This past week, a news story appeared in New Jersey that caught my eye. It was the story of an eighth grade female basketball player at St. Theresa’s school in Union County. Admittedly, the story initially piqued my interest because it was set at was my childhood parish, with the accompanying warm memories of playing basketball in the parish hall gym.

But after reading the story, it was a great illustration of how to handle opportunities in the workplace that, for one reason or another, are not available to all genders. St. Theresa’s had previously made a decision to cut the girls eighth grade basketball team due to low enrollment. However, the boys’ eighth grade program was left intact. Thereafter, the girl sought to play on the boys team but was rebuffed by the archdiocese.

sttheresas

In fairness to the archdiocese, it offered her the opportunity to play on the girls basketball team at a neighboring parish. Her family declined the offer and brought suit. This week, the court dismissed the case as a matter of law, saying that there was no implicit right to play on a team of the other gender.

While your company likely does not have single-gender sports teams, there are undoubtedly company activities that intentionally or unintentionally segregate by gender or another identifier. We discourage such practices. Even if separate activities are provided to both genders, there runs the risk that one activity will be seen as more desirable than the other.

To the extent that you must segregate workplace activities by gender, make sure the terms and conditions (time, place, budget) are the same for both. Also, ensure that decision makers and senior employees attend both events, regardless of their gender.

We are just rounding out our list of new employment laws before the clock strikes midnight tomorrow.

If you missed the first two parts of our list of new laws, you can find them here and here.

It seems that we are not done with sick leave laws.  Illinois recently passed the Employee Sick Leave Act.  Before Illinois employers panic, this law does not require that employers provide paid or unpaid sick leave.  The law simply requires that employees be given greater flexibility in how they can use sick leave benefits that may be provided by employers.  Basically, employees must be permitted to use up to half of their accrued sick leave benefits for absences due to an illness, injury, or medical appointment of the employee’s child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.

Switching gears from sick leave laws, the new I-9 forms have finally been issued.  Employers must use the new I-9 forms beginning on January 22, 2017.  More details can be found on our Immigration View blog here.

In perhaps the most unusual news, Portland, Oregon has made history as being the first jurisdiction to implement a CEO tax for highly compensated executives.  Starting on January 1, 2017, any company who has a CEO who makes 100 times the average employee’s income will see their corporate tax rate increased by 10%.  If the CEO makes 250 times the average employee’s income, then the increase will be 25%.

Finally, what round-up would be complete without some mention of California.  It seems that new employment laws in California are as frequent as a Kim Kardashian selfie.  Although there are several new laws for 2017, the ones going into effect in January are changes to California’s Fair Pay Act, an increase in the minimum wage, and restrictions on arbitration agreements:

  • Fair Pay Act — the protections against discriminatory pay will go beyond gender.  Under the amendments to the law, employees must be given equal pay for equal work regardless of gender, race or ethnicity.
  • Arbitration Protections — There are two new statutes that provide additional protections from employees who may be subject to arbitration agreements.  The first is to state that any party to an arbitration proceeding has a right to have the proceeding recorded by a certified shorthand reporter.  The second is more substantive and prohibits employers from requiring California employees to arbitrate or litigate their claims in any other state besides California, nor can choice of law provisions apply any other states’ laws.
  • Minimum Wage — The minimum wage will increase to $10.50 per hour for any employer with 26 or more employees.

Hopefully, our list of new employment laws did not depress you so much that you over indulge in champagne on New Year’s Eve!  Starting the New Year with a hangover is bound to get you off on the wrong foot.

 

The end of the year, that is.  Although given the number of celebrity deaths in the last week, I think some people might be reading that headline a little more broadly.  We are not making doomsday predictions, however.

Back in the fall, we started a list of employment laws that were going to go into effect in January 2017.   We tried to get a jump start on the list as we knew how quickly the end of the year can creep up on you.  How right we were as the Fall flew past and now we find ourselves just days away from the New Year without having updated the list.

