Although it has been more than two years since the Supreme Court of the United States (“SCOTUS”) issued its Obergefell v. Hodges opinion and more than four years since its US v. Windsor opinion, the law is still evolving as it concerns same-sex marriage. It is important for employers who wish to minimize their litigation exposure to determine what “rights, benefits, and responsibilities” same-sex spouses should be extended in the same manner as opposite-sex spouses. While SCOTUS has indicated its belief that Obergefell’s holding and application are clear, recent rulings indicate otherwise . . . which means employers would be well-advised to stay tuned.
In the past month, there have been several important Federal Appellate Court decisions regarding sexual orientation discrimination. On March 20, the Eleventh Circuit reaffirmed its prior precedent that Title VII does not extend protection to individuals harassed on the basis of sexual orientation. The Court noted that claims for gender nonconformity are allowed, but stated that there were not sufficient facts for such a finding in the present case. The Court also stated that it cannot reconsider prior precedent without a hearing in front of all the judges of the Eleventh Circuit—potentially signaling that the Court is willing to reconsider its position on sexual orientation discrimination.
The United States Equal Opportunity Employment Commission (“EEOC”) is the federal agency charged with enforcing federal employment discrimination laws. In recent weeks, the EEOC issued the final version of its long anticipated Enforcement Guidance on Retaliation and Related Issues, (the “Guidance”) which provides loads of helpful information about the elements of proof for retaliation suits filed under EEO laws such as Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and Title II of the Americans With Disabilities Act. Employers take note.
With the recent election, the fate of the ACA is uncertain. However, we can be fairly certain that, whatever the changes may be, it is unlikely that we will return to life as it was prior to the enactment of the ACA on March 23, 2010. What the “new” ACA will look like, we can’t know, so it is important to continue to be compliant with the laws and regulations as they are currently, unless and until those laws and regulations change.
In recent years, legal protections for the civil rights of LGBT individuals have expanded at a rapid pace. Since the U.S. Supreme Court struck down the federal Defense of Marriage Act (“DOMA”) in 2014 as unconstitutional, it has done the same with state-law equivalents. That same year, President Obama signed Executive Order 13672, which prohibits federal government contractors from discriminating on the basis of sexual orientation. As this blog noted in 2015, the Equal Employment Opportunity Commission (“EEOC”) quickly jumped on the bandwagon with regard to other employers, affirming its position that Title VII protections extended to LGBT individuals. Now, the first U.S. Circuit Court of Appeals to consider the issue in this new legal landscape has disagreed – albeit reluctantly.
On July 13, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued a revised proposal to expand data collection through its Employer Information Report (“EEO-1”). Through EEO-1 reports, the EEOC and the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) have been able to identify possible discriminatory practices and conduct pay discrimination investigations through the race, gender, ethnicity, sex, and job category pay data collected from employers across the country.
It wasn’t that long ago when it was fairly clear that sexual orientation was not considered a protected class under Title VII. However, as we first wrote about on this blog last year, sexual orientation discrimination is an expanding legal basis of protection for all employers to be concerned about. This includes educational institutions.
On May 13, 2016, the Department of Labor (“DOL”) and the Department of Education (“DOE”) issued a joint directive to school districts nationwide titled the “Dear Colleague Letter on Transgender Students.” The correspondence “summarizes a school’s Title IX obligations regarding transgender students and explains how the [DOE] and the [DOL] evaluate a school’s compliance with these obligations.” The letter makes clear that “[a]s a condition of receiving Federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities.” (Emphasis added). While the information applies directly, through Title IX, to school districts, private employers on a much broader scale must also be cognizant of the new interpretation of “sex” discrimination.
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.