Hunton Retail Law Resource

Last week, the United States Court of Appeals for the Second Circuit, sitting en banc, became the second 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 Zarda v. Altitude Express follows on the heels of the Seventh Circuit’s decision last April in Hively v. Ivy Tech Community College of Indiana, in which the Seventh Circuit also overturned its prior cases to recognize protections based on sexual orientation under Title VII.

On February 15, 2018, by a vote of 225 to 192, the House of Representatives passed the ADA Education and Reform Act (HR 620). Title III of the Americans with Disabilities Act (“ADA”) was enacted to ensure access for persons with disabilities to public accommodations. Too often, however, serial litigants have abused Title III to shake down businesses for quick settlements over minor, technical violations without actually seeking to improve access. By amending the ADA to include a notice and cure provision, proponents of HR 620 say this bill will curb predatory public accommodations lawsuits brought by serial plaintiffs and their lawyers against businesses. 

If 2017 is any indication, the new year will bring a fresh cascade of changes—both announced and unannounced, anticipated and unanticipated—in the business immigration landscape. Few, if any, of these changes are expected to be good news for U.S. businesses and the foreign workers they employ.

In 2017, while much of the news media focused on the Trump Administration’s draconian changes to practices and policies that affected the undocumented—including ending the DACA Dreamer program, shutting down Temporary Protected Status for citizens of countries ravished by war and natural disaster, and aggressively enforcing at the southern border and in “sensitive” locations such as churches, courthouses and homeless shelters—relatively less attention has been paid to the steady, incremental erosion of rights and options for legal immigrants, particularly those who are sponsored for work by U.S. employers, under the Administration’s April 2017 “Buy American/Hire American” executive order. There is no doubt that such restrictions to the legal immigration system will continue to cause business uncertainty and disruption in 2018. Here’s what to expect.

Equal pay issues continue to be a focus for new state legislation and of the private plaintiff’s bar. Labor and Employment partner Emily Burkhardt Vicente and counsel Christy Kiely at Hunton & Williams LLP discuss how employers can best position themselves to defend against claims of compensation discrimination.

View the 5-minute video.

Employers in the retail sector are constantly faced with the balancing act of relying on their workforce to operate a profitable business while also managing employees who are unable to work at full capacity due to an illness or disability. The patchwork of laws and regulations requiring employers to provide leave or accommodation can overlap with one another, creating uncertainty as to when employers can terminate sick or disabled employees. For example, it is a common scenario for an employee to exhaust his/her 12-week medical leave under the Family Medical Leave Act (“FMLA”) and then request additional leave as an accommodation under the Americans with Disabilities Act (“ADA”).   

As media outlets recently highlighted Equal Pay Day on April 4, 2017, publicly held retailers should be aware that the focus on pay equity is becoming increasingly popular among activist shareholders. This proxy season, more than 20 publicly traded companies are facing shareholder proposals at their annual meetings to vote on whether they should research and report on pay gaps by gender and race.

With Christmas falling on a Sunday this year, employers should be mindful of state blue laws, which sometimes require premium pay to hourly employees working on Sundays or holidays. Although most state laws, as well as federal law, do not require premium pay for work performed on holidays (unless, of course, the employee has worked more than 40 hours that week), there are a few exceptions, such as Massachusetts and Rhode Island. 

The issue of religious background has generated substantial discussion during the current election cycle. Recently, the federal government highlighted the issue of religious discrimination and accommodation in the workplace. 

This post has been updated. 

In the midst of the press and politics currently surrounding the issue of bathroom policies and laws with respect to transgender employees, it is helpful to remember that government organizations have been issuing guidance to employers to assist them in dealing with these issues, especially in places where gender identity and expression constitute protected characteristics under anti-discrimination laws.