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.
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.
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.
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.
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.
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).
With the 9th Circuit’s late summer anti-class action waiver decision, the circuit split widened over the issue of whether employers can require employees, through an arbitration agreement, to waive their rights to bring class or collective actions against their employer. This issue will almost certainly reach the Supreme Court given the deepening divide and the Court’s previous apparent interest in addressing issues surrounding class action waivers and arbitration agreements.
Is the pick-off strategy to moot class actions still alive in the Southern District of New York? Possibly.
Recently, we reported on Gobeille v. Liberty Mutual, in which the Supreme Court invalidated the Vermont all-payer claims data base law. Applying what appeared to us as a straight-forward application of existing ERISA preemption jurisprudence, the Court determined that the Vermont law had an impermissible connection with ERISA plans because it governed a central matter of plan administration, and was thus rendered inoperative (or “preempted” in the parlance of ERISA). Gobeille’s holding is significant. The decision materially shifts the Federal/state balance of regulatory power, at the expense of the states, in instances where the states seek to regulate ERISA-covered employee benefit plans. This post examines an alternative approach raised in Gobeille, but not pursued, under which states might seek to regulate service providers of plans rather than the plans themselves to avoid ERISA preemption.
Sometimes a judge says what many of us are already thinking. In Rivera v. Crowell & Moring L.L.P., Katherine B. Forrest was that judge.