Second Circuit: Sexual Orientation Discrimination Covered by Title VII

In a divided en banc opinion, the Second Circuit Court of Appeals ruled that sexual orientation discrimination is covered by Title VII’s ban on gender discrimination.   Deepening a Circuit split within the U.S. Courts of Appeals, the Second Circuit adopted the reasoning of the Seventh Circuit in Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc), and held that Title VII’s prohibition against sex discrimination is sufficiently broad to prohibit discrimination on the basis of sexual orientation.   Taking a diametric view, the Eleventh Circuit had ruled that Title VII does not encompass sexual orientation discrimination.  This split among the Circuits may push the United States Supreme Court to review the application of Title VII to sexual orientation claims.  While the federal courts (and perhaps Congress) may address whether Title VII does so, many state/city laws already prohibit sexual orientation discrimination.  Since the state of federal law is uncertain, the safer course is for employers to review personnel policies and practices to limit decision-making to job-related conduct and qualifications.  For a full summary of the Second Circuit’s decision, please click here


NLRB Vacates Last Year’s Joint Employer Standard

In an unusual reversal, the NLRB today vacated its 2017 decision in Hy-Brand Industrial Contractors, Ltd., that set a new standard for determining joint employer liability.  The Board decision arose due to an inspector general report that faulted board member William Emanuel for improperly participating in the Hy-Brand case.  For a more in depth discussion of the ruling and its implication, see the blog post on our Labor & Collective Bargaining Blog:

NLRB Vacates Hy-Brand Joint Employer Decision Following Inspector General Report

Employer’s Ultimatum Supports Employee’s ADA Failure to Accommodate Claim

The United States District Court for the Southern District of Alabama in McClain v. Tenax Corp. recently denied in part an employer’s motion for summary judgment on a disabled employee’s failure to accommodate claim under the ADA.  The Court held the ADA-required interactive process never took place where the employer’s issued an ultimatum to the disabled employee in response to his request for a reasonable accommodation.  The facts show the importance of a well-documented interactive accommodation program.  In this case, an employee suffering from hand and foot deformities worked full-time as a janitor until the employer faced a production slowdown.  The slowdown led to the employee’s position becoming part-time.  In an effort to restore him to full-time, the employer offered a part-time pallet-wrapping position to supplement his part-time janitorial position.  After just two days of performing the part-time pallet-wrapper position, the employee advised his manager he could not perform the job because of his physical impairments.  The employee requested an accommodation whereby he be permitted to return to work as a full-time janitor.  Despite his complaints to multiple managers, they indicated he could either do both positions or quit.  Given no other options, the employee resigned.  He was not fired, but an ultimatum was presented. 

The Court determined that under the ADA the employer had no obligation to create a new position (i.e., a full-time, rather than a part-time, janitorial position) for the employee as a reasonable accommodation.  However, the Court ruled that the employer’s actions could be viewed by a jury as unlawful.  By giving the employee the all-or-nothing ultimatum it failed to engage in the mandatory interactive process, which requires interactive discourse between the employer and employee. 


Medical Residency Program Demonstrates Importance of Documenting and Consistently Applying Job Requirements

In Rodrigo v. Carle Foundation Hospital, No.16-1403 (7th Cir.), plaintiff was a medical resident in a three-year residency program (the “Program”).  In addition to completing certain rotations and passing parts one and two of the United States Medical Licensing Examination (“USMLE”) or (“Step 1” and “Step 2,” respectively), residents were required to pass Step 3 before advancing to the third year of the Program.  Residents who failed Step 3 more than two times would be terminated from the Program.  In light of performance issues, despite a number of accommodations, the resident failed Step 3 three times and was informed that he was not eligible to continue in the Program.  Upon request, he was permitted to resign in lieu of termination.  Two days later, he requested reinstatement and asserted that he had been under tremendous pressure and that “severe insomnia,” among other things, caused him to fail Step 3. Carle declined to reinstate him and Rodrigo filed suit, asserting claims under the Americans With Disabilities Act.  The Seventh Circuit held that Rodrigo’s discrimination and failure-to-accommodate claims failed because Rodrigo could not show that he was a “qualified individual.”  The Court determined that Rodrigo could not satisfy the perquisites of the position or perform the essential functions of the job because he could not pass Step 3 in the Program’s required time frame.

This decision demonstrates the importance of well-defined job (program, in this case) requirements and clear and timely counseling of deficiencies and efforts to assist the failing individual.

Inclement Weather May Require Employers To Warm To Reasonable Accommodations

To enable employees to deal with natural disasters and severe local weather, employers should prepare to address issues arising from employees’ inability to get to work.  By itself, being stuck at home because of a blizzard is not a protected activity.  This constitutes a personal absence warranting no protection under the law.  However, if the office is open and inclement weather precludes an employee from coming to work because of his or her medical condition, the employer may have an obligation to engage in an interactive process to reasonably accommodate that travel limitation.  Employers must ask whether the employee can perform the essential functions of his or her job, with or without a reasonable accommodation, from an off-site location.  If coming to an office is an essential function of performing an employee’s job, then, it would seem, that an employee cannot work. 

Whether an employee can work effectively from home is a fact-intensive examination.  Keep in mind that permitting off-site work as an accommodation of personal issues such as distance from the office, child-care, or other nonmedical challenges would seem to make it more likely that remote work for disability related reasons is  deemed “reasonable.”  Rather than face costly litigation, a wiser course is to engage in an interactive discussion with the employee to satisfy the employer’s obligation to engage in an interactive process.

