US Supreme Court to Decide Title VII Sexual Orientation/Transgender Discrimination Cases

Contributed by Carlos Arévalo, April 22, 2019

Judge’s Supreme Court gavel with law books

The United States Supreme Court announced today that it will consider whether Title VII protects workers from discrimination based on sexual orientation. To date, several federal appeals courts have reached different conclusions on this issue. In 2017, the Seventh Circuit was the first to rule that sexual orientation discrimination was a form of sexual discrimination. The Second and Sixth Circuits followed in 2018. But in 2017, the Eleventh Circuit reached the opposite conclusion. And earlier this year, the Fifth Circuit reaffirmed its long standing “binding precedent” that Title VII does not prohibit discrimination on the basis of sexual orientation. This circuit split set up the stage for the Supreme Court to address the issue.

In Bostock v. Clayton County, Georgia (consolidated with Zarda v. Altitude Express, Inc., the Second Circuit case), the Supreme Court will decide whether discrimination “because of…sex” within the meaning of Title VII includes discrimination based on sexual orientation. In R.G. & G.R. Harris Funeral Homes v. EECO, the Sixth Circuit case, the court will decide whether Title VII bars discrimination against individuals based on their transgender status or sex stereotyping.

In Bostock, the plaintiff was fired from his position as child welfare services coordinator in 2013 after joining a gay softball club. The county conducted an internal audit on CASA program funds he managed and found that Bostock allegedly spent CASA funds fees sponsoring his softball team. Bostock alleged that “in May 2013, during a meeting with the Friends of Clayton County CASA Advisory Board, where his supervisor was present, at least one individual made disparaging comments about Bostock’s sexual orientation and identity and participation in the softball league.” A month later, Bostock was fired for “conduct unbecoming of a county employee.”  In Harris Funeral Homes, the employer fired the plaintiff, who previously presented as a man, when she said she would begin presenting as a woman at work and would adhere to the dress code for women.

Just last year, the Supreme Court declined to address a similar question originating in the Eleventh Circuit in Evans v. Georgia Regional Hospital, but additional petitions subsequently followed creating the need for clarity on Title VII. While the Supreme Court is poised to finally address this issue, many states have already enacted protections in anticipation of how the conservative leaning Supreme Court might rule. Should the Supreme Court rule that Title VII does not afford protection, employers should expect a massive onslaught of local and state laws and regulations to counter such a ruling. 

Check out our previous articles addressing Title VII and Sexual Orientation/Transgender Discrimination cases:

Sixth Circuit Says Transgender Discrimination is Protected

Seventh Circuit Issues Landmark Decision Holding that Title VII Prohibits Discrimination Based on Sexual Orientation

Are Employment Rules Getting Hazier With Legal Marijuana?

Contributed by Noah A. Frank, April 18, 2019

the cannabis leaf and judge gavel

Like a majority of U.S. states, Illinois’ legal stance on marijuana is becoming more tolerant and liberal – with regard to both medical and recreational use (also called “adult use”). As we previously reported on November 6, 2018, the Alternatives to Opioids Act of 2018, PA 100-1114 amended Illinois’ Medical Cannabis Pilot Program to allow individual prescribed opioid medication to enroll in the Illinois Opioid Alternative Pilot Program (OAPP). The OAPP allows these individuals to seek relief through the legal use of medical cannabis, rather than opioid medications. In the first two months of the program, 1,000 patients registered (compared with 61,231 qualifying patients that have been registered under the medical cannabis pilot program since September 2, 2014). This can be attributed to the decrease in time it takes to register, as well as the decrease in requirements and restrictions for qualifying as a registered patient under the OAPP.

