NEXT PAGE

Page 1 of 2

The New Plus-One: Babies In The Workplace

March 12 - Posted at 9:00 AM Tagged: , , , , , , , ,

You may have heard of “Bring Your Child to Work Day,” but have you ever heard of “Bring Your Baby to Work Every Day”? Many of you likely just scoffed at the idea. Simply put, a baby cannot be an employee so therefore they have no place at work, right? General workplace norms have held fast to that belief, causing working parents to make difficult decisions with limited choices about returning to their jobs and caregiving once their child is born.  Consequently, employers and businesses often experience vital changes to their workforce in the form of staffing, productivity, costs, efficiency, and reliability.

But some employers are challenging the norm and finding a creative solution to the age-old dilemma through implementation of “infant at work” policies. Employers participating in this increasingly popular option make work and parenting synonymous concepts by providing an inclusive, supportive environment that reaps holistic benefits for employees and their families, employers, and businesses.

Baby On Board – At The Office

From a statistical standpoint, there are some reasons why infant-at-work policies are making sense for employers and employees alike. According to the U.S. Bureau of Statistics, nearly 40% of families (including single parents) in America have children under age 18. Meanwhile, both parents are employed in 63% of two-parent families.

Without the safety net of an infant-at-work policy, employers are missing out on a large subset of workers. In 2018, women represented approximately 46.9% of the total workforce nationwide, but approximately one-third of mothers do not return to work after having a baby, due in part to the expense of childcare.

A good example can be found in California. The state is ranked 11th as the most expensive childcare in the nation, with the average cost of child care estimated at $11,817 per year or $985 per month. For a typical family in California, child care costs would eat up 25% of their annual income. Childcare costs are highest for infants than any other age. 

Overall, these statistics demonstrate that working families face a challenging choice between returning to work and placing the child in daycare or staying home until the child is older. Whereas one requires significant time away from the infant and a sizable portion of household income, the other is often financially infeasible.

When The Pros Outweigh The Cons

The alternative option is bringing an infant to work, which has numerous benefits that often dispel any perceived disadvantages. Some of the obvious concerns include disruption to the work environment, added stress to the parent-employee who is trying to perform while managing a child, failure to complete work, distraction, and liability concerns. 

Surprisingly, employers with infant-at-work policies have found that disruption is minimal because the responsive parent can easily soothe the infant’s needs. Infants are happier and calmer than anticipated because of the constant physical proximity to the parent. Physical proximity also allows mothers to easily breastfeed, which results in greater protection against certain cancers in the mother, as well as optimal growth and development and decreased risk of illness for the infant. 

Additionally, parents invest in doing their jobs well because they simultaneously spend time with the infant, earn a paycheck, and are physically present in their career without thinking about getting home to the infant or picking the infant up from daycare. In turn, the parent in fact works more, increases productivity, and decreases sick time. After the initial novelty wears off, babies become a fixture rather than a distraction. Other employees may also bond with the infant and provide support when the parent is occupied with work tasks. Lastly, liability concerns can be addressed through waivers assuring employers that the employee cannot hold the company responsible for accidents that might occur at the office. 

As a result of the benefits to the parent and infant, employers and businesses can experience the following: earlier return to work dates for parent-employees; increased retention, especially of women in the workplace; reduced costs associated with hiring new employees; improved productivity; reduced healthcare costs as the infant and parent are healthier; increased community focus in the workplace between infant, parent, and coworkers; and improved public perception as a family-friendly business.  

Policy And Practice

When welcoming babies into the workplace, an infant-at-work policy that has a clear structure, sets employer expectations, and provides for flexibility will facilitate maximum benefits. You should first consider eligibility requirements by determining which new parents can take advantage of the policy (full-time or part-time employees, or both). You should also determine when employees will no longer be able to bring their infant to work: once the child is a certain number of months old, or begins to crawl, or whichever comes first. 

Second, in the event the parent-employee is occupied with a work task, you may require the parent to select two other employees to provide back-up care for the infant. These are workers not simultaneously participating in the program who consent to serve as an alternate care provider. Third, consider preparing individualized plans specifying what days the child will be in the office. Fourth, determine whether there will be a trial period before the program becomes permanent for each employee. While the program may appear workable in the abstract, it may not be suitable once the infant and parent are in the workplace.

