By Sam Schwartz-Fenwick and John Ayers-Mann

Seyfarth Synopsis: Today, the Supreme Court granted review to a trio of Title VII cases raising the issue of whether Title VII prohibits discrimination on the basis of sexual orientation and gender identity.  The Court’s decision in these cases could create a federal right of action for individuals discriminated against on the basis of sexual orientation and gender identity.

On April 22, 2019, the Supreme Court announced that it would review a trio of decisions questioning whether Title VII’s prohibition against discrimination “on the basis of sex,” includes sexual orientation and gender identity.

In Zarda v. Altitude Express, the plaintiff alleged that his employer violated Title VII for terminating his employment due to his being gay. Reviewing the matter en banc, the Second Circuit ruled for the plaintiff and held that Title VII’s prohibition against discrimination on the basis of sex necessarily prohibited discrimination on the basis of sexual orientation. In so ruling, it overturned prior Circuit precedent. In reaching this holding, the Second Circuit joined the Seventh Circuit in finding sexual orientation discrimination to be prohibited by Title VII.

Three months later, the Eleventh Circuit reached the opposite conclusion. In its decision, the Eleventh Circuit re-affirmed circuit precedent established  in Blum v. Gulf Oil Corp and Evans v. Georgia Regional Hospital that the protections of Title VII did not extend to claims of sexual orientation discrimination.

R.G. & G.R. Funeral Homes, a claim that arose from the Sixth Circuit, addresses the related issue of gender identity discrimination.  The claim involves a  transgender woman who was terminated from her job after transitioning from male to female. The Sixth Circuit found that a termination based on an employee’s gender identity falls squarely within Title VII’s prohibition against discrimination on the basis of sex and sex-based stereotypes. Accordingly, the Sixth Circuit held that Title VII prohibits discrimination on the basis of gender identity.

The Supreme Court’s review of the scope of Title VII comes at a pivotal point in history.  Amendments expressly including LGBT protections in Title VII have been introduced in every Congress since the 1990s, but none have passed.  Thus, Courts for over a generation have been grappling with the question of how broadly to construe the term “sex” in Title VII.

While the Supreme Court has never answered this question, many proponents of a broad reading of the word “sex” contend that its prior precedents lend some support to a broad reading of the term by finding that sex stereotypes (not acting how someone of your gender is supposed to act) give rise to a cognizable claim under Title VII.  See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75 (1998). Opponents of such a broad view of the statute, in contrast, argue that the word “sex” must be given the limited historical view intended by the drafters of Title VII during the 1964 passage of the Civil Rights Act.

In its first gay rights ruling in a generation without the voice of Justice Kennedy it is unclear how the court will rule. The Supreme Court’s decision may create a federal right of action for individuals who suffer discrimination on the basis of sexual orientation or gender identity, the Court may rule that no such right exists under current law, or the Court may find that a right exists but must be balanced against an employer’s religious liberty interest. Stay tuned as we continue to follow this matter.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Kyla J. Miller and Tracy M. Billows

Seyfarth Synopsis: The Illinois Senate unanimously passed an all-encompassing sexual harassment bill, which hits all of the big ticket workplace sexual harassment hot topics, including imposing sexual harassment training and extensive reporting requirements, bans on non-disclosure agreements, arbitration clauses and non-disparagement clauses, and hefty penalties for non- compliance. Whether the House will now move forward with the bill is to be continued…

On Thursday, April 11, 2019, the Illinois Senate approved SB 1829, showing this bill has some teeth with unanimous support on a vote of 56-0. The bill–dubbed the Sexual Harassment Omnibus Bill– aims to provide additional protections to victims of sexual harassment in the workplace. At the same time, the legislation imposes strict requirements for employers, including requiring annual sexual harassment training, and banning any non-disclosure or similar agreements. If ultimately passed, this bill would bring Illinois in line with several other states–including New York, Vermont, and California, among others–that have passed sweeping sexual harassment legislation in response to the #MeToo movement.

