The SCOTUSblog has a live blog of the oral argument today at the U.S. Supreme Court in the same-sex marriage case of Obergefell v. Hodges, as well as links to the audio . . . just in case you’re interested.
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.
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.
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.
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.
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.
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.
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!
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 Services. 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.
Welcome to our newest attorneys, who have joined us since our initial expansion in early March:
Fairfax-Metro Washington D.C.
Greetings and salutations to Theresa Connolly, who has joined our Fairfax-Metro Washington D.C. Office.
And we are delighted to have Evan Jarrold in our Kansas City Office.
New York City
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.
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.
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.
What do employers need to know about the Supreme Court’s pregnancy accommodation decision last week in Young v. United Parcel Service?
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.