Polsinelli at Work |  Labor & Employment Blog

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#MeThree: Recommendations for Employers to Avoid Liability for Third Party Harassment

#MeThree: Recommendations for Employers to Avoid Liability for Third Party Harassment

By: Karen R. Glickstein

The #MeToo movement has sparked an increase in sexual harassment investigations and focused attention on the potential liability of employers for the actions of third parties with whom their employees interact for business purposes.  We previously noted the importance of employers maintaining policies and providing training on proper responses to complaints about third party harassment in the hostile environment context.[1]  Two recent decisions underscore the importance of awareness of potential liability from third party harassment claims outside the area of sexual harassment and in potential quid pro quo situations.

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Employee Grooming Policies and the Limits of Title VII

Employee Grooming Policies and the Limits of Title VII

By Stan Hill

Employers may regulate the length, style, and neatness of employees’ hair in the workplace through so-called grooming policies, unless the hair style is a matter of sincere religious observance posing no more than a minimal burden on the employer.   A more complicated issue arises when grooming policies prohibit certain hairstyles that are culturally associated with race, such as dreadlocks.  Untangling this issue, on which few courts have spoken, the U.S. Eleventh Circuit Court of Appeals (binding in Alabama, Georgia, and Florida) held that employers may enforce a grooming policy that prohibits dreadlocks, despite a close cultural association to race.

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Obesity “Regarded As” Disability Under ADA

Obesity “Regarded As” Disability Under ADA

By: Scott Gilbert

On March 5, 2018, in a decision styled Shell v. Burlington Northern Santa Fe Railway Company, Case No. 15-cv-11040 (N.D. Ill. Mar. 5, 2018), the U.S. District Court for the Northern District of Illinois suggested liability could attach where an employer regarded an obese individual as disabled, in violation of the Americans with Disabilities Act, as amended (“ADA”).

As previously reported in this blog, courts have held that obesity is not a disability under the ADA.  To qualify as a disability, a physical or mental impairment must substantially limit a major life activity. However, the Equal Employment Opportunity Commission has issued interpretive guidance providing physical characteristics, such as weight, do not qualify as disabilities unless they are (a) outside of a “normal” range and (b) result from a physiological disorder.

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Second Circuit: Sexual Orientation Discrimination Is Covered Under Title VII

Second Circuit: Sexual Orientation Discrimination Is Covered Under Title VII

By: Stephanie Delatorre

On February 26, 2018, the U.S. Second Circuit Court of Appeals held that sexual orientation is covered by Title VII of the Civil Rights Act of 1964, aligning with a previous decision issued by the Seventh Circuit.  The Second Circuit’s decision further amplifies the existing Circuit split, as the Eleventh Circuit previously held that Title VII’s protections do not extend to sexual orientation. 

The plaintiff in the case presented was a skydiving instructor who claimed he was terminated after his employer learned of his sexual orientation from a customer.  The District Court dismissed Plaintiff’s Title VII claim on summary judgment, ruling in pertinent part that, as a matter of law, sexual orientation is not a characteristic protected by Title VII.  The plaintiff’s New York claim for sexual orientation discrimination went to trial, where the employer prevailed.  After final judgment was entered, the plaintiff appealed the dismissal of his Title VII sex discrimination claim to the Second Circuit.

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