Key Provisions

  • Bans the use of legal documents that could prevent an employee from reporting sexual harassment. This includes: (1) non-disclosure agreements, (2) arbitration clauses, and (3) non-disparagement clauses. Such provisions would be prohibited for any case involving harassment, discrimination, or retaliation.
  • Provides independent contractors with protection against harassment for the first time in Illinois history. Currently, only employees are protected.
  • Increases protection for employees who are merely perceived to be part of a protected class–i.e. gender, sexual orientation, ethnicity–even if they are not actually a part of the protected class.
  • Expands applicability of the Victims Economic Security and Safety Act (VESSA) to victims of sexual harassment. Currently, VESSA only covers victims of domestic or sexual violence. This expansion would allow sexual harassment victims to also take unpaid leave from work to seek medical help, legal assistance, counseling, safety planning, and other assistance.
  • Prevents union representatives from representing both a victim of sexual harassment and the alleged harasser in a disciplinary proceeding.
  • Requires employers, labor organizations, and units of local government to disclose the number of sexual harassment and discrimination settlements or actions against them to the Department of Human rights.
  • Mandates employers conduct annual, interactive sexual harassment training for employees. The Department of Human Rights would be tasked with creating a sexual harassment training program made available to all employers. Employers would need to either comply with the Department’s program, or create their own program that equals or exceeds the minimum standards in the model.
  • Imposes penalties for employers who fail to report sexual harassment data, or comply with training requirements.

Illinois Continues To Push For Sexual Harassment Reform

SB 1829 comes as no surprise. Both the House and Senate have been vocal about creating an all-encompassing bill to address the workplace concerns that surround the #MeToo movement. Last year, the Senate created a Bipartisan task force on sexual harassment. The group has been actively discussing the issue of workplace sexual harassment for the past year. The legislation will proceed to the House for consideration next month.

Employer Takeaways

While employers don’t need to take action yet–they should keep a close watch. Should this bill, or some variation pass, it would impose significant hurdles for employers, and hefty penalties for failure to comply. Consider taking a brief inventory now–what policies and practices do you have in place? If you do not currently require sexual harassment training–or if you do but it is not interactive–be prepared to adjust. Similarly, if you currently enforce non-disclosure agreements, arbitration, or non-disparagement clauses, be ready to make those cuts. Given the political pressure surrounding this reform, it is likely at least portions of this bill will eventually become law, but in exactly what form remains unclear.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

By Jennifer Mora

Seyfarth Synopsis: Given this recent New Mexico medical marijuana law change discussed here, employers in all jurisdictions should review their current policies and practices addressing “weed at work” and continue to monitor developments in this evolving area of law.

Although New Mexico has had a medical marijuana law in place since 2007, it did not contain protections for job applicants and employees. However, all of that changed on April 4, 2019 when New Mexico Governor Grisham signed Senate Bill 406, which amends the Lynn and Erin Compassionate Use Act (the “Act”) to include changes that will impact New Mexico employers and their consideration and treatment of individuals using medical marijuana.

In addition to expanding the types of conditions for which an individual can use medical marijuana, employers now are prohibited from taking any “adverse employment action against an applicant or an employee based on conduct allowed under” the Act, including declining to hire, terminating, or taking any other adverse action against an individual because he or she is using medical marijuana or received a recommendation for such use by a provider.

There are some exceptions. Specifically, the employment protections do not apply:

  • If the employer would lose monetary or other licensing-related benefits under federal laws or regulations if it hires or employs individuals who use marijuana or test positive for marijuana.
  • If the employee will work in a “safety-sensitive position,” defined to mean “a position in which performance by a person under the influence of drugs or alcohol would constitute an immediate or direct threat of injury or death to that person or another.”
  • To employees who use or are impaired by medical marijuana while working, during “hours of employment,” or on premises. Indeed, the law is clear that employers can take adverse action against an employee for using or being impaired by marijuana “on the premises of the place of employment or during the hours of employment.”

Unlike a few other medical marijuana laws, SB 406 says nothing about what, if anything, an employer can do if an applicant or employee tests positive for marijuana. Moreover, while employers can take action against employees impaired by marijuana while working, on premises or during working hours, the law provides no clarity as to what it means for an employee to be “impaired by” marijuana. New Mexico employers will now need to consider how best to respond when a medical marijuana user tests positive for the drug.

