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Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

DOL Issues New Employer’s Guide to FMLA

Posted in Employer Posting Requirements, Family Medical Leave Act, Leave Laws

10337425_sThe Department of Labor has issued guidance for employers on the FMLA.  The Employer’s Guide to the Family and Medical Leave Act attempts to walk employers through the FMLA process, starting with determining who is a covered employer and going through employer obligations when employees request leave.  The Guide should be a valuable resource for employers.  One of the most helpful items in the guide is the “roadmap.”

I deal with a lot of questions about the FMLA from employers on a daily basis.  In many cases, employers have jumped ahead to trying to grant the leave before first determining eligibility of the employee for leave.  The roadmap is a reminder to go through the process first of determining if the employer is a covered employer and second if the employee is actually eligible for leave. Employers are often confused whether the employee needs leave for a qualifying reason.  However, there are times that employers do not realize that an employee is not eligible for leave because the employee has not worked enough hours or does not work in a covered location.

The FMLA is definitely not easy to understand, so hopefully, this guide will help.  Of course, when in doubt, employers should consult with legal counsel.

The DOL also announced that soon employers will be required to display a new FMLA poster.  The poster has not been issued yet but according to the DOL is not really new information; rather it is supposedly a more “user friendly” version.  We will update you when the poster is issued.

Executive Order Bars Pennsylvania Contractors and Grantees from Discriminating Against LGBT Individuals

Posted in Gender Discrimination, General Employment Discrimination, Sexual Orientation Discrimination

(Many thanks to Christina, for her gracious invitation to join the blog as a regular contributor! -Brian)

In the wake of controversy over efforts in North Carolina and other states to roll back legal protections for lesbian, gay, bisexual, and transgender (“LGBT”) people, Pennsylvania’s taking a different approach.

On April 7th, Pennsylvania Governor Tom Wolf issued Executive Order 2016-05, hailing it as an effort to combat discrimination.  The Commonwealth’s Department of General Services will now require contractors and grantees to agree not to discriminate in hiring, promotion, or other labor matters, or in the award of subcontracts or supply contracts.

Specifically, contractors and grantees will be required to agree not to discriminate on the basis of race, gender, creed, color, sexual orientation, or gender identity or expression.  The EO defines sexual orientation as heterosexuality, homosexuality, or bisexuality.  Gender identity or expression is defined as an individual’s gender-related identity, appearance, mannerisms, expression, or other gender-related characteristics, regardless of the individual’s sex at birth.

Notably, EO 2016-05 requires agency heads to recommend to the Secretary of General Services such sanctions “as may be appropriate” for entities that fail to comply with Commonwealth contracting programs.  Coupled with provisions that establish compliance, reporting, and audit systems, this EO suggests the Wolf administration intends to pursue enforcement through a broad variety of executive branch tools—with a particular eye toward addressing discrimination on the basis of sexual orientation or gender identity.

The Department of General Services will also be charged with ensuring that contractors and grantees have a written sexual harassment policy and that the contractor’s or grantee’s employees are aware of that policy.  These requirements are expressly made a condition of payment or funding—heightening the urgency for contractors and grantees to review their current policies and employee training programs on non-harassment and non-discrimination.

As a result of this EO, Commonwealth contractors/grantees and potential contractors/grantees should contact knowledgeable employment counsel to ensure compliance, as the Department of General Services begins to set up enforcement efforts.

Are You Ready for a Zombie Apocalypse?

Posted in 5 Minute Laugh, Leave Laws, Sick Leave

13176052_sWith the flu going around our office in the last few weeks, I have heard lots of talk in the workplace about sick days.  Not complaints that employees who are sick do not have time available as they have quite a bit of PTO time, more complaints from other employees about why sick employees are coming to work.

Today alone, I was afraid when I came back from lunch that the employees might have risen up with pitchforks and torches against one employee who returned to work after being out sick the last few days with the flu, who for his or her own sake will not be named here.

I know mandatory sick leave laws are a headache for employers.  Complying with multiple sick leave laws in a variety of jurisdictions can be very complicated as well as costly for employers. The current iteration of sick leave laws do not realistically address challenges faced by small employers and add layers of complication to the administration of tracking leaves.  However, having a sick leave policy available definitely helps with employee morale issues.

Also, having a pandemic illness policy, i.e., when do you force employees to remain out of work, would certainly help, regardless of whether it is a flu pandemic or some or insidious zombie virus with which you are dealing. If you feel unprepared for a zombie apocalypse, don’t fret.  The CDC has you covered.  See, for example,  Preparedness 101_Zombie Apocalypse.

