As we’ve discussed previously, several states are suing the federal government over the Patient Protection and Affordable Care Act (PPACA).

One such state was Florida, which planned to include a referendum on the November ballot that would have potentially overridden PPACA’s mandatory health insurance provisions. In a victory for supporters of the law, the state’s supreme court ruled 5-2 to exclude the initiative from the ballot.

The court ruled that the proposed referendum “contains misleading and ambiguous language” and thus it struck it from the ballot. The court especially objected to the inclusion of language such as “mandates that don’t work,” calling it the “type of political rhetoric that this court has condemned in other cases.”

Lots of other states have lots of other lawsuits pending on this issue. Click here for a handy summary and stay tuned for more.

Click here for an interesting item on the Harvard Business Review site entitled How Sex Hurts the Workplace, Especially Women.

The basic premise: workplace sex doesn’t just hurt the parties directly involved — it can also have collateral damage on the careers of high-achieving female employees who had nothing to do with the harassment.

Brand new research by the Center for Work-life Policy indicates that a woman will most likely fail to achieve executive status “unless she is sponsored by a powerful senior executive — who, more often than not, is male and married.” As the article points out, that is often “where sex enters the picture.”

Some of the key findings:

• 34% of executive women say they know a female co-worker who had an affair with her boss
• 15% of women at the director level or above say they had such an affair themselves
• 37% of those who know of an affair believe that the woman received a “career boost as a consequence”
• 70% of women (versus 61% of men) lose respect for a leader who has an affair
• 56% of women (48% of men) feel “animosity” toward the couple involved
• 65% of women (60% of men) believe that salary increases and other perks are traded for sexual favors
• 37% of women (39% of men) see a productivity drop in the wake of a workplace affair

What Should Employers Do?

You don’t have to be the workplace romance police. However, you absolutely should:

• have a policy that (1) clearly prohibits all forms of unlawful harassment and (2) contains a clear mechanism for reporting potential violations, including alternate paths when the alleged harasser is the complaining party’s boss;
• train all employees on the policy, with a special emphasis for managers on the dangers of workplace romance (particularly of the boss-subordinate variety);
• fully investigate all complaints of harassment, even if (1) the alleged harasser asks you not to and (2) the allegations are against the head of the company or a “superstar”-type employee;
• if the investigation warrants disciplinary action, take it (even if it means firing the CEO or superstar); and
• carefully consider any and all communications related to the investigation, particularly if they concern a high-profile employee (and discuss them with experienced legal and PR counsel).

If an employer fails to take any of the above action , it could easily wind up in court — possibly in a class action — and face humongous morale and productivity problems. Don’t let that happen to you.

To help ensure that you cover all the investigation bases, click here for our handy Investigation Toolkit. Click here for our handy “cheat sheet” on harassment law.

The largest (potentially) employment discrimination case in world history is headed to the Supreme Court.

Basic Facts

The case started in 2001 when a greeter named Betty Dukes and a handful of other female employees complained that they were paid and promoted less than males. Among other things, they contended that women make up more than 70% of Wal-Mart’s hourly workforce but less than a third of store management and that the company’s “strong, centralized structure fosters or facilitates gender stereotyping and discrimination.”

Many of the facts have been hotly disputed. For example, Wal-Mart claims that a company-sponsored study showed that there is no statistically significant pay disparity between women and men in 90% of its stores. On the other hand, the plaintiffs’ experts allege they found evidence of gender discrimination in every single Wal-Mart region.

Previous Court Rulings

In 2004, a federal district court judge sided with the plaintiffs. Wal-Mart appealed. In April, a federal court in San Francisco officially certified the case as a class-action, making it potentially the largest employment discrimination lawsuit ever. The case could include as many as a million plaintiffs seeking more than a billion dollars in back pay and punitive damages.

In addition to disputing the facts, Wal-Mart has assailed the size and scope of the suit, calling it “historic” and arguing that it would be virtually impossible to litigate in a one-size fits all manner. One spokesperson said: “We do not believe the claims alleged by the six individuals who brought this suit are representative of the experiences of our female associates.”

So far, the courts haven’t agreed. In the latest decision, the cout ruled that although “the size of this class action is large, mere size does not render a case unmanageable.”

Next Up: The Supremes

Not it’s up to the Supremes to decide what happens next. The court’s ruling could forever change the face of employment discrimination litigation. As Robin Conrad, a representative of the U.S. Chamber of Commerce, put it: “This is the big one that will set the standards for all other class actions.”

Seems like a simple enough question, but it’s one that has resulted in lots and lots of litgation under the Fair Labor Standards Act (FLSA).

