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Outside The News: Problem Hugging, CSALs Sent, and Kudos To Speechless

February 28, 2017

The Bullard Edge is committed to bringing you information that may fall outside of the headlines.  Many of you may still be buzzing about the wrong best picture nominee (La La Land) being announced as the winner of the Best Picture Oscar that ultimately went to Moonlight.  That was a shocker.  That is an event inside the headlines.  We are going to bring you several stories that you may have missed over the past ten days, including a Ninth Circuit decision about hugging, enforcement activity by OFCCP, and a television show recommendation. 
 
Story #1: 9th Circuit Says Hugging May Create Sexually Hostile Workplace
 
Last week the Ninth Circuit held that hugging “can create a hostile or abusive workplace, when ‘[i]t is . . . unwelcome and pervasive.’”  Further, the appellate court held that the plaintiff, a county correctional officer, could proceed to trial on her claims that from 1999 to 2012 the sheriff “subjected her to numerous unwelcome hugs and at least one unwelcome kiss that, taken as a whole, created a sexually hostile work environment.”  She claimed there were more than 100 such incidents directed at her and that the sheriff also hugged other female employees.  The sheriff and the county employer denied these allegations of harassment.  They admitted to the sheriff hugging employees, but asserted that he “also hugged male employees on occasion” and that any differences between his hugging of male and female employees reflected “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.”  The case has been remanded for trial on plaintiff’s sex harassment claims based on Title VII and California law
 
Case Name: Victoria Zetwick v. County of Yolo (February 23, 2017).
 
Quick Takeaway: Because hugging is a fairly common activity, the point at which it crosses the line from socially acceptable to harassment is difficult to pinpoint.  The Zetwick case highlights the importance of having a clearly stated anti-harassment policy that includes an easy to follow process for raising complaints.  It also highlights the value of training for all employees regarding that policy.  (We note that the employer in this case may have had an excellent policy and may have a fantastic training program.  It has not been held liable; rather, the appellate court has said there is enough to require a trial.)
 
 
Story #2: Federal Contractors Who Received CSALs Need To Prepare
 
On February 17, 2017 OFCCP sent “CSALs” to federal contractors with one or more establishments that have been selected to undergo a compliance evaluation during this fiscal year (which ends September 30, 2017).  CSALs is not an acronym from a children’s tongue twister (e.g., “she sends CSALs to the c-suite”).  CSAL is shorthand for the “Corporate Scheduling Announcement Letters” that OFCCP is once again using to provide federal contractors with advance notice that are on the audit list and should prepare themselves. 
 
Here are a couple of things to bear in mind about these CSALs.
 
  • Receiving a CSAL does not mean that an audit has been scheduled.  If an audit is going to occur, the contractor will receive a formal scheduling letter.
 
  • The CSAL provides a very short amount of lead time for a contractor to get ready in the event it does receive a scheduling letter.  OFCCP says that the CSAL provides “the contractor establishment’s internal EEO staff at least one month advance notice to obtain management support for EEO and self–audit efforts.”
 
  • This lead time should not be ignored.  Following receipt of a formal scheduling letter a contractor has only 30 days to submit its affirmative action plans and requested support data. 
 
  • Importantly, these CSALs have been addressed generically to “Human Resources Director,” which means they may be easier to miss.  Contractors should double-check to make sure that a CSAL has not been set aside.   
 
  • Finally, it also is important to note that a contractor that did not receive a CSAL still may be scheduled for audit.
 
It is a good idea to confer with your employment attorney should you be in receipt of a CSAL or have other questions about your preparedness for an OFCCP audit.
 
 
Story #3: Speechless Should Be Talked About
 
ABC’s Speechless premiered on September 21, 2016 and it is shown on Wednesdays at 8:30 PM.  The Bullard Edge missed the premiere and is five months late to the conversation.  The show builds around JJ DiMeo, a high school student with cerebral palsy, and his family ~ a mom, dad, brother and sister, and JJ’s caretaker.  It is a fantastic show and we highly recommend it.
 
According to the Mayo Clinic, cerebral palsy “is a disorder of movement, muscle tone or posture that is caused by damage that occurs to the immature, developing brain, most often before birth.”  Further, the effect that cerebral palsy has “on functional abilities varies greatly.  Some affected people can walk while others can't.  Some people show normal or near-normal intellectual capacity, but others may have intellectual disabilities.  Epilepsy, blindness or deafness also may be present.”
 
JJ is a high school student, who happens to be unable to walk or speak due to cerebral palsy.  In JJ’s case, his cognitive abilities are intact and he communicates with the use of a laser pointer and a word board.  He also has a caretaker/voice who accompanies him to school.
 
The beauty of Speechless is that it focuses on the DiMeo family.  JJ is a real person and a real high school student.  He is interested in going to the same parties as everyone else, dating, and engaging with the world.  His family supports him, but they also are real people with real issues.  The Atlantic described it as follows. 
 
“The best thing about Speechless, though, isn’t that it places disability issues more prominently on TV.  It’s that—based on the pilot at least—it’s also hilarious.  There’s no maudlin ‘very special episode’ feel to it, or a sense that viewers are supposed to take away important moral life lessons.  Instead, it simply shows that [ ] people with disabilities are human beings, and, like everyone else, they have specific life experiences that can be used to fuel a classic family-centered sitcom.”
 
Here is a list of Speechless episodes.  We hope you tune in.
 
 
That’s the news for now.  Best regards,
 
The Bullard Edge 

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About the Editor

Be informed, engaged and sometimes entertained

Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

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