Now that Thanksgiving is in the past, it’s time to look forward to the future.

Well, not before getting a recap of everything that transpired in employment law in the last year. Or at least everything that we can fit in an hour long seminar.

The webinar that broke attendance records last year is back again on December 4, 2018 at noon ET.

This year, five employment law bloggers are presenting the “Best-Ever Year-End Employment Law Review that Five Employment Law Bloggers Have Ever Presented” webinar.  Registration is just $25 and it’s eligible for CLE/SHRM/HRCI credit.

All that is needed is to sign up here. 

The presenters this year are:

  • Robin Shea, Constangy, Brooks, Smith & Prophete
  • Kate Bischoff, tHRive Law & Consulting
  • Jon Hyman, Meyers Roman
  • Eric Meyer, FisherBroyles
  • Jeff Nowak, Franczek Radelet
  • Daniel Schwartz, Shipman & Goodwin

Among the topics that you can surely expect to hear about: #MeToo, LGBT discrimination, Data Privacy and Security, Wage & Hour issues, and FMLA.

Be sure to sign up; it promises to be the best ever. (At least until next year.)

By now, you may have read about yesterday’s decision by the Second Circuit Court of Appeals that Title VII bars discrimination on the basis of sexual orientation.

Connecticut is in that federal circuit (along with New York and Vermont).  You can download the decision in Zarda v. Altitude Express, Inc., here. (You’ve been warned though — there are 163 pages to the various opinions!)

The decision talks a lot of “associational discrimination” and other academic theories of proving a case under Title VII; that’s beyond the practical aspects of this blog for employers but practitioners in the area should review the decision as a whole.

So what IS the practical impact on Connecticut employers? 

Not as much as you might first think.

Connecticut state law already bars employers from discriminating on the basis of sexual orientation.

Indeed, last year, I wrote that the debate over whether federal law includes a bar against discrimination on sexual orientation was largely moot because of state law.

Yes, there are some slight differences; for example, Connecticut has an exception for “religious corporations” that I talked about in a prior post in 2014. How would that play out when compared with Title VII’s “ministerial exemption”.

The one change that can occur now is that employees can bring claims of sexual orientation discrimination to federal court instead of just state court.

But whether we will see that is an entirely different question. Historically, employees (and their attorneys) have preferred the looser rules of state court to bring claims of employment discrimination. It’s widely perceived that it is harder for employers to get motions for summary judgment granted in state court when compared with federal court.

This is also not the last we’ve heard about this issue; no doubt an appeal to the U.S. Supreme Court will be coming sooner or later. Until then, employers in Connecticut should be aware now that the prohibitions against sexual orientation are now rooted in both federal and state law.

restrm1Last fall, I raised the issue of bathroom access for employees that corresponds with their gender identity.

The issue, however, that seems to get the most press is restroom access.

Indeed, we’re now getting federal guidance on how to deal with the issue of restroom access. That remains one of the bigger issues (a proposition up on a Houston ballot turned into an ugly campaign of “No Men in Women’s Bathrooms”) but it doesn’t seem again to translate to claims filed.

What’s happened since then? Well, we’ve seen it become a topic on the presidential campaign trail and in North Carolina.

But we’ve also seen the EEOC say: Wait a minute. Federal law has something to say on this too.

Yesterday, the EEOC went a step further and issued a new fact sheet reminding employers that even a contrary state law isn’t a defense.

In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 12, 2012), the EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII, and in Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), the EEOC held that:

  • denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
  • an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
  • an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

Contrary state law is not a defense under Title VII. 42 U.S.C. § 2000e-7.  In G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., — F.3d –, 2016 WL 1567467 (4th Cir. 2016), the United States Court of Appeals for the Fourth Circuit reached a similar conclusion by deferring to the Department of Education’s position that the prohibition against sex discrimination under Title IX requires educational institutions to give transgender students restroom and locker access consistent with their gender identity.

Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment. As the Commission observed in Lusardi:  “[S]upervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.  Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.”

Connecticut is one of the few states that already prohibits discrimination on the basis of gender identity. Thus, the EEOC’s statement should be seen as one in support of the interpretation in Connecticut.

For employers, keep it simple: Let employees use the bathroom that corresponds to the employee’s gender identity.  But it can also mean turning single-occupant bathrooms into gender-neutral ones too.  You can look at the OSHA guidance on this issue for more best practice tips.  If any employee complains, well, that’s not enough of a reason to deny access.

EEOC efforts a proverbial square peg.
EEOC efforts are a proverbial square peg.

When you’ve been blogging as long as Jon Hyman (of Ohio Employer’s Law Blog) and I have, your minds seem to work in a similar fashion.

For a few days, I’ve been working on a draft of a blog post about the EEOC’s goal of expanding Title VII’s reach to include sexual orientation discrimination claims.  Of course, before I could click “publish”, yesterday Jon published one that says almost the same thing.

In a thorough 27-page amicus brief filed last week, the Agency details why it believes that Title VII already prohibits sexual-orientation discrimination as unlawful sex discrimination.

The brief is not a surprise. Indeed, this was discussed at the ABA Labor & Employment Law Annual Conference last fall in Philadelphia. Nevertheless, the EEOC’s brief is clear about where it is trying to take the law.

Sexual orientation discrimination claims necessarily involve illegal sex stereotyping, illegal gender-based associational discrimination, and impermissible consideration of a plaintiff’s sex, placing them squarely within Title VII’s prohibition against discrimination on the basis of sex.

What IS different though about Ohio and Connecticut is that Connecticut has long since prohibited discrimination on the basis of sexual orientation.  Indeed, in the last fiscal year, 51 employment discrimination complaints on the basis of such a protected class were filed at the CHRO.

