Friday, October 24, 2014

More Transgender Discrimination as Sex Discrimination

Well, add another case to the growing body of law regarding whether transgender discrimination is sex discrimination. This time from the U.S. military. The U.S. Office of Special Counsel issued this Report of Prohibited Personnel Practice in August, but just now released a redacted version to the public.

Technically, the report concludes that:
[T]he Agency's discrimination against Doe on the basis of her gender identity, including her gender transition from a man to a woman, constituted a PPP (prohibited personnel practice) under 5 U.S.C. § 2302(b)(10)(discrimination based on conduct not adverse to work performance) . . . . OSC makes no determination regarding Doe's sex discrimination claim, [but] OSC relies on pertinent EEO law for appropriate context.
But, the report notes at the outset that transgender discrimination " likely constitute[s] a PPP of sex discrimination." The report also relies on Title VII precedent for "guiding principles."

Bottom line: Although the report technically makes no determination on the issue of sex discrimination, it does so in a way that makes pretty clear that the office believes transgender discrimination is sex discrimination.

Wednesday, October 15, 2014

Employment Law Blog Carnival #ELBC Rolls in to Manpower

Mark Toth from Manpower Group hosts this month's edition of the Employment Law Blog Carnival (#ELBC for the hashtagging cool kids): Blog Carnival: Halloween Edition. Check it out!

Monday, October 13, 2014

Surprise! "Anonymous" Apps . . . Not-So-Anonymous

Yik Yak bills itself as a "local bulletin board." It allows users to post messages, and only people in a certain geographic area can see the messages. Users can up-vote or down-vote messages (too many down-votes and the message disappears), and even reply.

One interesting aspect of Yik Yak: it's anonymous. Well, sort of. Users do not need to verify their identities via email, register an account, or sign their messages in any way. You can just download the app to your phone and start posting and no one will know who you are - at least that's how it looks.

Apparently, someone posted this on Yik Yak in the vicinity of Penn State (aka where I live and teach) on Saturday night:

Screen Shot 2014-10-12 at 1.24.54 PM
(screen grab courtesy of Onward State).

Well, it turns out Yik Yak has a policy for such things:
Yik Yak may disclose user account information to law enforcement – without a subpoena, court order, or search warrant – in response to a valid emergency when we believe that doing so is necessary to prevent death or serious physical harm to someone (for instance, in cases involving kidnapping, bomb threats, school shootings, or suicide threats).
And, it turns out they store:
  • The IP address from which the message was posted; 
  • The GPS coordinates of the location from which the message was posted; 
  • The time and date when the message was posted.
And, within about 24 hours, we're at HUB Shooting Threat Suspect in Custody.

It's not just Yik Yak - see also, "the Snappening" in which a bunch of "sexts" were intercepted from Snapchat, the supposedly ghost-like messaging service. Don't be stupid - these "anonymous" apps have a way of becoming not-so-anonymous (especially when nudity or criminal threats are involved).

2014-15 SCOTUS Employment Law Preview

Our beloved United States Supreme Court (aka SCOTUS) kicked off the new season last week (okay, technically they entered a few orders before that). Here are the labor and employment law issues currently on their docket (case name links to SCOTUSblog page with all filings to date):

Notice Requirements for a Workplace Religious Reasonable Accommodation
EEOC v. Abercrombie & Fitch
SCOTUS just granted cert a couple weeks ago. You can read my more-detailed description of the issue here. Generally speaking, the case involves the required notice for imposing the reasonable accommodation requirements of Title VII on an employer in the hiring context.

Workplace Pregnancy Accommodations
Young v. UPS
Issue: Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” My brief summary of the issue here.

Compensability of Security Screening Time
Integrity Staffing Solutions v. Busk
Issue: Whether time spent in security screenings is compensable under the Fair Labor Standards Act (FLSA), as amended by the Portal-to-Portal Act. SCOTUS heard oral arguments last week. Transcript here and audio here.

Mandatory EEOC Conciliation
Mach Mining v. EEOC
Issue:Whether and to what extent a court may enforce the Equal Employment Opportunity Commission's mandatory duty to conciliate discrimination claims before filing suit.