You should also consider a termination procedure detailing when the program will end, either when the infant reaches the eligibility limit or when a termination decision is made following a complaint process that suggests discontinuation of the individual infant and parent in the program is the appropriate course of action. You may specify the factors it will take into consideration in reaching a termination decision, such as decline in performance and interference with business operations, and may also include a notice period before termination of the program. 

Infant-at-work policies can fit seamlessly with policies that many employers should already have in place, including lactation accommodation requirements that require you to provide for breastfeeding facilities with specific amenities. Additionally, lawsuits involving family responsibility discrimination or parental status discrimination – which is employment discrimination because of an employee’s caregiver obligations – are increasingly common.  While parental status is not a protected basis under federal law or most state laws, it is often alleged as the basis for sex, gender, marital status, or childbirth discrimination, and is prohibited by the Equal Employment Opportunity Commission. 

Consider a female employee who has to leave work by 4:00 p.m. every day to pick her child up from day care, is not promoted as a result, and files a sex discrimination claim. An employer with an infant-at-work policy could reduce the likelihood of such a claim by permitting the employee to bring her baby to work thereby extending her workday.

Nobody Puts Baby In A Corner…But Maybe A Cubicle Will Work

Community and family values are easily gained by employers who assist employees in balancing their careers and parenting. Infant-at-work policies can be implemented with minimal investment as long as there are clear rules and expectations.

Of course, each baby, parent, and business is different. Employers that embrace this modern idea should heed traditional practices of oversight and flexibility to ensure that the policy evolves to fit its unique needs. Regardless of the business, utilizing this low-cost option creates a more positive, productive culture, as well as marrying career and family interests where the two were once mutually exclusive.  

EEO1 Report Due by March 31, 2020

March 03 - Posted at 8:30 PM Tagged: , ,
If you employed more than 100 people in the preceding calendar year, you are required to complete and submit your EEO1 Report (Survey) by March 31, 2020. You should have also received a reminder letter via mail recently from the EEOC. 

For more information about the EEOC Report 1 or for a direct link to file via the EEOC’s web-based filing system, visit here.

EEO-1 Pay Data Reporting Guidance Published

July 12 - Posted at 8:40 PM Tagged: , , , , ,
The Equal Employment Opportunity Commission (EEOC) released a sample form, instructions and FAQs to help employers submit employee pay data—due to the agency by Sept. 30—sorted by job category, race, ethnicity and sex.

Earlier this year, employers were required to submit EEO-1 Component 1 data that lists employees by job category, race, ethnicity and sex. Component 2 asks for employees’ hours worked and pay information from their W‑2 forms, broken down into the same categories.

Businesses with at least 100 employees and federal contractors with at least 50 employees and a contract with the federal government of $50,000 or more must file Component 1 of the EEO-1 form. However, only employers with at least 100 employees, including federal contractors, must file Component 2.

The EEOC’s website now provides information employers may need for filing Component 2 data, such as a sample form, an instruction booklet and FAQs for covered employers. The agency confirmed that the Component 2 online filing system will be available July 15, and additional instructions will come soon. The agency also will send login information to covered employers through the U.S. Postal Service and by e‑mail.

Collecting the Data

The EEOC uses information about the number of women and minorities companies employ to support civil rights enforcement and analyze employment patterns, according to the agency.

Under Component 2, employers must report wage information from Box 1 of the W‑2 forms and total hours worked for all employees, categorized by race, ethnicity and sex, within 12 proposed pay ranges.

“Employers may not use gross annual earnings instead of W-2 Box 1 earnings,” noted Kiosha Dickey, an attorney with Ogletree Deakins in Columbia, S.C., and Jay Patton, an attorney with Ogletree Deakins in Birmingham, Ala.

The report should show actual hours worked by nonexempt employees, an estimated 20 hours worked per week for part-time exempt employees, and 40 hours worked per week for full-time exempt employees.

As with Component 1 data, employers should select a pay period between Oct. 1 and Dec. 31 of the reporting year as the “workforce snapshot period” for Component 2 data, the agency guidance said.

