DOL) rule should have made millions of Americans in salaried jobs eligible for overtime pay. Instead, a coalition of businesses and states sought a nationwide injunction blocking the new DOL rule from taking effect, forcing working families to wait indefinitely - and unnecessarily - for relief.

Gracia v. SigmaTron Int'l, Inc., No. 15-3311 (7th Cir. Nov. 29, 2016)

The Seventh Circuit affirms a jury award of $50,000 compensatory and $250,000 punitive damages in a Title VII retaliation case. The jury could have found, based on conflicting testimony, that the employer fired the plaintiff just two weeks after she filed an EEOC sex-harassment charge, based on an unsubstantiated complaint - reported by the alleged harasser himself - of a minor work-rule violation.

Fitness Trackers in the Workplace: A Risk for Employees?

So-called "wearables," such as fitness trackers, are becoming more and more ubiquitous every day. It's easy to see why. They count our steps, monitor our heart rate, measure the quality of our sleep, and we can use that information to improve our health.

But, while they offer certain benefits, fitness trackers may also present risks for employees who bring them into the workplace.

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