Hunton Employment & Labor Perspectives

On December 6, 2023, the US Supreme Court heard arguments for Muldrow v. City of St. Louis, which may have significant implications for discrimination cases under Title VII of the Civil Rights Act. Specifically, the Supreme Court in this case could clarify whether Title VII of the Civil Rights Act requires a clear showing of significant disadvantage or tangible harm to have an actionable claim.

Last week, the Ninth Circuit issued an opinion in Sharp v. S&S Activewear, L.L.C. where it confirmed that music in the workplace can form the basis of a Title VII sex harassment claim even when it is (1) not directed at any particular individual employee, and (2) offends both female and male employees.

Earlier this year, Harris County, Texas, which encompasses a substantial majority of the City of Houston, became the sixth Texas city or county to embrace a “ban the box” policy when it adopted the Fair Chance Policy.

Executive Order 12866 requires federal agencies to publish an agenda of regulations they plan to propose, promulgate, or review in the coming one-year period.  The Department of Labor’s regulatory agenda showed ambitious goals for its agencies in 2022, as does President Biden’s Build Back Better Framework. Employers should brace themselves for increased enforcement activity from agencies such as the Equal Employment Opportunity Commission (“EEOC”), the Occupational Safety and Health Administration (“OSHA”), and the Office of Federal Contract Compliance Programs (“OFCCP”).

Title III of the Americans with Disabilities Act of 1990 (“Title III”) prohibits discrimination on the basis of disability in public accommodations, requiring that individuals with a disability be offered the “full and equal enjoyment . . . of any place of public accommodation.”  42 U.S.C. § 12182(a).  As we previously discussed, the 30-year-old statute does not directly address whether “places of public accommodation” include websites, mobile applications, and other emerging web-based applications and technologies and, therefore, does not provide a standard for ensuring accessibility for web-based accommodations.

Nationwide, 36 states and over 150 municipalities have adopted “ban the box” laws that prohibit employers from asking applicants about their conviction or arrest records on their initial applications.  This article provides updates on recent changes and updates in Hawaii, California, and St. Louis, Missouri.

As part of Virginia’s overhaul of its labor and employment laws—on which we previously reported—the Commonwealth also enacted Virginia Senate Bill 712, which amended the Virginia Human Rights Act (hereafter, the “VHRA”) to require covered employers to reasonably accommodate the known limitations of an employee as it relates to pregnancy, childbirth, or related medical conditions, unless such an accommodation would impose an undue hardship on the employer.

The COVID-19 pandemic has exposed employers to an influx of novel employment law issues.  Many employers already have experienced an uptick in related internal complaints or litigation. Below we identify five particular employment law liabilities employers may be exposed to once the dust settles from the pandemic.

Wage and Hour Claims

The shift to telework during the coronavirus pandemic has forced many employers to set aside traditional tracking mechanisms that are used to determine when employees take breaks and clock off. As a result, employers may be vulnerable to employee claims that employers failed to provide and/or pay for all required meal periods, rest breaks, and overtime for remote and on-site employees. To proactively minimize potential wage and hour related claims, employers should ensure to the extent possible that employees are properly compensated for all hours worked. In addition, employers can minimize minimum wage violations by complying with applicable federal, state and local laws that may require employers to reimburse employees for certain expenses incurred in order to telework, such as cell phone, high-speed internet, or other equipment costs. Moreover, employers should consider encouraging managers to execute best supervisory practices in the telework environment, including setting clear expectations with employees, conducting regular check-ins, promptly addressing issues, and making other efforts to maintain clear communication.

On Saturday, April 11, 2020, Virginia Governor Ralph Northam officially signed the Virginia Values Act into law.  The bill’s headlining purpose—adding gender identity and sexual orientation to the list of classes protected under the Virginia Human Rights Act (VHRA)—is commendable and has garnered widespread support.  However, other, more technical changes in the bill that are unrelated to the headlining purpose are poised to change the landscape of employment litigation in Virginia and could lead to a significant increase in discrimination lawsuits filed in Virginia’s state courts.  Virginia employers are well served to begin preparing now for this new procedure in the handling of employment discrimination charges and litigation, as the bill’s new provisions go into effect on July 1^st.

The Third Circuit Court of Appeals ruled Thursday that the City of Philadelphia may enforce its law prohibiting employers from asking applicants about their salary history.

The decision, which overturned a preliminary injunction issued in the district court, upheld the constitutionality of the Philadelphia law under the First Amendment.  The Court held that the law infringed on the free speech rights of employers, but it did not violate the First Amendment because it was narrowly tailored to address a substantial government interest.

