Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Gender dysphoria: Is it an ADA-protected disability?

Posted in Americans with Disabilities Act, Gender Identity Discrimination

As our readers know, discrimination against transgender individuals is often treated as sex discrimination under Title VII, as a form of unlawful “sex stereotyping.”

But is it also a “disability” within the meaning of the Americans with Disabilities Act when an individual identifies with a gender other than his or her biological one?

Caitlin Jenner.flickrCC.MikeMozart

Transgender individuals don’t usually invoke the ADA, presumably because they don’t consider themselves to be “disabled.” But more importantly from a legal standpoint, the ADA specifically excludes gender identity disorder as a “disability” within the meaning of the law.

Section 12211 of the ADA contains a number of exclusions, including homosexuality and bisexuality (on the ground that they are not “impairments” at all).

Then it goes on to exclude “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania, or pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs.” (Emphasis added.)

“Transsexualism” and “gender identity disorders not resulting from physical impairments” seem to be 1990s-era terms for the state of being what we call today “transgender.” And based on the other conditions that “transsexualism” and “gender identity disorders” are grouped with, it appears that in 1990 Congress considered these to be anti-social behaviors like peeping, child molestation, compulsive stealing, and compulsively setting things on fire.

(What can I say? 1990 was a long time ago.)

Be that as it may, based on the plain language of Section 12211, I would have believed that an individual with a gender identity disorder not resulting from a physical condition (what we now call “gender dysphoria”) was excluded from ADA protection.

But in Blatt v. Cabela’s, Inc., a federal judge in Pennsylvania found that the plaintiff’s gender dysphoria could be an ADA-protected condition, despite the exclusion in Section 12211.

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Second-guessing the advice columns on workplace law — again!

Posted in Americans with Disabilities Act, Family and Medical Leave Act, HR

I’m going to have to make this a regular series.Dog Writer.flickrCC.Canine-to-Five

A few weeks ago, I posted about an “Ask Amy” column involving a bullying boss, which I thought had really poor employment law advice. (To her credit, Amy posted not one, but two, corrections not long afterward.)

Last week, Karla Miller of the “Work Advice” column in The Washington Post — who is a bona fide “HR advice” columnist, and a very good one — had one that I disagreed with.

Could this difficult supervisor have Alzheimer’s?

Ms. Miller’s letter writer said that she had initially believed her boss was a bully but, after some period of time, was coming to believe that he had early-onset Alzheimer’s. The letter writer wanted to know what she should do. One of the two lawyers Ms. Miller consulted said that “HR absolutely should not ‘play doctor.'” Here is the rest of the attorney’s recommendation, as paraphrased by Ms. Miller:

[T]he employer must focus on an employee’s observable behavior and performance, not speculate about medical causes. If your boss tells the employer he has a medical impairment, then under the Americans with Disabilities Act he must be granted reasonable accommodations — digital reminders? a personal scheduler? — to perform his essential job functions. But the ADA offers your boss no protection if he’s unable to perform his essential job duties with or without accommodations.

Yikes. Before I go on, a disclaimer:

Dear Abby.flickrCC.RayMacLean

Dear Abby sez: Nothing in this post should be construed as legal advice!

I realize that the attorney’s actual comments may have been more nuanced, which Ms. Miller may have had to boil down to a single paragraph, meaning that some subtleties may have been lost in translation. But, yikes.

Under the ADA, 99 times out of 100, ignorance is indeed bliss for employers. Usually, the less they know about their employees’ health conditions, the better. But there are important exceptions to that general rule, and this may be one. Waiting for a supervisor who may have Alzheimer’s to “self-identify” and request accommodation is less than optimal, as they say. In this situation, it might be better for the employer to “embrace the disability” (or, at least, “embrace the ‘regarded as'”).

