Friday, July 31, 2020

10th Cir. recognizes intersectional discrimination ("sex-plus-age") cause of action

Title VII prohibits sex discrimination. But what about situations in which the employer discriminates against only some women? In SCOTUS's recent decision in Bostock, Justice Gorsuch gave the example of an employer with "a policy of firing any woman he discovers to be a Yankees fan;" concluding, such a termination would be "because of sex" in violation of Title VII. 

[Sidenote: Obviously employers should just fire *all* Yankees fans. Problem solved. ;-)]

Not official use.
The 10th Circuit recently issued its opinion in Frappied v. Affinity Gaming Black Hawk, LLC. The Court addressed "intersectional discrimination," and specifically whether Title VII permits a claim based on "sex-plus-age" discrimination. The female plaintiffs alleged that their employer discriminated against women over forty (i.e. not all women). 

The 10th Circuit became the first circuit court to recognize a cause of action for "sex-plus-age" discrimination under Title VII:
We hold that sex-plus-age claims are cognizable under Title VII. There is no material distinction between a sex-plus-age claim and the other sex-plus claims we have previously recognized for which the “plus-” characteristic is not protected under Title VII. Like claims for which the “plus-” factor is marital status or having preschool-age children, a sex-plus-age claim alleges discrimination against an employee because of sex and some other characteristic. It is thus a sex discrimination claim, albeit one that alleges that the discrimination was based only in part on sex . . . . Like any other sex-plus plaintiff, a sex-plusage plaintiff must show unfavorable treatment relative to an employee of the opposite sex who also shares the “plus-” characteristic. For the female sex-plus-age plaintiffs in this case, the relevant comparator would be an older man.
Notably, the Court's ruling appears to be an extension of Bostock, so I expect other circuits to follow suit. 

Thursday, July 30, 2020

SCOPA: Uber driver entitled to unemployment compensation benefits

In a 52-page 5-2 majority opinion, the Supreme Court of Pennsylvania (SCOPA) held that an Uber driver was entitled to unemployment compensation benefits in Lowman v. UCBR

The setup here is a common scenario - the claimant was separated from employment and collecting UC benefits. What does he do to try to make ends meet? Starts driving for Uber. The problem? Claimants are ineligible for UC benefits if they are self-employed (and, of course, Uber claims the drivers are not employees and therefore they would be independent contractors who are self-employed). 

The Court concluded that the worker was not self-employed and therefore eligible for benefits. Along the way, the Court found that:
  • "Uber controlled and directed the performance of Lowman’s services as a driver-for-hire;" and
  • "Lowman was not engaged in an independently established business."
The Court expressly declined to rule on whether Uber was Lowman's employer, which would have huge unemployment compensation tax consequences for the company. That said, the Court's ruling in Lowman certainly doesn't bode well for them. 

Monday, July 27, 2020

NLRB revisits its "f*@king" precedent

The National Labor Relations Act protects concerted activity and union organizing activity. Sometimes, employees are engaged in protected activity while also engaged in the kind of misconduct that might ordinarily result in termination. Like, maybe an employee posted on Facebook to "Vote YES for the UNION" while also calling his boss a "NASTY MOTHER FUCKER." Believe it or not, there's some precedent holding that such an employee is still protected by the NLRA. 

The National Labor Relations Board recently issued a new opinion in General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020), and corresponding news release: NLRB Modifies Sta
Not official use.

Under the old precedent, the NLRB applied different standards for different circumstances (encounters with management, exchanges with employees and social media posts, and picket line conduct). Under this new decision, the NLRB applies the Wright Line standard in all "cases involving offensive or abusive conduct in the course of otherwise-protected activity."
The decision includes a nice summary of the Wright Line standard:
[T]he General Counsel must initially
 show that (1) the employee engaged in Section 7 activity, (2) the employer knew of that activity, and (3) the employer had animus against the Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity . . . . Once the General Counsel makes his initial case, the employer will be found to have violated the Act unless it meets its defense burden to prove that it would have taken the same action even in the absence of the Section 7 activity.
This will come as welcome news to employers, who were looking for consistency and some restoration of "the line" that they felt employees were crossing (and yet still receiving NRLA protection). 

