The federal courts in D.C. have long held that denial of a lateral transfer does not violate Title VII for the reason that, unlike where a promotion is denied, there is no adverse employment action when an employee is denied a purely lateral transfer. A panel of the D.C. Circuit recently decided otherwise where the employee proffered evidence that the employer’s discriminatory denial of his lateral transfer request would have an “adverse impact on the employee’s potential for career advancement.”
What is happening in employment law? We will be providing you with quick employment law updates on a bi-monthly basis in a new series called “The Bubbler.” It will let you know what’s what and who’s who in the continually-evolving, ever-important, hard-to-keep-track-of employment law world. The Bubbler delivers current events and other important news to our readers without the time or the interest to piece through the recent legislation, the ever-growing release of regulations and other agency guidance and the lengthy court decisions. We’re your colleagues at the water cooler who tell you just enough to pique your interest (but then provide links to satisfy your curiosity). Enjoy!
Mull v. Motion Picture Ind. Health Plan educates employers on the basics of the requirements of the Employee Retirement Income Security Act (ERISA) governing plan documents and summary plan descriptions. The lessons are sobering, particularly as they relate to group health plans. Although compliance with these requirements is neither difficult nor expensive, many employers nevertheless ignore them. The decision in this case might—and, in our view, should—encourage them to reconsider.
California’s PAGA Saga continues with a pair of recently issued appellate decisions impacting these legally created class action-like lawsuits.
In a recent series of articles, we asked whether “class arbitration” — meaning the utilization of a Fed. R. Civ. P. 23 class action protocol in an arbitration proceeding — is ultimately viable. Given the nature of arbitration, we suggested that it arguably is not. We noted that the United States Supreme Court and various Courts of Appeal had examined several related procedural questions, but that they had not gotten to the core issues that would ultimately determine the viability of a class arbitration award.
The Supreme Court is set to hear oral argument in October on whether class and collective action waivers are enforceable. While employers await the Supreme Court’s decision, other courts continue to weigh in on the matter. Just last week, a New York State appellate court in Gold v. New York Life Ins. Co., 2017 NY Slip Op 05695 (App. Div. 1st Dep’t, July 18, 2017), found itself aligned with those federal circuit courts of appeal invalidating these waivers. Given the continuing disagreement among courts across the nation – both federal and state – as to whether the Federal Arbitration Act’s policy favoring arbitration should trump the National Labor Relations Act’s prohibition on contracts that restrict the rights of employees to engage in collective action, the need for clarity from the Supreme Court is more urgent than ever. Employment Matters will of course continue monitoring these important developments, so please check back in for regular updates.
As our readers know, we have been monitoring decisions regarding the ability of employers to take disciplinary action against employees for using marijuana at work (like this decision here). The most recent high court to weigh in on this topic is the Massachusetts Supreme Judicial Court, which looked at whether an employer may violate that state’s anti-discrimination law when it fires an employee because of a failed drug test based on the employee’s use of medical marijuana. The Court concluded that employers must accommodate medical marijuana users in the normal course under these circumstances to avoid a violation of that law. We discuss this important new decision – Barbuto v. Advantage Sales and Marketing, LLC – below.
Last week, lawyers for the federal government told an appeals court that the Department of Labor plans to revise the currently-blocked overtime rule issued during the Obama administration last year. But it won’t do so, it said, until the Fifth Circuit Court of Appeals confirms that it has the right to set that threshold.
After the Eleventh Circuit denied a petition for rehearing en banc last week in Evans v. Georgia Regional Hospital, LGBT advocacy group Lambda Legal announced that it will appeal the dismissal of its client’s complaint to the United States Supreme Court. Evans will petition the Court to hear the case and to hold that Title VII’s prohibition against sex discrimination includes a prohibition against sexual orientation discrimination. The Seventh Circuit created a circuit split on this issue in April when a majority of its judges decided that sexual orientation discrimination is per se sex discrimination; we wrote about that decision here.
The Second Circuit has denied a plaintiff’s request to rehear argument en banc (that is, before all of the court’s judges) in a case alleging that Title VII of the 1964 Civil Rights Act prohibits discrimination based on sexual orientation. As the court is already scheduled to hear argument en banc on this issue in another case in September, the court’s decision is not especially surprising. As we’ve discussed in several posts (see here, here and here), the federal appeals courts are currently divided on this issue and it is likely that the Supreme Court will ultimately have to decide whether Title VII’s language prohibiting discrimination “because of … sex” is broad enough to encompass discrimination based on an employee’s sexual orientation.