The Ninth Circuit Court of Appeals upheld a District Court’s ruling in favor of employer Medtronic, Inc. in a lawsuit alleging Medtronic unlawfully terminated employee Jose Valtierra’s employment because he was morbidly obese, in violation of the Americans with Disabilities Act (“ADA”).  In doing so, the Court declined to decide whether morbid obesity is a disability, leaving this issue unsettled in the Ninth Circuit.

Yesterday, Governor Cuomo signed the last of several bills that massively overhauls New York State’s discrimination and harassment laws.  The changes, some of which are effective immediately, are explained in more detail here.

The main takeaways are as follows:

There may be some changes coming to how California enforces its antidiscrimination law, the Fair Employment and Housing Act (“FEHA”).  In February 2017, a bill (Senate Bill 491) was introduced in the California Senate proposing to allow local government entities to enforce antidiscrimination statutes.

On October 5, 2017, Attorney General Jeff Sessions released a formal letter on behalf of the United States Department of Justice stating the DOJ’s official position that Title VII “does not prohibit discrimination based on gender identity per se, including transgender status,” officially retracting the DOJ’s previous position under the Obama Administration and setting up a direct conflict with the EEOC’s current position on the scope of Title VII.

In a landmark ruling on April 4, 2017, the United States Court of Appeals for the Seventh Circuit, sitting en banc, became the first federal appellate court to officially recognize a discrimination claim under Title VII based solely on the plaintiff’s sexual orientation.  The Court’s decision in Hively v. Ivy Tech Community College of Indiana reflects a groundswell of recent cases questioning whether sexual orientation claims are viable under Title VII.  Although the Seventh Circuit is the only appellate court so far to hold that sexual orientation discrimination is a form of “sex” discrimination under Title VII, recent panel decisions from the Second and Eleventh Circuit Courts of Appeals signal that additional circuit courts might be poised to overrule existing case law to find similar protections.

It has been ironclad law since the enactment of the Title VII of the Civil Rights Act in 1964 that the Act’s prohibition against discrimination “because of . . . sex” does not include sexual orientation.  Federal law does not prohibit employers from terminating someone for being gay or lesbian.  For now, at least.

The U.S. Court of Appeals for the Eleventh Circuit (covering Florida, Georgia, and Alabama) confirmed that proposition this month in Evans v. Georgia Regional Hospital.  On one hand, the court’s holding reinforced what it and every other federal appellate circuit already had determined.  On the other, the court showcased perhaps the most heated internal judiciary battle yet on this issue, which has percolated at high temperatures for the past few years.

On March 1, 2016, the United States Equal Employment Opportunity Commission (“EEOC”) sued employers for the first time for sexual orientation discrimination. The EEOC filed lawsuits in federal courts in Pittsburgh and Baltimore against manufacturing and health care employers for unlawful sex discrimination on behalf of employees alleging they were harassed and discriminated against based on their sexual orientation.

Integrity Staffing Solutions v. Busk
Oral argument was heard on October 8, 2014.  This case will resolve a circuit split on whether time spent by warehouse workers going through security is paid time.  The Fair Labor Standards Act, as amended by the Portal to Portal Act, does not require an employer to compensate for activities that are preliminary or postliminary to their principle work.  29 U.S.C. §254(a)(2).  The district court dismissed plaintiffs’ claims, but the Ninth Circuit ruled against Integrity Solutions, a contractor to Amazon.com, holding that going through security was an “integral and indispensable” part of the shift and not a non-compensable postliminary activity.  The Second and Eleventh Circuits previously held that time in security screening is not compensable time.  Interestingly, the U.S. Department of Labor filed an amicus brief on the side of Integrity Staffing.

Recently, the Maryland Senate passed a bill, called the Fairness for All Marylanders Act of 2014, that would prohibit discrimination against transgender individuals in employment and other areas.  By doing so, the state moves closer to making transgendered individuals a protected class.  The bill must still pass the House of Delegates before it may be signed into law.  Four localities in Maryland have already passed laws barring discrimination against individuals on the basis of gender identity; Baltimore City and Baltimore, Howard and Montgomery counties.  If the bill is enacted, Maryland would join over one dozen other states that have similarly banned discrimination on gender identity, including such states as California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington.

In Harris v. City of Santa Monica, No. S181004 (Cal. Feb. 7, 2013), the California Supreme Court held that a plaintiff can establish a claim of employment discrimination by showing that discrimination was a substantial motivating factor in the decision-making process.  The Supreme Court also held that even if a plaintiff establishes that discrimination was a substantial motivating factor in the decision-making process, the defendant is entitled to establish a “mixed motive” defense by proving that legitimate factors would have been sufficient, absent the discrimination, to produce the same decision.  On the surface, these two holdings appear contradictory.  That each of those propositions is true highlights the significance of the Court’s rulings on remedies.  Even if the defendant establishes its mixed motive – or same-decision – defense, that defense does not immunize the employer from liability.  Instead, the plaintiff may potentially be entitled to declaratory or injunctive relief, and may recover attorneys’ fees even though the employer successfully establishes its defense.

