Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

EEOC transgender case in Detroit will go forward

Posted in Civil Procedure, Discrimination, Gender Identity Discrimination

As our readers know, the EEOC filed two lawsuits last fall against private employers, alleging discrimination against transgender individuals: one case against a medical practice in Florida, and the other against a funeral home operation in the Detroit area.

And as I reported last week, the Florida case settled for $150,000 plus some training and other non-monetary terms.EEOC Logo

Meanwhile, the defendants in the Michigan case filed a motion to dismiss the EEOC’s lawsuit, and their motion was denied on Wednesday. Judge Sean Cox rejected the EEOC’s position that “gender identity” discrimination was a protected category under Title VII but will still allow the case to go forward on a theory of “sex stereotyping,” which the Supreme Court has said is a violation of Title VII. Judge Cox’s decision contains an excellent discussion of the sex stereotyping issue.

The allegations in the Michigan case are straightforward. The EEOC claims that Amiee Stephens was a funeral director/embalmer for the defendants since 2007. In 2013, she announced that she was beginning the transition from male to female, planned to present as a female, and requested understanding. Shortly afterward, she was terminated “because ‘what she was proposing to do’ was unacceptable.” The EEOC also alleges that the funeral home provided a clothing allowance to male, but not female, employees.

Employers should be aware that a “motion to dismiss” is filed at the earliest stages of a lawsuit and is based on nothing other than the allegations in the lawsuit and applicable law. At this very early stage, the court is required to assume that all of the allegations in the lawsuit are true, and the employer is not allowed to present any evidence in its defense. If the allegations — even if true — don’t create a valid legal claim, then the suit can be dismissed. Otherwise, the parties proceed with the litigation.

Denial of a motion to dismiss does not mean that the allegations in the lawsuit actually are true or that the employer will not win at a later stage.

Hey – that EEOC wellness rule isn’t half bad

Posted in Affordable Care Act, Americans with Disabilities Act, Discrimination, Genetic Information Non-Discrimination Act, GINA, Retaliation

NOTE: As I breathlessly reported last week, the EEOC has issued its long-awaited proposed rule on employer wellness programs and the Americans with Disabilities Act. (Here is a nicer copy than the one that was available then.) Brian Magargle, who knows a lot more than I do about the Health Insurance Portability and Accountability Act and the Affordable Care Act, and I are working together on a “multidisciplinary” overview of the proposed rule. Meanwhile, here is my summary of the proposed rule.

Nurse Practitioner.flickrCC.Doug

“This won’t hurt a bit.”

What pressing issue does this proposed rule address? For the history of the ADA/wellness controversy, go here, here, and here.

Is the proposed rule good for employers, or bad? Pretty good overall. The EEOC has, for the most part, proposed that providing “incentives” for employees to participate in wellness programs (both rewards and penalties, which we’ll call “carrots” and “sticks”) will be all right as long as the employer complies with the limits in the HIPAA/Affordable Care Act. In other words, incentives to that extent would, for the most part, not make the wellness program “involuntary” for ADA purposes. Which means that medical inquiries made in connection with such a wellness program will generally not violate the ADA.

One catch: The wellness program would have to be associated with a group health plan (either insured or self-insured).

Another catch: The EEOC proposals don’t exactly match the HIPAA/ACA rules, but they’re reasonably close.

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Is telecommuting a reasonable accommodation, or is it not?

Posted in Americans with Disabilities Act, Discrimination

Inquiring minds want to know!

In the context of a lawsuit brought under the Americans with Disabilities Act, a recent court decision says that “regular attendance” is an essential function of the job. But what is “regular attendance”?

Which made me think of this:

(I promise – this is neither a pro- nor an anti-Hilary Clinton post, but I couldn’t resist the tie-in during this week of her big announcement.)