Additionally, like many other state legislatures, the Illinois legislature has proposed bills, including HB-0902 which would legalize recreational use of marijuana. (See our prior post on this proposed bill). Even the federal government loosened its regulations regarding marijuana products through the Agricultural Improvement Act of 2018 (AIA), which specifically addressed and legalized the research and production of industrial hemp (marijuana plants having less than .03 percent THC concentration). In particular, the AIA legalized CBD (the non-psychoactive component of marijuana) derived from industrial hemp plants. (See our prior post on this act). It is important to note that while there are legal CBD products, which are derived from industrial hemp plants, CBD derived from marijuana plants with higher THC levels are NOT legal on the federal level.

It is likely that 2019 will see continued and increasing tolerance of medical and recreational marijuana on federal, state, and local levels. Employers should implement the following steps now to protect their businesses.

  • Determine corporate tolerance for marijuana use (at least off-duty), and how that will impact drug testing.  For example, if off-duty use is a non-issue, then consider the type of drug test used for testing marijuana or removing marijuana from the drug panel for certain tests (e.g. applicants) – which can only indicate the presence of the drug in the system and not actual impairment, or how you will treat positive tests for marijuana depending on the type of test and positions. However, be aware that making exceptions for particular candidates or employees could leave the company susceptible to discrimination claims (such as, but not limited to, disability claims).
  • Update policies to comply with the laws (disability, medical leave, registered user protections), company tolerance, and external pressures (e.g., contracts). 
  • Review and update job descriptions – especially for safety sensitive positions. 
  • Implement appropriate management training – including identifying impairment and mandating substance testing, how and when to involve human resources, medical nature of information and company’s policies on marijuana.
  • Understand that disability laws, which never protect at-work impairment, may protect an underlying medical condition, and as such companies should be prepared to engage in the ADA interactive process. 
  • Similarly, understand the implications of and interactions with other laws – like the FMLA, Workers’ Compensation, and equal employment opportunity laws.
  • Enforce policies consistently to avoid discrimination claims.
  • Seek the advice of experienced employment counsel to deal with difficult employees or potentially risky discipline/termination situations.

While these steps are useful for protecting businesses in light of developing marijuana legalization trends, they are also practical audit and compliance reminders under other laws, including but not limited to the Americans with Disabilities Act and mandated leave laws.

Avoiding the Impact of Illinois Wage and Hour Damages

Contributed by Steven Jados, April 17, 2019

Scale weighing money and time. financial concept. illustration in flat design on blue background

As we previously noted in our February 12, 2019 blog, increases to the minimum wage in Illinois are on their way. And as we also noted, drastic increases in the damages for which Illinois employers may be liable in cases of minimum wage and overtime violations are now in effect. 

That said, there are a number of steps employers can take to minimize the risks of wage and hour lawsuits and liability, and they include the following:

  • Train front line supervisors not to allow any off-the-clock work. Along with this training, employers must also make clear to all employees that they cannot work off the clock—and that if their paychecks do not include all hours worked, employees must contact human resources (or whatever level of management handles payroll).
  • Do not automatically deduct for meal breaks…or any other breaks. Instead, have employees clock-in and clock-out for all breaks (meal or otherwise), and if employees submit written time sheets, have them write down the exact times when meal breaks begin and end each workday. (The same procedure should also be followed for start and end-times each day, no matter what an employee’s “scheduled” hours are.) And keep in mind that breaks should only be unpaid if they are for 30 uninterrupted minutes or more.
  • Do not withhold or make deductions from pay pending the return of uniforms, tools, cell phones, laptops or any other employer owned equipment. Do not make deductions from pay for tools, equipment, cash advances, cash register shortages or damage to employer’s equipment or property, unless the employee signs an express written agreement allowing the deduction at the time the deduction is made. State laws may vary on this.
  • Do not discipline employees by refusing to compensate them for hours they actually worked. If employees are late, penalizing them through pay deductions is unlawful. If discipline is necessary, it should come in the form of warnings, suspension, terminations, and the like.
  • If your time clock or payroll systems rounds employee work time, make sure the rounding is done in small increments—5 or 6 minutes, as opposed to 15—as that will help reduce liability in the event of a finding that the rounding was improper. Also, rounding should not be manipulated such that the rounding always benefits the employer.
  • Finally, employers should implement—and seriously enforce—policies that notify employees that they must properly record all hours worked, and notify management when paychecks do not include compensation for all hours worked.  These policies should be included in employee handbooks, and posted near the time-clock, on written employee time-sheets, and as a notification that pops-up whenever employees enter their work time by computer or app. And the employer must take these policies seriously, by undertaking investigations when employees raise concerns, and issuing corrected paychecks when circumstances warrant doing so.