More states are enacting medical marijuana laws with provisions protecting applicants and employees, and while the initial trend in the courts favored employers, courts have started issuing employee-friendly decisions addressing existing laws. The laws and court decisions are making it particularly challenging, yet critically important, for employers to stay ahead of this fast-moving trend and avoid being a test case in their state. This is especially true now that applicants and employees are bringing claims under state disability discrimination laws rather than medical marijuana laws. Employers in all jurisdictions should review their current policies and practices addressing “weed at work” and continue to monitor developments in this evolving area of law.

By Paul Cutrone, Sam Witton and Sarah Goodhew

Seyfarth Synopsis: This morning we feature a blog from our colleagues at Seyfarth Shaw Australia, which provides updates and insights on workplace issues, employment law and health and safety, from Seyfarth Shaw Australia’s team of local and international experts.

Our clients care deeply about innovation and technology. We know this from our engagement with clients including discussions triggered by reflecting on the findings of the CSIRO’s Workplace Safety Futures report.

Our clients care about “machines” (including “robots”, artificial intelligence, biometrics and the harnessing of big data) being developed as a result of innovation and technology because of the unprecedented efficiencies and improvements in safety they unlock.

These benefits come with a potentially profound human cost. Depending on which research you turn to, the predictions are that between 9 and 50 per cent of jobs will be replaced by machines in the next decade.

This rapid pace of change has caused leading scholars to argue that some, if not a large majority of humans face a fate worse than redundancy: complete irrelevance.

The jobs of the future will involve “caring” and other “soft” skills machines can’t replicate  

This sobering thought caused us to reflect on what the skills of the future should be to counter this impending irrelevance. The current thinking from some quarters (including most Governments in the Western world) is that science, technology, engineering and mathematics are the subjects of the “future” and that we should be teaching more students these subjects in our schools, technical colleges and universities.

Cybersecurity and understanding the potential vulnerabilities of machines and how to fix them is one growth area. Estimates are a near 40 per cent uplift in the number of people needed with these skills in the next decade.

At the same time, leaders of businesses are arguing that one of the hardest skills to recruit for is the ability of candidates to write and speak publicly to communicate ideas clearly. Chairman and CEO of Goldman Sachs, David Solomon, has said that “[h]ow you communicate with other people, how you interact with other people, how you express yourself will have a huge impact on your success”.

The bigger question though is how we, as a society, prepare for the future?

Embedded in this question are further intrinsic questions around what it is that machines cannot do, or what it is that machines cannot do better than humans? An understanding of the answers to these questions is necessary if we attempt to protect ourselves from redundancy and, worse still, irrelevance.

It’s heartening to hear that across all reports that communication skills remain valuable in the “new world” of work.  This is good news for lawyers and many professions.

Knowledge of machines + deep understanding of people = recipe to thrive

Perhaps the focus here should be on the things that, for now at least, machines can’t replace. In the main these are the very things that make us human and make us feel. This includes the joy we experience through art, literature, movies, theatre, dance or music. It also includes the empathy we feel that comes from human care and kindness.

Leading organisation are already harnessing “blended” skill sets

Leading organisations with which we work have already recognised the need to combine a knowledge of machines with the “caring” and “feeling” skills, so called “softer” skills, that machines can’t replicate. These organisations seek out and promote, through lifelong learning, essential skills in communication, creativity, innovation and intercultural competency.

The future is impossible to predict with accuracy. One thing though is clear –  the impact of machines on the jobs we have today is inevitable. If we set ourselves on a path to learn only the skills which machines can potentially replace, we set ourselves on a dangerous path.

Based on the inevitability of the machines replacing humans, combined with the focus on the “softer” skills associated with creativity, we are working with our clients to do just that get more creative.

Creativity is not only one of the key skills that will relate to employability in ever increasing ways but we are seeing employees seek out organisations that hold creativity as a core value. Why? They will be sustainable long term. We might care about machines, but as yet they don’t care about us.

By Michael Jacobsen, Christopher DeGroff, and Gerald L. Maatman, Jr.

