Discrimination

NYS Advances its #MeToo Agenda: Draft Sexual Harassment Guidance Released

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Late last week and in anticipation of the October 9, 2018 deadline for compliance with the statewide sexual harassment prevention mandate (the “Mandate”), New York Labor Law § 201-g, New York State released a model policy, complaint form, and training module.  The materials are still in draft form and the State is accepting public comments through September 12, meaning these documents are subject to change.  The model policy, complaint form, training module, and FAQs are available here.  Several portions of the sample documents exceed the Mandate’s minimum requirements, and some directly conflict with the position of other agencies.

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NYC Harassment Poster and Notice Released

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The New York City Commission on Human Rights has released the Fact Sheet and mandatory Notice referenced in the recent Stop Sexual Harassment in NYC Act (the “Act”).  Effective September 6, 2018, all employers in New York City must conspicuously post the Notice in the workplace and must distribute the Fact Sheet to all new employees upon hire.  Alternatively, the Fact Sheet may be incorporated in an employee handbook distributed to new employees upon hire. READ MORE →

Brett Kavanaugh’s Supreme Court Job Interview: An Employer’s Perspective

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The Senate is gearing up to consider President Trump’s nomination of Judge Brett Kavanaugh as an Associate Justice of the Supreme Court to replace Justice Kennedy. While employment law is not likely to be the center of his confirmation hearings, many employers will be watching to see how Judge Kavanaugh’s appointment may impact employment cases that come before the Supreme Court. A review of Judge Kavanaugh’s employment law decisions during his time on the U.S. Court of Appeals for the D.C. Circuit suggests that although he sometimes sides with employees, he would be an employer-friendly addition to the Supreme Court.

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Baker Takes the Cake in U.S. Supreme Court’s Narrow Holding on Refusal to Make Wedding Cake for Same-Sex Couple.

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On June 4, 2018, a 7-2 United States Supreme Court in Masterpiece Cakeshop Ltd. et al. v. Colorado Civil Rights Commission et al. reversed discrimination penalties against a baker who refused to create a wedding cake for a same-sex couple. This long-anticipated decision turns narrowly on an administrative agency’s past treatment of the case and largely avoids the core constitutional issues involving free speech, religious freedom of the First Amendment, and asserted LGBTQ rights. READ MORE →

NYC Leaps to Cutting Edge of #MeToo Movement

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On April 11, 2018, the New York City Council passed the Stop Sexual Harassment in NYC Act (the “Act”), a comprehensive package of legislation aimed at combating sexual harassment in the workplace and strengthening New York City’s anti-sexual harassment laws.  This is the first major legislative initiative undertaken by new City Council Speaker Corey Johnson, and he explained, “All New Yorkers are entitled to a safe, respectful workplace, and this package of legislation sends a strong message to public and private employers that there is no place for sexual harassment in our City.”  The bill is subject to Mayor Bill de Blasio’s approval and he is expected to sign this legislation into law in short order.

There are 11 separate bills included in the Act: three amend the New York City Human Rights Law (“NYCHRL”), three apply to private employers, and the rest apply to City agencies. READ MORE →

Sixth Circuit Rules that Employer Cannot Rely on the Religious Freedom Restoration Act to Defend Discrimination Claims by Transgender Employee

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On March 7, 2018, the Sixth Circuit issued a ruling of first impression, holding that the Religious Freedom Restoration Act (“RFRA”) did not exempt an employer from liability for violating Title VII of the 1964 Civil Rights Act (“Title VII”) when it fired an employee transitioning from male to female. READ MORE →

OFCCP’s New Directive on Predetermination Notices Gives Contractors a Second Chance

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Effective February 27, 2018, the Office of Federal Contract Compliance Programs (OFCCP), which is charged with ensuring federal contractors and subcontractors provide equal employment opportunity, issued Directive 2018-01, announcing that predetermination notices (PDNs) will be sent to federal contractors and subcontractors for all audits and compliance reviews where a finding of unlawful employment discrimination is imminent.  READ MORE →

New Lawsuit Alleges Rush to Judgment in #MeToo Climate

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Newton’s Third Law of Physics states that “for every action, there is an equal and opposite reaction.” A recent Complaint filed in the Southern District of New York suggests that this principle may also hold true for the recent “Me Too” movement. READ MORE →

Marrying Sex and Sexuality under Title VII

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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 →

Upon Further Review: Supreme Court Weighs Deference Due District Courts in EEOC Subpoena Proceedings

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In a recent oral argument before the U.S. Supreme Court, the justices considered a narrow procedural issue that could have broader implications for the subpoena power of the U.S. Equal Employment Opportunity Commission (“EEOC”).

At issue in McLane Company, Inc. v. EEOC is the standard of review applicable to district court decisions in proceedings brought to compel compliance with EEOC subpoenas issued in administrative investigations.  While all the other circuits to have considered the issue have applied an abuse-of-discretion standard, the Ninth Circuit held that such decisions are subject to de novo review. READ MORE →