The “cat’s paw” doctrine, a concept first coined by Seventh Circuit Judge Richard Posner in 1990 and adopted by the Supreme Court in 2011, applies when an employee is subjected to an adverse employment action by a decision maker who does not have any discriminatory animus but who bases his or her decision upon information from another who has such an improper motive. In Vasquez v. Empress Ambulance Service, Inc., the Second Circuit recently held that the “cat’s paw” theory may be used to support recovery for Title VII retaliation, in addition to discrimination, claims and then extended the doctrine to permit liability if the individual with the discriminatory or retaliatory motive is a low-level employee, not just a supervisor.
After agreeing last week on a 2016-17 Executive Budget that includes several key labor and employment provisions, New York State Independent Democratic Caucus Leader Jeffrey Klein declared that “[t]his truly is the Year of the Worker.” The ground breaking bills include an increase of the New York State minimum wage over the next few years to $15 per hour and paid family leave for employees for up to 12 weeks when caring for an infant, family member with a serious health condition or to relieve family pressures when someone is called to active military service. The New York City Council was also busy on the employment front last week, passing several changes to the New York City Human Rights Law that impact New York City employers. These recent State and City legislative developments are summarized below.
Earlier this month, the EEOC filed its first lawsuits against employers alleging sexual orientation discrimination under Title VII, arguing that Title VII’s protections extend to sexual orientation as a form of gender bias. In the lawsuit against Scott Medical Health Center filed in the U.S. District Court for the Western District of Pennsylvania, the EEOC alleges that a gay male employee was subjected to harassment, including anti-gay epithets, because of his sexual orientation. In the suit against Pallet Companies d/b/a/ IFCO Systems filed in the U.S. District Court for the District of Maryland, the EEOC alleges that a supervisor harassed a lesbian employee because of her sexual orientation, including making numerous comments about her sexual orientation and appearance. The EEOC alleges that the employers violated Title VII, which extends protection to workers who are discriminated against on the basis of their sexual orientation. In both cases, the EEOC takes the position that sexual orientation discrimination necessarily entails treating employees less favorably because of their sex, thus triggering Title VII’s protections.
Members of the Fair Labor Standards Legislation Committee of the American Bar Association’s Section of Labor and Employment Law recently met. The meeting includes employer and employee advocates, as well as government officials. The meeting often highlights not only the present status of regulations, policy and pending litigation but also provides a window into coming trends that may be important for employers. We highlight a few takeaways.
As California employers adjust to recent amendments to the state’s Equal Pay Act, additional changes are looming. As we reported here, last year, California adopted the Fair Pay Act, which provides new pay equity provisions related to employees of the opposite sex. Those amendments took effect on January 1, 2016. Now, California lawmakers are setting their sights on pay disparities based on race and ethnicity. On February 16, 2016, California Senator Isadore Hall III (D-South Bay) introduced Senate Bill 1063, known as the Wage Equality Act of 2016 (“SB 1063”), which seeks to expand pay equity requirements beyond sex to include race and ethnicity.
Following months of waiting the UK Government has finally published its draft regulations on the new “gender pay gap reporting” requirements in the UK. On publication of the draft regulations, the UK Government has asked one final consultation question: “What, if any, modifications should be made to these draft regulations?” – And so it would appear that the draft regulations are nearing but possibly not quite in final form, pending any pertinent responses received.
From coast to coast, as the calendar turned to 2016, a host of new employment laws became effective. States and local government are imposing broad obligations on employers well above what federal law requires. This patchwork of legal requirements will continue to bedevil employers. As you begin implementing your resolutions for 2016, here’s our take on the major changes that went into effect across the nation last week:
On June 29, 2015, New York City Mayor Bill de Blasio signed into law the Fair Chance Act (the “Act”), which prohibits employers from inquiring into the criminal backgrounds of certain job applicants in the initial stages of the employment application process. You can read more about the Act here. The New York City Commission on Human Rights (the “Commission”), the agency charged with enforcement of the Act, recently issued “Legal Enforcement Guidance” (the “Guidance”) regarding the Act. As summarized below, the Guidance provides clarity regarding various aspects of the Act, including definitions of key terms, per se violations and exemptions from the Act.
On October 21, 2015, New York State Governor Andrew Cuomo signed a group of eight bills, referred to as the Women’s Equality Agenda, which expand protections for women in the workplace and elsewhere in New York State. The changes that will affect New York employers include an expansion of the existing State equal pay law, the addition of familial status as a protected category and the express requirement that employers reasonably accommodate pregnancy-related conditions.
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.