Wednesday, April 25, 2012

EEOC discrimination ruling called groundbreaking for transgender job seekers

From:  Star Tribune, Article by: SAM HANANEL , Associated Press, Updated: April 24, 2012 - 9:29 PM

WASHINGTON - In what is being called a groundbreaking ruling, the agency that enforces the nation's job discrimination laws has ruled that transgender people are protected from bias in the workplace.
The decision late last week by the Equal Employment Opportunity Commission (EEOC) said that a refusal to hire or otherwise discriminate on the basis of gender identity is by definition sex discrimination under federal law.

While some federal courts have reached the same conclusion, employment law experts said the EEOC decision is groundbreaking because it sets a national standard that offers employers clear guidance on the issue.

"This decision is important because the EEOC is the agency with lead authority to interpret and enforce the nation's employment rights laws," said Jennifer Pizer, legal director of the UCLA School of Law's Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy.

The case involved a California woman who claimed she was denied a contractor job with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) after the contractor learned she had undergone a procedure to change her gender to female.

Mia Macy, an Army veteran and former police detective, initially applied for the position as a man and was told that she was qualified for the job as a ballistics technician. Then she informed the contractor that she was changing her gender. After that, she was told funding for the job was cut. She later learned someone else was hired for the position.

Macy filed a complaint with the ATF, which told her that federal job discrimination laws did not apply to transgender people. The Transgender Law Center, a legal rights advocacy group, took up her case.
The ruling does not yet determine that she was discriminated against but that she can bring a charge of discrimination under the law.

EEOC spokeswoman Justine Lisser said the unanimous ruling from the five-member agency does not create a new cause of action. It clarifies that charges of gender stereotyping are considered claims of sex discrimination under existing law.

Until now, Pizer said, it was common for transgender workers to have their complaints rejected by EEOC regional offices and state civil rights agencies due to confusion about the state of the law. "This is a confirmation that the courts are correct, so public and private employers coast to coast now have the benefit of the EEOC making this clear," she said.

Tuesday, April 24, 2012

Judge sides with fired Jimmy John’s workers

From:  Star Tribune

Article by: Mike Huglett, Star Tribune, Updated: April 23, 2012 - 9:24 PM

A federal administrative law judge has ruled that a Twin Cities Jimmy John's franchisee violated the union organizing rights of six employees by firing them last year after they publicly protested the restaurants' sick leave policy.

The workers, who were all active in an attempt to unionize 10 local Jimmy John's, must be reinstated to their jobs and given back pay, according to an order late Friday by the Washington, D.C.,-based judge, Arthur Amchan.

"It's certainly a victory," said Erik Forman, one of the fired workers.

MikLin Enterprises, owner of the 10 Jimmy John's, said in an e-mail that, "we respectfully disagree with the [judge's] findings ... and we will decide our next steps shortly."

MikLin, owned by Mike Mulligan and his son Rob Mulligan, can appeal the decision, and Forman said he thinks the company will do so. Reinstatement of the fired workers would be postponed pending an appeal.

Amchan upheld much of a National Labor Relations Board complaint against MikLin. The board's Minneapolis office pressed the complaint after investigating unfair labor practice charges filed by the union against MikLin.

The judge's ruling is the latest turn in an unusual unionization battle pitting the Industrial Workers of the World against the popular sandwich chain.  In October 2010, the IWW narrowly lost a union election to represent MikLin's workers -- 87-85. It was a rare attempt to organize the fast-food industry, conducted by a union outside of the mainstream labor movement and known for grass-roots militancy.  After the election, pro-union workers continued their organizing efforts at Jimmy John's, focusing on MikLin's lack of paid sick leave. MikLin's employees were and still are subject to discipline if they call in sick without finding a replacement, according to Amchan's ruling.

MikLin in an e-mail said its absentee policies are fair and typical for the quick-serve food industry, and called "patently false" any claims that employees are required to work while sick.  Union activists claim that MikLin's sick leave policy gave ill workers an economic incentive to show up for work, thus jeopardizing public health.

Last spring, activist workers put up posters near Jimmy John's outlets, implying that sick employees might be making sandwiches.  The posters featured pictures of two sandwiches with the text, "Can't tell the difference? That's too bad because Jimmy John's workers don't get paid sick days .... We hope your immune system is ready, because you are about to take the sandwich test."

MikLin fired six workers for a "malicious" effort to damage the Jimmy John's brand. But Amchan ruled that the posters were protected speech under the National Labor Relations Act. He also concluded that Rob Mulligan violated labor law by encouraging employees to tear down the posters.

MikLin can appeal the administrative law judge's decision to the full board of the National Labor Relations Board in Washington D.C. If the board rules in the workers' favor, the company can then appeal to a federal court.  The appeals process could take one to two years to play out. "It's pretty frustrating," Forman said.

Mike Hughlett • 612-673-7003

Tuesday, April 10, 2012


The following is taken from the website Workplace Fairness (

By:  Bob Rosner

  • Get a reference in advice.
  • Work around a bad reference.
  • Hire a reference check service.
  • Understand defamation. 
Blacklisted: Is a Former Employer Out to Get You?
Does this sound familiar? You keep getting turned down for jobs in your industry. Suddenly you start to wonder, is this a coincidence or are potential employers scared off because a former employer is saying bad things about me? Unfortunately, blacklisting can and does happen. Which reminds me the an old saying, "You're not paranoid if they really are out to get you."

Paranoid or blacklisted, it's often difficult to sort out what is really happening. But let's start with the law. The Supreme Court in Robinson v. Shell Oil Company (1997) has held that employees can sue employers for retaliatory negative job references under the civil rights act. That sounds like great news to someone who thinks they're being blacklisted, but most of us are loath to sue a former employer. That's why I'll start with strategies to prevent the problem of a bad reference in the first place and then explore what you can do if you think you're being blacklisted.

Get a reference in advice. I know a lot of people who negotiated a letter of reference with their employer before they were let go. This can save everyone involved a lot of hassle and legal fees. The good news is that you may actually get to contribute to what the company actually says about you to potential employers.

Work around a bad reference. If you are sure that a boss will trash you in a reference, you can sometimes avoid the problem by going to another manager, a vendor or even a customer for a recommendation. This won't prevent the company from contacting your boss directly, but enough employers can be lazy in the hiring process that this may eliminate the problem.

Hire a reference check service. There are a variety of services on the Internet that will contact a former employers of yours to ask for a reference. They basically pretend that they'll be hiring you. Then they share the information that they receive directly with you. You'll have to pay for this service, but most of the prices that I saw listed on the Internet were very reasonable. Unfortunately this service can't find out if you are a victim of an "underground reference." That's when a former employer talks badly about you at professional associations or with vendors.

Understand defamation. A defamation claim is not about challenging whether or not you should have been let go. No this is about your reference. One expert called it a way of getting "monetary revenge on the employer who is sloppy, insensitive or downright mean." If you think a past employer is not telling the truth about you, contact an employment lawyer. Most will give you a free half hour consultation and sales pitch.

Talk to most employers and they'll tell you that they only give name, job title and dates of employment when asked for a reference. Talk to many job seekers and they believe that they're being blacklisted. As in so many things, the truth lies somewhere in between.

Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning Check the revised edition of his Wall Street Journal best seller, "The Boss's Survival Guide." If you have a question for Bob, contact him via