Phew – it has been a whirlwind of a month in the employment law world! Just in time for spring, new laws are popping up like crocuses just about everywhere we turn.

Here is your monthly rundown of the most recent developments in labor and employment law: The Supreme Court significantly narrowed whistleblower protections under Dodd Frank with its decision in Digital Realty Trust, Inc. v. Somers.  The Second Circuit became the second circuit court to prohibit sexual orientation discrimination when it issued a decision holding that sexual orientation discrimination is sex discrimination under Title VII. In New York, just as employers finished preparing for and implementing the New York Paid Family Leave law, New York City passed new legislation requiring employers to grant temporary schedule changes for qualifying personal events, and amending the requirements for employers and employees engaging in a cooperative dialogue concerning a reasonable accommodation. The Massachusetts Attorney General’s Office issued guidance on the pay equity law scheduled to take effect in July; Austin, Texas became the first Texas municipality to enact a paid sick and safe leave law; and new legislation intending to crack down on sexual harassment has been proposed in several jurisdictions, including Connecticut and New York City. Stay tuned for further updates and more details on these developments which we will be covering more extensively here in the coming weeks.

In the meantime, don’t forget to register to attend our Fourth Annual Employment Law Summit on April 19!

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.

Continue Reading Second Circuit Becomes the Second to Prohibit Sexual Orientation Discrimination

As reported by our sister blog, ADR: Advice from the Trenches, a federal district court in New York held that an arbitrator could not certify a “class” that included non-appearing members. While neither the U.S. Supreme Court nor various Courts of Appeal have grappled with the viability of a class arbitration award, courts in the Second Circuit are taking the lead in addressing such issues.

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.

Continue Reading Is “Class Arbitration” an Oxymoron — a Shoe Drops in the Second Circuit

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.

Continue Reading Second Circuit Denies Latest Request for En Banc Review in Title VII Sexual Orientation Discrimination Case

We previously discussed the conflict between a Second Circuit panel’s holding in April that Title VII of the 1964 Civil Rights Act did not prohibit discrimination on the basis of sexual orientation and the Seventh Circuit’s landmark ruling the same month reaching the opposite conclusion. The Second Circuit has now ordered en banc review of the April panel ruling, meaning that the entire court will rehear the case, and may be poised to follow the Seventh Circuit in extending Title VII to sexual orientation claims.

Continue Reading Second Circuit Orders En Banc Review of Panel Holding that Title VII Does Not Prohibit Sexual Orientation Discrimination

The Second Circuit said last week that an employer violated the National Labor Relations Act when it fired an employee who criticized a supervisor on Facebook during an election. The catch here is that the Second Circuit reached this conclusion even though the employee used profanity and hurled personal insults at the supervisor as part of his criticism.  As we discussed in a post at the time of the NLRB’s initial determination, while the employee’s conduct pushed the boundaries of protected concerted activity under the NLRA, the fact that the post contained an express pro-union message and occurred in the heat of a campaign contributed to the finding that the termination was unlawful.

Continue Reading Second Circuit Holds Termination of Employee Who Attacked Supervisor in Obscene Facebook Post Violates NLRA

As we observed in a recent post on the Seventh Circuit’s decision in Hively v. Ivy Tech Community College extending Title VII to sexual orientation claims, the Supreme Court will probably have to resolve the disagreement among the federal circuit courts over whether the statutory language “because of…sex” should be interpreted to include “because of…sexual orientation.” And sure enough, on the heels of one Second Circuit panel decision late last month that refused to extend Title VII to cover sexual orientation, a different panel of that court again declined last week to reverse its own precedent, finding that Title VII’s prohibition against sex discrimination does not extend to discrimination against lesbian, gay, and bisexual employees based purely on their sexual orientation.

Continue Reading Second Circuit Panel: No, We Still Can’t Overturn Precedent on Sexual Orientation Discrimination

Over the next two weeks we will release our Year in Review segment, which will look at the key labor & employment law developments from 2016 in New York, the DC Metro Area, Massachusetts, and California while offering our thoughts about 2017.  Today we kick off this segment with New York.  In addition, please join us in NYC on April 6, 2017 for Mintz Levin’s Third Annual Employment Law Summit as we address some of the key labor & employment issues impacting employers in 2017.  Register here

2016 brought big changes for New York State and City employers, including expansive new discrimination protections and substantial increases in the minimum wage and exempt salary thresholds.  While New York employers who successfully navigated 2016’s rush of legislative, regulatory and judicial obstacles might feel they’ve earned the right to shift their focus back from compliance issues to running their businesses, they should not lose sight of the additional challenges expected in 2017.

Continue Reading 2016 New York Employment Law Year In Review

The Second Circuit recently adopted the “Cat’s Paw” theory of liability in Title VII cases.  This was hardly a surprise as other Circuit Courts had done the same after the United States Supreme Court endorsed Cat’s Paw in a USERRA case.  But the Second Circuit went even further, allowing for the use of the Cat’s Paw argument in Title VII retaliation cases and in cases where a non-supervisory employee’s discriminatory actions lead the employer to take an adverse employment action against that employee’s co-worker.  Until now, Cat’s Paw had mostly focused on employer liability based on the actions of misbehaving supervisors in hostile work environment cases.  The decision puts additional pressure on employers to identify and eliminate discriminatory behavior in their workplaces. This post will briefly examine the Cat’s Paw doctrine and explain how the Second Circuit’s expanded its use in Vasquez v. Empress Ambulance Service, Inc., No. 15-3239 (2d Cir. Aug. 29, 2016).

Continue Reading Negligent Employers May Be Held Liable For a Non-Supervisory Employee’s Discriminatory Actions Under “Cat’s Paw” Theory Says Second Circuit