Workstation Relocation Creates Viable Claim for Retaliation

The United States District Court for the District of Columbia recently permitted a Title VII retaliation claim to proceed to trial based on allegations of retaliatory relocation of a worker’s workstation.  In Massaquoi v. District of Columbia, the plaintiff was relocated to a new workstation one month after he complained to his supervisor about disparate treatment from his co-worker (who later became his new supervisor).  The plaintiff’s new workstation was in a smaller and noisier location and, according to the plaintiff, made him feel claustrophobic.  The plaintiff, who alleged he suffers from anxiety, submitted to his new supervisor a request to move his work station as an accommodation of his alleged disability. This request was denied. The District argued that the move was part of a division-wide realignment which relocated the plaintiff near his work unit. The Court, however, found sufficient evidence to show the relocation was retaliatory, including evidence showing his relocation occurred one month before the division-wide realignment and that the record was void of any evidence that other employee workstations were relocated as part of the alleged realignment. The District also failed to offer an explanation for denying the plaintiff’s request to be relocated to a quieter area as an accommodation.

While the Court acknowledged that the facts supporting plaintiff’s claims of retaliation could be viewed as minimal, it was sufficient to survive summary judgment.  The takeaway is clear:  employers should take caution when making changes to the terms or conditions (even physical conditions) of employment after an employee engages in a protected activity.  Here, simply moving a workstation to a less desirable location proved to be enough to allow the plaintiff to proceed toward trial.

Beyond the Weinstein Effect: It’s More Than Just Training

In light of the many high-profile news stories involving sexual harassment, employers are cognizant of the need to update policies, improve investigation procedures, and conduct training. However, there is more going on than meets the eye.  Several states have proposed legislation that creates a path for victims to come forward.  In addition, the new federal tax law also impacts how an employer will evaluate sexual harassment claims.

In New York and South Carolina, proposed bills would prevent employers from requiring employees to bring sexual-harassment complaints to binding arbitration.  The bills aim to prevent employees from having to use a typically confidential arbitration process.  Another bill was introduced in New York that prevents harassment settlements from including a nondisclosure provision – stripping employers of the ability to keep issues confidential between the employer and employee.  Other proposed state legislation include:

  • New Jersey – A bill seeks to prevent employees from executing a release that waives the right to discuss workplace discrimination or harassment.
  • California – A bill proposes that would prevent nondisclosure agreements from being included in sexual harassment and sex discrimination settlements.
  • Pennsylvania – A bill would render unenforceable contracts barring victims from reporting harassment or naming a harasser.

Finally, the new federal Tax Cut and Jobs Act adds another layer onto an employer’s sexual harassment settlement considerations. Under the new law, any settlement or payment attributable to sexual harassment or sexual abuse – as well as the attorney fees related to such settlement or payment – are not deductible if the settlement is subject to a nondisclosure agreement.  An employer now must choose between a nondisclosure clause and tax deductibility when negotiating settlements of a sexual harassment or sexual abuse claims.  By putting pressure on employers to avoid nondisclosure clauses, Congress hopes that fewer claims will be kept silent thereby encouraging additional claims to be asserted.   And, this brings us back to where we started – increased awareness and training is critical.

Be Prepared: Changes to Workplace Wellness Programs Coming in 2019

Though still a year away, employee health plans are in for significant change beginning January 1, 2019.  This modification is the result of a longstanding argument about plan administration.  In October 2016, the AARP sued the Equal Employment Opportunity Commission (EEOC), arguing that the regulations interpreting the Americans With Disabilities Act and Genetic Information Nondiscrimination Act include financial incentives or penalties that are discriminatory and penalize employees who do not want to provide health-related information but are being compelled to do so (rather than disclosure being voluntary) by the incentives or penalties. The provisions currently allow employers to ask questions relating to medical history of employees and employees’ spouses, and potentially require employees to undergo medical exams to participate in the program.  The rules also allow employers to provide limited incentives to employees who choose to participate.   Under the current regulations, incentives are capped at thirty percent of the total cost for self-only coverage for employees who are enrolled in a wellness program, but alternatively allow a penalty of up to thirty percent for those who refuse to participate in the program.

In December 2017, U.S. District Court for the District of Columbia ordered the EEOC to eliminate the portion of these rules that included the use of these financial incentives and penalties in the wellness plans, effective January 1, 2019 (AARP v. U.S. Equal Emp’t Opportunity Comm’n, Civ. No.: 16-2113).  According to the court, doing so in 2018 would cause mass disruption to the workplace, but leaves “plenty of time for employers to develop their 2019 wellness plans with knowledge that the Rules have been vacated.” Additionally, the Court encouraged the EEOC to draft new rules consistent with this ruling by August 2018.   In the meantime, employers should begin to review and adjust their current wellness plans, as the EEOC estimates that businesses will need at least six months to adjust to a change.


Listing Essential Function in Job Description Essential to Defeat ADA Claim

The Eleventh Circuit Court of Appeals recently vacated the lower court’s grant of summary judgment that dismissed a disability discrimination claim brought by a female police detective.  Years earlier, the detective suffered a “small heart attack” that the Police Department felt presented a significant risk if she suffered a Taser shock.  As part of the Taser usage and training policy, the Department required each officer to receive a five-second shock.  The plaintiff obtained a letter from her doctor asking for an exception due to her prior medical history.  Soon thereafter, the Department put her on leave and terminated her employment.   Although the trial court felt that dismissal was appropriate, the Circuit Court determined that a jury could conclude that the exposure to Taser shocks was not an essential function of the job.   A trial was deemed necessary because, in part, the “physical demands” section of the written job description did not mention that it was necessary for a detective to be exposed to a Taser shock.  Further, the “work environment” section of the job description stated a “detective must be willing to carry a firearm on and off the job and be mentally and physically capable of using deadly force, if justified.”  It did not state anything about Tasers or using a Taser. 

To prevent and better defend claims, employers regularly should update job descriptions to ensure they accurately describe current essential functions.