In a move that generated very little discussion in the employment law/HR universe, the Department of Labor (DOL) recently clarified exactly what “clothes” means under Section 203(o) of the FLSA. That section states that time spent “changing clothes or washing at the beginning or end of each workday” does not constitute compensable time if it is excluded by the “express terms or by custom or practice” of a collective bargaining agreement.

In its new interpretation, the DOL has announced that the exclusion “does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job.” For five scintillating pages on what “clothes” are and aren’t, click here.

First, the good news . . .

According to data released Friday by the Bureau of Labor Statistics, U.S. workplace fatalities fell 17% in 2009 to an all-time record low. There were a total of 4,340 workplace deaths, compared to 5,214 the previous year. In a similar vein, the National Council of Compensation Insurance reports that workplace injuries have been declining for more than a decade and are at their lowest point in years.

The bad news . . .

When you drill into the numbers, the declines appear to have more to do with record-high unemployment than true gains in worker safety. Depending on whose statistics you believe, it appears that true unemployment is at its highest level in a quarter century. Indeed, new unemployment claims jumped 500,000 in the most recent week of reporting.

With the announcement today that the last U.S. combat envoy has officially left Iraq and that another 6,000 troops will exit soon, employers will soon be faced with veterans returning to the workforce. What do you do?

First, click here for our handy USERRA (Uniformed Services Employment and Reemploment Rights Act) cheat sheet. Then, click here for a summary of FMLA rights related to military service members and their families.

You can also click here for a wealth of compliance assistance resources from the Department of Labor, including fact sheets, FAQs, e-tools and other helpful materials.

So, what are the basics of USERRA? Here you go:

• All employers are covered by USERRA regardless of size
• USERRA provides that an employee who is absent due to service in the uniformed services is entitled to reemployment into the same or a comparable position as though s/he had been continously employed
• In addition to reemployment, service members are entitled to certain benefits and retention rights and are protected against retaliation
• Potential penalties for noncompliance include reinstatement, back pay, attorneys’ fees and other damages

The Bottom Line: Welcome returning service members home, thank them for serving our country and always always always follow the law.

On the heels of our discussions about the “Mancession” and recent gains by female employees in the workplace, there is growing evidence that men are getting more and more comfortable about filing discrimination complaints.

Tarascio v. Fallon

As is often the case, a celebrity suit is driving much of the discussion. NBC stage manager Paul Tarascio recently filed a complaint with the EEOC alleging that he was fired from the Late Night With Jimmy Fallon show because he’s a man.

Tarascio claims that when he was demoted from First Stage Manager to Second Stage Manager in July 2009, NBC executives told him that the reason for the change was that “Jimmy just prefers to take direction from a woman.” Tarascio alleges that his complaints to management resulted in him being fired in March 2010 for “fabricated performance issues.” NBC denies Tarascio’s claims and says they are ‘without merit.”

Even Construction Workers?

Another case generating attention is one filed by the EEOC on behalf of a male construction worker who accuses his male supervisor of calling him “sexy,” “blowing him kisses, carressing his hands and back” and threatening not to let him work on the next job if he refused to sleep with him. When the employee reported the conduct to the company’s president, he allegedly was told that “nothing could be done.” The employee says he was forced to quit shortly thereafter.

“Offering employees avenues for reporting harassment and then responding appropriately to employee complaints are critical in maintaining a workplace free from unlawful harassment,” says EEOC attorney Lynette Barnes. “This is true across all industries. Employees in the construction industry have just as much right as persons in any other occupation to a workplace free from unlawful harassment.” Click here for more from the EEOC.

Ignoring Men’s Complaints?

In a similar suit, the EEOC accuses LensCrafters of failing to address sexual harassment complaints from a male employee and of “perpetuating a sexually hostile work environment.”

According to the suit, complaints from female employees were taken seriously while those from male employees were not. The EEOC alleges that a male lab technician was “repeatedly subjected to unwelcome sexual advances, comments, and touching” and that his complaints about the conduct were ignored.

“The EEOC is committed to protecting all employees, including men, from being subjected to a sexually hostile work environment,” says EEOC attorney Nedra Campbell. “Federal law protects the civil rights of men as well as women.” Click here for more.

The Stats

EEOC statistics back up the claim that men are getting more comfortable filing discrimination claims. Since 1990, the percentage of harassment claims that were filed by men has doubled from 8% to 16%.

The Bottom Line?

Discrimination is discrimination is discrimination. Take all claims seriously, investigate thoroughly and then take appropriate action promptly. If you don’t, you may end up in court.

During our last webinar, we asked the following question . . .

Women now make up the majority of the non-farm workforce and the vast majority of college attendees. Recent studies show that wage disparities appear to be narrowing. In the not-so-distant future, the U.S. will be more than 50% non-white. The Supreme Court and even the Oval Office reflect more diversity than ever before. So, when will Title VII be repealed?

