California has joined a growing list of jurisdictions, including New York City, Massachusetts, Delaware and Oregon, among others, banning salary history inquiries from job applicants. Governor Brown signed the law into effect last week and it becomes effective on January 1, 2018.
Beginning on October 31st, New York City employers will be prohibited from inquiring about or relying on salary history during the hiring process. As a reminder, this ban makes it an unlawful discriminatory practice for an employer, employment agency, or employee or agent of the employer to: (1) inquire about the salary history of an applicant; or (2) rely on salary history of an applicant to determine salary, benefits, or other compensation for such applicant during the hiring process. Employers should revise their hiring processes in order to comply with the new law as soon as possible.
Recently, the New York City Commission on Human Rights released guidance regarding the ban on salary history inquiries in the form of two “Fact Sheets.” Both Fact Sheets answer the same questions, one from the perspective of employers, the other from the perspective of job applicants. The Fact Sheet for Employers provides the following questions and answers:
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.
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!
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.
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.
In a decision that will provide some solace to employers asked to permit remote work as a reasonable accommodation under the Americans with Disabilities Act, the United States Court of Appeals for the Fifth Circuit recently held that the ADA did not require the Louisiana Attorney General’s Office to permit a litigation attorney to work from home indefinitely. In Credeur v. State of Louisiana, No. 16-30658 (5th Cir. June 23, 2017), the court determined that the employer did not fail to accommodate the attorney’s disability in violation of the ADA by denying her request to work remotely because it considered regular on-site attendance an essential function of her job and the statute and regulations required the court to “give the greatest weight to the employer’s judgment” on this issue.
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.
A recent Fourth Circuit ruling in a case handled by Mintz Levin provides some comfort to employers concerned about terminating an employee who they believe has made a false complaint of discrimination. In Villa v. CaveMezze Grill, the Court ruled that an employer who fires an employee based on a good faith belief she engaged in misconduct is not liable for retaliation even if it later turns out that she had not, in fact, engaged in the misconduct. Affirming the lower court’s entry of summary judgment in a unanimous published opinion, the court opined that the employer could not be liable for retaliation because it lacked a retaliatory motive when it terminated a former employee. That is because the employer did not terminate the employee in retaliation for reporting the alleged harassment, but rather because it genuinely – albeit mistakenly – believed she had fabricated the report.