Back on topic: I was tickled to death to see that Ford Motor Company was vindicated last Friday in the telecommuting/accommodation lawsuit brought by the Equal Employment Opportunity Commission. I’ve posted about the case, brought under the Americans with Disabilities Act, here and here, and on Friday, the full U.S. Court of Appeals for the Sixth Circuit affirmed dismissal of the lawsuit.

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BREAKING!!!! EEOC issues proposed “wellness” regs

Posted in Americans with Disabilities Act, Genetic Information Non-Discrimination Act, GINA

Law360 just reported that the EEOC has issued its long-awaited proposed rule on wellness programs and the Americans with Disabilities Act. The official version will be published Monday in the Federal Register.

I am out today and tomorrow to present some seminars, but I will have a full post on this as soon as I’ve had a chance to review. Meanwhile, here is a sneak peek of the proposed rule.

Quickie elections, ASAP!

Posted in Labor Relations

The National Labor Relations Board’s so-called “quickie election” rule, providing for expedited union votes, took effect yesterday. I can’t improve on what David Phippen of our Metro-Washington D.C. office posted about it here in December after the rule was first issued, so here ya go!

One of EEOC’s first transgender lawsuits has settled

Posted in Discrimination, Gender Identity Discrimination

Last September, I posted that the EEOC had filed its first two lawsuits against private employers alleging discrimination based on gender identity.

The EEOC announced this week that one of the lawsuits — against Lakeland Eye Clinic of Florida — has settled. The Clinic has agreed to make two payments of $75,000 to Brandi Branson, who had been the Clinic’s Director of Hearing Please Pay HereServices. According to the lawsuit, Ms. Branson was hired as a male and began transitioning to female after about six months on the job. The lawsuit claimed that doctors all but stopped referring patients to her and that her position was eventually eliminated in a bogus “RIF.” (A replacement was reportedly hired into the “eliminated” position only two months later.)

The EEOC alleged that the Clinic violated Title VII by discriminating against Ms. Branson because of her sex (failure to conform to gender stereotypes).

In addition to the payments, the Clinic has agreed to adopt a policy against discrimination because of gender identity or gender stereotyping, and to conduct training for management and employees on the subject.

The other EEOC lawsuit, against a funeral home operation in the Detroit area, is still pending.

In case you had not noticed, the federal government is serious about LGBT issues. In addition to these two EEOC lawsuits, the Office of Federal Contract Compliance Programs now requires federal contractors to include sexual orientation and gender identity as protected classes in EO statements, purchase orders, and other required documentation, and to provide training. And EEOC Commissioner Chai Feldblum reported last October that charges alleging LGBT discrimination are on the increase.

That having been said, it remains to be determined by the courts how far Title VII’s ban on “sex discrimination” applies to LGBT discrimination. There is no federal statute explicitly barring LGBT discrimination. A number of courts have found that Title VII’s ban on sex discrimination does apply to discrimination based on failure to conform to gender stereotypes and norms — precisely the issue involved in the two EEOC lawsuits. But it’s far less clear that Title VII applies to garden-variety “sexual orientation discrimination” where no “gender stereotyping” is involved.

Image credit: From flickr, Creative Commons license, by Steven Depolo.

New kids on the block!

Posted in Constangy News

Welcome to our newest attorneys, who have joined us since our initial expansion in early March:


We are booming!


In Atlanta, we welcome Tamika Nordstrom, Erica Mason, and Katie Kelley.

Fairfax-Metro Washington D.C.

Greetings and salutations to Theresa Connolly, who has joined our Fairfax-Metro Washington D.C. Office.

Kansas City

And we are delighted to have Evan Jarrold in our Kansas City Office.

New York City

Finally, we welcome the newest attorneys in our new New York City Office, headed by Anjie Cabrera — Taren Greenidge, Naveen Kabir, and JP Kernisan.

Tamika, Erica, Katie, Theresa, Evan, Taren, Naveen, and JP – we are glad to have you all with us!