Our first big update is to remind everyone that the FLSA salary test has been enjoined.  The other big changes have to do with sick leave laws.  The last few years have seen a lot of jurisdictions adopting sick leave laws.  This year is no exception. The sick leave laws going into effect in January 2017 are as follows:

  1. Executive Order 13706 — Back in September, President Obama issued an Executive Order that applies to federal contracts entered into, sent out for bid, or renewed after 1/1/17.  The EO requires that contractors provide up to a maximum of 56 hours paid sick leave per year.  The DOL has issued guidance for the Final Rule, which can be found here.
  2.  Morristown, New Jersey becomes the latest New Jersey municipality to have a paid sick leave law.  The law goes into effect on 1/11/17 and requires employers with 10 or more employees to provide up to 40 hours of paid sick leave.  Employers with less than 10 employees are not exempt from the law; they only have to provide 24 hours of sick leave.
  3.  Vermont –  The law applies to employers with 6 or more employees and goes into effect on 1/1/17.  This law does have two phase-in provisions.  For employers with less than 6 employees, the law will not be effective until 1/1/18.  For other employers, in the first year, they must only provide up to 24 hours of sick leave.  After the first year, employers must provide up to 40 hours of sick leave.
  4.  Spokane, Washington – This law is also effective as of 1/1/17 and is similar to Morristown’s law in that there are different requirements for employers with 10 or more employees and less than 10 employees. Employers with 10 or more employees must provide up to 40 hours of paid sick leave while employers with less than 10 employees must provide up to 24 hours of sick leave.

The laws will not only require a review of policies to insure that employees are being provided with sick leave, they also come with record keeping requirements and notice requirements.  Employers with questions are encouraged to seek the advice of employment counsel.

Delaware’s legislature and Governor have been busy bees in 2016.  This post details three protections added to Delaware’s employment discrimination law in 2016, two of which become effective on December 30th (i.e., next Friday).  Specifically, these laws protect employees on the basis of an employee’s (1) reproductive health decisions, (2) family responsibilities, and (3) wage discussions or disclosures.  Also worth noting:  each of these three provisions applies to employers who have 4 or more employees within the state at the time of an alleged violation.

Legislation

Reproductive Health Decisions

Effective December 30, 2016, Delaware employers should be aware that it is an unlawful employment practice to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment (including failure/refusal to hire or discharge) because of a “reproductive health decision” by the individual. Reproductive health decision is defined as any decision “related to the use or intended use of a particular drug, device, or medical service, including the use or intended use of contraception or fertility control or the planned or intended initiation or termination of a pregnancy.”

It’s noteworthy here that this section doesn’t limit the prohibition against discrimination to actions taken against employees; that is, applicants are protected under this definition.  Nor is there language that carves out certain religious employers from this law, unlike there is for sexual orientation and gender identity under Delaware law.  As a general matter, an employee’s reproductive health decisions are probably not something most employers are (or should be) interested in, but as of December 30th, employers should not use any such knowledge they may have as the basis of an adverse employment action.

Family Responsibilities

Effective December 30, 2016, Delaware employers also may not engage in certain discriminatory acts based upon an employee’s “family responsibilities.”  As defined in the statute, family responsibilities means an employee’s caregiving obligations “to any family member who would qualify as a covered family member” under the FMLA.  This section does, however, permit employers to take certain actions “with respect to the employer’s attendance and absenteeism standards that are not protected by other applicable law and inasmuch as the employee’s performance at work meets satisfactory standards.”  It will be interesting to see if the Delaware Department of Labor issues any regulations or guidance to further clarify this section.

It’s also important to note that this law does not create an entitlement to leave for purposes of family responsibilities in and of itself.  The law itself notes that employers are not obligated to make special accommodations for employees who may have family responsibilities.  Rather, this is a non-discrimination provision, meaning the employer must apply its policies “related to leave, scheduling, absenteeism, work performance and benefits” in a manner that is not discriminatory against employees with family responsibilities.  This law provides another reason for employers to audit their workplace policies and practices — and seek any needed training — on these items to ensure compliance moving forward.

Wage Discussions/Disclosures

Delaware employers should also note that since June 30, 2016, it has been an unlawful employment practice under state law to:

(1) Require as a condition of employment that an employee refrain from inquiring about, discussing, or disclosing his or her wages or the wages of another employee;  (2) Require an employee to sign a waiver or other document which purports to deny an employee the right to disclose or discuss his or her wages; [or] (3) Discharge, formally discipline, or otherwise discriminate against an employee for inquiring about, discussing, or disclosing his or her wages or the wages of another employee.

The law does not obligate employers or employees to discuss wages; instead, it merely provides state law protection for employees who do choose to discuss wages.  A number of other states across the country have similar provisions.
Need to get up to speed on how these new laws may affect your workplace (including any needed updates to your employee handbook)?  Give us a call, or email us!