Seyfarth Synopsis:  On April 10, 2019, the EEOC released its comprehensive enforcement and litigation statistics for Fiscal Year 2018.  The release arrived a few months later than usual – likely due to the recent government shutdown – but still packed a punch in several respects, including to the back-drop on retaliation and sex discrimination charges in the midst of the #MeToo movement, the number of merits lawsuits filed, and significant monetary recoveries, as well as a reduced charge inventory.  It is a must-read for all employers.

On April 10, 2019, the EEOC released its comprehensive enforcement and litigation statistics for Fiscal Year 2018 (available here).  In addition to enforcement and litigation activity, the data breaks down charge statistics by allegation and state – showing which charges are being filed the most and where.  Although the dip in total charges filed certainly stands out, so does the prominence of retaliation and sex discrimination charges in the #MeToo era.  The statistics are somewhat of a “report card” on the Commission’s activities, and also illustrates the continued increase in the number of lawsuits filed by the EEOC overall, as well as the number of systemic lawsuits filed specifically, and touts the substantial monetary recoveries that the EEOC continues to reel in from employers.  The data also mark the EEOC’s accomplishments in reducing its charge inventory.

Charges Are Down Overall

In total, 76,418 charges were filed in FY 2018.  Not only is this down from 84,254 charges in FY 2017, but FY 2018 saw the third fewest charges filed for all fiscal years going back to FY 1997 according to the EEOC’s data, above only FY 2006 (with 75,768 charges) and FY 2005 (75,428).  Further putting FY 2018’s drop to 76,418 charges in perspective, the number of charges filed exceeded 80,000 every other year starting in FY 2007, by 8,000 to 19,000 in most of them.

Consistent with this overall decline, there was a decrease in almost every category of charges in FY 2018 from FY 2017, with the exceptions of some modest increases in Equal Pay Act and genetic information charges at the very bottom of the list.  The category that decreased the most was race, by 3,928 charges – or almost 14% – from FY 2017 to FY 2018.

While generally down, however, these numbers are still sizable.  And outreach to the agency was consistent with prior years, as well, with the EEOC reporting that it addressed 519,000 calls to its toll-free number and more than 200,000 inquiries to its field offices in FY 2018, roughly in the ballpark of 540,000 calls and 155,000 inquiries in FY 2017, respectively.

Texas And Florida Are Still Hot, With California Getting Warmer

Looking at the states where the most charges were filed, the hot spots largely remained the same in FY 2018 as in FY 2017.  In fact, 9 out of the top 10 states in FY 2017 also made the cut for FY 2018, except for Alabama knocking Tennessee out of the number 10 spot. As in FY 2017, Texas (with 7,482 charge receipts) and Florida (with 6,617 charge receipts) were the top two states for charges in FY 2018.

Texas and Florida should come as no surprise, given their relative populations according to the most recent census data (found here). But population is not everything.  For example, Georgia (at number 4) surpasses states with higher populations, and Illinois and Pennsylvania each have more filings than New York.  And, although one might expect California to be number one given that it is the most populous state, its strong state discrimination statute tends to claim charges that may otherwise have been filed with the federal agency.  Nevertheless, while the top 10 list on the whole was fairly static from the prior fiscal year, California was a notable exception, leaping from having the sixth most charges filed in FY 2017 to the third most charges filed in FY 2018.

Retaliation Charges Remain In First, With Sex Discrimination A Notable Second

In total, 39,469 retaliation charges were filed with the EEOC in FY 2018.  As has been the case for the past five years, this made retaliation the most frequently filed charge in FY 2018.  Also noteworthy, retaliation charges crept over the 50% marker in FY 2018, continuing a steady annual increase from 42.8% of the total charges filed in FY 2014.

Behind retaliation were sex, disability and race charges, each approximately 32% of the total charges filed with the EEOC.  (As the EEOC notes, the percentages total more than 100 because some charges allege multiple bases.)

Sex discrimination charges (which would include pregnancy discrimination, gender discrimination, and sexual harassment) were particularly notable in that they edged out disability and race charges by a tenth of a percent to claim the number-two spot, after being the fourth most frequently filed charge in FY 2017.  Breaking down the data for sex charges further, there were 7,609 sexual harassment charges filed with the EEOC in FY 2018, making for a sizable jump of 13.6% over the prior fiscal year.

