All entries for December 2016

Sexual Orientation Discrimination Under Title VII: Decisions Anticipated From U.S. Courts Of Appeals Soon

A decision is likely to come soon from the first United States court of appeals to address the issue of whether Title VII’s prohibition against “sex” discrimination extends to sexual orientation.

On December 15, 2016, the Eleventh Circuit (covering Florida, Alabama, and Georgia) heard oral arguments in the matter of Evans v. Georgia Regional Hospital, et. al., in which a lesbian security guard sued her employer and supervisors claiming she was targeted for termination on the basis of her sexual orientation and failure to conform to gender-based stereotypes held by her co-workers. 

On November 30, 2016, a full panel of the Seventh Circuit (covering Illinois, Indiana, and Wisconsin) held a rehearing in the matter of Hively v. Ivy Tech Community College.  In Hively, the Appeals Court will similarly determine whether the claim pursued by a lesbian part-time adjunct professor who alleges she was denied the opportunity for a full-time professor position and was not promoted due to being openly gay is, in fact, covered by Title VII’s prohibition against “sex” discrimination.

The same issue is also currently pending before the Second Circuit (covering Connecticut and New York) in Christiansen v. Omnicom Group, Inc, et al..  The Christiansen case involves a claim by a gay male who contends he was harassed by a supervisor who created a hostile workplace atmosphere, in part, by drawing sexually explicit pictures of employees fornicating with each other, calling them “gay”, “bottom” “poof” and forcing them to discuss their “gay” sex lives on a daily basis.  Oral argument is scheduled for January 20, 2017.

Momentum in favor of a broad interpretation of “sex” discrimination to include sexual orientation and transgender status -- as aggressively pursued by the Equal Employment Opportunity Commission (“EEOC”) -- has been growing.  Various federal district courts across the country have encompassed such protection to the LGBTQ community as within the ambit of Title VII.  Most recently, on November 17, 2016, a federal district court in Connecticut denied dismissal of a discrimination case concluding that a former lesbian teacher’s claim was entitled to protection under Title VII.

In the event of a split in the Circuits, we can expect the issue to ultimately be resolved by the United States Supreme Court.   

In the meantime, employers should remain mindful that may states and localities have anti-discrimination laws and ordinances that are explicitly broader than Title VII.  In Florida, for example, more than 50 cities, towns, and counties have ordinances that prohibit discrimination on the basis of sexual orientation. Because employers are bound by state and local laws that provide greater protection for employees than comparable federal laws, employers need to be aware of the applicable laws in the areas in which they operate. 

To obtain a list of the Florida cities, towns, and counties that currently have non-discrimination ordinances prohibiting sexual orientation discrimination, or if you would like guidance regarding compliance with anti-discrimination laws, please contact Jessica M. Farrelly, Esq. in the firm’s Employment Law Practice Group. 

UPDATE: Department of Labor's Appeal of Injunction On Fast Track Before Fifth Circuit Court of Appeals

On December 8, 2016, the U.S. Court of Appeals for the Fifth Circuit granted the Department of Labor’s (“DOL”) request for an expedited hearing on its appeal of the issuance of a nationwide preliminary injunction blocking the implementation of the new overtime exemption regulations under the Fair Labor Standards Act (“FLSA”).  The regulations, among other things, would have required employers to more than double the minimum salary requirement for “white collar” executive, administrative, and professional employees, or pay overtime compensation. 

The Court issued an Order setting forth the following expedited schedule:

December 16, 2016 - Due date for the DOL’s opening brief;

December 23, 2016 – Due date for amicus briefs in support of the DOL;

January 17, 2017 – Due date for response brief from 21 states and business associations challenging the new rules;

January 24, 2017 - Due date for amicus briefs in support of states/business associations;

January 31, 2017 – Due date for final reply brief from the DOL.

Oral argument is anticipated to be scheduled for the first available sitting after the close of briefing, which is expected to be sometime in mid to late February, 2017 – after Inauguration Day.  The appeal schedule, therefore, allows the DOL, under the new Trump administration, to possibly abandon its current position and the appeal.   Stay tuned! 

