In the most consequential U.S. Supreme Court case in many years, the Court ruled this morning that Title VII prohibits employment discrimination on the basis of sexual orientation or gender identity.

You can download the 6-3 decision in Bostock v. Clayton County, here.

Connecticut has long prohibited employment discrimination on the basis of sexual orientation and gender identity so the court’s decision will have less of an impact here for LGBT workers.  In fact, back in 2016 the Connecticut District Court already offered these protections for Title VII cases in this state in a decision that I covered back then. 

In states without such protection, the new protections now offered to employees nationwide will be significant.

And moreover, the message that this case is sending is unmistakable too:

The statute’s message for our cases is equally simple and  momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions.

The case affirms that Title VII provides broad protections for LGBT workers.

Some of those who supported adding language to Title VII  to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects  have unfolded with far­reaching consequences, some likely beyond what many in Congress or elsewhere expected.

But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain  statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex  when deciding to fire that employee. We do not hesitate to  recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.

For Connecticut employers, the case should be welcome news; no more will employers have to navigate inconsistent laws in other states. And having consistent federal laws will make it easier for training purposes too.  Employers should update their policies too to make sure this is included in anti-discrimination protections.

My firm will be providing a further alert likely late today and we’ll have more on my firm’s Employment Law Letter blog as well.

What do you think of masks?

Strangely, it seems a loaded question of late.  How masks became a political hot potato is something that historians will debate.

Yesterday, Connecticut tried out a new slogan encouraging common-sense use of masks. The new slogan? “If you have to ask, wear a mask”.

But that’s not the full story of course.

In all of the state’s reopening rules, masks (and face coverings) are a key component — in stores, restaurants, offices, even amusement parks.

OSHA has chimed in as well with a new FAQ purporting to recap existing regulations on the subject.

If you read that, though, you might think that employers in Connecticut are exempt from provide masks to their workers now.

Cloth face coverings are not considered personal protective equipment (PPE) and are not intended to be used when workers need PPE for protection against exposure to occupational hazards. As such, OSHA’s PPE standards do not require employers to provide them.

But Connecticut’s rules for reopening all mandate the opposite now.  In rules for offices — which are identical to other sector reopening rules — it states:

EMPLOYERS ARE RESPONSIBLE FOR PROVIDING PERSONAL PROTECTION
TO THEIR EMPLOYEES
• If businesses do not have adequate personal protection, they cannot open.

For employers in Connecticut then, this is the rule to follow for now as it trumps any OSHA requirement.

And what about whether employees should wear a mask at work?

OSHA again takes a decidedly wishy-washy approach stating: “OSHA generally recommends that employers encourage workers to wear face coverings at work.”

Recommends is not the same as requires.

But Connecticut states the opposite in clear plain terms: “All employees are required to wear a face mask or other cloth face covering that completely covers the nose and mouth, unless doing so would be contrary to his or her health or safety due to medical conditions.”

For employers trying to decipher all of the rules (which seem ever changing), the last few months have made things challenging; the mask debate is only the latest.

But perhaps it’s best to listen to the scientists.

As Jon Hyman cites on his blog post on masks, a recent study this week shows that masks used by the public “could make a major contribution to reducing the impact of the COVID-19 pandemic.”

Masks may not look pretty at times, but in Connecticut at least, masks are a key part of the state’s reopening plans.

One of the items I talk about in a sexual harassment prevention training is that people’s perception of what sexual harassment is, may differ from how a court defines it.

Suppose I told you that the owner of a small company that you worked at and reported to made inappropriate comments in discussing the size of his genitals on more than one occasion, mentioning having the office holiday party at a strip club, and suggesting that you wear more revealing clothing to attract more clients.

Is that enough to establish a claim of sexual harassment?

No, says one recent Superior Court case, in Robinson v. Purple Hearts Home Care, LLC. 

As the court notes, a plaintiff must allege that the “level of harassment went beyond a few stray comments and instead permeated the workplace to such an extent that it affected an employee’s work on a day to day basis”.

Here, the court said, these facts are not sufficient to indicate that the plaintiff was a victim of sexual harassment “because she has not alleged that the comments were a continuous and pervasive aspect of her working life” nor that the comments “had a negative impact on her day to day work”.

