From the time Congress passed the Civil Rights Act of 1964 until earlier this year, federal courts have consistently held that the Act’s protections against employment discrimination did not apply to discrimination on the basis of sexual orientation. However, in March, the Seventh Circuit Court of Appeals (which covers Wisconsin, Illinois, and Indiana) became the first court to rule the other way, holding that Title VII of the Civil Rights Act’s prohibition against discrimination on the basis of sex includes discrimination based on sexual orientation. What has occurred in federal courts in the wake of that decision, however, has only muddied the waters.
The National Labor Relations Board (the “Board”) continues its focus on overly-broad work policies – now in a non-union workplace – with a recent decision against Chipotle Mexican Grill. Although the Board found Chipotle violated the National Labor Relations Act (the “Act”) by (1) maintaining overly-broad social media and work policies, (2) ordering an employee to quit circulating a petition, and (3) firing the employee when he refused to do so, it found the employer did not violate the Act by asking the employee to remove certain tweets from his Twitter account. This case provides additional guidance on what is and is not permissible in work rules, particularly as they apply to social media posts by employees.
The West Virginia Supreme Court of Appeals recently reversed itself and adopted the “substantially younger” rule in cases of age discrimination under the West Virginia Human Rights Act (“WVHRA”). Previously, in order to prove age discrimination, an employee in the protected class—40 years old or older—had to show that he or she was replaced by or treated differently than a similarly-situated employee outside of the protected class—under 40 years old. This was the “over 40/under 40” rule. Now, an employee may prove age discrimination by showing evidence of a comparator employee who is substantially younger than the plaintiff, even if that comparator employee is also over 40 years old.
On January 29, 2016, the Equal Employment Opportunity Commission (“EEOC”) announced that it was proposing a change to the reporting requirements of annual EEO-1 reports, which would require covered employers to report information on their employees’ pay. If implemented, the changes will take effect with the September 2017 report. The purpose of this proposed change is to assist the EEOC and the Department of Labor (“DOL”) in identifying possible pay discrimination.
When dealing with their employees’ needs for accommodations due to religious, disability, or family leave reasons, it’s necessary for employers to know some personal information about their employees. But, simply asking for information can be considered a violation of certain employment laws. What’s an employer to do?
The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) is unique among employment laws, in part due to the affirmative obligations it puts on the employer. For example, when an employee returns to work after having taken more than 90 days of leave under USERRA, it is not enough that the employer gives the employee his or her old job back. Instead, the employer must place the employee in the position he or she likely would have had but for the military service. So, suppose an employer typically advances employees based upon length of employment. And during the one year an employee was serving in the military, the employee would have advanced to another position. Under USERRA, when the employee returns, he is not to be put back in his old position, but in the position he would have held had his employment not been interrupted by military service. This is known as the “escalator” position.
I was recently asked if an employer has to assign a qualified employee with a disability to a vacant position as part of the employer’s duty to reasonably accommodate the disability. The employer believed that, if he had a vacant position and the disabled employee was qualified for it, he had to give the job to that employee. While reassignment to a vacant position may be a reasonable accommodation under the ADA, there is no requirement that you must reassign the employee. Let’s see if we can clear up this misconception.
With all the recent media coverage of Bruce Jenner’s transition to Caitlyn Jenner, employers should be aware that the issue of transgender employees in the workplace is becoming more and more common. Regardless of one’s view on the subject, employers need to realize that they can find themselves in hot water by improperly dealing with a transgender employee. A recent case filed by the EEOC illustrates this problem.
As we’ve reported in this blog before, the National Labor Relations Board adopted a final rule on December 15, 2014, which will likely reduce the time between the filing of a union election petition and the representation election—the “ambush election rule.” The new rule goes into effect today, April 14, 2015. The new rule will apply to all representation petitions filed on or after the effective date. Representation cases filed before today will continue to use the old rules.