Implementing policies and procedures that address these issues will help guard against potential wage and hour litigation, and help to minimize liability in the event litigation ensues.  For assistance in implementing these policies or questions regarding these issues, we recommend securing advice from experienced employment law counsel.

NASA’s Wardrobe Malfunction provides Valuable Reminder to Employers Back on Earth

Contributed by Suzannah Overholt, April 12, 2019

Astronaut on the moon. Elements of this image furnished by NASA

The first all-female spacewalk was planned for Friday, March 29, 2019. News outlets included the event in their coverage of women’s history month and the strides women had made in male dominated industries. However, the Monday before the spacewalk NASA announced that only one female would be able to participate because NASA did not have enough properly configured spacesuits for two women. Attempting to modify an existing uniform in the time before the spacewalk would have involved some risk to the astronaut who wore it. While a spacewalk was completed, the team consisted of a male and female astronaut, not two females. 

Events in space do not ordinarily trigger reminders of one of the most basic responsibilities and liability risks for employers – providing appropriate safety gear for their employees. However, the issue confronted by NASA was a very well publicized reminder to make sure to evaluate your workforce and ensure that you are providing appropriate safety gear.  

Employers are obligated to protect their employees from workplace hazards that can cause injury. That obligation includes providing and maintaining appropriate personal protective equipment (PPE) under certain circumstances as well as providing appropriate training to employees regarding when PPE is necessary, how to don, doff, adjust and wear the PPE, the limitations of PPE, and the proper care and maintenance of the PPE.

According to the U.S. Bureau of Statistics, in 2016 women made up 51.7% of the U.S. workforce, and there is a growing number of women are in the construction and manufacturing sectors. However, concerns have been raised that required PPE is not always available for female workers in those fields. Common examples are ill-fitting work clothes, including flame resistant clothing, harnesses, eye protection, hard hats, and gloves. The Occupational Safety and Health Administration (OSHA) and National Association of Women in Construction have renewed their alliance, which includes educating construction companies on hazards of particular concern to women in the construction industry, including PPE selection, sanitation, and workplace intimidation and violence. That being said, this issue impacts all industries and sometimes in different ways. For example, the health care sector has traditionally had a higher number of women workers. However, there are more men joining the health care sector workforce and so employers must take into consideration the different PPE considerations to ensure that there are appropriate sizes available for all employees, including the men.

The risks of not providing properly fitting PPE are twofold – the risk to the employee’s safety and the risk of liability to the employer. The risks to the employee are fairly obvious – an employee may be injured to an ill-fitting safety harness, get debris in their eye due to poorly fitted eye protection, be injured if too loose of work clothing gets caught in equipment, or as occurred to NASA, the PPE could not be safely used. While for most employers these issues will not become front page news, there are still significant risks including OSHA complaints, citations and penalties, increased injuries and worker’s compensation premiums, and liability under state and federal employment discrimination laws. Employers may also risk criminal charges – the Attorney General for Maine recently filed manslaughter charges against a contractor for the death of a roofer who allegedly fell because he was not wearing fall protection gear. Notably this was not the contractor’s first violation.

Employers should minimize their risk by assessing the PPE that is offered to their employees, ensuring that the range of sizes that is available meets the needs of the workforce. They should also regularly assess their workplaces to ensure that the appropriate PPE is required and being provided.