No doubt, these trends in sexual discrimination and retaliation charges were fueled by the “significant impact of the #MeToo movement,” as noted by Acting Chair Victoria A. Lipnic.  Indeed, the EEOC’s commitment in this area has not wavered in light of the increased visibility of workplace sexual harassment resulting high-profile media coverage in 2018.  As reported previously, the 41 sexual harassment lawsuits filed by the EEOC in FY 2018 marked a 5-year high.  And the EEOC also reported a total recovery of $56.6 million for alleged victims of sexual harassment in FY 2018.

EEOC Keeping Its Foot On The Gas

Overall, the statistics show that the EEOC filed 199 merits lawsuits in FY 2018, up from 184 merits lawsuits filed in FY 2017.  While not as dramatic a spike from the year before – in which the EEOC more than doubled the number of merits lawsuits it filed compared to the prior fiscal year – the appreciable growth in FY 2018 on top of that jump should not be overlooked.  The EEOC reports that 117 of those lawsuits were on behalf of individuals, 45 were non-systemic suits with multiple victims, and another 37 were systemic claims.

The EEOC labels a case as “systemic” if it “has a broad impact on an industry, company or geographic area.”  As such, these cases pose heightened exposure.  In terms of percentages, systemic lawsuits accounted for about 18.5% of the total number of filings, which is consistent with prior years (16% of all merits lawsuits in FY 2017 and 20% in FY 2016).  Looking at the numbers, however, the 37 systemic lawsuits filed in FY 2018 was up from 30 that the EEOC filed in FY 2017, 18 in FY 2016 and 16 in FY 2015.  As with the number of merits lawsuits filed, the number of systemic lawsuits may not have risen quite as dramatically as it did in FY 2017.  Nevertheless, employers should pay attention as the number continues to rise in FY 2018 even in the wake FY 2017’s spike.  Clearly, the EEOC is not shying away from pursuing these “bet-the-company” cases.

The EEOC boasted substantial recoveries to boot.   Specifically, the EEOC secured more than half a billion dollars ($505 million) in total relief for alleged discrimination victims in FY 2018.  This marks a substantial increase from $484 million in FY 2017 and $482.1 million in FY 2016.

Bringing Down The Backlog

Another priority of the EEOC in recent years has been reducing the large backlog of pending charges, which had been a longstanding issue for the agency.  In FY 2018, the EEOC resolved 90,558 charges.  This was down from 99,109 charges resolved in FY 2017 and 97,443 charges in FY 2016.  Nevertheless, the EEOC still decreased its charge inventory by 19.5%, to 49,607 in FY 2018, following up on FY 2017, in which the EEOC decreased its charge inventory by 16.2% to 61,621.  Indeed, as Acting Chair Lipnic noted for FY 2018, the data reflected the “lowest inventory of private sector charges in a dozen years.”  The EEOC attributed its success in this area to new strategies for prioritizing charges and resolving them more efficiently, and with the assistance of enhanced technology.

Implications For Employers

Despite the dips in overall charges filed, the EEOC’s enforcement efforts remain robust, and the EEOC continues to get results, as demonstrated by its recovery statistics.  And, by reducing its backlog, the EEOC is freeing up its resources for further enforcement efforts.  As noted in our other reports, clearly the EEOC is aggressively pursuing its strategic goals under the current administration.  Employers should keep an eye on these statistics, especially with retaliation and sex discrimination issues firmly in the forefront.  And, by continuing to set the culture in their workplaces through leadership and accountability, along with sound human resources practices such as sharp written policies, comprehensive training and robust response protocols, employers can guard against these issues, which clearly are not going away.

By Kristina M. Launey and Minh N. Vu

Seyfarth Synopsis: Four years and two motions to dismiss based on the pleadings later, the National Association of the Deaf’s (NAD) online video captioning lawsuit against Harvard University is moving forward to fact discovery. On March 28, Federal Magistrate Judge Robertson in the District of Massachusetts denied the university’s motion for judgment on the pleadings with some notable discussion about whether websites are places of public accommodation under the ADA and limitations of liability for third party content.