“The only employees whose compensation and hours-worked data must be reported are those full- and part-time employees who were on the employer’s payroll during the workforce snapshot period,” Dickey and Patton explained.

Contentious Component

The federal government initially halted plans to collect pay data so it could review the appropriateness of the revised EEO-1 form under the Paperwork Reduction Act.

The worker advocacy groups that filed the lawsuit said the information would help them evaluate pay disparities and better serve their clients. Furthermore, requiring equal-pay data collection would “encourage companies to identify and correct pay disparities and allow the EEOC to more effectively and efficiently root out and address pay discrimination,” they argued.

Business groups, however, have opposed the requirement. “The EEOC’s pay-data collection rule creates another administrative burden for companies while raising questions about how the data will be used and analyzed,” said Brett Coburn, an attorney with Alston & Bird in Atlanta.

“Employers in today’s environment are acutely aware of the gender wage gap and recognize the importance of ensuring compliance with applicable federal and state requirements,” he said. “Without formal guidance on how the EEOC will assess and publish the data, the only certainty is that this new rule will create opportunities for litigation.”

Compliance Tips

Many feel that HR professionals can and should start preparing for expanded EEO-1 reporting now.

HR professionals should identify where employee pay and hour data are stored and begin gathering that information or figuring out how to extract it, he said.

Once all data is collected, employers should then tackle the task of filling out the actual form and may even want to check with vendors (i.e. HRIS or payroll vendors) to see if they can assist with the process.

Employers will report data through the Component 2 EEO-1 online filing system or by creating a data file and inputting their data in the appropriate fields in accordance with the data file specifications, but the data file specifications have not yet been released.

EEOC Instructs Employers of New Sept 30th Deadline for Reporting Pay Data

April 25 - Posted at 2:01 PM Tagged: , ,
A federal judge announced on April 25th that mid-size and large employers will now have until September 30, 2019 to provide 2018 pay data to the EEOC, instead of the previous deadline of May 31st.

U.S. District Judge Tanya Chutkan accepted the agency’s proposal to make employers submit their 2018 pay data this fall in a bench ruling and also ordered the EEOC to collect a second year of pay data, giving it a choice between collecting employers’ 2017 data or making it collect 2019 data down the road.

Judge Chutkan said she accepted the agency’s proposed due date “even though the court harbors its own doubts” about why it would take so long to collect pay data.

The judge gave the agency until April 29 to put a statement on its website informing employers of her decision and until May 3 to decide which second-year dataset (2017 or 2019) to collect. The agency must also give the court a compliance update on May 3 and provide further updates every 21 days after that and must take “all necessary steps” to meet the Sept. 30 deadline, she said.

Judge Chutkan’s decision Thursday ends weeks of stakeholder debate about when to set the filing deadline following her early March ruling reinstating the data collection, which the Obama administration adopted to root out gender- and race-based pay gaps. The form supplements the agency’s long-running collection of employers’ demographic data. Both components apply to all employers with 100 or more employees and federal contractors with 50 or more employees.

The Trump administration rolled back the pay data component in 2017, citing its paperwork burden on employers, among other things. The National Women’s Law Center and the Labor Council for Latin American Advancement challenged this rescission as unfair and poorly reasoned in November 2017 and won summary judgment last month, days before the EEOC started accepting employers’ demographic data for 2018.

The ruling apparently blindsided the EEOC, which said earlier this month it did not have the infrastructure to accept and secure employers’ pay data, but could set a Sept. 30 deadline if it hired a contractor.

Business groups, including the U.S. Chamber of Commerce, likewise claimed to have been taken unaware by the collection’s reinstatement, saying member employers have not kept data in a form transmissible to the EEOC and would need at least 18 months to complete the survey.

Judge Chutkan chided the EEOC for its lack of preparation at a hearing last week on when to set the deadline, saying she did not understand why the agency had not restored a page on its website telling employers how to submit their pay data. She said Thursday it was clear the EEOC never crafted a contingency plan in the event that the plaintiffs won and that the administration’s actions before and since her March order “indicate that the government is not committed to a prompt collection of Component 2 information.”