The Supreme Court of Virginia recently ruled in VanBuren v. Grubb that supervisors or managers who participate in the termination of an employee may be held liable in claims of wrongful discharge.  This ruling is significant because it places supervisors in the shoes of their employers and threatens them with liability.

A recent case from Ohio highlights the evolution of both “cat’s paw” liability and “gender stereotyping” claims in employment litigation.  In Koren v. The Ohio Bell Telephone Company, No. 1:11-cv-2674 (N.D.Ohio Aug. 14, 2012), plaintiff Jason Koren, then known as Jason Cabot, first worked for Ohio Bell from 2000 to 2006.  He told his co-workers he was gay and had AIDS.   He left his employment on good terms and subsequently married his partner in Massachusetts, taking his husband’s last name of Koren.  Koren was rehired by Ohio Bell as a sales consultant in 2009.   Koren alleged one of his managers refused to recognize his marriage or name change and persisted in calling him Cabot.  Koren also described a number of allegedly discriminatory job actions.  In 2009, Koren’s father died, and he missed nine days of work.  Ohio Bell terminated Koren for excessive absences.  He sued for gender and disability discrimination under Federal and Ohio law.

The Seventh Circuit gave an unexpected answer when asked:  is the Age Discrimination in Employment Act (ADEA) the exclusive remedy for federal age discrimination?   Deciding an issue of first impression for that court, it said no.  Levin v. Madigan, 7th Circuit, No. 11-2820, August 17, 2012.   The Seventh Circuit is an outlier, as every other circuit to consider the question (the 1st, 4th, 5th, 9th, 10th and D.C. Circuits) has held the ADEA is the sole remedy for federal age discrimination claims.

The Supreme Court recently announced the cases for which it has granted certiorari for the 2012-2013 term.  Among these, and now slated to be adjudicated in the nation’s highest court next term, are the appeals of three cases that will surely impact employment litigation.  In these cases, the Court will discuss (1) what the evidentiary standard is in federal courts, post-Dukes,  for class certification, (2) whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims, and (3) what constitutes a “supervisor” for a vicarious liability claim under Title VII.

The Seventh Circuit Court of Appeals recently ruled that discrimination on the basis of immigration status is not covered under Title VII.  In Cortezano v. Salin Bank & Trust Co., No. 11-1631, the facts involved spouses Kristi and Javier Cortezano.  Javier was an unauthorized immigrant from Mexico, while his wife Kristi was employed as a sales manager at Salin Bank. When Kristi’s supervisor discovered Javier’s unauthorized immigrant status, the bank initiated a process that ultimately led to Kristi’s termination.  Kristi filed suit against Salin Bank alleging, among other things, employment discrimination under Title VII.  The U.S. District Court for the Southern District of Indiana granted Salin Bank’s motion for summary judgment. 

In its decision in Ricci v. DeStefano, 129 S.Ct. 2658 (2009), the Supreme Court sought to resolve a conflict between the “twin pillars of Title VII,” the Act’s disparate-impact and disparate-treatment provisions.  Ricci involved a promotional examination administered by the City of New Haven.  After candidates took the examination, the City refused to certify the test results because of a concern that the test had a disparate impact on African-American candidates and would lead to the promotion of white candidates.

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On December 6, 2011, just five days after it heard oral arguments in the case, the Eleventh Circuit Court of Appeals affirmed a victory for a transgender woman, Vandiver Elizabeth Glenn, who sued her former employer, the Georgia state legislature, for violating the Equal Protection Clause of the United States Constitution.  A three-judge panel unanimously affirmed a summary judgment for the plaintiff, who was fired from the General Office of Legislative Council for undergoing a gender transition.

California Governor Jerry Brown recently signed into law Senate Bill No. 559 (SB 559), which prohibits discrimination based on an individual’s genetic information.  While SB 559 significantly expands the protections from genetic discrimination provided under the federal Genetic Information Nondiscrimination Act of 2008 (GINA), at this time, its impact on most California employers is thought to be limited to the potential for greater damages to be awarded under it than under its federal counterpart.

On October 3, 2011, the U.S. Supreme Court vacated the Ninth Circuit’s decision in Wang v. Chinese Daily News, Inc., 623 F.3d 743 (9th Cir. 2010), and remanded it “for further consideration in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011).” The Supreme Court did not provide any further analysis of the Wang decision in its granting of the petition for a writ of certiorari.

In the current economy, with unemployment over 9% and multiple applicants for every position, an out-of-work individual should be doing everything possible to get a new job, right? Perhaps, but not for purposes of “mitigation” under fair employment statutes.

