Posts by: Alex Mitchell

Marrying Sex and Sexuality under Title VII

Several recent cases are poised to set a major tonal shift in the realm of LGBT employee rights following the Supreme Court’s 2015 landmark decision in Obergefell v. Hodges. As part of its ongoing coverage of LGBT employment issues, Orrick offers its insights and predictions as courts continue to contemplate where sexual identity fits within this changing landscape of protected statuses. READ MORE

Sobering Reflections on OSHA’s New Drug Testing Policy

In May 2016, the Occupational Health and Safety Administration (“OSHA”) announced its final rule to “improve tracking of workplace injuries and illnesses.” Effective December 1, 2016, the rule targets retaliation against employees for reporting workplace accidents, including disciplinary actions that are likely to impair or discourage future reporting efforts. In its recent guidance, the agency suggests that blanket, mandatory post-accident drug testing can itself be a form of unlawful discipline where the employer lacks what OSHA terms a “reasonable basis” for suspecting drug or alcohol impairment. The “reasonable basis” language, which has so far received no further clarification, introduces ample uncertainty as to what conduct may be subject to an agency citation and how citations for drug testing fit within the agency’s existing penalty framework. READ MORE