You cannot be less prepared for a zombie apocalypse than this poor girl whose brothers played an awful trick on her while she was high on anesthesia:

No April Fools: Mayor De Blasio Signs Into Law FIVE Amendments Broadening The New York City Human Rights Law

Posted in General Employment Discrimination, General Employment Matters, New York City Human Rights Law, Sexual Orientation Discrimination

5 DiscriminationAs we wrote about last week, the New York City Council passed legislation seeking to bolster the New York City Human Rights Law (NYCHRL).  Although the NYCHRL was already one of the most employee friendly statutes in the nation to begin with, especially in light of the 2005 Local Civil Rights Restoration Act, the legislature decided it was time to make New York City even friendlier to bring a discrimination claim.  Mayor Bill de Blasio has now signed into law several amendments (five to be exact) that push the NYCHRL further, three expanding its employment discrimination protections, one with respect to public accommodation discrimination, and one regarding housing discrimination.

Int 814-2015 amends the NYCHRL to explicitly state that any and all exceptions and exemptions found in the statute must “be construed narrowly in order to maximize deterrence of discriminatory conduct.”  This new law also codifies directly into the NYCHRL three notable decisions that purportedly embody the NYCHRL’s broad protections: Bennett v. Health Management Systems, Inc., 92 A.D.3d 29 (1st Dep’t 2011); Albunio v. City of New York, 16 N.Y.3d 472 (2011); and Williams v. New York City Housing Authority, 61 A.D.3d 62 (1st Dep’t 2009).  This provision is effective immediately.

Int 818-2015 modifies the NYCHRL to now allow attorneys’ fees and expert fees in an administrative proceeding before the New York City Commission on Human Rights. This mimics the attorneys’ fees that were previously available to a prevailing plaintiff in a state or federal court action.  This provision is effective immediately.

Int 819-2015 repeals several NYCHRL provisions which previously interpreted and limited the reach of the law’s sexual orientation protections.  This new law eliminates various exceptions and clarifications in the NYCHRL that stated, among other things, that an employer could insist an employee meet a bona fide job-related qualification based on sexual orientation, an employer was not required (or allowed) to establish affirmative action quotas based on sexual orientation, and that an employer was not subject to the law if it employed fewer than four persons or was a religious, charitable, or educational institution operated, supervised, or controlled by a religious organization.  However, these prior exclusions have all been removed.  This provision is effective immediately.

Int 805-2015 expands the public accommodation protections under the NYCHRL to franchises, franchisees and lessors.  Moreover, this amendment states that businesses cannot deny full and equal enjoyment of all services, facilities, and/or privileges at public accommodations based on any protected characteristics.  Even more striking is the expansion of the prohibitions against discriminatory advertisements.  Any marketing language that indicates any individual is unwelcome, objectionable, not acceptable, undesired, or unsolicited because of such person’s actual or perceived protected characteristics, is now unlawful.  This provision is effective July 26, 2016.

Finally, Int 832-2015 amends the housing discrimination provisions in the NYCHRL to now preclude owners, lessors, managing agents, and real estate agents from discriminating against victims of domestic violence, sex offenses, and/or stalking.  This provision is effective July 26, 2016.

Links to the new enactments are provided above.  While an expanding NYCHRL is nothing new, employers should be continually wary and ensure they are prepared to deal with New York City’s uniquely protective employment and other discrimination laws.  Even one misstep may result in a discrimination claim that will be incredibly difficult to defend.  Remember, at least in New York City, this includes reviewing all language in advertisements or other marketing materials that could potentially run afoul of the expanded public accommodation protections.  We will of course keep you updated as these new provisions are interpreted by the courts.

USWNT: Complaints of Being Kicked to the Curb by US Soccer

Posted in Equal Pay

This week, the US Women’s National Soccer Team filed suit against the USA Soccer, claiming that they are not paid commensurately with their male counterparts.  The USWNT, who is possibly the most popular and profitable female sports enterprise on the planet, has been locked in labor discord with USA Soccer for the better part of the last fifteen years, largely over pay issues.

alexmorgan

There are really two issues to the suit filed by lead plaintiffs Alex Morgan (pictured above), Hope Solo, Carli Lloyd (she of the World Cup hat trick), Megan Rapinoe, and Becky Sauerbrunn, which are applicable to any workplace.  First, are they similar situated to Tim Howard, Clint Dempsey, & Co. on the Men’s team?  And second, if the answer is yes, do the profit centers of each particular team mandate that they be paid in accordance with them?  Attorneys for the USWNT offer an emphatic yes to both questions, arguing that the team has been more profitable than the Men’s team for years.

The lessons are twofold and can be applied to any pay discrimination case.  First, are the comparators true counterparts?  I’m guessing that USA Soccer will argue no, and that the two teams compete in what are essentially two different sports that are no more alike than football is to baseball.  Second, if they are deemed to be similarly situated, the conversation will turn to the revenue produced by each team.  The USMNT knows this, which is why their Complaint provides a detailed account of the revenue numbers of both teams.