Bloomberg BNA is out with a news story about a recent case filed in federal court in Georgia, which poses an interesting question:  does Title VII protect an employee on the basis of his or her spouse being a member of a different race from the employee?  Among the Circuit Courts of Appeals that have tackled this question, the answer is yes.  We’ll get to the reason why momentarily, but first, let’s take a look at the new case in Georgia:

Costco Wholesale Corp. permitted discrimination and harassment of a black female worker married to a white man, according to a federal lawsuit filed in Georgia . . .

Levara Speight brought associational discrimination claims under Title VII of the 1964 Civil Rights Act and the Civil Rights Act of 1866 (42 U.S.C. § 1981) against Costco, in addition to race bias, harassment and retaliation claims.

She alleged that a supervisor and a co-worker, who are both black, began to harass her after they discovered that her husband is white. She claimed that she was told, “You’re not black,” that she acted “like a 16-year-old white girl,” and that she liked “white people music,” such as Billy Joel. Speight, a pharmacy technician, said she was demoted to a cashier position after she complained about the harassment.

 

This kind of claim is known as associational race discrimination and is based on a quite simple concept.  A claim of this kind is premised on the idea that discriminating against an employee because the employee’s spouse is of a different race necessarily implicates the employee’s own race. Here, the plaintiff is arguing that she was subjected to race-based harassment because of her interracial association, in that she (an African-American woman) is married to a man of a different race (Caucasian).  Thus, the discrimination is necessarily based on her own race, in addition to that of her husband.  (If this concept sounds familiar, you may have read about it in the context of LGBT employees pursuing sex discrimination claims.)

While claims of this sort are not particularly common, they can be viable, depending on the circumstances.  Associational race discrimination cases also raise an important follow-up question:  what kind of association is required to support a claim?  While spousal relationships have been recognized as sufficient by courts that have considered the issue, the limits of an associational relationship remain an open question in many jurisdictions.

To learn more about this case and this type of claim, I encourage you to read the whole article, for which (shameless plug alert) I provided commentary.

Employers take note:  the EEOC has issued an updated Strategic Enforcement Plan (“SEP”) for fiscal years 2017-2021.

What’s a Strategic Enforcement Plan?

The EEOC’s SEP describes the areas that will be a priority focus for its enforcement efforts over a particular period of time.  In some instances, it describes a particular component of the employment relationship (for example, the application process) that it will scrutinize more.  In other instances, it describes a particular basis of discrimination that it will focus on (for example, employees who are or are perceived to be Muslim, or LGBT employees).  Ultimately, the SEP is best understood as a kind of statement of intent–i.e., where the EEOC will focus resources in the coming years.

What Isn’t a Strategic Enforcement Plan?

The EEOC’s SEP is not a statement of exclusion.  That is, just because a specific workplace issue or protected characteristic is omitted (or not emphasized) within the SEP doesn’t mean the EEOC will ignore that particular issue or characteristic.  Employers should expect that the EEOC will continue to enforce all of the relevant discrimination laws on the books.  The SEP merely acts as a guide for the EEOC to focus its enforcement efforts.

What Will the EEOC’s Priorities Be Under the Updated Strategic Enforcement Plan?

The EEOC’s SEP has identified six national priority areas for enforcement in FY 2017-2021:

1.  Eliminating Recruitment/Hiring Barriers.  Moving forward, the EEOC will put additional emphasis on recruitment and hiring.  This includes exclusionary policies and practices.  In addition, the EEOC has noted it will focus on job channeling/steering and job segregation; restrictive applications; pre-employment tests/screenings and background checks that affect African-American and Latino employees; date-of-birth inquiries that affect older employees, and medical questions that affect people with disabilities. On the issue of restrictive applications, the EEOC has also highlighted online application systems that are inaccessible to applicants with disabilities.

2.  Protecting Vulnerable Workers and Underserved Communities.  Evaluating local issues and concerns, the EEOC’s district offices will identify particular vulnerable workers and underserved communities for enforcement attention.  As an example, the EEOC notes that some offices may target discrimination against Native American employees for increased focus.

3.  Addressing Selected Emerging and Developing Issues.  These include: qualification or leave policies that discriminate on the basis of disability; accommodations for disabilities and pregnant workers; protecting LGBT employees from sex discrimination; addressing discrimination laws in the context of evolving job market structures/relationships (for example, temps, staffing agencies, independent contractor relationships, the on-demand or “gig” economy, etc.); and “backlash discrimination” against Muslims, Sikhs, persons of Arab, Middle Eastern, or South Asian descent (or perceived members of these groups).