Here’s how our audience of 2,000+ responded . . .

a.  By the end of the week (0%)
b.  By the end of the decade (15%)
c.  By 2030 (10%)
d.  By 2050 (4%)
e.  Never (71%)

So, the vast majority of you feel that Title VII will never be repealed. I tend to agree.

Setting aside some of the obvious political reasons (not a whole lot of politicians are likely to want to raise their hand and say “I’m against discrimination laws”), there’s still quite a bit of work to do before true equity will rein in the workplace.

Among other things, women still only earn 77¢ for every $1 earned by men — a whopping $431,000 less over the length of an average career. Despite the fact that women now constitute a majority of the workforce, only 3% of CEOs and 13% of executive officers are women. There are other similarly sobering statistics for other protected classes.

The Bottom Line: Don’t expect Title VII to go away any time soon.

As always, thanks for your participation!

(Sources: Bureau of Labor Statistics, Catalyst, TIME Magazine, Center for American Progress)

Last week, we discussed whether recent gains in workplace diversity could spell the end for discrimination laws. Further illustrating just how controversial those issues can be is the ongoing debate over the Paycheck Fairness Act.

The President Weighs In

President Obama turned up the heat this week, issuing a statement urging Congress to pass the Act. Here it is:

In America today, women make up half of the workforce, and two-thirds of American families with children rely on a woman’s wages as a significant portion of their families’ income.

Yet, even in 2010, women make only 77 cents for every dollar that men earn. The gap is even more significant for working women of color, and it affects women across all education levels. As Vice President Biden and the Middle Class Task Force will discuss today, this is not just a question of fairness for hard-working women. Paycheck discrimination hurts families who lose out on badly needed income. And with so many families depending on women’s wages, it hurts the American economy as a whole. In difficult economic times like these, we simply cannot afford this discriminatory burden.

My Administration has already begun to address this problem. In my first week in office, I signed the Lilly Ledbetter Fair Pay Act, which helps women who face wage discrimination recover their lost wages, and in my State of the Union Address, I promised to crack down on violations of equal pay laws. Today the Equal Pay Enforcement Task Force will present its recommendations, which include ways to better coordinate among enforcement agencies and inform employees about their rights. These steps support women, and they also support businesses that are doing the right thing and paying their employees what they deserve.

We cannot do this work alone. So today, I thank the House for its work on this issue and encourage the Senate to pass the Paycheck Fairness Act, a common-sense bill that will help ensure that men and women who do equal work receive the equal pay that they and their families deserve. Passing this bill is one of the Task Force’s key recommendations, and I hope Congress will act swiftly so that I can sign it into law.

Republican Response

Not too surprisingly, Republicans and business leaders expressed a different view. The U.S. Chamber of Commerce said the Act is likely to “burden America’s businesses with frivolous litigation during already trying economic times.” It also said that the Act would “expand remedies under the Equal Pay Act (EPA) to include unlimited punitive and compensatory damages, significantly erode employer defenses for legitimate pay disparities, and impose invalid tools for enforcement by the Labor Department.”

Michael Steel, spokesperson for House GOP leader John Boehner, had even stronger words. He dubbed the bill “a cruel hoax.” “It won’t empower women who face pay discrimination,” he said, “but it will empower trial lawyers whose junk lawsuits will clog up the courts and make it hard for businesses to grow and hire.”

Stay tuned to see how this plays out.

After 343 votes, we have a clear winner in last week’s question.

Here’s what we asked . . .

Women now make up the majority of the workforce and the vast majority of college attendees. Recent studies show that wage disparities appear to be narrowing. In the not-so-distant future, the U.S. will be more than 50% non-white. The Supreme Court and even the Oval Office reflect more diversity than ever before. So, when will Title VII be repealed?

Here are your responses . . .

a.  By the end of the year (1%)
b.  By the end of the decade (13%)
c.  By 2030 (7%)
d.  By 2050 (3%)
e.  Never (76%)

So, the vast majority of you feel that Title VII will never be repealed. I tend to agree.

Setting aside some of the obvious political reasons (not a whole lot of politicians are likely to want to raise their hand and say “I’m against discrimination laws”), there’s still quite a bit of work to do before true equity will rein in the workplace.

Among other things, women still only earn 77¢ for every $1 earned by men. Despite the fact that women now constitute a majority of the workforce, only 3% of CEOs and 13% of executive officers are women. Given those statistics, it’s not too surprising that 60% of men responded “yes” to a recent poll asking, “Are barriers to female success gone?” Only 50% of women said “yes.”

Thanks for your participation. Our next Question of the Week will be coming your way soon.

(Sources: Bureau of Labor Statistics, Catalyst, TIME Magazine)