Gender pay disputes in professional sports are bubbling to the surface (See also: ATP remarks about women’s tennis).  The most prominent female sports franchise in the world would like to take the first crack at the issue in the courtroom.

(Note:  There are also ancillary issues in the case as to whether certain collective bargaining agreements made between the parties are valid.  This is also an important piece of the case and will affect the claim of discriminatory pay.)

Despite North Carolina And Georgia, Gender Identity And Sexual Orientation May Be Protected Under Federal Law

Posted in Gender Discrimination, Gender Identity or Expression, General Employment Matters, Sexual Orientation Discrimination

Title VIIAs my colleague Christina Stoneburner posted yesterday and today, North Carolina recently enacted the Public Facilities Privacy & Security Act, which, among other similar state laws that continue cropping up (such as the recently vetoed religious exemption bill in Georgia), curtails protections based on Lesbian, Gay, Bisexual, and/or Transgender (LGBT) status.  These proposed laws have drawn significant media attention and are likely to continue expanding and developing in the foreseeable future.  However, despite these local exceptions, please remember that federal law may still apply.

The Equal Employment Opportunity Commission (EEOC) has taken an aggressive position on sexual orientation and gender identity under federal law, finding they are both protected under Title VII of the Civil Rights Act. Several federal court decisions have found the same, including for example, a recent decision by the federal district court in Arizona, which found with almost no analysis or fanfare, that a transgender prison guard is clearly entitled to protection under Title VII. Doe v. Arizona, No. CV-15-02399-PHX-DGC, 2016 WL 1089743 (D. Ariz. Mar. 21, 2016).  This decision illustrates just how far Title VII jurisprudence has evolved over the past decade.  Many district courts regularly hold that transgender and/or sexual orientation status is protected under federal anti-discrimination laws.

Previously such theories were not readily accepted, and even today remain debatable. Courts have had trouble in the past resolving the dissonance of Congress’ intent, which specifically excluded from the Civil Rights Act sexual orientation and gender identity as protected characteristics.  Indeed, Congress has repeatedly refused to expand Title VII to list sexual orientation and gender identity as protected categories through the Employment Non-Discrimination Act (ENDA).

However, the United States Supreme Court originally opened the door for these gender identity and sexual orientation status protections in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v. Sundowner Services, 523 U.S. 75 (1998).  To recap, very briefly, Hopkins involved a woman who was “too aggressive” and “not feminine enough,” and was ultimately passed over for partnership. The Court found that discrimination for failing to live up to gender stereotypes was actionable. Oncale similarly found same-sex harassment, in this case men harassing other men on an oil rig, was actionable because the harassment was based on expected gender norms.  Since then, the EEOC and some intermediate federal appellate courts have applied this reasoning and found that Title VII can protect transgender status and/or sexual orientation based on these gender norm theories. Macy v. Holder, App. No. 0120120821, 2012 WL 1435995 (EEOC Apr. 20, 2012); see also Glenn v. Brumby, 663. F.3d 1312 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).

As a result, for prudent employers, the question may be moot even in states that may curtail transgender and/or sexual orientation protections.  A body of federal cases protecting against gender identity and/or sexual orientation status discrimination exists and continues to develop.  In addition, many state and local jurisdictions affirmatively provide such protections (e.g., California and New York).  Until further guidance is provided by the Supreme Court or Congress, it would be best to assume discrimination based on these protected characteristics remains prohibited nationwide.

Update: North Carolina Attorney General Refuses to Defend Bathroom Law Against Legal Challenge

Posted in Gender Identity or Expression, General Employment Matters, Sexual Orientation Discrimination

45810489_sThings seem to be developing rapidly in North Carolina.  Just yesterday morning we reported that the ACLU had filed a challenge to the Public Facilities Privacy & Security Act that was passed last week and signed by Governor McCrory.   The response from the North Carolina’s Attorney General’s Office was immediate and decisive:  the AG would not defend this law against the legal challenge filed by the ACLU.

The AG, Roy Cooper, in making his announcement noted that businesses all over the country had taken a strong stance against the law.  New York Governor Andrew Cuomo and the cities of Seattle and San Francisco have banned all nonessential public travel to North Carolina.

The fact that the AG will not defend the law does not mean that lawmakers will not appoint a private attorney or law firm to do so.  In fact, at least one Republican Senator has condemned Cooper’s refusal to defend the law.

