Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Tag Archives: Second Circuit

You decide: Why the DOJ says Title VII does NOT prohibit sexual orientation bias

Posted in Discrimination, ENDA, Sexual Orientation
Last week, I had a short post about the position taken by the U.S. Department of Justice in the Zarda v. Altitude Express “gay skydiver” case. The DOJ has directly opposed the Equal Employment Opportunity Commission, which had also filed a brief in the case. The EEOC says that sexual orientation discrimination is prohibited by Title VII.… Continue Reading

Battle of the feds! DOJ, EEOC lock horns on sexual orientation bias

Posted in Discrimination, Sexual Orientation
Whoa. The U.S. Department of Justice and the Equal Employment Opportunity Commission are at cross purposes in the “gay skydiver” case. Are they ever. Do you remember Zarda v. Altitude Express? The U.S. Court of Appeals for the Second Circuit recently signaled that it might overrule its precedent holding that Title VII’s ban on sex discrimination… Continue Reading

Gender identity not covered by Missouri Human Rights Act, court says

Posted in Discrimination, Gender Identity Discrimination, Sexual Orientation
Last week, the Missouri Court of Appeals issued an opinion holding that gender identity is not covered by the prohibition on sex discrimination in the Missouri Human Rights Act. The opinion builds on a 2015 opinion from the same court, which held that sexual orientation was not covered under the MHRA. Last week’s opinion arose from… Continue Reading

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 he was fired after a customer complained about his sexual orientation. The case is Zarda v. Altitude Express. The issue to be decided by… Continue Reading

Weekly catch-up

Posted in Discrimination, HR, Immigration, Sexual Orientation
Attention, H-1B employers! The Trump Administration announced this week that it would take a closer look at employers who use workers with H-1B visas. Elizabeth Joiner has the details in this Immigration Dispatch. Sexual orientation discrimination does violate Title VII, appeals court says. This week’s decision from the U.S. Court of Appeals for the Seventh Circuit… Continue Reading

The Deep Dive: A closer look at the Seventh Circuit’s sexual orientation decision

Posted in Discrimination, Sexual Orientation
As we reported early this morning, the full U.S. Court of Appeals for the Seventh Circuit decided in Hively v. Ivy Tech Community College of Indiana that the prohibition in Title VII against discrimination based on “sex” encompasses discrimination based on sexual orientation. It is the first federal appellate court to do so, although recent… Continue Reading

BREAKING: Title VII bans sexual orientation bias, court finds

Posted in Discrimination, Sexual Orientation
The full U.S. Court of Appeals for the Seventh Circuit ruled yesterday that sexual orientation discrimination is indeed prohibited “sex discrimination” within the meaning of Title VII. The decision was issued in the case of Hively v. Ivy Tech Community College of Indiana. A three-judge panel of the Seventh Circuit had found last year that… Continue Reading

Weekly catch-up

Posted in ConstangyTV, Discrimination, Elections, ERISA, Labor Relations, Politics, Protected Concerted Activity, Safety
Yikes. I hope I haven’t missed anybody. Wild week! We hope that the immigrant strikes are about over by now, but they may continue into today, and a women’s strike is reportedly set for March 8. Do employers have any recourse when their employees go out on strike? It depends. If the strike is “protected… Continue Reading

What should employers do about overtime now? Ask the wage-hour lawyers.

Posted in Wage-Hour
As most readers know, the U.S. Department of Labor’s overtime rule, which was set to take effect yesterday, was preliminarily enjoined (temporarily blocked) on November 22 by U.S. District Court Judge Amos Mazzant III. The injunction in Nevada v. Perez applies nationwide, but the court’s decision is not final, and the DOL appealed yesterday. An article… Continue Reading

Employment and labor law developments (and a few other things) I’m thankful for

Posted in Affirmative Action, Discrimination, Elections, FOCUS, Gender Identity Discrimination, Labor Relations, Public Sector Employment, Settlements, Sexual Orientation
This has been a weird year for me. (And, no, I’m not even thinking about the election!) But I have much to be thankful for, and I hope you do, too. BREAKING THING TO BE THANKFUL FOR: Yesterday evening, the U.S. Department of Labor’s new rule governing white-collar exemptions under the Fair Labor Standards Act was struck… Continue Reading

Oh, wait a minute — sexual orientation bias DOES violate Title VII?

