The Judiciary continues to act where Congress will not All employment attorneys—and most employers—know that Title VII bars discrimination based on certain enumerated personal characteristics: race, color, religion, sex, and national origin. It has long been the case that “sex” meant biological sex only, i.e., discriminating against a woman because she is a woman, or … Continue reading
On November 4, 2016, a federal judge in Pennsylvania became the latest jurist to side with the U.S. Equal Employment Opportunity Commission (EEOC) in endorsing the viability of claims based on sexual orientation under Title VII of the Civil Rights Act of 1964. In U.S. EEOC v. Scott Medical Health Center, the EEOC brought suit on … Continue reading
The U.S. Equal Employment Opportunity Commission (EEOC) has issued its final “Enforcement Guidance on Retaliation and Related Issues” following a six-month public comment period. The guidance replaces the EEOC’s 1988 Compliance Manual section on retaliation. Workplace retaliation claims have been on the rise in recent years and have been the focus of several opinions of the … Continue reading
On August 24, 2016, the U.S. Department of Labor (DOL) and the Federal Acquisition Regulatory (FAR) Counsel issued a final rule to implement President Obama’s Executive Order 13673, entitled “Fair Pay and Safe Workplaces,” first announced by the President over two years ago on July 31, 2014. According to the Federal Acquisition Institute, the purpose of E.O. … Continue reading
In July 2015, the EEOC officially took the position that sexual orientation claims may be brought under the non-discrimination provisions of Title VII of the Civil Rights Act of 1964. However, in the recent case of Hively v. Ivy Tech Community College, the Seventh Circuit refused to accept the EEOC’s position and affirmed the dismissal … Continue reading
On June 14, 2016, the United States Department of Labor (DOL) Office of Federal Contract Compliance Programs (OFCCP) issued a Final Rule to revise its sex discrimination policies, updating its guidelines to provide additional guidance on what constitutes discrimination based on sex. The updated guidelines define “sex” to include gender identity, transgender status, pregnancy, and … Continue reading
On March 1, 2016, the EEOC filed two cases with one clear goal: to expand the meaning of “sex” under Title VII. In EEOC v. Scott Medical Health Center, P.C., Case No. 2:16-cv-00225-CB (W.D. Pa.), the agency alleges that the defendant harassed an openly gay male employee because of his sexual orientation, thereby committing unlawful … Continue reading
On November 30th, 2015, the U.S. Supreme Court will hear oral arguments in the case of Green v. Donahoe, 760 F.3d 1135, 1137 (10th Cir. 2014) regarding the timeliness of an Equal Employment Opportunity Commission (“EEO”) complaint alleging constructive discharge under Title VII. Currently five circuits have held that the filing period begins when an employee resigns. … Continue reading
In June the U.S. Supreme Court ruled in a 5-4 decision that the equal protection guarantee provided by the Fourteenth Amendment to opposite-sex marriages extends to same-sex marriages. The opinion in Obergefell v. Hodges, authored by Justice Anthony Kennedy, holds that “same-sex couples may exercise the fundamental right to marry in all States” and that … Continue reading
As widely reported in its recent EEOC v. Abercrombie & Fitch Stores, Inc. decision, the United States Supreme Court held that employers cannot lawfully refuse to hire an applicant if the decision was motivated by the employer’s unwillingness to provide the applicant with an accommodation the applicant needs for religious reasons. However, in so holding, … Continue reading
As the workforce becomes more and more diverse, sexual orientation and gender identity have become very hot topics in discussions regarding employee rights. It may be surprising to learn that neither is considered a protected class under current federal employment discrimination law in the United States. At last count, however, 32 states, including the District … Continue reading
On June 1, 2015, the Supreme Court of the United States, in EEOC v. Abercrombie & Fitch Stores, Inc., held that an employer need not have actual knowledge of the need for religious accommodation to be liable for a hiring decision if the employer refuses to accommodate a perceived need for a religious accommodation. The … Continue reading
When lawyers advise on federal law, they frequently conclude with a warning to check state or local law for additional requirements. This probably strikes most readers as boilerplate. It is a warning that is probably ignored as often as it is followed. However, it is a warning that should be heeded. Take the state of Missouri, … Continue reading
Recently, a federal judge dismissed an action the EEOC filed against CVS Pharmacy, Inc, in which the EEOC challenged several terms in CVS’s standard separation agreement. (See Mem. Op. & Order, Equal Emp’t Opportunity Comm’n v. CVS Pharmacy, Inc., No. 1:14-CV-863 (N.D. Ill. Oct. 7, 2014)). The EEOC asserted that the terms in CVS’s standard … Continue reading
Earlier this year, the Regional Director of Region 13 of the NLRB found that scholarship football players at Northwestern University are “employees” under Section 2(3) of the National Labor Relations Act. Northwestern University v. College Athletes Players Association, Case 13-RC-121359 (N.L.R.B. Mar. 26, 2014). The Regional Director’s decision turned largely on the amount of control … Continue reading
In what appears to be a test case by the EEOC, CVS Pharmacy is facing a surprising attack on its use of a standard separation agreement. Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., No. 1:14-CV-863 (N.D. Ill.). The EEOC’s complaint—filed on February 7, 2014, in the Northern District of Illinois—accuses CVS of engaging in … Continue reading