The U.S. Court of Appeals for the Sixth Circuit ruled on March 7 that employer R.G. & G.R. Harris Funeral Homes unlawfully discriminated on the basis of sex when it fired a transgender employee after she informed the company that she would begin presenting consistent with her gender identity. In so doing, the court emphatically rejected the employer’s defense invoking religious liberty to discriminate on the basis of sex and other protected minorities. On the heels of the Second Circuit’s decision in Zarda v. Altitude Express, this case represents a further affirmation that existing civil rights laws protect LGBTQ employees from both gender identity and sexual orientation discrimination.
On Monday, for the second time in less than a year, a federal appeals court ruled that Title VII forbids sexual orientation discrimination because it is a form of sex discrimination. This time, in Zarda v. Altitude Express, Inc. the Second Circuit overturned decades of precedent and ruled that Title VII’s ban on discrimination “because of . . . sex” encompasses discrimination based on sexual orientation. The decision is also an apparent rebuke of the position taken by the United States Department of Justice (contrary to the Equal Employment Opportunity Commission’s position) that sexual orientation discrimination was never intended to by Congress to be covered by Title VII. The issue is almost certainly headed to the Supreme Court in its next term.
On April 19, 2018, Mintz Levin will be hosting its Fourth Annual Employment Law Summit at the Princeton Club in New York City. This half-day seminar will feature as its keynote speaker Kevin Berry, the District Director of the EEOC’s New York District Office. District Director Berry will discuss the main objectives of the EEOC’s recently-released Strategic Enforcement Plan, as well as sexual harassment in the workplace and best practices for responding to charges of discrimination. The seminar will also offer various segments on the most important workplace issues of the day, including sexual harassment in the wake of #metoo, family leave and caregiver accommodations, implications of the new federal tax law, wage and hour issues, and more. It’s a program you will not want to miss, so register now!
This event is intended for C-Level Executives, HR Executives, Compliance Officers, In-house Counsel, and HR Directors and Staff.
For more information and to register, click here.
As we enter the holiday season, we gather around the bubbler to sing about a few of our favorite (and not so favorite) things in the world of employment and labor law. Unfortunately, they’re not as sanguine as raindrops on roses or whiskers on kittens…
Some retail employers will be on Santa’s naughty list after the Sixth Circuit found that sales employees paid on a 100% commission or draw basis cannot be required to repay outstanding draws after termination of employment. The Senate decked the halls of the NLRB by confirming a new General Counsel, who will serve a critical policy role and is expected to move away from enforcement of the NLRB’s broadened joint-employer standard. This could be the last Christmas employees have to visit EEOC offices in person to file discrimination charges after the EEOC launched a new online portal, putting employers on alert of the possibility of increased charge filings in 2018. It’s a wonderful Christmas time for minimum wage workers in Montgomery County, Maryland, in DC’s metro area, who joined the small but growing ranks of jurisdictions increasing its minimum wage to $15.00 per hour beginning in 2021. Retail employees in New York might get a silent night away from work thanks to new employee scheduling regulations proposed by the New York State Labor Department that will limit “just in time” or “on call” scheduling and require additional pay for employees scheduled on short notice. While California employers may have longer than 8 nights, they don’t have quite a month to prepare for new regulations that will take effect January 1, 2018, which expressly prohibit employers from inquiring about an applicant’s criminal history prior to a conditional offer of employment.
On November 1, 2017 the Equal Employment Opportunity Commission (EEOC) launched its new public portal to allow individuals to quickly and directly submit inquiries and requests for intake interviews to the EEOC. Will online access to the EEOC’s intake and inquiry process lead to an increase in discrimination charges? While that remains to be seen, the new portal undoubtedly provides employees with faster direct access to the EEOC.
Last month, the EEOC filed a lawsuit against Estee Lauder in a Pennsylvania federal court alleging that Estee Lauder’s parental leave policy discriminates against employees on the basis of gender by providing unequal benefits to biological mothers and fathers. What’s notable about this lawsuit is that it involves a policy which, on its face, uses a “primary” and “secondary” caregiver distinction that provides different amounts of leave to employees based on that distinction without regard to their gender – a practice used by many employers in their parental leave policies. This lawsuit has left many employers wondering whether such a policy is at risk of being unlawful. We do not think it is at this time.
Earlier this month, the Supreme Court confirmed that federal appeals courts should apply a deferential standard of review to federal district court determinations regarding the legal sufficiency of EEOC subpoenas.
As we discussed yesterday at Mintz Levin’s Third Annual Employment Law Summit, big changes are likely in the offing as all three branches of our federal government begin to deal with labor and employment issues following President Trump’s election. President Trump’s first 100 days has already included action on a number of employment and labor law issues we’re following here at Mintz Levin. The Administration has enacted or signaled changes – some potentially significant – in executive orders and through pronouncements of regulatory and enforcement priorities that promise to impact the field of labor and employment law. Additionally, the expected confirmation this week of Judge Neil Gorsuch means all hands on deck at the United States Supreme Court, and congressional action so far suggests a potentially employer-friendly climate on Capitol Hill.
Below, we highlight changes in the leadership, regulation, and likely course forward for each of the branches of the federal government, and offer our predictions for 2017 and beyond under the current Administration. Continue Reading Steady as She Goes or Charting a New Course? Employment and Labor Signals in the Trump Administration
The basketball court isn’t the only place you’ll see interesting uniforms this month. Many employers choose to implement and enforce their own uniform requirements and dress codes at work. But if done incorrectly, uniforms or dress codes may reinforce stereotypical gender roles and put transgender employees and applicants in a very uncomfortable place. In addition, some religious people in the workplace require exceptions to uniform requirements and dress codes in order to adhere to their beliefs. There was even a hotly debated Supreme Court opinion a couple years ago about a religious headwear exception to an employer’s dress code. These increasing changes in the law are forcing employers to take a time out to rethink their uniform and dress code strategies to make sure they do not travel out of bounds.
March Madness presents one of those occasions where your employees’ diets and exercise may fall by the wayside, and by the wayside, we mean potentially off a cliff. And when this happens, your workforce is increasing not just their weight and risk of disease, but it may also increase your cost to employ them. The productivity time you’re losing when they stop working to watch the games is nothing compared to the loss of productivity and increased health care costs due to poor health.