On August 11, 2011, the U.S. District Court for the Western District of New York ruled that a fired employee alleging discriminatory discharge under Title VII had no obligation to enroll in vocational training in order to mitigate his damages from the alleged discrimination. EEOC v. Dresser Rand Co., No. 04-CV-66300, 2011 U.S. Dist. LEXIS 89466 (Aug. 11, 2011).

This week, the United States Supreme Court issued its decision in what has been called the “most important class action case in more than a decade.”  In Wal-Mart Stores, Inc. v. Dukes, et al., No. 10-277, 564 U.S. ___ (June 20, 2010), the plaintiffs, current and former employees of the Nation’s largest private employer, Wal-Mart, sought judgment against the company for injunctive and declaratory relief, punitive damages, and backpay, on behalf of themselves and a nationwide class of some 1.5 million female employees, alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964.

Disability discrimination claims have long been difficult for employees to pursue in court. Although employers are often grappling with reasonable accommodation and leave issues in the workplace, such issues have typically not spilled into the courtroom. One reason for that has been the difficulty in proving an employee has a “disability.” The final regulations issued by the EEOC in March 2011 could change all of that. The new regulations, interpreting the ADA Amendments Act of 2008 (ADAAA) expand the definition of “disability” and otherwise remove several impediments to pursuing lawsuits under the ADA. This should lead to an increase in ADA litigation.

It is very difficult to control everything employees say in the workplace, and to stamp out every inappropriate comment, particularly in a large workforce.  The reality is that out of place remarks happen all the time in the workplace, and every single improper comment cannot lead to legal liability for employers, or commerce would come to a complete stop.  Courts have recognized this reality and developed the “stray remarks” doctrine, which places appropriate focus on those inappropriate remarks that are made as part of an adverse employment action.  California recently declined to follow this doctrine, at least in the way other courts have.

On Monday, the United States Supreme Court ruled that claims brought by African American firefighters who had sued the City of Chicago alleging that a hiring test was discriminatory were not time barred.  Lewis v. City of Chicago, No. 08-974, 560 U.S. ___ (2010).  The City conceded that its use of the hiring test was unlawful, but argued that the firefighters claims were untimely.  Addressing only the statute of limitations issue, the Court issued a unanimous decision in favor of the firefighters, holding that the firefighters timely filed a disparate impact claim based on the continued use of the hiring test.

Committees in both the House and the Senate heard testimony this week regarding the Protecting Older Workers Against Discrimination Act (H.R. 3721 and S. 1756).  Democrats introduced the Act last fall with hopes of restoring employees’ rights under the Age Discrimination in Employment Act (“ADEA”) by overturning the Supreme Court’s decision in Gross v. FBL Fin. Servs. Inc., 557 U.S. __ (2009).

Think you are doing your pregnant employee a favor by taking her off a big account to give her some time “for herself”?  Think again!  You may just be opening yourself up for a lawsuit.

Most employers have never heard of Family Responsibilities Discrimination (“FRD”).  FRD is an umbrella term for workplace discrimination based on stereotypes about how employees with family caregiving responsibilities will or should act.  For example, an employer may assume that a new mother will not be as committed to her career or as reliable as she was before she had a baby.  Or an employer might believe that a mother “should” be home with her children and may refuse to give her assignments that require travel or late hours. The discrimination arises because the employer’s actions are based on stereotypical beliefs, rather than on the individual employee’s performance or own desires.  And family caregiving is not just limited to childcare.  In fact, an increasing proportion of caregiving is devoted to the elderly and disabled. As with childcare, women are disproportionately responsible for caring for their relatives, including parents, spouses, and other relatives.

A new proposed rule by the Equal Employment Opportunity Commission provides new guidance in determining what constitutes a “reasonable factor other than age” in defending against a claim under the Age Discrimination in Employment Act.  The EEOC introduced the proposed rule on February 18, 2010 and is currently soliciting comments until Monday, April 19, 2010.

Title II of the Genetic Information Non-Discrimination Act of 2008 (GINA) covering employment goes into effect on November 21, 2009.  GINA, which was enacted in May 2008, prohibits employers from discriminating on the basis of genetic information and from intentionally acquiring genetic information from employees or applicants.  The Act also imposes strict confidentiality requirements on employers, and requires them to segregate and maintain all such information in compliance with the Americans with Disabilities Act.

On November 5, 2009, the U.S. Senate Committee on Health, Education, Labor, and Pensions held an initial hearing on the Employment Non-Discrimination Act of 2009, S. 1584 (“ENDA” or “the Act”).  ENDA would prohibit discrimination in employment on the basis of sexual orientation and gender identity, which currently are not prohibited factors under federal law or under the laws of a majority of states.