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Weekly catch-up

Posted in Discrimination, FOCUS, Franchise, Labor Relations, Politics

You want my salary history? That’s sex discrimination! Well, actually, it’s a little more complicated. Kacy Coble of our Memphis Office has a Hot Dog Man.flickrCC.JeleneMorrisgreat post over at FOCUS, our women’s leadership blog, about the perfectly legitimate, non-discriminatory reasons why employers sometimes use salary history in setting pay — and how alternatives may be even more unfair. As state and local governments increasingly consider outlawing the use of this information, Kacy’s post is a must-read.

More on the eagerly-awaited demise of the 2016 Persuader Rule. I wrote briefly about this last week. The Trump Administration is starting the process to formally undo the 2016 version of the Persuader Rule, which would have imposed onerous reporting requirements on many employers and arguably infringed on attorney-client privilege. David Phippen of our Washington DC Metro Office analyzes what is going on in this Client Bulletin that came out shortly after my bare-bones summary.

Good news for franchisors — and from California yet! Jeff Rosin, head of our Franchise Industry Group, reports on a big victory for franchisors everywhere. A federal judge in California ruled that Jan-Pro Franchising International, Inc., was not an “employer” of its subfranchisees and also had not engaged in any wrongdoing with respect to the subfranchisees. This is Jan-Pro’s third win on this issue. The company previously won an appeal in Georgia state court, and was granted summary judgment in a Massachusetts federal court. (The California and Massachusetts decisions are currently on appeal.) And congratulations to Jeff, who was co-counsel in the Georgia case and lead counsel in the California and Massachusetts cases, and to Kathryn Rookes, Vice President and General Counsel of Jan-Pro, who co-wrote the bulletin with Jeff.

Image Credit: From flickr, Creative Commons license, by Jelene Morris.

OFCCP: Like a dog with a bone

Posted in Affirmative Action, Discrimination, Settlements

Louise Davies is an Affirmative Action Paralegal in Constangy’s Winston-Salem, North Carolina, office. For more than 15 years, she has helped employers develop affirmative action plans and respond to audits and on-site investigations by the Office of Federal Contract Compliance Programs. She also conducts diversity training for employers. Louise is a graduate of Wesleyan College in Macon, Georgia.

Who would have thought a routine compliance review could drag on for 24 years, through four presidential administrations, and ending in a $1 million settlement?Louise

Bank of America would. The bank has just reached a settlement with the Office of Federal Contract Compliance Programs for $1 million dollars in back pay and interest after a routine compliance review of NationsBank (which became Bank of America after a merger in 1998) in Charlotte, North Carolina, that began in 1993. According to the Agency, the compliance review uncovered “systematic hiring violations” against African-American applicants for the positions of teller and clerk, in addition to some administrative positions.

The OFCCP filed an administrative complaint against NationsBank in 1997, and a final decision by the Administrative Review Board was issued in April 2016. (No kidding.) Then, in May 2016, the Bank filed a lawsuit against the U.S. Department of Labor in federal court in the District of Columbia, challenging the ARB decision under the Administrative Procedure Act, which apparently resulted in the settlement.

Under the settlement, a total of 1,027 African-American applicants will receive around $973 each — if they can be found after all these years. The bank specifically denies any liability or wrongdoing.

The case is listed on the OFCCP’s Class Member Locator website, which went live in 2015.

So what can federal contractors take away from this?

  1. The OFCCP is tenacious (but so is Bank of America!) and has the resources to litigate.
  2. Maintain all applicant and personnel records, and periodically “preventively” assess whether adverse impact exists.
  3. Continue to train all of those involved in the hiring process, especially those who are new to the organization.

After the investigation: Now what?

Posted in HR

Last week, we talked about employment investigations. This week, I’d like to talk about what employers do with the information they gathered during the investigation. There are two main tasks:


“Hmmmm . . .”

No. 1: Figure out what probably happened.

No. 2: Decide what action to take based on No. 1.

It’s almost impossible to generalize about No. 1 because the results will vary wildly based on the results of your interviews and examination of other evidence. But there are five principles that will apply in almost every case.


