Quck updates this morning on a couple of previous posts, both involving food. 

First, I wrote here about the EEOC’s effort to obtain documents from Schwan’s in a sexual discrimination case.  As expected, Judge Janie Mayeron ruled in favor of the EEOC and has ordered the frozen food company to produce the information sought by the government.

Second, the Supreme Court has agreed to hear the turducken case to consider the privacy rights of government contract employees. 

Now if we could just get the EEOC to investigate the contents of that  turducken!

The Equal Employment Opportunity Ccommission (EEOC) has released an update to its required “Equal Employment Opportunity is the Law” posting. The new version reflects current federal employment discrimination law, and adds information regarding the new Genetic Information Nondiscrimination Act (GINA) and ADA Amendments Act regulations. The revised poster also includes updates from the U.S. Department of Labor.

The EEOC posting update is mandatory for all covered employers and can be downloaded at the EEOC’s Web site.

As a sidebar to my previous post, here is an interesting article claiming that employers are “under siege” by the EEOC.  The numbers do suggest more cases:  from 2007 to the end of 2008, overall claims filed with the EEOC increased by 28%.  Observers also suggest that the EEOC is being more aggressive in its investigation and pursuit of these cases.

I’m sure that Schwan’s would agree.

Things should be interesting in St. Paul on Wednesday when my former partner, Magistrate Judge Janie Mayeron, hears a discovery motion in a sex discrimination case brought against frozen-food company Schwan’s by a former employee, Kim Milliren. 

Milliren was accepted into a Schwan’s manager training program intended to prepare her for a position overseeing one of the company’s 500 depots — one of only two women at the time to fill such positions.  Unhappy with how she was treated,  she complained to senior managers about inappropriate e-mails sent by a senior vice president, sexually derogatory comments and a manager’s assessment that it would be inappropriate to hire a woman if it meant she left three children at home.  (Note to self:  never justify failing to hire a woman by suggesting that it would be unfair to her young children!)

Milliren filed a complaint with the EEOC in June 2007 alleging that she had been harassed by managers and then demoted for complaining about it.   As part of its investigative process, the EEOC has subpoenaed additional information, including a list of all 600 company general managers, along with their gender and date of hire, as well as a listing of all employees who have completed the general manager training program since January 2006.  The company has refused to turn over this information, arguing that it was irrelevant, overly burdensome, and “an impermissible abuse of [the EEOC's] investigative authority.”

The EEOC’s response was clever, if not exactly legally on point: “As the ‘largest home delivery frozen food company in the United States,’ [Schwan's] has clearly mastered the logistical challenge of millions of customer orders and delivering a cornucopia of frozen food products to America’s doorstep. It is therefore inconceivable that [Schwan's] cannot respond to the EEOC’s three simple requests in subpoena.”  The question is so much whether the company can respond, as whether the information sought is relevant.

This appears to be a routine discovery dispute between two parties, except that the EEOC has been granted very broad subpoena power by Congress, and almost always wins subpoena battles.  If I were a betting man, I would wager that Judge Mayeron will give the EEOC most of what its looking for here, albeit under the protection of a protective order to ensure that personal information about other Schwan’s employees does not become public.

I ran across this interesting post in the Workplace Prof Blog on sexual favoritism.   It reminded me that the  EEOC treats sexual favoritism as a subset of sexual harassment.  According to the EEOC, sexual favoritism can constitute a Title VII violation, but only if it is “widespread.”  The EEOC Policy Guidance on Employer Liability under Title VII for Sexual Favoritism, issued in 1990, provides:

“If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors. In these circumstances, a message is implicitly conveyed that the managers view women as ’sexual playthings,’ thereby creating an atmosphere that is demeaning to women. Both men and women who find this offensive can establish a violation if the conduct is ’sufficiently severe or pervasive to alter the conditions of [their] employment and create an abusive working environment.’” 

The blog post goes on to consider why the granting of favors must be widespread.

Another potential claim against David Letterman?