This week’s blog entry is super short. I am actually traveling all week. The first half of the week is Minneapolis to speak at the Minnesota CLE Bankruptcy Institute. The second half of the week is parents weekend at my daughter’s college.
The blog entry for the week is the updated EEOC harassment guideline, which can be found here. As you know, I am not particularly a fan of guidances in general, though there are a few that I like, such as here. In general, I find guidances are not all that informative and are often used as a crutch by attorneys. The updated EEOC harassment guideline, the public has 30 days from publication in the Federal Register to comment on them, is quite good. The guideline is a treatise discussing 30 years of harassment law and is written in a very understandable language. The two takeaways I take from the EEOC updated harassment guidance are: 1) harassment based on disability is a thing; and 2) the objective standard for harassment means looking at it from the reasonable person with the protected characteristic, i.e. disability. Will a judge actually be able to apply that standard properly? Will the EEOC? My experience is that people get disabilities regardless of partisan affiliation, if they have a disability themselves, have a family member with a disability, or associate with a person with a disability. If none of those are true, then the person may very well not get disability. Considering the typical profile of a federal judge, the odds are that a federal judge does not automatically get disability. What the standard sets up is that a plaintiff side attorney might consider having an expert to discuss just how a “reasonable person with a disability,” would perceive the work environment. For example, in the blog entry from last week, just about everybody with a disability would perceive that environment as hostile.
Have a great week y’all.