Judge_Gorsuch_official_portraitA colleague recently brought to my attention a 2014 employment case written by then-Circuit Judge Gorsuch for a panel of the U.S. Court of Appeals for the 10th Circuit – a particularly interesting opinion that may give us hints as to how Justice Gorsuch may rule in future employment cases before the Supreme Court.

In Hwang v. Kansas State University, an assistant professor was diagnosed with cancer and received a six-month leave of absence. (In the opinion, Judge Gorsuch specifically noted it was a “(paid) leave.” Whether or not it was paid is irrelevant to the legal analysis, but his express mention of payment suggests approval of the employer’s actions as exceeding the norm). Towards the end of the six months, she requested additional leave of apparently another few months. The University, however, had an inflexible policy limiting leave to six months, and it denied her request. The professor then sued, claiming that the University’s inflexible leave policy violated the Rehabilitation Act. Continue Reading Justice Gorsuch and the ADA?

transgender1600The issue of transgender rights has been the recent focus of much media attention, and Senior Circuit Judge Andre Davis has added an elegant and eloquent contribution to the conversation through his concurring opinion to the U.S. Court of Appeals for the Fourth Circuit’s order vacating the preliminary injunction it had previously issued in the case of G.G. v. Gloucester County School Board.

A transgender high school student, G.G. (Gavin Grimm), sued the Gloucester County School Board and asked for a preliminary injunction to allow him to use the bathroom consistent with his transgender status. The federal district court denied the request for preliminary injunction, but on appeal, the Fourth Circuit disagreed and ordered that the injunction be issued. Continue Reading Judge Davis’ Paean to G.G. and Other Brave Individuals Who Opposed Discrimination

moneyAs you may have heard, the Maryland General Assembly has passed a bill that requires employers with 15 or more employees to provide up to 5 days of paid sick leave and smaller employers to provide unpaid sick leave. The bill, known as the Maryland Healthy Working Families Act, now heads to the Governor’s desk. Governor Hogan has promised to veto it and the lawmakers state that they will override the veto. But politics aside, what is the actual status of this bill?

There are a number of possible scenarios regarding this bill, which we will discuss in order of likelihood. Continue Reading Maryland’s General Assembly Just Passed Paid Sick Leave – Now What?

US-EEOC-Seal.svgIn January 2017, the Equal Employment Opportunity Commission released proposed guidance regarding workplace harassment.  Because guidance does not carry the same weight as regulations do, which require a formal notice and comment period, there is no legal requirement to solicit public comment on guidance.  However, the practice of voluntarily doing so began under former Chair Jenny Yang and provides employers a valuable opportunity to make their concerns known before the Commission finalizes guidance.

To that end, Shawe Rosenthal, in conjunction with four other law firms, led the effort on behalf of the Employment Law Alliance* to submit written comments  to the Commission’s proposed harassment guidance.  The comment period has closed, and we expect revised guidance to issue—hopefully factoring in some of our comments below!—in a few months. Continue Reading Reflections on the EEOC’s Proposed Harassment Guidance

Rook with scarfI have previously blogged about the fact that the Family and Medical Leave Act and state counterparts don’t allow employees to take time off to care for an ill or dying pet (see my Pet Bereavement Leave? post here). Recently, however, I heard about a sick leave ordinance – in Emeryville, California – that allows employees to take time off to care for certain animals! So in addition to taking sick leave because of the illness or injury of the employee or the employee’s family member, the employee may also take this leave “to aid or care for a guide dog, signal dog, or service dog”!!! And the dog doesn’t even have to belong to the employee – it can be the family member’s dog! Continue Reading Sick Leave for Your Dog?

moneyI have been watching, with interest and trepidation, the Baltimore City Council’s proposal to raise the minimum wage in the City to $15/hour by 2022. While I certainly understand the desire to “share the wealth” and to ensure a decent living standard, as several Council members have stated, I am very concerned about the unintended consequences of this well-meaning action – particularly on non-profit organizations. Continue Reading Thoughts on the Fight for Fifteen from a Management Lawyer

transgender1600As I discussed in a blog last month, the Trump Administration rescinded joint Department of Justice (DOJ) and Department of Education (DOE) guidance (a “Dear Colleague” letter) that had been issued under the Obama Administration on how the agencies interpret Title IX (the non-discrimination law that applies to schools and students) in the context of bathroom use by transgender students. The guidance had stated that transgender students should be allowed to use the gender-specific bathroom consistent with their stated gender identity.  The rescission of this guidance occurred just weeks before the Supreme Court of the United States was scheduled to hear oral arguments in the Gloucester County School Board v. G.G. (Gavin Grimm) case this month. Continue Reading Supreme Court Kicks Transgender Case Back – What Does This Mean for Employers?

pcodqjeziWe are all watching and reading how Uber is responding to yet the latest scandal and legal problem to confront the on-demand ride service giant.  About a week ago, a former Uber employee, Susan Fowler, posted a blog about why she left Uber last December. Susan alleges (and these are only allegations at this point) that during her one year at Uber as an engineer, she was subject to harassment and a rampant sexist culture at Uber, and when she complained, Uber did nothing. Continue Reading What Does the Ex-Uber Employee’s Blog Teach Employers about the Power of Social Media?

transgender1600Yesterday, February 22, 2017, the Trump Administration rescinded Department of Justice (DOJ) and Department of Education (DOE) guidance that had been issued to schools on May 13, 2016 in the form of a “Dear Colleague” letter.  The letter stated that it was the DOJ’s and DOE’s interpretation of Title IX (the federal law prohibiting sex discrimination in education) that schools must allow transgender students to use the gender-specific bathroom with which they identify and that schools could not force students to use bathrooms based on their biological sex.  The DOJ and DOE stated that schools that did not follow the guidance could risk losing federal funding. Continue Reading Trump Administration Rescinds Transgender Student Guidance – What Does This Mean for Employers?

healthFollowing up on my recent post, “Employer May Change Essential Functions of the Job,” I thought we’d discuss another little-mentioned aspect of essential job functions under the Americans with Disabilities Act – job functions that are rarely performed can still be essential!

As we’ve previously discussed, the ADA protects employees with disabilities who, with or without reasonable accommodations, are able to perform the essential functions of his/her job. The ADA regulations define “essential function” as “a fundamental job duty of a position.” But how do you determine what are the essential functions of a particular job? According to the Equal Employment Opportunity Commission (which is the federal agency charged with enforcing the ADA) and the regulations, the following factors should be taken into account in determining whether a job function is essential: Continue Reading Rarely Performed Job Functions May Still Be “Essential” Under ADA