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.

Continue Reading Sixth Circuit Delivers One-Two Punch Knocking Out Transgender 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.

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

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.


On Wednesday this week, all nine justices agreed that the Dodd-Frank Act’s anti-retaliation provision does not extend to an individual who has not reported a violation of the securities laws to the Securities and Exchange Commission (“SEC”).  In other words, making only internal complaints does not shroud an employee in whistleblower protection under the Dodd-Frank Act.

Continue Reading SCOTUS: Whistleblowers Who Complain Only Internally to Employers Are Not Protected by Dodd-Frank

As we reported in an earlier blog post, the Federal Trade Commission and Department of Justice issued guidance in the waning days of the Obama administration reminding HR professionals and others that the antitrust laws could apply in the employment arena, particularly with respect to hiring and compensation matters. There was some question about how vigorously the Trump Administration’s antitrust enforcement would be in this area, but those questions should no longer exist. 2018 is already turning out to likely be an important year regarding antitrust attacks on “no-poach” agreements between businesses, with a class being certified in a major damage action and the head of the Department of Justice Antitrust Division indicating last month that criminal indictments based upon such agreements would be shortly forthcoming. Executives and HR Departments should recognize the significant risks associated with express or implied agreements or “understandings”—or even “gentlemen’s agreements”—where businesses agree not to hire (or poach) each other’s employees or executives.

Continue Reading Antitrust Attacks on “No-Poach” Agreements Between Employers Accelerating

As reported by our sister blog, ADR: Advice from the Trenches, the Sixth Circuit determined that an employer’s notice of its mandatory arbitration policy — without more to secure the employee’s knowing assent to this employment term — is not enough to compel arbitration. While this only applies in the Sixth Circuit (for now), it’s an important development in this area of the law.

On January 12, 2018, the Maryland Senate joined the Maryland House in voting to override Governor Hogan’s veto of House Bill 1, the Maryland Healthy Working Families Act, which requires employers to provide paid sick and safe leave to hundreds of thousands of Maryland workers. The bill was enacted upon the Senate’s override and will become effective on February 11, 2018, unless the General Assembly passes emergency legislation that was introduced on January 23, 2018 to delay implementation of the law by an additional 60 days.

This emergency bill is designed to give both employers and state administrative agencies more time to implement the law’s requirements. It is not yet known whether there are enough votes to delay implementation of the sick and safe leave law, but we will continue to provide updates on the status of this bill in the coming days.

The sick and safe leave law requires employers with 15 or more workers to allow them to earn up to five days per year of paid leave, which employees may use for their own illnesses or to attend to issues related to domestic violence or sexual assault. Employers with fewer than 15 employees would be required to allow workers to earn the same amount of unpaid leave. We will update this post when more information becomes available.

Did you get your first request for paid family leave yet?  Well it’s finally here – New York State’s Paid Family Leave law finally touched down in workplaces across the state on New Year’s Day.  As of this writing, millions of New York employees are now entitled to eight weeks of paid family leave benefits and the job protection rights that come along with it.  This is a significant development for the State, legally and culturally.  Employers have spent many months preparing (and we’ve spent many months helping them prepare) for the new law’s arrival and now it’s time to execute on those implementation plans.

We wrote extensively about the new law and its interpreting regulations here.  We encourage you to read or revisit that post as it serves as a guide for employers seeking to comply with the new law.  For specific questions, please feel free to contact us directly.  And stay tuned as we will be updating this blog with new developments in the coming months.  In the meantime, for those of you who are getting a bit of a late start, here is a brief summary of the new entitlement and what is required to comply.

Continue Reading Reminder: New York Paid Family Leave Is Now In Effect

2017 is in the books and 2018 is now upon us.  A dramatic close to 2017 on Capitol Hill ushered in sweeping changes to the tax code that will begin to impact both employers and employees in a number of ways – some more immediately – from employers losing deductions for sexual harassment settlement payouts, to penalties for high nonprofit executive compensation, to tax deferral on exercise of stock options for public company executives, to employee benefit plans.  Wage and leave-related issues are also likely to dominate in 2018, as more states (and employers on their own initiative) increase wage thresholds and broaden employee paid and unpaid leave entitlements (even for some smaller employers).  Salary history bans, such as those already enacted in New York City, Massachusetts, and California, will continue to get traction in 2018 as more states and municipalities jump on that bandwagon.  We also expect to continue to witness a significant shift in the NLRB’s enforcement policy and decision-making; the NLRB’s new General Counsel has already announced a number of changes that are sure to make employers sigh with relief.  Also in 2018, employers could continue to face rising uncertainty with respect to health plans in the wake of the tax bill’s repeal of the individual mandate that was central to keeping health plans affordable under the Affordable Care Act.  Finally, so that we can help keep you accountable to the five New Year’s resolutions we made for you over the holidays (that we know you were eager to adopt as your own), we have collected them for you here:  (1) review and refresh your non-harassment policies and training; (2) update your leave policies; (3) make sure your job applications comply with new state ban-the-box laws and salary history inquiry bans; (4) assess the strength and enforceability of your post-employment covenants under changing state law; and (5) make sure your employee benefit plans are compliant.