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Featured Item
Sexual Orientation Discrimination Illegal According To The Second Circuit Court Of Appeals
On February 26, 2018, in Zarda v. Altitude Express, Inc., the United States Second Circuit Court of Appeals found that employees may bring discrimination claims on the basis of sexual orientation under Title VII of the Civil Rights Act of 1964. The Second Circuit joins the Seventh Circuit as the only courts of appeals to hold sexual orientation discrimination is a viable claim under the law.
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The Employer
Discrimination Based on Transgender Status Violates Title VII
In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. 6th Circuit Court of Appeals No. 16-2424, the U.S. Court of Appeals for the Sixth Circuit recently ruled that discrimination based on an employee’s transgender status is discrimination based on “sex” in violation of Title VII of the Civil Rights Act of 1964. The Sixth Circuit, which covers Michigan, Ohio, Kentucky, and Tennessee, is the first such federal appellate court to so rule.
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The employer, R.G. & G.R.
The NLRB Reverts Back to the Browning-Ferris Joint Employer Test
Since August 27, 2015, employers have been grappling with the new NLRB standard regarding joint employment. The Browning-Ferris v. NLRB decision established that a joint-employer relationship will be found if the alleged joint-employers possess, exercise or simply retain the right, directly or indirectly, to control essential terms and conditions of employment, even if that control is not exercised. The Browning-Ferris decision was appealed and the U.S. Court of Appeals for the D.C.
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State Attorneys General Support Legislation To End Forced Arbitration of Sexual Harassment Claims
Under the Federal Arbitration Act, employers may enter into arbitration agreements with employees which would bar such employees from pursing work-related claims outside of the arbitration process. These types of arbitration agreements invariably would encompass claims for sexual harassment. In light of the #MeToo movement, Illinois congresswoman Cherie Bustos introduced a bill in the House of Representatives on December 26, 2017 to amend the arbitration law.
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The National Labor Relations Board Vacates Joint Employer Decision
The National Labor Relations Board’s Inspector General issued a ruling that new board member Bill Emmanuel improperly participated in the recent Hy-Brand joint employer decision. Therefore, the National Labor Relations Board (NLRB) unanimously vacated its decision in Hy-Brand. As such, the 2015 Browning-Ferris test for determining joint employment is once again the law of the land.
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Employers Need to Focus on Sexual Harassment Prevention
The end of 2017 has brought sexual harassment into focus for the first time in many years thanks in part to the confluence of several events – including the ousting of many high profile individuals who participated or orchestrated harassment; and the #metoo movement, which evidenced the prevalence of the problem. Moving into 2018 employers need to prioritize updating (or creating!) their policies related to sexual harassment.
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