Another Circuit Prompts the Supreme Court to Resolve Title VII Sexual Orientation Claims

As the Circuits become further divided on issues of civil rights, the scope of legally protected characteristics under Title VII become harder to predict. After a recent loss in the 11th Circuit, a claimant petitioned the Supreme Court to review the 11th Circuit’s decision that “discharge for homosexuality is not prohibited by Title VII.” Bostock v. Clayton Cty. Bd. of Comm’rs, 894 F.3d 1335, 1337 (11th Cir. 2018). In its ruling, the 11th Circuit expressly rejected the argument set forth by the Supreme Court in Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998), that same-sex sexual harassment is actionable under Title VII if a person of the opposite sex would have been treated differently.

The 11th Circuit’s holding seemingly follows the Department of Justice’s brief last summer arguing that Title VII as enacted does not cover sexual orientation, and changes to the statute are left to Congress. In contrast with the federal government’s current interpretation and the 11th Circuit’s decision are rulings in other Circuits. For example, the 2nd Circuit has held that Title VII applies because it is necessary to consider claimant’s sex as a factor in considering discrimination on the basis of sexual orientation. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 132 (2d Cir. 2018). Accord Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339, 358-59 (7th Cir. 2017).

If certiorari is granted, argument will focus, in part, upon the breadth of the ruling in Oncale. Regardless, for many employers, state and local laws and court rulings have expanded legal protections beyond those enumerated in Title VII. The best rule remains – make decisions based on documented, easily explained business reasons.

Guidance Issued on New York City Mandatory Sexual Harassment Training

The New York City Commission on Human Rights has released Frequently Asked Questions (FAQs) as guidance on the “Stop Sexual Harassment in NYC Act.”  New York City employers with at least 15 employees are required to conduct annual anti-sexual harassment training for all employees starting April 1, 2019.  For complete details click here.

EEOC Reports Increase in Sexual Harassment Claims

This past year has been filled with disturbing reports of alleged sexual assault and sexual harassment by prominent figures in business, politics, and even the judiciary.  Not surprisingly, the number of EEOC sexual harassment filings has increased. In data published in October, the EEOC reported, that in 2018, it filed 50% more lawsuits regarding harassment than it did in 2017.  Additionally, the EEOC reported that charges alleging sexual harassment increased in 2018 by 12% when compared to 2017.  Along with these statistics, the EEOC reported that it recovered nearly $70 million for victims of sexual harassment in 2018, compared to only $47.5 million in 2017.

In response to the great many reports of sexual harassment, State and local governments have enacted laws requiring comprehensive anti-harassment training, posting of informational posters, and specific language in personnel policies — all aimed at reducing incidents of sexual harassment and increasing awareness of the reporting and remediation alternatives (from internal complaints to contacting governmental agencies).   It is likely that, at least in the near future, this all will result in a greater number of claims and perhaps greater difficulty resolving lawsuits and administrative charges.

Human Resources Employee Permitted to Pursue Discharge Claim

Rather than conduct in breach of an inherent duty of loyalty to the employer, the Eleventh Circuit Court of Appeals has ruled that a human resources representative engaged in protected activity under Title VII of the Civil Rights Act of 1964 when she referred a coworker who complained of discrimination to a plaintiff’s attorney.  Gogel v. Kia Motors Manufacturing of Georgia, Inc.  The ruling is more surprising in light of the fact that, as a Team Relations Manager, the HR representative was responsible for, among other things, investigating and resolving internal complaints of discrimination.  However, the Court focused upon the allegations that the employer “forbade” Gogel – the HR representative – from investigating a complaint made by an employee, Diana Ledbetter, and generally ignored other complaints of discrimination made by Ledbetter, other Kia employees, and Gogel herself.  The employer allegedly discharged Gogel after discovering that the same attorney represented both Gogel and Ledbetter, as it believed that Gogel had “encouraged or even solicited [Ledbetter’s] filing of the charge” and thus “at the very least, there [was] an appearance of a conflict of interest.”  Gogel subsequently sued, alleging, among other things, that she was fired for engaging in protected activity. 

The Court held that Gogel’s actions were reasonable (and thus protected) considering she tried to resolve complaints internally but failed due to the inadequacy of her employer’s procedures.  Further, the Court held the ruling advanced the “purpose of the statute and the need to protect individuals asserting their rights” by going outside the employer’s internal procedures.

This decision serves as an important reminder of the importance for companies to effectively implement and follow their investigation and complaint resolution procedures.  