According to EEOC, Sexual Harassment Charges Increase Once Again

April 12 - Posted at 5:59 PM Tagged: , , ,

Despite a 10 percent overall drop in the number of charges of employment discrimination, the EEOC recently reported that sexual harassment charges filed with the agency jumped by 13.6% from the previous year. The 7,609 sexual harassment charges received clearly demonstrate that the #MeToo movement is in no way slowing down. What do employers need to know about this development?

(more…)

Employers Get A Pay Data Reporting Reprieve – But For How Long?

March 18 - Posted at 3:34 PM Tagged: , , , , ,
Despite a recent court ruling resurrecting the requirement that employers turn over compensation information along with standard demographic figures, the EEOC this morning unveiled its 2019 EEO-1 reporting system that fails to include any request for such pay data. It appears as though employers will not have to provide information about their employees’ 2018 compensation for the time being – although you should still be prepared for this to change at a moment’s notice, and should begin preparing for such pay disclosures in the near future.

(more…)

Workplace Law Predictions For 2019

January 09 - Posted at 7:15 PM Tagged: , , , , , , , , , , , , , ,

Courtesy of Fisher Phillips LLP

2018 has seen quite a few changes in labor and employment law. But with the New Year having just rung in, it’s time to look forward rather than backward. The question on the tip of everyone’s tongue is: what’s next? Here are our predictions for what to expect in 2019 when it comes to workplace law.

Expect More Class Actions

We’re going to start out with the bad news. Because of the potential for a big payout, class and collective actions are a favorite for plaintiffs’ attorneys. You should not expect that to change in 2019.

The California Supreme Court’s decision in Troester v. Starbucks Corporation has opened up even more avenues for potential wage and hour claims in the Golden State, and the trend could hit the rest of the country, too. In July 2018, the California Supreme Court narrowed the scope of the de minimus doctrine under state law and held that employees must be paid for off-the-clock work that regularly lasts several minutes per day. While the California Supreme Court refused to shut the door entirely on the de minimus doctrine, it noted that technological advances should help employers track small bits of time, and that employers can restructure work to avoid off-the-clock time.

Employers outside of California may see plaintiffs’ attorneys attempting to use the same rationale employed by the California Supreme Court to argue that the de minimus doctrine should not apply in the circumstances of their case. Moreover, with more employees having remote access to emails and other mobile platforms, the number of ways for employees to argue that they were working off the clock has increased. 

The Ascendance Of Arbitration Agreements 

One way for employers to avoid class actions is through arbitration agreements. Last May, the Supreme Court ruled in Epic Systems Corporation v. Lewis that mandatory class action waivers in arbitration agreements are enforceable. As a result, you can expect to see an increase in the number of companies rolling out updated agreements to include class action waiver language. (Note: if you have not had your arbitration agreement reviewed since May when Epic Systems came out, make it your New Year’s Resolution to do so.)

However, while popular with employers, arbitration agreements are decidedly not so with the plaintiffs’ bar. Expect to see plaintiffs’ counsel becoming more creative in challenging arbitration agreements on grounds related to unconscionability. 

We may even be starting to see a backlash against arbitration agreements. Most recently, some law students have been pressuring big law firms to do away with them when it comes to their own hires. And last year, the California legislature passed a law banning mandatory employment arbitration agreements for claims arising out of alleged violations of the Fair Employment and Housing Act or California Labor Code. Although the bill was ultimately vetoed by outgoing Governor Jerry Brown, expect to see the fight continue in 2019.

Don’t Look To Congress To Lead The Way

With Democrats controlling the House, and Republicans controlling the Senate and Executive Branch, you can expect that most employment legislation will be dead on arrival. When it comes to innovative legislation impacting the workplace, you should look to the states to lead the way. This is not to say that there won’t be any changes to labor and employment law on the federal level in 2019. However, we expect the most significant changes to be made by agencies (such as the National Labor Relations Board, the Department of Justice, the Equal Employment Opportunity Commission, etc.) rather than Congress.

NLRB Will Narrow The Definition Of Joint Employer

One of those agencies—the NLRB—made noise last year when it published a proposed rule that would alter the definition of joint employment to make it more difficult to hold multiple businesses responsible for alleged labor and employment law violations by staffing companies, franchisees, and other related organizations. Expect to see continued movement and updates on this proposed rule in 2019. 