Vesting of Retirement Benefits Under Collective Bargaining Agreement
M&G Polymers USA, LLC v. Tackett
Statement of case:
When employees and unions bargain with employers for retiree health-care benefits, those benefits— and the conditions for receiving them—are set out in collective bargaining agreements. The agreements almost never, however, explicitly address the duration of those benefits. The circuits have badly split over how to construe that contractual silence . . . . The Sixth Circuit construes silence or ambiguity in a collective bargaining agreement as creating an “inference” or “presumption” that the agreement vests a right to lifetime, contribution-free benefits in the absence of extrinsic evidence to the contrary. The Third Circuit applies the opposite presumption and requires a clear statement in collective bargaining agreements that the parties intend the benefits to continue indefinitely. And the Second and Seventh Circuits (among others) have staked out a middle ground between those diametrically opposed positions . . . requiring at least some language in a collective bargaining agreement that can support interpreting that agreement to provide health benefits indefinitely.
And, now some cases that I call "second-tier" - they're either not directly employment law cases, or too narrow in scope to draw too much interest for the average employer.

Admin Law: Procedures for Agency Interpretive Rulemaking
Perez v. Mortgage Bankers Association
Issue: Whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation. This case specifically deals with the Department of Labor's interpretation of its FLSA regulations as applied to mortgage-loan officers.

Whistleblower Protection for Intentional Disclosure of Sensitive Security Information
Dept. of Homeland Security v. MacLean
Issue: Whether certain statutory protections codified at 5 U.S.C. § 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.

Wednesday, October 8, 2014

BREAKING: EEOC Loses Separation Agreement Lawsuit on Technicality

This just in . . . the opinion in EEOC v. CVS. I blogged about two weeks ago that the EEOC had lost this case. Now we know why. Unfortunately, it has nothing to do with the terms of CVS's separation agreements (i.e. the basis for the lawsuit, explained here). Instead, the Court ordered judgment for CVS on the basis that the EEOC failed to participate in the conciliation process.

A rather disappointing ending to an otherwise exciting case. Will the EEOC float another test case? Or is the "war on separation agreements" over before it ever began? I guess we'll see . . . .

HT: Jeff Nowak via Twitter:

Friday, October 3, 2014

SCOTUS Grants Cert. in Religious Accommodation Case

Well, Abercrombie and Fitch is coming to the Supreme Court. No, I don't mean the courthouse will blare bass-heavy music over the smell of whatever-that-smell-that-comes-pouring-out-of-Abercrombie-is while some almost-dressed model welcomes visitors. I mean, A&F will be there as a party.

The Court granted certiorari yesterday in EEOC v. Abercrombie & Fitch Stores, Inc. Frankly, it's a little tough to figure out what in the heck the issue is in this case. What is clear, is that a Muslim wore a headscarf to an interview, the interviewer assumed she was Muslim and guessed that she wore the scarf for religious reasons, and A&F decided not to hire her.

The EEOC presented the question as:
[W]hether an employer can be liable under Title VII for refusing to hire an applicant or discharging an employee based on a "religious observance and practice" only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.
(emphasis added). The issue presented suggests that A&F had actual notice of the need for a religious accommodation - but not from the applicant herself. However, A&F's response indicates that it had no actual notice, and that the EEOC is mistaken. They frame the issue as:
Whether an applicant adequately informs a prospective employer of the need for a religious accommodation under Title VII simply by wearing an item of clothing which can be but is not always associated with a particular religion.
A&F argues that the EEOC is trying to hold the employer liable based on its interviewer's assumption about the significance of the headscarf. The EEOC's Reply Brief reframes the issue as:
By holding that an employer may discriminate against a job applicant or employee based on practices that the employer correctly believes to be religious, so long as the employer does not have “actual know ledge” of the need for a religious accommodation based on the explicit statements of the applicant or employee, the Tenth Circuit . . . opened a safe harbor for religious discrimination.
So, what do I take away from all of this? The Supreme Court will hopefully decide to what extent an employer must have notice of the need for a religious accommodation to impose liability for failing to hire an employee who requires such an accommodation. I seriously doubt the Court will impose a requirement that the employer have actual notice from the applicant. I suspect the case will turn on whether Title VII requires actual notice, or if the employer's correct assumption that the applicant requires a religious accommodation is sufficient to trigger some obligation (like, the interactive process perhaps). My money is on an actual notice requirement - but we'll see.

Sunday, September 28, 2014

EEOC Files Two Transgender Discrimination Lawsuits

More than two years ago, the EEOC held that transgender discrimination is a form of sex discrimination. Less than a year ago, the Third Circuit analyzed a transgender discrimination claim as thought it were any other discrimination claim. At the time, I wrote:
I think the writing is on the wall on this issue . . . transgender/gender identity discrimination will be treated as sex discrimination by courts (whether ENDA passes or not).
I guess some employers didn't get the memo.

The EEOC announced a pair of transgender discrimination lawsuits, the first in its history. You can read the press releases here and here. Both cases entail male employees who began transitioning to female - and were promptly fired.