EEOC Rules that Sexual Orientation Discrimination is Sex Discrimination Under Title VII

On the heels of the landmark decision by the Supreme Court in favor of gay marriage, the EEOC held on July 15, 2015 that sex discrimination under Title VII includes discrimination on the basis of sexual orientation.  Even though the decision is not binding precedent in federal court, and runs contrary to a significant body of case law holding that Title VII does not prohibit discrimination on the basis of sexual orientation, it could be regarded by some courts as persuasive authority.  The decision could also have an impact on employers in the form of an increased number of administrative charges of discrimination filed with the EEOC based on sexual orientation, as courts determine whether to adopt the EEOC’s interpretation.

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The Gay Marriage Decision: Support for Title VII Employment Discrimination Claims?

Following the excitement of the same-sex marriage decision by the U.S. Supreme Court on June 26th, the question remains how much the Opinion may impact Title VII employment discrimination claims.  Based on our reading of the Obergefell v. Hodges decision, and the many states that have passed legislation protecting employees from sexual-orientation discrimination, we recommend that employers revisit and update their anti-discrimination policies.

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New York City “Bans the Box”—Inquiries Into Applicants’ Criminal Histories Now Significantly Restricted

On June 10, 2015, the New York City Council passed the Fair Chance Act (the “Act”), which prohibits employers from inquiring into the criminal backgrounds of applicants in the initial stages of the employment application process.  With the passage of the Act, which is expected to be signed by Mayor Bill de Blasio, New York City joins a large group of other states and municipalities in passing so-called “ban the box” legislation, which refers to laws that prohibit or restrict employers from asking about or relying upon criminal convictions and arrests or requiring employees to disclose their criminal history through a check box on an employment application.  The ban the box legislation stems from the use of criminal history as an employment screening tool and from concerns that criminal history is often not a reliable indicator of job performance, and moreover, may adversely affect minority groups.

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Is Supervisor-Induced Stress a Protected Disability? California Appellate Court Says No

Employers often encounter challenging questions regarding their duty to accommodate employees who are diagnosed with stress, anxiety, or other mental health conditions that allegedly impact job performance absent accommodation.  But what if an employee claims that the stress of working with a particular supervisor is disabling, and that a transfer is the only reasonable accommodation?  The California Court of Appeal has provided some measure of clarity, in a recent opinion holding that anxiety and stress claimed by an employee as a result of working under a particular supervisor does not constitute a disability under California’s Fair Employment and Housing Act (FEHA).  Higgins-Williams v. Sutter Med. Found., Case No. C073677 (May 26, 2015).

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Emergence of Transgender Status Issues in Workplace Raises Compliance Questions for Employers

Transgender issues have been grabbing headlines in recent months—perhaps most notably with Bruce Jenner’s televised announcement about his gender transition.  Beyond the bright lights of pop culture, a wave of litigation and legislation is causing employers to pay closer attention to transgender discrimination and related issues.  As we noted in August of last year, there is an increasing trend toward protecting gender identity and transgender status.  This post provides an update and a high-level overview of the landscape in this emerging area and offers some tips for employers to minimize risk.

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And the Oscar Goes to . . . Equal Pay?  Arquette’s Oscar Speech Sparks Comparable Worth Bill in California

Just in time for Women’s History Month, California State Senator and Chair of the California Legislative Women’s Caucus, Hannah-Beth Jackson, introduced Senate Bill 358 (SB 358), which seeks to narrow the gender pay gap in California.  Citing best supporting actress Patricia Arquette’s recent Oscar acceptance speech where she called for, “wage equality once and for all and equal rights for women,” Senator Jackson hopes to turn that rallying cry into concrete legislation in California.

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EEOC Won’t Get its Prescription Filled at CVS: Case Challenging its Releases Dismissed on Summary Judgment

On October 7th, a federal district judge granted summary judgment against the U.S. Equal Employment Opportunity Commission (EEOC) in its lawsuit against CVS. The EEOC had challenged the nation’s largest integrated provider of prescriptions and health-related services for its employee separation agreement. The EEOC’s Chicago office had filed the suit in February, alleging the company’s separation agreement violated its employees’ Title VII rights to communicate with the EEOC and file discrimination charges. Read More

Obama Executive Order Places New Burdens and Restrictions on Federal Contractors

In an unwelcome, mid-summer surprise for the business community, President Obama signed the Fair Pay and Safe Workplaces Executive Order on Thursday July 31, 2014 requiring federal contractors to report violations of federal and state labor and employment laws and prohibiting certain contractors from requiring that employees arbitrate disputes alleging violations of Title VII or claims for sexual assault or harassment.  The Executive Order also requires federal contractors to provide relevant information about hours worked and overtime on employee paychecks.

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The EEOC Takes Aim, Once Again, at Employers’ Separation Agreements

On April 30, 2014, the U.S. Equal Employment Opportunity Commission filed suit against a private college, charging for the second time in two months that an employer’s severance agreement was unlawful. The EEOC alleged that CollegeAmerica, Inc.’s Separation and Release Agreements violated federal law by conditioning the receipt of severance payments and benefits on the employee’s promise not to file a charge with, or cooperate in investigations by, the EEOC against CollegeAmerica. Read More

Did the EEOC Try Hard Enough to Resolve Your Case Before Filing Suit?

March, 2014, three powerful business groups urged the U.S. Supreme Court to consider an important issue at stake for employers in Mach Mining LLC v. Equal Employment Opportunity Commission—can courts review the adequacy of the Equal Employment Opportunity Commission’s (“EEOC’s”) conciliation efforts prior to filing suit? In Mach Mining, the Seventh Circuit held “no,” although six other circuits to address this issue have acknowledged an employer’s ability to raise failure to conciliate as an affirmative defense. If the Supreme Court grants Mach Mining’s February 25, 2014 petition for review, the ruling could have significant impact for employers facing potential litigation with the EEOC. Read More