Physical Nexus Argument Rejected. The First Circuit has held in a case about an allegedly discriminatory insurance policy that a business can be a public accommodation covered by Title III of the ADA even if it is not associated with a physical place where customers go. Harvard argued that this precedent did not apply to cases involving websites, but the Court was not persuaded. The Court also said that even if the law did require Harvard’s websites to have a nexus with a good or service provided at a physical location, the Plaintiffs had sufficiently alleged such a nexus because some of the allegedly inaccessible videos could, for example, pertain to courses taught at the school.

University Content Posted on Third Party Websites. The Court said whether Harvard could be legally responsible for content it posts on third party websites (e.g. YouTube, iTunesU, and SoundCloud) depends on facts which have yet to be developed, including whether the university has control over how the content is displayed, and whether captioning the content would provide meaningful access. The Court also noted that the university may be able to show that providing captioning would fundamentally alter the nature of the service provided or be an undue burden.

CDA Immunity for Third Party Content. In a meaningful initial victory for Harvard, the Court acknowledged that the Communications Decency Act (CDA) shields Harvard from liability under Title III of the ADA and the Section 504 of the Rehabilitation Act with respect to two categories of content: (1) content hosted on a third party-server (not belonging to Harvard) that is hyperlinked in its existing form to content that is hosted on a Harvard platform or website (“Embedded Content”) and (2) content is hosted on a Harvard platform or website that Harvard did not create, produce, or substantially alter (“Third Party Content”). The CDA shields website operators, including educational institutions, from being treated as the publisher or speaker of material posted on the website by third party users. While the Court’s holding reduces the number of videos that remain at issue in the case, the Court was not willing to immediately exclude all content posted by students, individual faculty members, or other scholars as requested by Harvard. The Court said discovery into Harvard’s role with respect to such content is needed to see if it really is third party content exempted by the CDA.

To Be Continued… We will continue to monitor this long- running case. NAD filed the lawsuit in 2015, alleging Harvard violated Title III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act by failing to provide closed captioning for thousands of videos on its websites. In November 2016, the court denied Harvard’s motion to stay or dismiss on the primary jurisdiction doctrine, finding the court did not need the DOJ’s expertise to rule on the issue. The present order noted that in the time intervening the two motions, the parties engaged in settlement talks and negotiations to resolve or narrow the issues, but could not reach an agreement.

By Sam Witton, Paul Cutrone, and Sarah Goodhew

It is widely proclaimed that we are in the midst of the “Fourth Industrial Revolution” (4IR). The leaps and bounds that are being made daily in information technology and biotechnology signal the end of homo sapiens or provide liberating freedom for the working masses, depending on which commentator’s view you believe.

For us, the daily lived experience of the 4IR in working and home life is not yet as cataclysmic nor as emancipating as the commentators proclaim. However, the ever growing use of technological, timesaving solutions, the ‘gigification’ of the workforce, the blurring of the lines between work and home and the rising issue of workplace psychological health all signal shifting global trends.

Regional trends that are responding to the 4IR

The 4IR is shaping workplace laws. Working across regions we see examples that point to trends in laws responding to the new world of work arrangements such as non-traditional labour models. As an example, recent amendments to the Occupational Safety and Health Act in Korea have expanded the scope of statutory protections to “persons providing labour” (as opposed to “employees”) and introduce an obligation on franchisors to take preventive measures for workplace accidents suffered by franchisees and their workers.

Positive regional trends can be seen in how workers are protected by existing laws. The latest amendment to the Law of the People’s Republic of China on the Prevention and Control of Occupational Diseases on 4 November 2017 and recent cases indicate a trend in Beijing and Shanghai that the enforcement of health and safety at work is in focus, more comprehensive and increasingly strict.

Australian Governments are grappling with the challenge of laws that are responsive to the 4IR with recommendations to review Work Health and Safety Laws to deal with new and emerging business models, industries and hazards.

Rising issues of sexual harassment and workplace psychological health – a focus for regulators

Laws continue to be tested against the explosion in reporting of workplace sexual harassment, with calls for Workplace Health and Safety laws to specifically include sexual harassment as a risk that must be eliminated or minimised by duty holders. Regulators are encouraging anonymous whistleblowing to facilitate investigation.