But before getting too excited at any potential changes, you should keep in mind that states may have their own rules regarding joint employment that could differ from what the NLRB comes up with. Any new rules may not affect your organization’s liability under state law.

USDOL Has A Full Plate

Another agency you should keep an eye on is the U.S. Department of Labor (USDOL).  Not only is the USDOL considering its own joint employment rule, but the agency has proposed regulations regarding the regular rate of pay and white collar exemptions (also known as the “overtime” rule). 

The regular rate of pay is of particular importance to employers because it is used to calculate the overtime rate of non-exempt employees. While we know that changes to the proposed regulations are targeting sections 7(e)(2) and 7(g)(3) of the Fair Labor Standards Act, the USDOL has been rather vague about what the proposed regulations will look like. The USDOL states that they aim to “provide employers more flexibility in the compensation and benefits packages they offer employees” and “lessen litigation regarding the regular rate.”   

The regulation relating to the white collar exemption is less opaque. As employers may recall, the minimum salary threshold for white collar exemptions was supposed to increase from $455 per week (or $23,660 annually) to $913 per week (or $47,476 annually), with the amount to be updated every three years. However, right before these changes were scheduled to take effect in December 2016, a federal court blocked their implementation. Under a new administration, we expect that we will see a more modest proposed increase in the white collar exemption in 2019—perhaps in the low $600s per week. 

Paid Sick Leave Will Continue To Be On Trend

Although there are no federal laws mandating paid sick leave (yet), you can expect that paid sick and family leave will continue to be a big issues, with states and localities picking up the slack. Right now, 11 states and the District of Columbia require paid sick leave. Additionally, various cities and counties have stepped in where states have not provided for such leave or to give more generous benefits than the state. 

You generally should anticipate an expansion of paid sick leave benefits in 2019. The New Jersey Paid Sick Leave Act went into effect October, while Michigan, Washington, and Westchester County (NY) have paid sick leave laws going into effect this year. 

While some municipalities in Texas want to get in on this trend, a Texas appeals courtruled the Austin Paid Sick Leave Ordinance violates the state constitution because it preempts the Texas Minimum Wage Act. San Antonio passed its own sick leave ordinance in 2018, but it may only be a matter of time before it, too, is challenged in court. 

Privacy Issues Remain Paramount

The EU General Data Protection Regulation (GDPR) went into effect in May 2018, ushering in sweeping reforms for companies that do business in the EU or employ EU residents. The GDPR threatens strict penalties for non-compliance—up to the greater of 20 million Euro or 4 percent of global annual turnover in the prior year. Having been in effect less than a year, it is still not clear how fines will be assessed and what the potential exposure will be for companies that are found to be non-compliant. As 2019 progresses, you can expect to see many investigations that began in 2018 come to a close, and we’ll begin to get a better idea of how regulatory authorities will assess fines for non-compliance—including whether the fearsome 4 percent penalty will be assessed.   

Lest you think the major developments in privacy are safely across the ocean in Europe, you can be sure there will be plenty of action closer to home in 2019. The Illinois Supreme Court currently has a case before it over whether a technical violation of the Illinois Biometric Information Act (BIPA) gives standing to sue absent a person suffering a concrete injury. If the court answers in the affirmative, you can expect to see a continued proliferation of BIPA class actions.

Further, California passed the California Consumer Privacy Act (CCPA) in 2018, which goes into effect at the beginning of 2020. While the law is not as comprehensive as the GDPR, California employers will soon need to figure out this year if it applies to them. You should take compliance seriously: the CCPA allows consumers whose rights have been violated under the Act to bring suit for actual damages or statutory penalties (whichever is greater) under a mechanism somewhat akin to a California Labor Code Private Attorneys General Act. You can expect the proliferation of CCPA lawsuits will be on next year’s list of predictions. 