Tuesday, July 21, 2020

Pennsylvania: "Hazard Pay Grants Now Available for Front-Line Workers in Life-Sustaining Industries"

Gov. Wolf announced hazard pay grants for Pennsylvania's "front-line workers." The plan is to make $50 million available, which comes from the federal CARES Act funding. Here's the gist:
The following applicants are eligible to apply: 
  • Businesses 
  • Healthcare Non-profits 
  • Public Transportation Agencies 
  • Certified Economic Development Organizations (CEDO)
 Eligible Pennsylvania-based industries include: 
  • Healthcare and Social Assistance 
  • Ambulatory Health Care Services 
  • Hospitals Nursing and Residential Care Facilities 
  • Transit and Ground Passenger Transportation 
  • Food Manufacturing 
  • Food Retail Facilities 
  • Security Services for eligible industries listed above and commercial industries that were not closed as a result of the Governor’s Business Closure Order 
  • Janitorial Services to Buildings and Dwellings
Grant funds may be used for hazard pay for direct, full-time and part-time employees earning less than $20/hour, excluding fringe benefits and overtime for the 10-week period from August 16, 2020, to October 24, 2020. Applicants may apply for up to $1,200 per eligible full-time equivalent (FTE) employee. Employers may apply for a grant to provide hazard pay for up to 500 eligible full-time equivalent employees per location.

Thursday, July 9, 2020

SCOTUS: Ministerial exception... not just for "ministers"

Yesterday, the Supreme Court issued its decision in Our Lady of Guadalupe Sch. v. Morrisey-Berru. The bottom line? 
When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.
In other words, under the "ministerial exception," the Catholic schools in these consolidated cases could not be sued by their teachers for employment discrimination. 
The majority opinion focused primarily on what the ministerial exception test is not. The Court emphasized that the factors relied upon in a prior ministerial exception case, Hosanna-Tabor, are not a "rigid formula" and courts should not require them like a "checklist." Similarly, the employer need not literally title the employee a "minister" (and the Court declined an invitation to jump in to identifying who is a "minister" in other religions that do not use that term, or use it differently). 

What does matter?
What matters, at bottom, is what an employee does . . . . educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school. 
One of the major disputes between the majority opinion and the dissent is whether the majority was resolving issues of fact, and viewing them in a light most favorable to the employer. This highlights a difficulty with the ministerial exception. The point is to spare religious organizations from government interference. 

But, the test seems to require factual determinations. Traditionally, courts utilize the discovery process to generate evidence, and if there is a dispute regarding material facts, they are resolved at trial. Under this model, religious organizations could still get sued, endure costly discovery, and possibly even a costly trial subject to a determination by the jury. That would pretty much defeat the purpose of the exemption. It is still not clear (to me) to what extent courts should defer to the assertions from the employers in these cases. 

Thursday, June 18, 2020

EEOC to employers: Don't use anti-body testing for return to work

The EEOC has once again updated its guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. This time, it just added one new question on anti-body testing, with a particularly clear answer:
Not official use.
A.7. CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20) 

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA. 

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.
Note that the EEOC reserved the right to changes its mind - but, for now, no anti-body testing. 

Tuesday, June 16, 2020

SCOTUS: Title VII prohibits sexual orientation and gender identity discrimination

Yesterday, the Supreme Court decided Bostock v. Clayton County - the Supreme Court website has been having trouble, so this is a link to SCOTUSblog (which excluded the appendices to make the file smaller). 

The Court consolidated Bostock and a couple others to address both sexual orientation and gender identity. Long story short, Justice Gorsuch authored a textualist 6-3 majority opinion:
In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
Many jurisdictions already recognized sexual orientation or gender identity as protected classes. Now, the entire nation is covered - at least employers with 15 or more employees (who are therefore covered by Title VII). 

There may be some employers that are covered by state laws but not Title VII. For example, Pennsylvania employers with 4-14 employees fall under the PHRA, but not Title VII. And, the PHRA protects "sex" but not expressly sexual orientation of gender identity. Pennsylvania courts could conclude that the PHRA does not apply to sexual orientation and gender identity. Given Bostock, and my read on PA appellate courts currently, I doubt that will happen. But, we may still see it in other states.