Image credit: From flickr, Creative Commons license: Fireworks by Donald Pardue.

A lesson from Twitter sex-bias lawsuit: Post those jobs!

Posted in Affirmative Action, Class actions, Discrimination

Should an employer post high-level vacancies? Do Twitter birds fly?

Shortly before Ellen Pao lost started a “conversation” about sex discrimination in the tech industry, yet another lawsuit was filed alleging sex discrimination in the tech industry. In the latest one, software engineer Tina Huang has sued Twitter in California on behalf of herself and other female employees.

Twitter Bird.flickrCC.CreativeTools

“A class action? Against a cute little bird like me?”

I have read the complaint, and I expect Twitter to have “another side to the story” (or the complete story?) when it gets its chance to respond. At this point, I’m from Missouri.

But Ms. Huang’s lawsuit raises an issue that I don’t believe I’ve ever posted about before – the importance of posting vacant jobs, even at the top levels.

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Pregnancy accommodation FAQs for employers

Posted in Discrimination, Pregnancy

What do employers need to know about the Supreme Court’s pregnancy accommodation decision last week in Young v. United Parcel Service?


“This blog post is just right!”

For the “somewhat-scholarly” version (also known as the “tl:dr”* version), go here.

*”Too long; didn’t read”

For the “one minute 14 second” version, go here.

But for the “just right” version, stay where you are for some FAQs, Goldilocks!

So, now federal law requires employers to make reasonable accommodations for pregnancy? 



Not necessarily. There may be legitimate reasons for employers to accommodate some conditions (such as disabilities within the meaning of the Americans with Disabilities Act, or work-related injuries) while not accommodating pregnancy. Maybe.

Did the Supreme Court say anything about what might or might not “fly” from a pregnancy accommodation standpoint?

Very little. We know that inconvenience or expense is not a legitimate reason for an employer to fail to accommodate pregnancy or related conditions. The Supreme Court majority also said that courts could consider (1) whether the employer made accommodations in other types of cases but not pregnancy, and (2) whether the employer had multiple “accommodation” policies while having nothing for pregnancy.

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Employers may not like NLRB General Counsel report on handbook rules

Posted in Labor Relations, Protected Concerted Activity

Thanks very much to David Phippen from our Metro D.C. Office for letting me get some depositions taken this week and allowing me to republish his analysis here.

As we have previously reported, the National Labor Relations Board in recent years has put employee handbooks and policy manuals under a magnifying glass, searching for any provision that might, in its view, violate the NationalDavid-Phippen.jpeg Labor Relations Act. Last week, apparently after hearing from labor law practitioners that guidance was needed, NLRB General Counsel Richard F. Griffin, Jr., issued a report attempting to explain several years of Board decisions and positions taken by his office. His stated goal was “to offer guidance on . . . this evolving area of labor law, with hope that it will help employers to review their handbooks and other rules, and conform them, if necessary, to ensure that they are lawful.”

Unfortunately, because the decisions and positions have often been inconsistent, the guidance provides few bright lines for employers to follow to ensure that their rules are lawful. But, perhaps worst of all, the General Counsel’s guidance follows the current Board majority view and, at least implicitly, largely rejects a balanced interpretation of the NLRA that gives sufficient weight to employers’ interests in managing their workplaces, protecting employees, and protecting confidential information and intellectual property.

Prudent employers will have their handbooks and policies reviewed by an experienced labor lawyer who understands Section 7 and has developed a keen appreciation for the direction in which the Board and the General Counsel are moving.

All employers, especially non-union employers not used to dealing day-to-day with the NLRA, should take note and get their employee handbook rules and policies in line with the GC’s expressed views. Employers found to be in violation can be ordered to rescind any unlawful rules and rescind and remedy any disciplinary action based on the rules. An unlawful rule can also be ground for the Board to set aside an NLRB election vote against union representation and direct a re-run election, thus giving the union another chance to win.

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