We are also expecting more regulator activity in relation to workplace psychological health.

Exploring ‘megatrends’ for the future will help us prepare for change

It is more important than ever to understand the risks associated with the constant change in workplaces.

The Workplace Safety Futures report recently prepared by the Australian Commonwealth Scientific and Industrial Research Organization has identified the following six megatrends for workplaces over the next 20 years:

 Each megatrend presents both risks and opportunities but all are predicted to re-shape workplace health and safety. Business will need to grapple with these changes to ensure they continue to meet their legal obligations through what promises to be a period of rapid and potentially radical change.

By Christine Hendrickson and Annette Tyman

Synopsis: Seyfarth’s Pay Equity Group is pleased to release two reference guides: the 2019 Developments in Pay Equity Litigation Report and the 3rd Annual 50-State Pay Equity Desktop Reference.

Today, April 2, 2019, is Equal Pay Day. As we reflect on the developments in equal pay laws and litigation in the past year, we continue to see a legal landscape that is rapidly evolving.

As our colleague, Camille Olson, testified in February on the Paycheck Fairness Act (H.R. 7) before the U.S. House Education & Labor Committee’s Subcommittee on Civil Rights and Human Services and the Subcommittee on Workforce Protections, which passed out of the U.S. House of Representatives last week, equal pay is an area of the law where employers have led “by proactively evaluating and modifying their pay practices, policies, and procedures, through voluntary compensation reviews and implementing educational programs to ensure compliance with the law.” We are proud to partner with you in these efforts.

Looking back at 2018 and forward to 2019 and beyond, we see four key trends:

  • A Push Towards Even Greater Transparency: In 2019, we are seeing employers even more willing to be transparent about pay and an increased appetite for additional data and metrics. Specifically, we are seeing additional requests for not just “pay gap” information but information about median pay and unadjusted pays statistics. Employers are weighing voluntary or mandatory (like in the U.K.) disclosures about pay. This raises additional concerns and, at the same time, provides additional opportunities. We expect this trend to continue. We discussed this on our webinar today, and we look forward to sharing more information about the how employers can evaluate if they have a pay gap or a gap in the data that explains how employees are paid. Watch this space.
  • The Possibility of Pay Data Collection by the EEOC: On March 4, 2019, the U.S. District for the District of Columbia issued an opinion vacating a stay of the EEOC’s collection of pay data as part of the EEO-1 Report filing. The pay data collection requirement was indefinitely stayed by Office of Management and Budget (“OMB”) in part because of questions around the EEOC’s burden estimates. The National Women’s Law Center and the Labor Counsel for Latin American Advancement filed suit challenging OMB’s decision. We are now waiting for clarification from EEOC of the timeline by which employers with more than 100 employees must provide pay data and hours worked for all employees. The impact of this development on the employer community cannot be understated and we are closely following these developments and will be in touch with guidance, if and when the EEO-1 pay data collection is required.
  • The Continued Passage of New, More Stringent Pay Laws: Since the beginning of 2018, we saw new equal pay laws passed in Illinois, New Jersey, and Washington state. Laws banning employers from asking candidates for employment about prior salary continues to be another trend. Salary history ban laws have been enacted in 7 states, 1 territory, and 7 cities, and several other counties and states are considering similar salary history bans. The 3rd Annual 50-State Pay Equity Desktop Reference outlines these changes at the state-level.
  • More Litigation: Not surprisingly, concurrent with these new laws and developments, the Seyfarth Pay Equity and Complex Litigation Groups have seen an increased interest by the plaintiff’s bar in litigation under the federal Equal Pay Act and analogous state laws. The primary targets for this new wave of litigation have been the health, legal and tech industries. Those cases are already generating new and intriguing law that has the potential to reshape the landscape of pay equity litigation, including whether and how those claims can be maintained as collective or class actions. The 2019 edition of the Developments in Pay Equity Litigation Report outlines these cases and trends.

All of the members of the Pay Equity Group look forward to working with you and partnering with you in navigating these issues in 2019.