The law in Connecticut works well and is an important and vital part of the protections in the state.

And this is where I start to differ with Jon.  For years, I have been asking for the passage of ENDA – a bill that would explicitly ban discrimination the basis of sexual orientation at the federal level.  This would solve the issue clearly and easily.

But because Congress can’t seem to get anything done, that bill hasn’t gone very far.

So instead, the EEOC has been trying to expand the reach of Title VII.  Count me among the people that is a bit skeptical with the efforts.  The oft-used phrase “trying to fit a square peg into a round hole” comes to mind.

Why? Because for many years it was understood that the protections offered by Title VII on the basis of sexual orientation were limited.  Same-sex harassment, as the Oncale case was known, was the best example of where the protections of Title VII cover those who are gay from harassment.  But this means that the EEOC’s efforts are going to be at the whim of the courts.

This is not necessarily new. In fact, back in 2012, the EEOC took the position that Title VII covered sexual orientation discrimination.

Those who are gay, lesbian, bisexual or transgender frankly deserve better, in my view. They deserve their own federal law giving them the workplace protections that Connecticut has given.

Until then, the battles over the scope of Title VII will continue.

 

The first day back from vacation is always fun.

And by fun, I mean “not fun AT ALL.”

There’s the e-mails. And the voicemails. And the things that you should’ve gotten done before vacation that you really honestly tried to do, but well, you just couldn’t.

And then there’s the news and other “information” that you missed.

That’s what Monday morning is shaping up to be for me.

But here’s the thing: With technology, it’s too easy to keep up with your life. Looking at Twitter. Reading some articles.  Even when you’re out of the country, wifi is everywhere.

What I found out during my time “off” is that, more than ever, I seem to hear a lot more “noise” about employment law on social media, via e-mail newsletters, and newspapers.

Everyone seems to be screaming with headlines about how things are going to “dramatically” change for employers. Or that employers “must” pay attention”. Or some other nonsense.

It’s a lot like a waterfall I visited on vacation. It just keeps coming with a constant stream of noise (and water, of course.)

Yes, I walked the bridge.
Yes, I walked the bridge.

For example, the EEOC released a ruling on sexual orientation that attempts to expand job protections nationwide for that protected class even though Congress has attempted (and failed) to pass a law that would do the same thing.

Except, it shouldn’t change much of anything in Connecticut because we have had those protections thankfully for many years already. But you wouldn’t know that from articles which gloss over that fact.

And after a few days on vacation, I just sort of checked out from all that noise.  Kind of liberating.

I read more on my Kindle and less and less on Twitter.   (Strongly recommend “Boys in the Boat” about a University of Washington Crew Team and the 1936 Olympics.)

Maybe that’s what we all need for a little while too.

In fact, you may have noticed a few less posts on here recently.  That’s somewhat purposeful. I think the trend from lawfirms is to publish posts on blogs on nearly everything nowadays whether it is “news” or not.

As a result, there seems to be a lot less perspective being shared and more scare tactics and more alerts than ever.

The fact is that as an employer in Connecticut some things have changed, but a lot hasn’t.  Yes, we need to be more alert on misclassification issues, but really, that isn’t new. You need to be worried about your interns, but again, that isn’t new either and their use should be limited anyways.

And for all the bluster on proposed changes to overtime rules, we’re still months off from any final rules and the only change is to the salary test — not even the duties test.

Sure, you need to be vigilant. But that isn’t new.

So, go on that vacation this summer. Unplug. And take some more deep breaths.  Things aren’t as crazy as headlines and alerts suggest.

Let’s all try for a little more perspective and a little less noise.

 

The United States Department of Labor late today issued a new interpretation of what a "son or daughter" is under the federal Family and Medical Leave Act (FMLA) to make it clear that an "employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship."  You can download the administrative interpretation here. 

The practical effect of the regulation is that "non-traditional families", as the Department has termed them, " including families in the lesbian-gay-bisexual-transgender community, who often in the past have been denied leave to care for their loved ones", will now be covered in a limited fashion under the federal FMLA.

According to the Department’s press release:

"No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill," said Secretary of Labor Hilda L. Solis. "No one who steps in to parent a child when that child’s biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. The Labor Department’s action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA."

How can the DOL do this, you might ask? Well, the statute already provides coverage to children of a person standing "in loco parentis". Because the DOL has the authority to interpret this phrase, the DOL has now said that so long as a person is acting as the child’s parent, that person can be covered under the FMLA.  As the DOL notes in the guidance, "There is no specific set of factors that, if present, will be considered to be dispositive in determining in loco parentis status."

A few items of note, particularly to Connecticut employers:

  • This only applies for care of a son or daughter; it does not allow an employee to take FMLA leave to care for a gay spouse or civil union partner.  
  • Connecticut already had this protection in place (and in fact, it’s broader) under the state FMLA law. 
  • Many employers also already cover this type of leave and have their own FMLA policies that cover various types of "non-traditional families", including civil unions.  Employers have been free to adopt a FMLA policy that is broader than that required by law.
  • This only affects traditional FMLA leave; as the DOL is quick to note, this does not address an employee’s entitlement to take military FMLA leave for a son or daughter, which is determined by separate definitions. See 29 C.F.R. Sec. 825.122(g),(h).
  • There are other implications as well. Because of divorces, the new DOL interpretation could allow a child to have four "parents" under the statute if each parent in the divorce remarries, for example.  All that is required is a "simple statement [from the alleged parent] asserting that the requisite family relationship exists." 

So, while this may cause a stir around the country, I anticipate the impact on employers in Connecticut to be fairly minor.