4.  Equal Pay.  The EEOC will continue its efforts to address sex-based pay discrimination under Title VII and the Equal Pay Act and will also focus on pay practices that discriminate on any protected basis.  In particular, the EEOC has noted pay discrimination on the basis of race, ethnicity, age, and disability remains an issue that it intends to continue targeting.

5.  Preserving Access to the Legal System.  The focus here will be on employer policies or practices that it perceives as limiting employee rights, discouraging employees from exercising their rights, or impeding the EEOC’s efforts.  In addition to retaliation, the EEOC has indicated it will focus on overly broad waivers/releases, certain mandatory arbitration agreements, and employer failure to retain required applicant/employee data.

 6.  Preventing Systemic Harassment.  The EEOC notes that over 30% of charges allege harassment (and that “the most frequent bases alleged are sex, race disability, age, national origin and religion, in order of frequency”).  The EEOC has stated it will seek to promote “holistic prevention programs” that it believes will serve as a deterrent to violations.

Of course, this brief summary is not exhaustive; click here for the full document.  Ultimately, the updated SEP is a reminder for employers to review their policies and practices as 2016 draws to a close, in order to ensure compliance.

34383097 - veterans day

As the nation prepares to honor the service of men and women in armed forces, Massachusetts employers should be aware of some new obligations.

In July 2016, Massachusetts Governor Charlie Baker signed the HOME Act into law.  The HOME Act is an omnibus bill that, in part, amends M.G.L. 149, Section 52A1/2 . Previously, employers were required to provide any veteran with unpaid leave who desires to participate in Veterans’ Day or Memorial Day exercises, parades or services.

The HOME Act amends that law to provide that employers with 50 or more employees must provide paid leave. There are some limits to the law.  Veterans are permitted to participate in services in their community of residence.  This means employers would not have to grant multiple leave days for veterans to travel outside of their community of residence.  Employers also may deny leave where the employee’s services are essential to public health and safety and the employee is an essential employee to the employer.

The HOME Act also amends the Massachusetts Fair Employment Practices Act to provide that “veteran status” is a protected class.  As Veterans Day approaches, employers should remind supervisors and HR personnel that leave requests may need to be granted.

 

Bill Egan writes:

Under the Americans With Disabilities Act (ADA), a covered employer must provide reasonable accommodations to disabled employees, unless doing so would cause an undue hardship on the employer. Generally, an employer’s duty to reasonably accommodate is initiated by a request for an accommodation from a disabled employee or someone speaking on the employee’s behalf.

Pillars
Copyright: bbourdages / 123RF Stock Photo

Most courts have held that a request for accommodation from an employee is a “predicate requirement” to the interactive process for determining whether a reasonable accommodation can be made and what that accommodation will look like. The ADA does not require an employer to speculate about the accommodation needs of employees and applicants.

That has now changed, at least in the Eighth Circuit.  In Kowitz v.Trinity Health, a hospital respiratory therapist returned to work under a lifting restriction after undergoing spine surgery and exhausting her 12-week FMLA leave.  Although the hospital initially accommodated this restriction, it terminated the therapist’s employment after she advised that her doctor restricted her for four months from performing the physical demonstration portion of the “basic life support” recertification process, a departmental requirement.

The District Court granted summary judgment to the hospital concluding that Kowitz was not qualified to perform the essential functions of her job because she was not certified to provide basic life support.  The court further held that because Kowitz never requested a transfer to another position, the hospital was under no obligation to reassign her to a position that did not require the basic life support certification.

The Eighth Circuit reversed, over a strongly worded dissent, holding that an express request for assistance is not needed to trigger an employer’s duty to discuss the reasonable accommodation option with an employee.  The court held, “Though Kowitz did not ask for a reasonable accommodation of her condition in so many words, viewing the facts in the light most favorable to Kowitz, her notification to her supervisor that she would not be able to obtain the required certification until she had completed physical therapy implied that an accommodation would be required until then.”

The lesson from Kowitz is if the facts known to the employer about an employee’s disability are sufficient to make the employer aware of the possible need for a reasonable accommodation, the employer is legally obligated to engage in the interactive process to determine if indeed the employee needs such an accommodation and whether an accommodation can be made without posing an undue hardship on the employer.