Christine Hendrickson and Annette Tyman co-chair the Seyfarth’s Pay Equity Group. For 20 years, Seyfarth’s Pay Equity Group has lead the legal industry in fair pay analysis, thought leadership, and client advocacy.

 

By Minh N. Vu

Seyfarth Synopsis:  Domino’s Likely to File Petition for Certiorari from Ninth Circuit’s Ruling in Robles v. Domino’s.

As we reported, the Ninth Circuit held in January that a blind plaintiff could move forward with his ADA Title III lawsuit against Domino’s Pizza for having an allegedly inaccessible website and mobile app.  The court determined that allowing the claim to move forward was not a violation of Domino’s due process rights, even though the ADA and its regulations contain no definition of, or technical specifications for, “accessible” public accommodations websites.

We believe Domino’s will be petitioning the U.S. Supreme Court for certiorari because on March 6, 2019, it requested a sixty-day extension of time to file said petition.  The request was filed by a newly-engaged Supreme Court specialist which further confirms our conclusion that a petition will be filed.  Justice Kagan granted the request, and Domino’s Petition for Certiorari is due on June 14, 2019.

There is a lot at stake with this petition.  Congress and the DOJ have taken no action to stop the tsunami of lawsuits against thousands of businesses about their allegedly inaccessible websites.  A Supreme Court decision could put an end to the litigation frenzy and provide some relief for businesses.

Stay tuned for updates on this exciting development.

Edited by Kristina M. Launey

 

By Sara Eber Fowler, Rhandi Childress Anderson, and Erin Dougherty Foley

Seyfarth Synopsis: The Department of Labor issues an opinion letter clarifying that employers must promptly designate FMLA leave, regardless of the availability of paid leave.

What if an employee wanted to say “no thank you” to their FMLA rights, use their other available leave, thereby saving their FMLA time for later and get extra (protected) time off – can they do that?

That used to be an easy “no”– if an eligible employee gave notice of a need for leave for an FMLA-qualifying reason, employers were obligated to designate the time off as FMLA. But in 2014, the Ninth Circuit issued a surprising decision in Escriba v. Foster Poultry Farms, Inc., holding that employees can decline to take FMLA leave, even when their need for leave is for FMLA-qualified reasons. The Ninth Circuit departed from prevailing precedent and created a gray area for employers as to whether they could – or should – involuntarily place employees on FMLA leave when they decline FMLA rights. In the years since, no other Circuits have followed Escriba.

On March 14, 2019, the Department of Labor (“DOL”) issued an Opinion Letter directly rejecting the Escriba decision, reiterating the prevailing view that employers cannot delay designating leave as FMLA leave, where it otherwise qualifies, even if an employee asks.

The question presented to the DOL was whether an employer could allow employees to exhaust some or all available paid leave before designating leave as FMLA, even when the reason for leave is clearly FMLA-qualifying. In no uncertain terms, the DOL rejected this practice. Once an employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave, 29 C.F.R. § 825.220(d). In other words, contrary to Escriba, employee preferences are irrelevant and employer compliance is mandatory. When an employer has enough information to determine whether a leave request is for an FMLA-qualifying reason, the employer must follow the FMLA regulations and designate the leave accordingly.

The DOL further reiterated that this does not prevent employers from permitting or requiring that employees substitute available paid leave to cover otherwise unpaid FMLA leave. However, FMLA runs concurrently with any paid leave, and employers cannot expand an employee’s 12-week (or 26-week) FMLA entitlement.

Takeaway for Employers     

For most employers around the country, the DOL’s opinion letter simply serves as a reminder of what has long been considered best practice in designating FMLA leave. For employers with operations in the Ninth Circuit, though Escriba has not been overruled, the opinion provides a solid foundation to designate qualifying leave as FMLA, regardless of employee preference. And of course, there is nothing preventing employers from having more generous leave policies (paid or unpaid), with time off beyond the FMLA’s 12-week/26-week allotment. They key is, such additional leave is not FMLA (or FMLA protected).

If you have any questions regarding this or any related topic please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Counseling & Solutions or Absence Management and Accommodations Teams.