The case is a reminder that the burden to establish a sexual harassment claim isn’t mere isolated incidents unless the incidents are sufficiently severe.

For employers, this still isn’t conduct that employers should engage in and an example of how conduct that some people might find offensive, may still not rise to the level of “sexual harassment” as courts define it.

Last week, I had the opportunity to listen in on an informative CLE program sponsored by the Practicing Law Institute on video mediation. I’ve already participated in several of these mediations and have started incorporating them into the mediations that I do for other attorneys.

The term “video mediation” is still a work in progress. Some are calling them “Zoom Mediations” (in reference to the popular video conferencing app) or “Virtual mediations” but I tend to prefer “video” for the the video conference nature of it.  You can use whatever platform you like.

The speakers on the PLI program were very bullish on the future of video mediations.  In fact, one went so far as to suggest that it’s unlikely any representative from an insurance company would be willing to travel hours (or even a day) to spend their time in a conference room for the day.

I think the speakers are on to something. Why force parties to sit in a conference room all day when video conferences can accomplish the same task?

The speakers advanced a few reasons why video mediations are superior:

  1. Video mediations save clients money. No travel expenses for the attorneys. No hotels to be stayed at. And no travel time as well.  Just hop on the computer a few minutes before the mediation is to start and, well, that’s it.
  2. Video mediations are inherently better that mediations via phone. Sometimes parties need to see the other; same with the mediators.  While it’s not quite as simple as reading a room, mediators and attorneys can learn quite a bit from the visual cues being given.
  3. More participation by all.  Often times, particularly when travel is involved, parties or insurance personnel would ask to be “excused” from attending. With mediations via video conference, those excuses disappear. And with greater participation, the video mediations are more likely to succeed.
  4. Geography is not an issue. Want a mediator outside your city? No problem. Video mediations allow you to seek mediators from literally across the country to suit your needs. While many local attorneys will still be better, cases with specialized expertise can now seek that expertise more easily.
  5. Video mediations are easier to schedule.  Again, travel complicated things and parties would have to give up at least a day or two to attend. With video mediations, parties and attorneys can attend from the safety of their office or home (or home office) making them easier to schedule.

Video mediations are not perfect. But for employment cases, video mediations may make sense more often than not. And with in-person mediations on hold for the foreseeable future due to the pandemic, the time is now to explore them.

The last time that I spoke with Plaintiff’s attorney Nina Pirrotti, the pandemic was just beginning and we were just getting used to our home offices. Now, 10 weeks later, the abnormal has become normal.  My business attire has gotten a bit more casual and my office a bit more organized.

But it seemed a good time to check in and see what legal issues we were both seeing the last month or two as businesses start to reopen.

While we had previously done our “The Dialogue” conversations in writing, in March we tried video. The feedback we both received from it has led us to think that we may have found our new format. Let me know what you think.

A few weeks ago, Nina wrote a letter to The New York Times about employers taking advantage of the COVID-19 crisis.

When you start thinking about all the ways employers (and employees) have to keep each other safe, it’s a long list.

Hope you enjoy the conversation as much as we did.

(Note: We recorded this a few days ago, so it doesn’t address the weekend’s developments that I covered in a blog post on Sunday.) 

Over the weekend, Governor Ned Lamont issued the latest batch of rules for businesses that can reopen on June 17th.  You can find them all here.

The rules are, in many ways, a natural extension of the rules for essential and Phase One businesses.

For example, businesses that open will do so at the state’s “strictest controls on business operations and societal interaction”.  This includes:

  • Capacity limit of 50% for most businesses that reopen.
  • Strict cleaning and disinfection protocols in all settings.
  • Importantly, those that can work from home should continue to do so.
  • Similarly, those in high risk groups and over the age of 65 “should also continue to stay safe and stay home”.
  • Facemasks should continue to be worn in public at all times.