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If you have any questions or would like guidance regarding compliance with wage-and-hour laws or other general employment law matters, please contact the firm’s Employment Law Practice Group.

Court Cases on Two Hot-Button Employment Topics

Two recent cases highlight some of the hotter "hot-button" topics in employment law - (1) the expansion of LGBT rights under Federal discrimination law and (2) the issue of pay for student-athletes.  

The first case is that of Jacqueline Cote v. Wal-Mart Stores Inc in the U.S. District Court for the District of Massachusetts (Case No. 15-cv-12945), as reported by Reuters and posted on here.  In that case, Wal-Mart has agreed to settle claims of discrimination against employees with same-sex partners on the basis of failure to provide insurance options to those partners.  The claims involved potentially thousands of employees and the total settlement proposed to the court was $7.5 million.  This settlement provides yet another milestone on the path to broadened application of Federal law to same-sex couples and other members of the LGBT community that is currently being blazed by the EEOC and other agencies. 

The second case is actually a decision from the Federal Court of Appeals for the Seventh Circuit.  The decision can be found here.  In that decision, the Seventh Circuit was asked to decide whether University of Pennsylvania student-athletes were considered "employees" for purposes of seeking minimum wage rights under Federal law.  The Court hung its precedential hat on a long-held opinion by the Supreme Court of “a revered tradition of amateurism in college sports.” (quoting Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 120 (1984)). Essentially, the court found that this concept of amateurism was ". . .essential to the very existence of' collegiate athletics" Id. (citations omitted).  This represents another blow in yet another forum to attempts by athletes to get paid for their participation in college sports.   It appears the most viable avenue remaining to athletes is through the NCAA and its big-ticket institutions (potentially seeking a competitive advantage based on a much larger potential payroll).  

If you have questions about your rights, either in discrimination disputes or in wage and hour disputes, contact Joseph Herbert with Icard Merrill's Employment Law Practice group today. 


Hurry Up and Wait! December 1, 2016 Deadline for Implementation of the Department of Labor's New Overtime Exemption Regulations Enjoined by Federal Court Judge

Just before Thanksgiving, a federal court judge in Texas issued an order enjoining – on a nationwide basis – the Department of Labor’s (“DOL”) new overtime exemption regulations that would have doubled the minimal salary requirement for executive, administrative, and professional (“white collar”) employees.  As a result, employers are no longer required to increase the salary levels of eligible white collar employees from $455/week ($23,660 annually) to $913/week ($47,476 annually) by December 1, 2016 in order to maintain the exemption.

While this sounds like great news for many employers, the order issued a mere nine days before the anticipated deadline poses a difficult situation for many businesses.  In the approximate six months following issuance of the final regulations on May 18, 2016, many employers already began taking steps to be in compliance by the December 1, 2016 deadline.  Some employers already informed employees of their impending raises or their reclassification as non-exempt employees and its attendant time-keeping requirements for purposes of overtime compensation.  For these employers, the recent order presents a difficult situation.  Do you retract previous announcements and plans, or do you forge ahead?  Unfortunately, there are no black and white answers and each business must consider its situation and unique workforce independently.  Among the many considerations a business must evaluate in deciding how to proceed are the potential effect on employee morale, the cost and practicality of reversing planned payroll processing changes, and the ability to shift gears again if the regulations are ultimately implemented (possibility retroactively).  For those employers who discovered during an internal audit that certain workers may have been misclassified based upon their duties – irrespective of their salary level – the answer is easier.  They should proceed with reclassification. 

Employers should carefully consider which approach works best for their business and consult with counsel regarding the most desirable option in light of the organization’s current circumstances.  Employers should also continue to closely monitor the status of the regulations.  They are likely to be subject to additional action by the courts, the legislature, or the new Trump administration. Stay tuned! 

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If you have any questions or would like guidance regarding compliance with wage-and-hour laws or other general employment law matters, please contact Jessica M. Farrelly, Esq. in the firm’s Employment Law Practice Group