First, you don’t have to find the accused employee “guilty beyond a reasonable doubt.” That standard applies only when someone is to be convicted of a crime. In the employment context, it is legal to take action against an employee based on much less, including the employer’s reasonable belief that the individual committed the offense. Even if that belief turns out to be wrong. (In fact, the employer can even have an unreasonable-but-honest belief that the individual committed the offense, but you’ll have a much easier time defending your decision if it’s reasonable.)

Second, as you did during the investigation, you want to remain as objective as you can and try to put out of your mind any preconceived notions you may have about the employees involved. Based on the actual evidence you gathered, what do you believe happened? (And it’s ok — indeed, even recommended — to consult with other appropriate individuals in making that determination.)

Third, at this stage, you can consider credibility of the people you interviewed, including assessments of their eye contact, tone of voice, fidgeting when you asked them key questions, hesitations, changes in story, etc.

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BREAKING: Full Second Circuit to reconsider whether Title VII prohibits sexual orientation bias

Posted in Discrimination, Sexual Orientation

The U.S. Court of Appeals for the Second Circuit (Connecticut, New York, and Vermont) agreed yesterday to rehear en banc an appeal from the estate of a gay skydiving instructor who alleged heStove fire.flickrCC.StateFarmIns was fired after a customer complained about his sexual orientation. The case is Zarda v. Altitude Express.

The issue to be decided by the court is “Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of . . . sex?'”

En banc” means that the case will be heard by all of the judges on the Second Circuit instead of a three-judge panel. The full court has the authority to overrule its precedent. In the context of this case, Second Circuit precedent holds that sexual orientation discrimination is not “sex discrimination” prohibited by Title VII. Based on that precedent, a three-judge panel of the Second Circuit affirmed dismissal of the Title VII claims in the Zarda lawsuit in April. (Claims under New York State law went to a jury, and the employer won.)

The U.S. Court of Appeals for the Seventh Circuit (Illinois, Indiana, and Wisconsin) decided earlier this year in Hively v. Ivy Tech that Title VII does prohibit sexual orientation discrimination. A three-judge panel of the Eleventh Circuit (Alabama, Florida, and Georgia) said in Evans v. Georgia Regional Hospital that it does not, but there was a forceful dissent, and the plaintiff has asked for her case to be reheard by all of the Eleventh Circuit judges. The court has not yet decided whether it will rehear that case.

Weekly catch-up

Posted in ConstangyTV, HR, Labor Relations, Politics, Safety

OSHA intends to postpone requirement that safety reports be submitted electronically for all the world to see. You may recall that, about a year ago, the Occupational Safety and HealthHot Dog Man.flickrCC.JeleneMorris Administration issued a rule that would require certain employers to submit some injury and illness reports electronically. The information would then be made publicly available. Now OSHA says that it intends to delay the first compliance deadline, which was to have been July 1. How long will the postponement last? Is this Obama-era rule about to get “trumped”? Our Workplace Safety Practice Group has the details here.

Making your employees happy. Some level of money may be necessary, but it won’t be sufficient. On our May edition of ConstangyTV’s Close-Up on Workplace LawLeigh Tyson, co-chair of our Labor Relations Practice Group and acclaimed TV hostess, interviews Mel Haas, labor lawyer and head of our Macon Office, about the importance to employers of following “The Six A’s” to ensure employee satisfaction. You have to watch the video to find out what the A’s are, but I’ll make that easy for you:

Employers with operations in Georgia, take note! The state’s new “paid family leave” law will take effect on July 1. The law requires some employers who provide paid sick leave to allow employees to use some of it for “family” reasons. Alyssa Peters, also of our Macon Office, has what employers need to know.

Image Credit: From flickr, Creative Commons license, by Jelene Morris.

Trumpdate: Proposed budget shows “yuuuge” changes afoot in labor and employment arena

Posted in Affirmative Action, Benefits, Discrimination, Equal Pay, HR, Immigration, Labor Relations, Politics, Pregnancy, Safety, Unemployment, Wage-Hour
Donald Trump caricature.flickrCC.DonkeyHotey

“Yuuuge, I tell ya, yuuuge!”