The following sectors will be allowed to reopen in a limited capacity on June 17, 2020:

  • Amusement Parks (Outdoor only and limited to 25% capacity)
  • Hotels / Lodging
  • Restaurants (Now including Indoor and limited to 50% capacity)
  • Indoor museums, zoos, and aquariums (limited to 50% capacity)
  • Indoor recreation (e.g., bowling, movie theaters, etc.) (limited to 50% capacity)
  • Libraries
  • Outdoor events (subject to existing and future gathering size limits promulgated by Executive Orders)
  • Personal services (e.g., nail salons, tattoo parlors, etc.)
  • Sports and fitness facilities (e.g., gyms, fitness centers, pools, etc.) (limited to 50% capacity)

Businesses that plan to reopen should ensure compliance with a long list of rules including:

  • Create a plan for reopening and share with all employees
  • Appoint a program administrator who is accountable for implementing the rules
  • Institute a training program and ensure employee participation
  • Provide adequate Personal Protective Equipment to all employees
  • Maintain a log of employees on-premises over time, to support contact tracing
  • Stagger shifts, breaks, and lunch times to minimize contact between employees
  • Complete the self-certification on the DECD website to receive a Reopen CT badge

In many respects, the reopening plans of the state have worked well overall. Yes, there have been tweaks along the way — including a delay in implementation of the rules for hair salons and barbers — but businesses are adapting.

As employers start to return employees to the physical workplace, new issues keep arising daily.  Here’s a common scenario:

Employee X has been on furlough since late March and collecting more on unemployment than if he had been employed, thanks to the extra $600 weekly payment.

Employer now asks Employee to return to work.  Although there are many responses, here are a few typical responses from the employee that I’ve been hearing from employers:

  • Sure, when can I start?
  • I don’t think it’s safe for me to return. Can’t I just “stay” on unemployment?
  • My child’s daycare is closed and I don’t have coverage. Isn’t there some paid leave provision I might qualify for? Can I also collect unemployment too?
  • I’m over 65 and I thought I wasn’t supposed to be returning to work.  Can I just collect unemployment?

As I noted yesterday, Governor Lamont’s new Executive Order has made it easier for people to reject a return to work offer and still collect unemployment.

The order authorizes the state Department of Labor to consider, in an unemployment compensation application, the “degree of risk to the individual’s health or, due to the COVID-19 public health emergency, the health of a member of that individual’s household.”

The work is “unsuitable”, if a worker is exposed to an “unreasonable risk” to his or her health because of the coronavirus, or risks the health of a member of the employee’s household.

Indeed, Governor Lamont said at a press conference (reported by the Hartford Courant) earlier this week that those who are vulnerable to COVID-19 — over 65 and with underlying health problems — “should not be going back to work for the near term.”  “And given that restriction, they would be eligible for unemployment compensation.”

The employer in this instance would have no obligation to keep the position open indefinitely so employees who seek this route risk their job entirely.

But suppose the employee asks for leave instead and the employer has less than 500 employees.  In the case of the absence of childcare, the new FFCRA law provides for two-thirds of the employee’s regular rate of pay for up to 12 weeks total under EPSLA and FMLA+ (subject to caps).

In such an instance, the employee gets the paid leave but is not eligible for unemployment compensation.

In fact, the CT DOL made this explicitly clear in a recent FAQ on the subject.

Q: If I received paid sick leave, am I eligible for unemployment benefits?

A: No, you would not be eligible for unemployment benefits during a week in which you received paid sick leave.

What the employee also gets is job protection too, similar to regular FMLA. While the protection isn’t absolute, the employer does have some substantial obligations to try to protect the employee’s job during this period of leave.

Employers who are confronted with these issues should consider seeking legal counsel to navigate these paths.  It’s not intuitive right now and the rules keep getting tweaked by both the federal and state governments. This is particularly true if the employer is also the recipient of a PPP loan.

Words normally come easy on this blog.

Today I should be writing a simple post about a new Executive Order that will make it easier for people to file for unemployment claims if they believe their workplace is unsafe.

But I can’t.  Not right now. There’s too much pain in the United States today.  And any words that I can offer beyond  “I hear you. I’m here for you. And I will fight hard for you.” seem trivial and forced.

I have lived my life with a different experience. Yes, it’s been in the face of anti-semitism (ever have pennies thrown at you in middle school and swastikas passed to you as notes?) but it’s not the same as the experiences of being black in America.

For that experience, I have tried to listen to others.

Back in 2014, my favorite law professor (I can say that now that I’m years beyond law school) and the one who I worked for after my first year, Kimberly Jade Norwood, wrote a guest column that I was able to reprint on the blog.  It was shortly after the events of Ferguson had unfolded.