 

Sixth Circuit Rules on Sexual Misconduct Case

The Sixth Circuit recently held, in Doe v. Baum, that a public university violated the Due Process Clause and Title IX when it did not allow a student accused of sexual misconduct to conduct a cross-examination of the claimant during university-run proceedings. The Court ruled that since the public university had to “choose between competing narratives to resolve the case,” the accused was entitled to conduct a cross examination.

The case began after Jane Roe filed a complaint of sexual misconduct against John Doe, another student, after stating she was too drunk to provide consent. Doe, however, argued that Roe was an active participant in the sexual encounter and did not appear intoxicated at the time. After conducting an investigation, in which witnesses provided statements in support of both sides, the investigator recommended that the University find in favor of Doe. Roe appealed to the University’s three-member Appeal Board, which reversed the investigator’s decision and concluded that Roe’s description of events appeared more credible. Rather than face expulsion, Doe withdrew from the University and filed suit.

In its analysis of the case, the Sixth Circuit ultimately found that the case rested on two main points: (1) since Doe was accused of serious misconduct, he was entitled to a hearing; and, (2) since credibility was a central aspect of the case, Doe should have been permitted to cross-examination. The Court then applied a balancing test, stating that Doe’s interest in not being labeled a sex offender greatly outweighed the interest of the University, which had little to lose by permitting cross examination.

In light of recent attention surrounding sexual misconduct cases, this ruling may cause sister Circuits to follow suit and expand the nature of investigations and related hearings.

“Regarded As” Disability Claim Does Not Require Proof of an Employer’s Subjective Belief

Under the ADA Amendments Act of 2008 (“ADAAA”), an individual meets the requirement of being “regarded as” having a disability, and thus is protected from discrimination, where his or her employer believes that he or she is substantially limited in a major life activity regardless of whether he or she actually is disabled.  Prior to the ADAAA, to prove a “regarded as” claim, a plaintiff in the Ninth Circuit was required to put forth evidence that the employer “subjectively believed” the plaintiff was disabled.  However, the U.S. Court of Appeals for the Ninth Circuit recently made clear that the ADAAA no longer requires a plaintiff to proffer such evidence.

In Nunies v. HIE Holdings, plaintiff complained of an injury and asked for less physically demanding work.  After the plaintiff’s request initially was approved, he advised one of the decision makers of his injury.  A few days later, the employer rescinded its offer to transfer plaintiff and told him that the position no longer existed because of “budget cuts.”  At that point, the employer terminated plaintiff’s employment. Possibly establishing pretext, a few days later, the employer advertised an opening for the position that it advised plaintiff no longer existed.  The Ninth Circuit reversed the lower court’s grant of summary judgment, holding that it was enough for plaintiff to put forth evidence that he advised his supervisor of his shoulder injury and that his position suddenly was eliminated without requiring evidence of his employer’s subject belief.

Employers are reminded of their obligations under the Americans with Disabilities Act that liability can be imposed where an employer considers and treats an employee as having a disability even if the employee does not in fact have one.

Improving Someone Else’s Health (by Organ Donation) Qualifies an Employee for FMLA Leave

The United States Department of Labor (“DOL”) has just issued an Opinion Letter concluding that organ-donation surgery can qualify as a “serious health condition” under the FMLA.  Specifically, the Opinion Letter affirmatively answered whether an employee may use FMLA leave for post-operative treatment where the employee donates an organ, even when the donor is in good health before the donation and chooses to donate the organ solely to improve someone else’s health.

The Opinion Letter clarified that where an employee-donor’s situation involves inpatient care and/or continuing treatment, his or her condition would qualify as a serious health condition under the FMLA. The DOL further explained that the FMLA defines a serious health condition, which would render an employee unable to perform the basic functions of a job, “as an ‘illness, injury, impairment, or physical or mental condition that involves’ either ‘inpatient care in a hospital, hospice, or residential medical care facility’ or ‘continuing treatment by a health care provider.'”

Given that the organ donor at issue in the Opinion Letter was a healthy individual, many employers might be inclined to deny FMLA leave to such individual. The Opinion Letter, therefore, serves as a reminder of the complexity of handling and responding to FMLA requests, and the need for employers to carefully assess and respond to leave requests on a case-by-case basis. Where issues are particularly unique and less than clear, employers should consult with counsel before taking action.

New York City: Today is the Day to Post and Distribute Fact Sheet on Sexual Harassment

Beginning September 6, 2018, all New York City employers must distribute and conspicuously post the New York City Commission on Human Rights fact sheet on the “Stop Sexual Harassment in NYC Act” to all new hires.  For further detail, see our related article by clicking here, where you can find links to the fact sheet and notice.

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