Update on the EEO-1 Pay Data Reporting

Contributed by Allison P. Sues, April 8, 2019

Flat 3d isometric business analytics, finance analysis

On April 3, 2019, the EEOC informed a federal district court that the earliest it could complete its collection of pay data from covered employers as part of their EEO-1 data reporting obligations is September 30, 2019. The court still needs to rule on the EEOC’s proposed plan and, therefore, employers have not received a final deadline by which to file the required pay data. However, this filing brings employers one step closer to an answer for an issue that has caused them justified concern given the significant time and resources that will be needed to collect this pay data. 

Here is a quick refresher on the course of events that led up to the EEOC’s April 3 filing:

  • Since 1966, the EEOC has required covered employers to submit an Employer Information Report EEO-1 form, providing data on the number of individuals employed by job category, sex, race, and ethnicity (known as Component 1 of the EEO-1 report). More information on Component 1 reporting can be found in one of our previous blog posts.
  • In 2010, the EEOC commissioned a study to identify ways to improve prohibiting pay discrimination and found that there was potential value in collecting pay data in connection with the EEO-1 reports.
  • In order to collect this type of data, the EEOC needed approval from the Office of Management and Budget (OMB). In September 2016, the OMB approved the EEOC’s proposed collection of pay data (known as Component 2 of EEO-1 reports). Under this approval, employers would first be required to submit the required pay data by March 2018.
  • In August 2017, the OMB stayed the implementation of Component 2 of the EEO-1 reports, with instructions that employers still comply with Component 1 reporting requirements. 
  • In November 2017, two non-profit organizations that advocate for equal pay for women and Latino workers filed a lawsuit, National Women’s Law Center et al. v. OMB et al., challenging the stay in the U.S. District Court for the District of Columbia. 
  • In March 2019, the court vacated OMB’s stay of the Component 2 reporting requirement and provided that the OMB’s prior approval of the EEOC’s collection of pay data “shall be in effect.”
  • The court then asked the EEOC to propose how it would undertake and close the collection of pay data now that Component 2 requirements are back in effect. 

That brings us to the EEOC’s recent April 3 filing. The EEOC informed the court that its current data processes are not capable of collecting employers’ Component 2 data.  Instead, the EEOC will need to rely on an outside data and analytics contractor. The EEOC warned that an expedited collection of this pay data may produce poor quality data for the 2018 calendar year, and that quality concerns will be compounded if employers are also required to provide pay data for calendar year 2017. The court still needs to decide several unanswered questions, such as when employers need to submit their pay data, when the EEOC needs to complete its data collection, and whether employers need to submit pay data for 2017. Check back on this blog for updates.

In the meantime, all employers should ensure that they meet the May 31, 2019 deadline for providing Component 1 of the EEO-1 reports and begin the significant effort of preparing the pay data that will ultimately need to be submitted.   

Social Security “No Match” Letters Are Back!

Contributed by Sara Zorich, April 5, 2019

The Social Security Administration (SSA) announced in late 2018 that they would begin issuing SSA No Match letters again beginning in the Spring of 2019. Employers must be aware that the process has begun and the SSA No Match letters they could receive in 2019 look different from prior years. The letters will state “Employer Correction Request Notice” at the top and will not provide any employee names on the notice.  A sample of the notice can be found on the Social Security website

In order for the employer to determine what employees were identified as “mis-matches” by SSA, the employer will be required to register for the Business Services Online (BSO). Note, do NOT assume the notice conveys information regarding the employee’s immigration status or actual work authority. The receipt of the notice does not in and of itself mean the employee is not authorized to work in the United States. The employer must attempt to resolve the no-match by taking consistent and not-discriminatory steps for each identified employee. SSA has provided a sample letter for employers to use when contacting the employees and steps to resolve the error.

However, SSA is not the only agency that these new letters may affect. For example, during a Form I-9 audit from the Department of Homeland Security, you may be requested to provide copies of any “no-match” letters you have received from SSA. Also, the Immigrant and Employee Rights section (IER) of the Department of Justice (previously known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices) previously provided employers with a guideline for what to do and not do when an employer receives a no-match letter and some FAQ’s.  