Bill Egan is a partner in the Labor & Employment Department, resident in Fox’s Minneapolis office.

10524387_sAt a recent meeting, the New Jersey General Assembly Labor Committee advanced three bills that would expand workplace protections for employees under New Jersey’s Law Against Discrimination (“LAD”).

The first bill, A-2294, seeks to amend the LAD to add protections for breastfeeding employees.  Specifically, A-2294 adds “breastfeeding” as a protected characteristics under the LAD, further seeking to amend the LAD to state that “‘pregnancy or breastfeeding’ means pregnancy, childbirth, and breast feeding or expressing milk for breastfeeding, or medical conditions related to pregnancy, [or] childbirth, or breastfeeding, including recovery from childbirth.”  In the employment context, this means that adverse employment actions based on breastfeeding, as defined, would be prohibited.

Furthermore, A-2294 would require employers to accommodate breastfeeding employees, including a requirement that the accommodation “shall include reasonable break time each day to the employee and a suitable room or other location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk for the child.”

The second bill, A-2646, would add “familial status” as a protected characteristic under the LAD.  A committee comment to the bill notes that familial status means:

[B]eing the natural parent of a child, the adoptive parent of a child, the resource family parent of a child, having a ‘parent and child relationship’ with a child as defined by State law, or having sole or joint legal or physical custody, care, guardianship, or visitation with a child, or any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.

The Assembly Labor Committee also advanced a third bill we have previously discussed, A-3480/A-4119, which would prohibit employers from asking employees about their wage/salary history.

Of course, normal legislative caveats apply:  these are the bills in their current form, which may or may not ultimately be enacted, and which may or may not be amended to varying degrees if ultimately enacted.  We will continue to monitor these pieces of legislation and will provide relevant updates should they move in the New Jersey Legislature.

Query: a longtime employee, who has previously identified in your workplace as female, begins dressing for work like a man, grooming according to male standards, and identifying as male.  He begins to make arrangements to have his name formally changed, and a number of other legal documents changed as well.  He also begins using the men’s room at work.  Other coworkers complain about “a woman using the men’s bathroom at work.”  What do you do?

According to the U.S. District Court for the District of Nevada, what you do not do is: 1) ban him from the men’s bathroom for being biologically female, 2) ban him from the women’s bathroom for identifying as male, and 3) require him to use only gender-neutral bathrooms.  Last week, the court made headlines when it granted summary judgment against a school district, on a Title VII sex discrimination claim brought by one of the district’s police officers.  (Roberts v. Clark County School District, No 2:15-cv-00388-JAD-PAL, ECF No. 147).

While the court denied summary judgment as to the officer’s retaliation and hostile workplace claims, it noted that established case law holds that sex stereotyping is prohibited sex discrimination under Title VII.  In this case, the court noted that the district banning the officer from using the women’s bathroom “because he no longer behaved like a woman” was direct evidence of impermissible sex stereotyping.

Also of note: in granting partial summary judgment, the court held that Title VII’s prohibition against sex discrimination includes both sex and gender.  At this point, some of our readers might be somewhat confused at the difference between sex and gender. Citing language from the Ninth Circuit, the court noted the difference between these key terms, in recounting the case law history in this area:

These early cases distinguished between the term ‘sex’, which referred to an individual’s distinguishing biological or anatomical characteristics and the term ‘gender’, [which] refers to an individual’s sexual identity, or socially-constructed characteristics.

The court’s language is significant because it simultaneously rejected the school district’s argument to draw legal distinctions based on these terms:

Although [the district] contends it discriminated . . . based on his genitalia, not his status as a transgender person, this is a distinction without a difference here. [The officer] was clearly treated differently than persons of both his biological sex and the gender he identifies as–in sum, because of his transgender status.

Moreover, the court held that the bathroom action alone was a sufficiently adverse employment action — in that “access to restrooms is a significant, basic condition of employment” — to involve Title VII protections.

We have previously discussed two separate theories that the EEOC and plaintiffs have used to argue sexual orientation and/or gender identity are incorporated into Title VII’s ban on sex discrimination.  These theories have had a mixed track record of success, and there is no certainty in predicting how they will continue to play out in the coming months and years.

Still, a key takeaway from this case is that employers should retain knowledgeable counsel to advise on employee workplace transitions.  Effective transition management can not only help defuse potential workplace tension and avoid litigation, but it can also lead to a more productive workplace, happier employees, and keeping pace with the market’s movement in this direction.