Monday, July 21, 2014

President Obama Signs Executive Order Re: Sexual Orientation Discrimination

Earlier today, President Obama finally signed the executive order prohibiting workplace sexual orientation discrimination by the federal government and federal contractors. You can read the full text of the executive order here.

Of interest: the order covers sexual orientation and gender identity, and it does not include an express exception/exemption for religious-based objections (something of a hot topic in the wake of Hobby Lobby).

However, the new executive order is merely amending prior executive orders (mostly just adding sexual orientation and gender identity to the list of protected classes). You can read the existing executive order regarding federal employment here (#11478). And, you can read the Executive Order 11246 regarding federal contractors here. Notably, the latter already includes a religious exception:
Section 202 of this Order shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.
I'm not sure what took President Obama so long - this order was announced over a month ago. Sometimes we get further explanations of the executive orders in a presidential memorandum - but I don't see anything on the Presidential Memoranda website (yet at least).

Tuesday, July 15, 2014

New EEOC Guidance on Pregnancy Discrimination and Accommodation

Yesterday, the EEOC issued a press release: EEOC Issues Updated Enforcement Guidance On Pregnancy Discrimination And Related Issues. We got three new documents:
To the surprise of no one, the EEOC has an extraordinarily broad interpretation of pregnant employees' rights and their employers' obligations. A few highlights:

An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. The employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of a pregnancy-related impairment that constitutes a disability under the ADA. The employer has violated the PDA because the employer's policy treats pregnant employees differently from other employees similar in their ability or inability to work.
Hmmmm, this sounds familiar - oh right, Young v. UPS, the upcoming Supreme Court case on this issue. The guidance also addressed "forced leave":
An employer may not compel an employee to take leave because she is pregnant, as long as she is able to perform her job. Such an action violates Title VII even if the employer believes it is acting in the employee's best interest.
And, we also got some guidance on leave policies and disparate impact:
A policy that restricts leave might disproportionately impact pregnant women. For example, a 10-day ceiling on sick leave and a policy denying sick leave during the first year of employment have been found to disparately impact pregnant women.
Of course, those are just a few of the issues that I found interesting - employers should read the whole thing. The EEOC's interpretation of the PDA, ADA, and Title VII are not 100% binding (we may find that out sooner rather than later with Young v. UPS). That said, employers who ignore the EEOC's guidance face considerable risk of enforcement actions.

Image: EEOC Seal used in commentary on EEOC - not official use.

Friday, July 11, 2014

If You Ever Loved Me . . . (Annual Blawg 100 Plea)

Please take a moment to recommend Lawffice Space for the ABA Journal's Blawg 100. Just go here, scroll down and complete the form. No co-workers and no family please (the powers that be frown on "in-house" recommendations).

Some readers may recall that Lawffice Space appeared on the 2012 list but I got shut out last year. I'd love to return to glory and get back on the list. Thanks for reading!

Thursday, July 10, 2014

Third Circuit Addresses Three Discrimination Issues in One Predential Opinion

Guess who's back? Sorry for the brief hiatus - I was knocked out of commission for a few days with an assortment of illnesses and various other calamities (probably "minor annoyances" would be a better description) . . . but I'm back! And, I have a doozy of a Third Circuit opinion.

In Hildebrand v. Allegheny County (precedential opinion here), the Third Circuit addressed three different lingering employment discrimination issues. Frankly, each of these is interesting in its own right and could be its own blog post:
1. [A] state or local government employee may not maintain an age discrimination claim under 42 U.S.C. § 1983, but must instead proceed under the ADEA; 
2. [A] plaintiff is not obligated to plead exhaustion of administrative remedies with particularity, but may instead allege in general terms that the required administrative process has been completed.; and 
3. [T]he EEOC Intake Questionnaire, revised in the wake of Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), when properly completed, constitutes a charge of discrimination.
(each number is a separate but direct quote).

If Number 1 sounds familiar, that's because it was essentially the issue presented in Madigan v. Levin, a 2013 Supreme Court case that was dismissed as improvidently granted (i.e. "DIG'd") shortly after oral arguments.

If Number 2 sounds familiar, that's because the pleading standards have been a battleground ever since Iqbal and Twombly. Under Hildebrand, the Iqbal-Twombly standard does not apply to the pleading of the administrative exhaustion requirement in employment discrimination claims.

And Number 3? Well that's Holowecki fallout. Although the Court adopted a broad definition of "filing a charge" in Holowecki, the Court advised the EEOC to establish a "clearer, more consistent" process. The EEOC revised their intake questionnaire to include "Box 2." A claimant checks Box 2 expressly indicating "I want to file a charge of discrimination, and I authorize the EEOC to look into the discrimination I described above."

Tuesday, July 1, 2014

Breaking: SCOTUS Grants Cert. in Pregnancy Workplace Accommodation Case

Just now, the Supreme Court issued an order granting certiorari in Young v. UPS. The issue presented is:
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.”
The employee alleges that UPS offered light duty work to employees who were injured at work, accommodated under the ADA, or who lost Department of Transportation certification - but not for pregnancy.

The gist is that the Pregnancy Discrimination Act prohibits discrimination - so even if it doesn't require accommodation, the employer must treat pregnant employees like other similarly situated employees. In this case, that means providing light duty work.

I can't wait to see what SCOTUS does with this one! We'll have to wait until next season though.

Monday, June 30, 2014

Breaking: SCOTUS Affords Religious Exemption to Obamacare Contraceptive Mandate for Certain Employers

Well, it has been a big day at SCOTUS. Now, we have the opinions in Hobby Lobby and Conestoga Wood. The introductory paragraph from Justice Alito's majority opinion:
We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.
I'll need some time to digest the full opinion - but that's the gist of it.

Breaking: SCOTUS on Mandatory Union Fees in Harris v. Quinn

The Supreme Court just issued its opinion in Harris v. Quinn. The general holding is:
The First Amendment prohibits the collection of an agency fee from Rehabilitation Program PAs who do not want to join or support the union.
However, the Court has declined to reverse Abood (generally allowing mandatory fees to public employee unions). I'll need some time to fully analyze, but this looks like a narrow or limited holding. The Court notes that the employees in this case are "quite different from full-fledged public employees."

So, the Court will not reverse Abood, but will also not extend it to the employees in this case. It looks like the opinion includes some criticism of Abood too - its days may be numbered but it survives for now.

We have a 5-4 (conservative bloc plus Kennedy) split in this one.