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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

transgender1600Yesterday, February 22, 2017, the Trump Administration rescinded Department of Justice (DOJ) and Department of Education (DOE) guidance that had been issued to schools on May 13, 2016 in the form of a “Dear Colleague”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

transgender1600A few recent events provide employers a peek behind the curtain of the Trump administration’s position on whether Title VII provides protection to LGBT individuals.

First, some background. Title VII prohibits discrimination “because of sex,” among other things. In the past, the Equal Employment Opportunity Commission (the federal agency enforcing federal anti-discrimination laws) acknowledged that Title VII did not cover sexual orientation discrimination, although it did prohibit discrimination based on sex/gender stereotyping (which could overlap with sexual orientation claims to the extent the gay or lesbian employee did not conform to male or female stereotypes).
Continue Reading What is the Future of Sexual Orientation and Transgender Status Under the Trump Administration?

Gold-Rolex-Watch-3-psd86394As a company’s workforce ages, some thoughtful managers may be concerned about business continuity and planning. And it seems pretty obvious that much of that planning will depend on when certain older workers plan to retire. Or a manager may see an older worker becoming less productive, and begin thinking that the person should retire. But, asking about an employee’s retirement plans – or even requiring an employee to retire – can be very problematic. I thought it might be helpful to review the rules on retirement under the Age Discrimination in Employment Act (ADEA).

Generally, ADEA prohibits employers from forcing employees to retire because of their age. The only exception to this prohibition for private employers is certain bona fide executives or high policymakers. For those individuals, ADEA allows employers to require mandatory retirement at age 65 if the individual has been:

  • Employed in that capacity for at least two years prior to retirement; and
  • Is entitled to immediate and non-forfeitable annual retirement benefits from the employer that total at least $44,000.

Continue Reading Asking About Retirement Can Be Dangerous

healthA recent case highlighted for me (and now for you) an interesting point under the Americans with Disabilities Act (ADA) – whether essential job functions can change. As you may know, the ADA protects employees with disabilities who, with or without reasonable accommodations, are able to perform the essential functions of his/her job. This means that the issue of what are the essential functions of the job is critically important.

According to the EEOC, the following factors should be taken into account in determining whether a job function is essential:

  • whether the reason the position exists is to perform that function,
  • the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
  • the degree of expertise or skill required to perform the function.

The EEOC also identifies the following types of evidence that can be used to establish that certain job functions are essential:

  • the employer’s judgment as to which functions are essential,
  • a written job description prepared before advertising or interviewing for a job
  • the actual work experience of present or past employees in the job,
  • the time spent performing a function,
  • the consequences of not requiring that an employee perform a function, and
  • the terms of a collective bargaining agreement.

Continue Reading Employer May Change Essential Functions of the Job

Burlesque 2So as an employment defense attorney, I am constantly amazed by the creative arguments put forth by plaintiffs and their attorneys. I am certain that the creators of certain laws would never, in their wildest dreams, have anticipated how they could be applied. A recent example of this can be found in Stevens v. Oval Office, LLC dba Oval Office Gentlemen’s Club.

As you may know, a recent hot topic for federal and state agencies is the misclassification of employees as independent contractors. According to the U.S. Department of Labor’s newly created webpage, misclassification hurts employees by denying them: minimum wage and overtime pay, the protection of federal and state employment laws, workers’ compensation and unemployment insurance, workplace health and safety protections, and employer-provided benefits. It also hurts non-compliant employers who may be subject to fines and unpaid taxes and wages, as well compliant employers who face unfair competition from those who reduce their costs by being non-compliant. And it hurts government agencies who do not receive the appropriate employment tax revenues.
Continue Reading Exotic Dancer Improperly Fined for “Faulty Workmanship”?

no-camera-allowed-mdThis is one of those pro-employer cases that just doesn’t make sense to me, even though I’m a die-hard management-side lawyer. It frankly strikes me as a case of punishing the victim. To explain:

In Furcron v. Mail Centers Plus, LLC, the employer provided facilities and administrative support to other businesses, including the Coca-Cola Company. A male employee with Asperger’s syndrome (which can cause awkward social mannerisms) was transferred to a mailroom (following some awkward social interactions with a female employee in his prior assignment). According to a female mailroom employee, after his transfer, the male employee frequently entered her work area and invaded her personal space. He stared at her and, as witnessed by another employee, attempted to look down the female employee’s shirt and at her underwear when she bent over. But even worse, as witnessed by yet another employee, he frequently exhibited an erect penis while staring at the female employee and would deliberately bump and rub his erection against her!!!
Continue Reading Employee Violated Sexual Harassment Policy by Photographing Her Harasser’s Erection?

onion-1328465Here’s a seasonally appropriate horror story for employers.

As employers know (I hope), Title VII prohibits discrimination against employees on the basis of religion. That means that employees cannot be subjected to adverse employment actions based on their own religious beliefs, but also because they refuse to submit to an employer’s religious beliefs. But what is “religion” within the meaning of Title VII? The answer to that is incredibly confusing and very broad – encompassing all sorts of non-traditional belief and morality systems. The Supreme Court has said that determining what is a religious belief “is more often than not a difficult and delicate task.” The Equal Employment Opportunity Commission, in its regulations, has provided an expansive definition of religion that includes:

moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. . . . The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.

The effect of this incredibly vague and broad definition means that employers may not always recognize when they’re dealing with a situation involving religion. A striking (perhaps even terrifying) example of this can be found in the recent federal court decision, EEOC v. United Health Programs of America, Inc.
Continue Reading Court Finds “Onionhead” Conflict Resolution Program = Religion