The Ninth Circuit Court of Appeals issued an important decision last week in Rizo v. Yovino, holding that an employer may not use an employee’s prior salary history to justify gender pay disparity under the federal Equal Pay Act.
Lots to talk about in the Labor & Employment world! The Massachusetts Pregnant Workers Fairness Act went into effect on April 1, 2018, imposing stricter non-discrimination rules on employers of pregnant workers. The U.S. Department of Labor launched the Payroll Audit Independent Determination program, which encourages employers to self-report wage and hour violations. The Sixth Circuit issued a decision in EEOC v. R.G. & R.G. Harris Funeral Homes, holding that transgendered employees are protected under Title VII, even mounted against an employer’s religious objections under the Religious Freedom Restoration Act. The Commonwealth of Massachusetts lost a step in the legal challenge to the contraceptive mandate exemptions in the Affordable Care Act, on the grounds that it did not have standing to assert the relief it sought. Still on the federal landscape, Congress added an amendment to the FLSA in the recent omnibus budget bill, providing that an employer may not keep tips received by its employees for any purpose. The Supreme Court issued an important ruling holding that service advisors are exempt from the FLSA’s overtime requirements and rejecting the principle that FLSA exemptions should be narrowly construed. The State of Washington followed suit with many other states, including California, New York, and Massachusetts, becoming the most recent state to add an updated Equal Pay Act, and a “Ban the Box” law. In the wake of the #MeToo movement, Washington also barred nondisclosure agreements in sexual harassment suits. As always, stay tuned for further updates and more details on these developments which we will be covering more extensively here in the coming weeks, including a post on the Massachusetts Pay Equity Act coming up later this week.
Finally, there’s still time! Don’t forget to register to attend our Fourth Annual Employment Law Summit on April 19.
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.
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.
Recent cases in New York and Pennsylvania demonstrate that, at least in some jurisdictions and under some circumstances, a plaintiff can state a valid claim for unlawful gender discrimination based on a spouse’s jealousy.
New York City is finishing off a strong year on the employment law front. Earlier this year, the City Council passed laws that banned the box and all but eliminated credit checks. It also passed a law requiring employers to offer their employees pre-tax transit benefits and instituted a paired testing discrimination investigation program. The Department of Consumer Affairs continued to provide guidance on the paid sick leave law, while the Commission on Human Rights welcomed a new commissioner and implemented new initiatives designed to enhance the Commission’s enforcement efforts. It also released enforcement guidance on the ban the box and credit check laws. Now, as the year comes to a close, we cover the latest flurry of legislative and administrative activity in this three-part series. First up: Enforcement Guidance on Gender Identity/Expression Discrimination.
The City Commission on Human Rights has issued broad-based guidelines that attempt to clearly define the contours of gender identity and gender expression discrimination in the workplace – an issue with which many employers continue to struggle. The guidance provides “bold and explicit” examples of actions that the Commission considers discriminatory and offers best practices for complying with the Human Rights Law.
New York City employers should pay careful attention to these new guidelines as they will impact long-standing workplace policies, practices and behaviors, including dress codes, uniforms, and grooming standards. We summarize the guidance below.
Written by Gauri Punjabi
As one employee recently learned, a supervisor’s favoritism toward another employee because of a romantic relationship does not equate to unlawful discrimination. Additionally, a complaint of said favoritism cannot serve as the basis for an actionable retaliation claim.
In Clark v. Cache Valley Electric Company, Kenyon Brady Clark, a project manager, claimed that his supervisor discriminated against him by favoring another female project manager with respect to bonuses, job assignments, and other working conditions, because the supervisor had been, or was, romantically involved with the other project manager.