 

5 Employee Handbook Updates to Watch in 2018

March 06 - Posted at 1:00 PM Tagged: , , , , , , , , ,

When was the last time the company handbook was reviewed? It’s a worthy priority for the new year—or anytime, really. Handbooks are living documents that should be reviewed regularly, especially considering the federal government’s focus on deregulation and ever-changing updates from state legislatures and municipalities. Here are five key issues that may trigger updates:

1. Workplace conduct and social media

Under former President Barack Obama, the National Labor Relations Board (NLRB) scrutinized social media policies and other workplace conduct standards that may limit workers’ rights. For example, in many cases the board considered employee social media posts that are critical of employers a form of protected concerted activity and thus not necessarily grounds for disciplinary action. 

With the Trump administration, the pendulum may swing the opposite way, giving employers more leeway to develop workplace conduct rules, said Bruce Sarchet, an attorney with Littler in Sacramento.

Already, the board overruled its previous standard that struck down policies if they could be “reasonably construed” to curb employee discussions about wages and working conditions—even if the policies weren’t intended to do so. “With [the] signal of a sea change in NLRB policy, employers need to pay close attention to the board’s new ‘policies on policies’ as they develop,” said Bonnie Martin, an attorney with Ogletree Deakins in Indianapolis. In the meantime, make sure your handbook’s conduct guidelines are specific and clear. 

2. Sexual harassment 

With sexual harassment news sweeping the country, make sure your policies spell out exactly how employees can complain and give people multiple outlets for doing so. “Having a policy that requires employees to report incidents to their supervisor isn’t helpful if the supervisor is the one doing the harassing,” said Randi Kochman, an attorney with Cole Schotz in Hackensack, N.J.

Take state requirements into account as well. California, for example, has mandated that content on harassment based on gender identity, gender expression and sexual orientation be included in supervisor training. The change took effect Jan. 1. 

3. Parental leave

Leave laws are expanding in many states. In California, for example, businesses with 20-49 employees must offer job-protected baby-bonding leave beginning this year.

Workers in New York will be eligible for paid family leave in 2018, and even in states without such provisions, many businesses are opting to provide paid parental time off. 

When updating handbooks, don’t include separate baby-bonding rules for mothers and fathers, Kochman said. While employers can include differing standards for mothers regarding the physical limitations imposed by pregnancy, they should use genderless terms such as “primary caretaker” in their parental leave policies.

4. Disability and other accommodations

An employer’s obligation to provide leave could go beyond the 12 weeks afforded under the federal Family and Medical Leave Act. For example, a request for intermittent leave to treat a medical condition may be considered a reasonable accommodation under the Americans with Disabilities Act.

While the 7th U.S. Circuit Court of Appeals ruled that leave that extends beyond FMLA isn’t considered a reasonable accommodation, the Equal Employment Opportunity Commission and other courts disagree. 

That’s why it’s important to carefully review policies and keep up with developing laws.

Medical marijuana case law is also evolving. In 2017, several courts ruled that registered medical marijuana users who were fired or passed over for jobs for using the drug could bring claims under state disability laws.

“HR professionals should review their drug-testing policies and practices and consider consulting counsel before taking any adverse action following a positive drug test for marijuana in a state in which medical or recreational use is legal,” said Cheryl Orr, an attorney with Drinker Biddle in San Francisco.

5. The bigger picture

With all the state and local changes, it may no longer work to have a single handbook with blanket policies for workers in different locations. “Now is a good time to add state supplements to the handbook that are distributed only to employees within the relevant state,” said Jeffrey Pasek, an attorney with Cozen O’Connor in Philadelphia.

Revised EEO-1 Report Blocked by White House

September 01 - Posted at 9:00 AM Tagged: , , , , , , , ,

The Office of Management and Budget (OMB) announced late Tuesday (8/29/17)  that it was implementing an immediate stay of the revised EEO-1 Report, putting a halt to long-awaited pay data reporting requirements. The stay creates much needed relief for employers, but is expected to further refocus pay equity discussions on a statewide and local level.

Quick Recap Of Pay Data Reporting

Historically, employers with 100 or more employees, and federal contractors with 50 or more employees, have been required to submit Employer Information Reports (EEO-1 Reports) disclosing the number of employees by job category, race, sex, and ethnicity annually. Last year, the EEOC finalized proposed changes to the EEO-1 Report which would require employers to include pay data and the number of hours worked in their reporting. The proposed reporting expansion was intended to identify pay gaps, which the agency could then use to target specific employers and investigate pay discrimination practices.