Because this issue impacts not only an employer’s wage reporting requirements but could also impact the company’s Form I-9’s and immigration anti-discrimination statutes, employers will need to create a plan of action and protocols on how they are going to address these new SSA Employer Correction Request Notices (aka No-Match letters). 

Illinois Hotel & Casino Employee Safety Act on Way to Passage

Contributed by Brian Wacker, April 2, 2019

Croupier behind gambling table in a casino.

More than two dozen Illinois State Senators have signed on to co-sponsor SB0075, a bill to enact the Illinois Hotel and Casino Safety Act (the “Act”). Likely to pass in the coming weeks, the Act will impose new requirements on hotels and casinos operating in Illinois to provide “panic buttons” to certain employees and adopt specific anti-sexual harassment policies.

What Does The Act Require?

The Panic Button

The panic button requirement is directed at hotel or casino employees placed in certain positions that may involve interacting with guests alone. 

Under the Act, hotels and casinos will be required to provide any employee who works in a guest room, restroom or casino floor “under circumstances where no other employee is present in the room or area, with a safety device or notification device.”  The device is to be provided to employees to use to summon help if they reasonably believe there is an ongoing crime, sexual harassment or assault or other emergency occurring in their presence. 

The Act will require the device to be provided to hotel or casino employees at no cost to them.

Anti-Sexual Harassment Policies

The Act will also require hotel and casino employers to develop or modify their anti-sexual harassment policies “to protect employees against sexual assault and sexual harassment by guests.”  Specifically, those policies will be required to contain provisions that:

  • Encourage employees to immediately report sexual assault or sexual harassment by guests;
  • Describe procedures that the employee and hotel or casino employer are to follow in cases of sexual assault or sexual harassment by guests;
  • Instruct employees to cease work and leave the immediate area where the danger is perceived until hotel or casino personnel or law enforcement arrive to assist;
  • Offer temporary work assignments to complaining employees during the duration of the offending guest’s stay at the hotel or casino (this could include assigning the employee to a different floor, station or work area);
  • Provide employees with necessary paid time off to sign police complaints against the offending guest and to testify in any legal proceedings which may ensue as a result of the sexual assault or harassment;
  • Inform employees that the Illinois Human Rights Act and Title VII of the Civil Rights Act provide them additional protections against harassment in the workplace; and
  • Inform employees that it is illegal for the hotel or casino employer to retaliate against employees who reasonably use the panic button device or otherwise avail themselves of the Act’s protections.

These new policies will need to be provided to all employees in English, Spanish and any other language predominant among the employer’s workforce.  The policies must also be posted in conspicuous places in the areas of the hotel or casino where employees can reasonably be expected to see them.

Employee Remedies for Violation of the Act

The Act will make it unlawful for a hotel or casino employer to retaliate against any employee who “reasonably uses” the panic button device, avails himself or herself of the protections of the Act, or who discloses, reports or testifies about any violation of the Act.  The Act also creates a private right of action for employees who allege violations of the Act. 

Remedies for violation of the Act are significant. In addition to injunctive relief to cease violations of the Act, it authorizes an employee to recover up to $350 per violation, with each day that a violation continues constituting a separate violation. The Act will also permit employees to seek equitable remedies such as reinstatement, and require that a hotel or casino employer pay reasonable attorneys’ fees and costs to successful employee claimants.  Note: this is a one-way street. The Act does not permit employers to recover attorneys’ fees and costs from unsuccessful claimants.

Employer Opportunity To Cure

Employees will, however, have to exhaust certain non-litigation remedies first.  Before bringing a claim under the Act, employees must (1) notify the hotel or casino employer, in writing, of the alleged violation and (2) allow the hotel or casino employer fifteen days to remedy the alleged violation. 

Effective Date

The Act will give hotel and casino operators in Illinois time to get into compliance. As currently drafted, the Act would not go into effect until July 1, 2020.