I post it again below because her experiences and perspectives are different than my own and I think there’s a lot to be learned from it.

But I want to add a post-script to it too.

Just a few weeks before the pandemic hit, in late February, I attended the ABA Midyear Meeting in Austin, Texas.

And who should I run into in the lobby? Why it was Professor Norwood, sorry — Kim! We laughed, smiled, and took a selfie.  We remarked how fun it was to still see each other after so many years; I was the first law school student to work for her during a summer many years ago, and we have seen each other grow through the years, sharing holiday cards and more.  In recent years, I have cherished that relationship and invited her to speak to my lawfirm’s annual partner meeting.

I hope you read what she had to say because it takes on new meaning now that we still seem to be reliving the same moments year after year.  We all need to do more.

I am a 54-year-old black woman — a mother, lawyer and law professor. I teach at the Washington University in St. Louis Law School and live 12 miles away from Ferguson, Missouri.

The median household income in my suburb is $85,000 per year. In Ferguson, it is $36,000. In my suburb, 3.5% of the people are black. In Ferguson, almost 70% are black. These are stark contrasts. Yet I share things in common with black people in Ferguson and, indeed, throughout the United States.

When I shop, I’m often either ignored as a waste of time or scrutinized as a potential shoplifter. In June, my daughter and I walked into the china and crystal department at a Macy’s department store. I was about to speak to the salesperson directly in front of me. She walked right past me to welcome the white woman behind us.

My daughter looked at me and said: “Really? Did she just ignore us?” My daughter is a young teenager at the crossroads of “skin color doesn’t matter” and “oh yes, it does.” She is in transition. I felt hurt, anger and embarrassment.

But this kind of encounter happens routinely.

Driving, I tend to have a bit of a lead foot — hitting 45 in a 35 mph zone. The few times I have been stopped in my suburb, the first question I’m asked is whether I live “around here.” Not one of my white friends has been asked that question when they were pulled over by a police officer.

Last summer, my teenage daughter was shopping with four white friends at a mall in an affluent St. Louis suburb. As they left the store, two mall security guards approached my daughter. They told her the store had called them and reported her as a shoplifter, and asked her to come with them. After a search, they found she had nothing. So far in her young life, mall security guards have stopped her on suspicion of shoplifting three times. Each time she was innocent.

I also have three sons. My two oldest are 22. They are 6-foot-5 and 6-foot-4 and each weighs more than 220 pounds. One recently graduated from college; the other will graduate in 2015. The youngest is 13. All three like to wear jeans and the latest sneakers. They love hoodies. They like looking cool. These three young men have never been arrested or even been in a fight at school.

Every time my sons leave the house, I worry about their safety. One of my sons loves to go out at night to clubs. I worry about potential unrest at the clubs — yes, black-on-black crime is a problem, and despite what many people think, black people complain about it all the time in their communities and churches and in newspapers and on radio stations.

I also worry about his drive home and his being stopped by police.

The data in Ferguson are an example of the larger picture in the St. Louis County area. Police stop, search and arrest black people at a disproportionate rate, even though they are less likely to possess contraband than white people.

This son of mine who likes to go out at night is big and tall and he has brown skin. He graduated from college in May but cannot find employment. He is an intelligent, clean-cut young man.

But the negative stereotypes automatically assigned to his skin color follow him everywhere, even in job interviews, like extra weight. It reminds me of the airline employee who asks before you can check your suitcase: Did a stranger ask you to carry something or pack your bag? In my son’s case, the answer is yes. He is carrying extra weight, unfairly, and without his knowledge or consent, packed in his luggage.

A few years ago my husband and I went on a cruise. My older boys were teenagers at the time and were taking summer enrichment classes at a school about a mile from our home. They planned to walk to school in the morning. At the top of a long list of things to do before we left for our trip was “e-mail chief of police.”

I explained to the chief that my husband and I were going on a cruise, I was a member of the community and that my two sons would be walking to school. I attached pictures of the boys, explaining that only a couple of black families lived in the neighborhood. My sons did not normally walk in the neighborhood, so they would draw attention.

I offered to bring my sons to the police department so officers could meet them. The police chief and I met and all went well.

But I’ve asked myself: How many parents of white sons have thought to add to their to-do-before-leaving-town list, “Write letter to local police department, introducing sons and attaching photos, so police do not become suspicious and harass them”?