The revised form, revealed in October 2016, required employers to submit the newly requested data based on a “workforce snapshot” of any pay period between October 1, 2017 and December 31, 2017 and was due to be submitted by March 31, 2018.

The U.S. Chamber of Commerce and many other observers identified serious flaws in the proposed rule. Following pushback by numerous business groups, the EEOC announced it would issue a second set of revisions to the form. However, the revisions encompassed only two minor changes and failed to alleviate significant employer concerns. Businesses across the country had thus been preparing to usher in a new day when it came to having their pay practices placed under a federal microscope, and until yesterday, it appeared inevitable that the disclosure would proceed as planned.

Feds Press Pause On Pay Data Reporting

All of that changed yesterday with the announcement from the federal government. In issuing an immediate stay of the revised EEO-1 report, the OMB voiced its own concerns with the revised reporting requirements. The office announced: “…[we are] concerned that some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.”

Employers are still required to submit EEO-1 Reports using the previously approved form. The deadline for submission of 2017 data remains March 31, 2018. However, employers can breathe a sigh of relief when it comes to the proposed expanded pay data reporting requirements – for now.

Whether this development foreshadows the ultimate demise of the revised EEO-1 Report is currently unclear. However, national attention on wage inequities remains despite yesterday’s announcement, and the focus on pay equity enforcement is increasingly shifting to state and local levels. States like California, New York, Massachusetts, Oregon, Nevada, and others have all passed pay equity legislation in the last year. Consequently, with each state acting as its own incubator for how to best address these disparities, pay equity analysis and related litigation is becoming more complicated.

Landmark Appeals Court Ruling Extends Title VII Protections To LGBT Employees

April 05 - Posted at 3:31 PM Tagged: , , , , ,

Late yesterday (4/4/17), the 7th Circuit Court of Appeals became the first federal court of appeals in the nation to rule that sexual orientation claims are actionable under Title VII. Their decision opened the door for LGBT plaintiffs to use Title VII to seek relief for allegations of employment discrimination and retaliation.


The April 4th ruling is important to employers because it broadens the class of potential plaintiffs who can bring workplace claims against them, and will require employers to ensure fair and equal treatment to all applicants and workers regardless of their sexual orientation (Hively v. Ivy Tech Community College).

Background: What Does Title VII Cover?


The initial aim of Title VII of the Civil Rights Act of 1964 was to protect employees from race discrimination in the workplace. Just before it was enacted, however, Congress added a provision prohibiting discrimination based on “sex.” Initially, federal courts took the position that “sex” should be interpreted narrowly.  


However, over the years, plaintiffs have sought a much broader interpretation of what should be covered as sex discrimination. Following the landmark 2015 Supreme Court decision which made same-sex marriage legal across the country, federal courts have grappled with determining which types of claims are actionable under the “sex” provision of Title VII. Meanwhile, the Equal Employment Opportunity Commission (EEOC) issued a July 2015 administrative decision ruling that “sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII” (Baldwin v. Foxx).


Although this decision involved a federal employee and was only binding on federal employers, other lower federal courts have discussed the rationale behind the EEOC’s conclusion and seemed ready to adopt the same approach. Indeed, on November 4, 2016, the U.S. District Court for the Western District of Pennsylvania agreed with the EEOC and held that sexual orientation falls within the protection of Title VII (EEOC v. Scott Medical Center). However, no federal appellate court went that far – until now.


Employee Loses First Two Rounds Of Her Battle


Kimberly Hively began working as a part-time adjunct professor for Ivy Tech Community College in South Bend, Indiana in 2000. She worked there for 14 years until her part-time employment contract was not renewed in 2014. During her employment, she applied for six full-time positions but claims never to have even been offered an interview, even though she said she had all the necessary qualifications and had never even received a negative evaluation.


Hively filed a federal lawsuit alleging sexual orientation discrimination under Title VII, and in 2015, the trial court dismissed her case. She appealed to the 7th Circuit Court of Appeals (which oversees federal courts in Illinois, Indiana, and Wisconsin), which initially agreed with the lower court by upholding the dismissal of her claim in July 2016.