Yesterday, the Trump Administration released its proposed budget for Fiscal Year 2018, which runs from October 1, 2017, through September 30, 2018. Here are the highlights related to labor and employment law, and there are a BUNCH. The following is a compilation of a number of articles published in yesterday’s edition of Bloomberg BNA’s Daily Labor Report (paid subscription required to access articles):

Anti-discrimination enforcement (EEOC and OFCCP): As I’ve noted here and here, the President was expected to propose merging the Office of Federal Contract Compliance Programs with the Equal Employment Opportunity Commission, and he has. More specifically, the proposal was that the OFCCP would be “absorbed” by the EEOC. The OFCCP enforces various anti-discrimination laws that apply to federal contractors. The EEOC enforces various anti-discrimination laws that apply to all employers with certain minimum numbers of employees. The proposed budget says that the two agencies are expected to “work collaboratively” on carrying out the merger, which would take effect at the end of FY 2018. Almost nobody likes the idea. (Well, with a few exceptions, including me — it makes some sense to me since their functions are so similar.) Although the President might be able to carry out the merger of the two agencies’ Title VII functions by simply issuing a new Executive Order to amend the famous EO 11246 (issued by President Lyndon B. Johnson), Congressional action may be required to allow the EEOC to absorb the OFCCP’s functions as they relate to the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act. Bloomberg BNA reports that there is some precedent for such a step: In 1978, President Jimmy Carter moved enforcement of the Age Discrimination in Employment Act and the Equal Pay Act from the U.S. Department of Labor Wage and Hour Division to the EEOC. Before he did so, however, Congress had passed legislation authorizing him to reorganize government agency functions.

While this proposed merger is being worked on, the OFCCP intends to focus its efforts on systemic pay discrimination. (So, contractors, don’t slack off on your comp audits!) Continue Reading

Honor our veterans by recruiting and hiring more of them

Posted in Affirmative Action

Memorial Day is upon us. While the idea of a three-day weekend, cookout, and pool party can be distracting, I encourage everyone to stop and remember those who have lost their lives in theAlyssa Peters service of our country. It’s also a perfect time for us to refresh ourselves on the legal obligations of federal contractors to employ veterans. “We honor the dead best by treating the living well.”

As a quick refresher, the Vietnam Era Veterans’ Readjustment Assistance Act prohibits discrimination on the basis of protected veteran status and requires affirmative measures to employ protected veterans. These requirements apply to any contractor with a federal contract worth $150,000 or more. Contractors that meet the monetary threshold and have at least 50 employees must also develop written affirmative action plans for each establishment. That includes allowing applicants and employees to self-identify as protected veterans, tracking employment activity, and documenting outreach and recruitment activities. All covered contractors are required to develop an annual hiring “benchmark,” a number that reflects the representation of veterans in the civilian labor force. Contractors are allowed to use the national benchmark. As Stephanie Underwood reported in April, the national hiring benchmark was recently reduced from 6.9 percent to 6.7 percent.

To offer another carrot in attempting to increase employment and retention of our veterans, the Department of Labor has recently issued a press release about its new HIRE Vets Medallion Program. This program is designed to recognize employers “who make hiring veterans a priority.” The awards will be presented around Veterans Day (November) to small, medium, and large employers.

So after you return to work from your long weekend, think about ways to increase your veteran workforce. Some ideas include listing job openings with a local veteran advocacy group, contacting a local veteran affairs office, having or participating in a job fair, contacting the transitional office at your nearest military base, chatting with your local colleges to see whether they have veteran representatives on campus, or asking veterans you know for ideas on how to post job opportunities.

Who knows? These Memorial Day brainstorming ideas may help you reach your company’s VEVRAA benchmark or put you on the short list for one of the new DOL awards!