news-notes

Apr 2017

Heading for a Possible Showdown at the U.S. Supreme Court: Circuit Courts Issue Conflicting Decisions Regarding LGBT Protections from Discrimination under Title VII

We recently wrote about the evolving law on discrimination based on sexual orientation and gender identity under Title VII, and an update is already in order.  Since our last post, three U.S. Circuit Courts of Appeals have issued decisions addressing whether Title VII provides protection from discrimination based on sexual orientation, and, not surprisingly, the courts have not all ruled the same way. First, on March 10, 2017, the Eleventh Circuit in Evans v. Georgia Regional Hospital, Case No. 15-15234 (11th Cir. March 10, 2017), examined the claim of a lesbian former employee who brought suit alleging sexual orientation and gender non-conformity discrimination in violation of Title VII.  The court ruled that her gender non-conformity claim, which was based on the argument that she was discriminated against because she did not conform to stereotypes of her gender, may be a viable claim of gender discrimination.  The court remanded to the trial court to give the plaintiff an opportunity to amend her complaint, but upheld its prior precedent that discrimination because of sexual orientation is not cognizable under Title VII. On March 27, the Second Circuit reached a similar decision in the case of Christiansen v. OmnicomGroup, Inc., Case No. 16-748 (2nd Cir. Mar. 27, 2017).  There the plaintiff was an HIV-positive, openly gay man, who alleged that during his employment at an advertising agency, he was subjected to a pattern of harassment by his supervisor in the form of sexually suggestive images and inappropriate remarks that referred to his...

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Apr 2017

Courts: Discrimination Due To Sexual Orientation or Gender Identity Violates Title VII

For decades, LGBT victims of workplace discrimination had no recourse. In 2001, for instance, the U.S. Court of Appeals for the Third Circuit held in Bibby v. Philadelphia Coca Cola Bottling Co. that “Title VII does not prohibit discrimination based on sexual orientation.” The court based its holding, in part, on Congress’ repeated rejection of legislation that would have extended Title VII to cover victims of sexual orientation and gender identity discrimination. But in the past several months, the federal courts have been dramatically reversing their jurisprudence to expand Title VII’s coverage. A Pennsylvania U.S. District Court, for instance, recently concluded in EEOC v. Scott Medical that the 2001 Bibby precedent is questionable outdated jurisprudence.  In Scott Medical, the EEOC sued on behalf of a gay male employee who was allegedly the victim of repeated homophobic slurs and statements throughout his employment. The employer moved to dismiss on the ground that binding authority – Bibby – prevented the lawsuit. The court rejected the employer’s argument, holding:  “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.” The court further stated that “[f]orcing an employee to fit into a gendered expectation – whether that expectation involves physical traits, clothing, mannerisms or sexual attraction – constitutes sex stereotyping and . . . violates Title VII.” The reasoning in Scott Medical was recently extended to the gender identity context by a Nevada U.S. District Court in Roberts v. Clark County School District. ...

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Mar 2017

Court Enters Nationwide Order Enjoining DOL’s Final Rule On White Collar Exemptions

  In our last issue, we wrote about the U.S. Department of Labor’s (DOL’s) long-awaited final rule regarding the white collar exemptions to the overtime rules contained in the Fair Labor Standards Act (FLSA).  The DOL issued the final rule on May 18, 2016, drastically increasing the minimum salary level necessary for executive, administrative, and professional employees to satisfy the exemption.  It was set to become effective on December 1, 2016, and under its formula, the minimum salary necessary to meet the exemption would have more than doubled, from $455 to $913 per week.  The salary level was to be adjusted every three years. Employers scrambled to ensure that their practices were in compliance by December 1.  However, on November 22, just days before the final rule was to take effect, a U.S. District Court in Texas entered a nationwide injunction halting implementation of most provisions of the new rule.  The injunction was issued in a lawsuit filed by 21 states, including Michigan, which had been consolidated with a similar lawsuit filed by the Plano Chamber of Commerce and over 50 other business organizations.  The plaintiffs filed a motion for a preliminary injunction, arguing the final rule was invalid as inconsistent with Congress’ intent. In ruling on the motion, the court analyzed the exemptions contained in the FLSA and concluded that Congress intended the terms executive, administrative, and professional to refer to employees performing actual executive, administrative, and professional duties.  The court noted that Congress did not include a...

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Feb 2017

EEOC’s New Enforcement Guidance Addresses National Origin Discrimination

  In announcing a comprehensive revamp of its 2002 compliance manual section on national origin discrimination, EEOC Chair Jenny Yang declared in a November 2016 press conference that “[t]he EEOC has identified immigrant, migrant, and other vulnerable populations as a national strategic priority.”  The EEOC’s agenda should not come as surprise given the heated political discourse during the 2016 presidential campaign about immigrants and foreigners generally, but employers should take note that the EEOC has forecast unequivocally through an official agency policy that it will be vigilant in looking for employers who discriminate based on national origin and religion, or retaliate against those who raise such claims. While much of the material in the agency’s new Enforcement Guidance on National Origin Discrimination covers familiar ground, there are some new twists in the EEOC’s interpretation of Title VII that warrant highlighting. The Enforcement Guidance begins by reaffirming that every employee and applicant is protected against national origin discrimination under Title VII, which it defines as: “(a) treating an individual less favorably because he or she is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin (ethnic) group; or (b) using an employment policy or practice that disproportionately impacts people on the basis of national origin and is not shown to be job related and consistent with business necessity.”  The agency then adds that it interprets Title VII to also bar employment discrimination based on perceived national origin.  In other words, if someone...

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Jan 2017

The Obama Administration Targets Non-compete Agreements and Wage Collusion

  On October 25, 2016 the Obama Administration announced “new steps to spur competition in the labor market and accelerate wage growth.” The steps set forth were promulgated to address wage collusion, unnecessary non-compete agreements, and other anticompetitive practices in response to the President’s Executive Order issued on April 15, 2016. The Administration claims that there is a gross overuse of non-compete agreements by employers, which hinders wage growth, entrepreneurship, and broader economic growth. Thus, the Administration is encouraging states and Congress to pass legislation to eliminate non-competes for certain categories of workers, including workers under a certain salary threshold, workers in certain occupations that promote public health and safety, workers who are unlikely to possess trade secrets, and workers who are laid off or terminated without cause. In addition to legislation banning certain non-competes, the Administration proposed “best practices” for state non-compete reform to improve and ensure “transparency and fairness” of non-compete agreements. Specifically, the recommendation was to require an employer to notify the individual of the non-compete clause prior to the job offer or promotion, provide more consideration for the non-compete rather than mere continued employment, and educate the individual as it relates to the legal implications. Non-compete clauses are enforceable in Michigan, so long as it is reasonable as to its duration, geographical area, and the type of employment or line of business. In February of 2015, there was proposed legislation in the Michigan House of Representatives to eliminate non-compete agreements, which was not passed. The...

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