Posted in Gender Identity Discrimination, Harassment, Sexual Orientation
Feeling whipsawed? Last summer, I reported on the Hively v. Ivy Tech decision, in which a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled that discrimination based on sexual orientation is not “sex discrimination” or unlawful sex stereotyping that violates Title VII. That decision has since been vacated, and the case will… Continue Reading

Court sets aside Title VII sexual orientation decision, agrees to rehear

Posted in Discrimination, Gender Identity Discrimination, Sexual Orientation
The full U.S. Court of Appeals for the Seventh Circuit has vacated Hively v. Ivy Tech Community College, which found that Title VII did not protect against sexual orientation discrimination. I wrote about the decision, issued by a three-judge panel of the Seventh Circuit, in August. The court will rehear the case with all of the… Continue Reading

About that new “cat’s paw” decision . . .

Posted in Discrimination, Harassment, Misconduct, Retaliation, USERRA
Employers should beware of being too quick to believe an employee who accuses a co-worker of wrongdoing. If the accuser has an illegal motive (such as discrimination or retaliation), and if the employer is “negligent” in investigating before taking action against the co-worker, then the employer could be legally responsible. So says the U.S. Court of Appeals… Continue Reading

Huh? Title VII and sexual orientation bias, revisited

Posted in Discrimination, ENDA, Gender Identity Discrimination, Same-sex marriage, Sexual Orientation
UPDATE (10/14/16): The Hively decision discussed below was issued by a three-judge panel of the Seventh Circuit. This week, the full Seventh Circuit set aside the decision and agreed to rehear the case with all of the judges participating. Here is a copy of the order.  The U.S. Court of Appeals for the Seventh Circuit… Continue Reading

Court sheds light on “pregnancy accommodation” obligation after Young v. UPS

Posted in Discrimination, Evidence, Pregnancy
A federal appeals court panel has come out with a decision interpreting the U.S. Supreme Court’s decision last year in Young v. UPS, and the result wasn’t too good for the employer. The Sheriff’s Department of Ulster County, New York, provided light duty for employees with work-related injuries but didn’t provide it for anyone else.… Continue Reading

When terminating an employee, is a clean break better than a long limbo?

Posted in Americans with Disabilities Act, Discrimination, Employment at Will, Workers' Compensation
If you have a poor performer, is it better to make a clean break and fire him, or is it better to prolong his (and your) agony? That is obviously a biased question, but some employers will do almost anything to avoid firing an employee, including the following: Nothing Issue 8 bazillion warnings but never act on… Continue Reading

Darn.

Posted in Harassment, Settlements
The Marchuk v. Faruqi law firm sexual harassment case has been “amicably resolved.” Now, what will we gossip about? (To see why I’m disappointed, go here, here, here, here, here, here, here, here, here, and here. Apparently, I wasn’t just “following” this case – I was stalking it.) After the verdict that pleased no one, both sides… Continue Reading

Document review attorneys may not be exempt from OT, court says

Posted in Class actions, Lawyers!, Wage-Hour
Uh-oh. Lawyers who do document review may not be exempt from the overtime requirements of the Fair Labor Standards Act, according to a court decision issued yesterday. Large law firms and legal services vendors often hire stables of contract lawyers to do document review in big cases. Sometimes, the lawyers who do the review are actually… Continue Reading

Adopt an arbitration program that covers class, collective claims

Posted in Alternative Dispute Resolution, Class actions, Wage-Hour
Guest post by Tommy Eden, a partner in Constangy’s Opelika, Alabama, and West Point, Georgia, offices. In all the hoopla over the Supreme Court’s Hobby Lobby decision last week, it may have been lost that the Court refused to review a circuit court decision compelling arbitration in a collective action under the Fair Labor Standards Act.… Continue Reading