What may be getting lost in all of the drama is what the outcome means for employers in North Carolina.  In the immediate future, if the law is repealed or judicially overturned, then Charlotte’s anti-discrimination ordinance will go into effect, which may require some updates to employers’ policies and handbooks.  It also means that municipalities will be free to enact other employment related laws, including increasing the minimum wage.

ACLU Seeks to Flush North Carolina’s Public Facilities Law

Posted in Gender Identity or Expression, Sexual Orientation Discrimination, U.S. Equal Employment Opportunity Commission (EEOC)

Just days after North Carolina lawmakers passed the controversial Public Facilities Privacy & Security Act (“Act”), the American Civil Liberties Union (“ACLU”) has filed a lawsuit challenging the law.

6276693_sAlthough the title of the Act seems to imply that it just addresses the use of public restrooms, the law actually goes far beyond that.  Opponents of the Act, say that it is a sweeping attack on the LGBT community.

North Carolina legislators passed the Act after the city of Charlotte enacted an ordinance making it illegal to discriminate against people on the basis of sexual orientation and gender identity. The Act not only states that people must use restrooms assigned to their “biological sex,” it prohibits any municipality from passing certain laws regarding employment.  This means that local governments cannot pass anti-discrimination laws or laws that affect the wages of employees such as minimum wage hikes.

Many employers may like the idea of uniform state-wide consistency in the laws.  However, many businesses have already publicly condemned the law.  In some states, such as Georgia, corporations’ attacks on such laws have doomed them.  As of today, although some businesses have blasted the law, others have publicly supported it.  So far, no corporation has actually threatened to pull its business or refuse to conduct future business in the state.  It is unclear whether corporate pressure, on either side, will affect the political process.

It is also questionable whether this law as drafted will be upheld. It will be interesting to see if the courts expand the Obergefell v. Hodges decision to strike down the law as being unlawful discrimination.  The EEOC has been taking a very aggressive position that sexual orientation and gender identity are protected under Title VII’s prohibitions on gender discrimination.  If the EEOC is right that the existing federal laws prohibit discrimination on the basis of sexual orientation and gender identity, then the Act not only implicates Title VII, it implicates Title IX since it applies to public universities.  Schools found to be in violation of Title IX can lose federal funding.

Although the EEOC has been pushing the boundaries of Title VII interpretation, so far the issue of whether Title VII does in fact outlaw discrimination based on sexual orientation has not been addressed by the Supreme Court.  North Carolina lawmakers may have unwittingly pushed this issue to the Supreme Court

 

Back In The Saddle Again: New York City Council Votes To Broaden The New York City Human Rights Law For A Second Time

Posted in Federal/State/Local Laws, General Employment Discrimination, New York City Human Rights Law

Legislation

As a nice follow-up on New Jersey’s proposed expanded equal pay and discrimination protections that my colleague Christina Stoneburner wrote about yesterday, New York City appears to be following suit and will be bolstering (yet again) the New York City Human Rights Law (NYCHRL).  On March 9, 2016, the New York City Council passed (with only one dissenting vote) a bill that reaffirms the liberal and uniquely broad nature of the NYCHRL.  If signed into law, this amendment will ensure that New York City’s local anti-discrimination law will become even more employee friendly in the years to come.  The bill is currently awaiting Mayor Bill de Blasio’s signature.

Back in 2005, the New York City Council enacted the Local Civil Rights Restoration Act, which found that the broad and unique remedial purposes of the NYCHRL necessitated a separate and employee friendly construction of the statute by the Courts. This contradicted many cases at the time that interpreted the NYCHRL similarly to federal and state law counterparts.  After its enactment in 2005, the courts grappled with just how far this liberal interpretation was meant to go.  Most courts interpreted the NYCHRL as instructed, weakening the customary defenses available to employers and curtailing their ability to defend even the most threadbare of discrimination and/or harassment claims.

Despite numerous incredibly employee friendly decisions since then, the New York City Council has now found it necessary to go even further. The Council’s proposed bill would amend the NYCHRL to explicitly state that any exceptions or exemptions found in the statute must “be construed narrowly in order to maximize deterrence of discriminatory conduct.”  In addition, this proposed law would also codify directly into the NYCHRL three notable decisions that purportedly embody the NYCHRL’s broad protections: Albunio v. City of New York, 16 N.Y.3d 472 (2011); Bennett v. Health Management Systems, Inc., 92 A.D.3d 29 (1st Dep’t 2011); and Williams v. New York City Housing Authority, 61 A.D.3d 62 (1st Dep’t 2009).

This is certainly nothing new or unexpected for any employer that has had to deal with New York City’s uniquely protective laws. However, added caution when dealing with any harassment or discrimination issue, particularly in New York, is always welcomed and will make your friendly neighborhood employment attorneys happy.  We will of course update you once the mayor formally signs this proposed legislation into law.