The three-person panel of judges indicated that it had no choice but to deny Hively’s claim after reviewing a string of cases stretching back almost 40 years from across the country.  The panel concluded that no other federal appellate court had decided that sexual orientation discrimination is covered under Title VII. The judges noted that we live in “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act,” but indicated they were all but powerless to rule otherwise absent a Supreme Court directive or a congressional amendment to Title VII.


But Wins Crucial Third Round


In October 2016, the full collection of 7th Circuit judges set aside the ruling and agreed to re-hear the case en banc, which means all the judges would hear the case together. Late yesterday, the en banc panel issued a final ruling overturning its initial decision by an 8 to 3 vote and breathing new life into Hively’s case. More importantly, however, the 7th Circuit created a new cause of action under Title VII for other LGBT employees in Illinois, Indiana, and Wisconsin.


In the opinion, drafted by Chief Judge Wood, the court concluded that “discrimination on the basis of sexual orientation is a form of discrimination” and that it “would require considerable calisthenics” to remove the “sex” from “sexual orientation” when applying Title VII. In addition, the court noted that efforts to do so had led to confusing and contradictory results.  


In the end, the court concluded that the practical realities of life necessitated that it reverse its prior decision. It remanded Hively’s case back to the trial court for a new hearing under this broad new standard.


What This Means For Employers


Employers in Illinois and Wisconsin are already subject to state laws protecting private workers based on sexual orientation, so yesterday’s decision should simply reaffirm their commitment to ensuring fairness and equality for these employees. For private employers in Indiana, however, the time is now to take proactive steps to ensure sexual orientation is treated the same as any other protected class – this includes reviewing your written policies, handbooks, training sessions, workplace investigations, hiring methods, discipline and discharge procedures, and all other aspects of your human resources activities.


As for employers in the rest of the country, it appears likely that yesterday’s ruling will be followed by decisions in other circuit courts similarly extending Title VII rights to cover sexual orientation. In fact, the plaintiff in a prominent case recently decided by the 11th Circuit Court of Appeals (hearing cases from Florida, Georgia, Alabama) has indicated she could seek a full en banc review of her case in the hopes of extending Title VII to cover LGBT workers in that circuit. It would not be surprising for the Hively case to be the first in a series of dominoes that brings about a new day for Title VII litigation across the country.


We can expect to see further judicial rulings in the coming years fleshing out this issue in more detail. For example, one issue not addressed by the 7th Circuit is how this new theory will affect religious institutions given that different standards apply to them under federal antidiscrimination laws. These and other considerations will be debated in courts across the country in the near future.


Even if these appeals court decisions do not immediately materialize, there are two other avenues whereby employers could still face immediate liability for such claims. The first is through state law. Almost half of the states in the country have laws prohibiting sexual orientation discrimination in employment (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin), and some additional states protect state workers from such discrimination (Alaska, Arizona, Indiana, Kentucky, Louisiana, Michigan, Missouri, Montana, North Carolina, Ohio, Pennsylvania, and Virginia).


Second, plaintiffs have successfully argued to various federal courts that Title VII sex discrimination covers claims where plaintiffs allege mistreatment based on gender non-conformity actions. This includes situations where employers are alleged to have discriminated against workers for failing to live up to stereotypical gender norms. Courts have noted that drawing a line that separates these “sex-stereotyping” claims from pure sexual orientation claims is “exceptionally difficult” because the distinction is often “elusive,” meaning that employers anywhere could face a Title VII claim akin to sexual orientation discrimination that would be accepted as valid by a federal court no matter what the federal appeals courts say. This concept was discussed in the 11th Circuit’s recent Evans v. Georgia Regional Hospital decision, and the court in fact permitted the plaintiff to proceed with her case on a stereotyping theory.


While possible that the Supreme Court or Congress will step in and reverse this trend, as a recent court stated, “it seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry.” Employers should take heed and prepare for what appears to be an inevitable extension of workplace protection rights for LGBT workers based on their sexual orientation.

© 2020 Administrators Advisory Group, Inc. All Rights Reserved