Even though my older boys are men, I still worry about them. I worry about my 13-year-old. This worry is a stressful, and sadly normal, part of my daily existence. My youngest will be 6 feet tall in the coming weeks. He has brown skin.

These young black men have arrows pointed and ready to shoot at them daily — black-on-black crime, police encounters, societal bias and mistrust. Shortly after the Michael Brown shooting, I met with a group of my 13-year-old’s black male friends to explain to them what happened in Ferguson, and what to do and how to respond if they are ever stopped by the police. My words reminded me of stories and fears my grandfather used to share with me about his encounters with police during the Jim Crow era.

These are just a few of the many ways in which people in America are treated differently based on the color of their skin. This has been going on for a long time. I hope the events in Ferguson will encourage people to see the stark differences in the experiences of black people — not just black people who struggle economically but also black people like me — and white people as they go about their routine, daily lives.

You read the Sector Rules for reopening offices in Connecticut.

If you read page 5, you’d come across one of the guiding principles for reopening:

As we start opening select businesses…we will open at our strictest controls.  This will include…Those in high-risk groups (comorbidities) and over the age of 65 should continue to stay safe and stay home.

So, as you bring employees back to work, you can just tell those employees over 65 years old not to report, right?

Well, no. It’s never quite that simple.

Connecticut and the federal government still have age discrimination laws. Those laws have not been waived during this pandemic. There is no executive order relieving employers of their obligation not to discriminate against workers because of their age.

So, deciding to bring back only those employees under age 65 is not a viable option for businesses, notwithstanding the sector rules.  You still can’t discriminate on the basis of age.

But how else might we come to this conclusion?

In part, take a look at the language itself in the rules.  Note that rules say: Those over the age of 65 should continue…to stay home.

“Should” is not the same as “must”.  At least as this helpful article shows.  The languge is suggestive but it is not mandatory.  In other words, if employees over 65 want to continue to work, they can although the government is certainly suggesting they still stay home.

The language also is a bit vague – is the government talking to employers to say they should be asking employees over 65 to stay home? Or is it talking to employees to make the decision for themselves?

Regardless, the safest path here is for employers to not make any assumptions for employees based on their age.

What some employers are doing is asking all returning employees if they have any concerns about returning to work.  In such a fashion, the question is designed to get all sorts of answers. Someone might have a concern about the commute. Or a sick relative at home. Or even the state’s guidelines.

When that happens, the employer should talk with the employee.   Many concerns can be addressed but do that through discussions, not assumptions.

But above all else, don’t exclude employees over 65 from the workplace on the Rules alone.

When no one is working, no one needs to get paid leave.

But as the workforce starts returning, smaller businesses — particularly those will less than 50 employees — are starting to feel the impact of the Families First Coronavirus Response Act (FFCRA).

That law created two new paid leave provisions — the EPSLA and FMLA+.  I’ve covered both here. 

The problem — which many of us predicted — is that a lot of these smaller businesses have never had to implement leave provisions before. Never mind that these are also paid leave provisions; it’s just detail upon detail.

One recurring question: What documentation can an employer seek from an employee that says that they need leave? In many instances,  the employee is requesting leave to stay home to take care of a child.

The DOL has a FAQ that answers this very question and it depends on the reason for the leave.

Overall, when requesting paid sick leave or expanded family and medical leave, employers can ask employees to provide the following information either orally or in writing:

  • Employee’s name;
  • The date(s) for which the employee requests leave;
  • The reason for leave; and
  • A statement that the employee is unable to work because of the above reason.

If the leave is because the employee is subject to a quarantine or isolation order or to care for an individual subject to such an order, the employee should additionally provide the name of the government entity that issued the order.

If the leave is to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, the employee should additionally provide the name of the health care provider who gave advice.

If the leave is to care for a child whose school or place of care is closed, or child care provider is unavailable, the employee must also provide:

  • The name of the child;
  • The name of the school, place of care, or child care provider that has closed or become unavailable; and
  • A statement that no other suitable person is available to care for the child.

There is a limited small business exception that may apply to some so employers that are having trouble complying with the law due to financial reasons should seek legal advice to help navigate that exception.

Otherwise, employers should make sure to familiarize themselves with these provisions which remain in effect through the end of 2020.