Thursday, September 1, 2016

Arbitration Agreements And Class Action Waivers: 9th Circuit Enters Fray

The Ninth Circuit Court of Appeals became the second federal court circuit to strike down class action waivers in arbitration agreements.

Many employers require employees to sign arbitration agreements. Such agreements require that employment disputes be submitted to an arbitrator instead of court. The Supreme Court has seemed to favor and uphold arbitration agreements as enumerated in the Federal Arbitration Act. This Act requires a “liberal policy in favor of upholding arbitration agreements.” Employers often include class action waivers as part of the arbitration agreement, thus limiting employees to single person arbitration hearings for redress.

The National Labor Relations Board (“NLRB”) had taken the position that these arbitration agreements were unlawful when they prevent employees from filing class action claims in court or arbitration. The Ninth Circuit has joined the Seventh Circuit in upholding the NLRB’s position. Specifically, it was held that class action waivers require employees to give up “concerted activity” i.e., joining together to address wages, hours, and other terms and conditions of employment. Concerted activity is protected by the NLRA and may be not waived. Thus, such a waiver would not be enforceable.


Wednesday, August 31, 2016

EEOC Loses First Round of Transgender Discrimination Case

R.G. and G.R. Harris Funeral Home (“Funeral Home”) successfully persuaded a federal trial court in Michigan to dismiss the Equal Employment Opportunity Commission’s (“EEOC”) case against it for transgender discrimination.

The Funeral Home had a dress code that required male directors to wear a suit with pants and female directors to wear a suit with a skirt. The transgender employee in question wanted to wear a skirt once she began her transition. She was fired because “coming to work dressed as a woman was not going to be acceptable.” The EEOC filed suit, alleging that the Funeral Home’s termination of this employee because she was transgender and because she did not conform to the funeral home’s gender based stereotypes was a violation of Title VII. In response, the Funeral Home had argued that it was exempt from any Title VII requirements under the Religious Freedom Restoration Act (“RFRA”).

The federal district court in Michigan reviewed the Funeral Home’s argument. The owner of the funeral home was a well-established Christian, although the Funeral Home itself did not have a religious affiliation. The RFRA limits the “[g]overnment [from] substantially burden[ing] a person’s exercise of religion” unless the burden is shown to be “in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” The Funeral Home was able to show that allowing employees to dress inconsistently with their biological sex would violate the owner’s religious beliefs and pressure him to give up his business. According to the court, this evidence showed that Title VII “would impose a substantial burden on the ability of the Funeral Home to conduct business in accordance with its sincerely-held religious beliefs.” The court determined that the EEOC failed to meet its burden of using the “least restrictive means” by putting forth as the only acceptable solution that the transgender employee be able to wear a skirt. A gender-neutral dress code would have been a more appropriate solution per the court’s decision. The Funeral Home was entitled to an RFRA exemption from Title VII. For the record, the court noted that had the transgender employee brought the suit, instead of the EEOC, the RFRA would not apply.

Tuesday, August 30, 2016

NLRB Makes Graduate Students Employees

Completely reversing its own precedent, the National Labor Relations Board has determined that graduate teaching assistants are employees. These graduate students will have the right to organize and form unions.

The decision comes in response to a petition filed by graduate students at Columbia University and the United Autoworkers Union, a union seeking to represent the students. Columbia University is a private institution. Public university graduate students already had the right to be represented by unions. In 2004, the NLRB had held that students at private colleges were not considered employees for the purposes of the National Labor Relations Act. Now nullifying that ruling in 2016, the NLRB has expanded the definition of employees to include: “all student employees who provide instructional services, including graduate and undergraduate Teaching Assistants…All Graduate Research Assistants.. and All Departmental Research Assistants..”

Columbia University has responded by expressing its disagreement with the ruling, asserting that the relationship between faculty and graduate students is very different than that of an employer and employee. Teaching and research assistants work with faculty to gain knowledge and expertise. The introduction of non-academic parties to the relationship will greatly impact the students’ learning according to the school. Columbia University has not yet publicly stated whether it will appeal the decision.

Thursday, August 25, 2016

Federal Court Narrowly Interprets Pregnancy Discrimination Decision

Relying on the U.S. Supreme Court’s case in Young v. United Parcel Service, Inc., a federal district court in Louisiana has halted a nursing assistant’s pregnancy discrimination claim against her former employer. While employed by Nottingham Regional Rehab Center (“Nottingham”), Eryon Luke learned that she was pregnant with twins and restricted from lifting above 30 pounds. Nottingham fired her when she was seven months pregnant because of the restriction.

The district upheld Nottingham’s right to terminate Ms. Luke. It reviewed the Supreme Court’s analysis for failure to accommodate in Young. Pregnant employees must show that non-pregnant employees with similar restrictions were accommodated. Ms. Luke had no evidence that Nottingham had ever accommodated lifting restrictions for non-pregnant employees previously. The facility asserted that all nursing assistants must be able to lift 30 pounds, and it stated that no light duty positions existed. She never requested any other accommodation such as lifting assistance or mechanical lifts. According to the district court, a pregnant employee seeking a specific accommodation must be limited in her Title VII claim to the denial of that particular accommodation. Ms. Luke was able to show that other pregnant employees with lifting restrictions were able to receive accommodation. However, the court contended that Nottingham was not required to treat all pregnant employees equally. Title VII only required that the facility treat pregnant women no less favorably than those individuals outside of their protected class.

Interestingly, the district court added that Ms. Luke’s pregnancy was among a limited 10 percent that are considered high risk, and that such pregnancies should be protected. The federal court was unwilling to engage in what it perceived as making new law. Yet, the court stated that, “No pregnant woman should, in 2016, be fired for being unable to lift more than 30 pounds.”

Wednesday, August 24, 2016

Bullying Boss Gets Verdict Against Him

Patty Hahn, a nurse, sued her employer and one of its physicians for sexual harassment, intentional infliction of emotional distress, and retaliation. However, the case was really about Dr. Scott Davidson’s bullying.

Ms. Hahn testified that Dr. Davidson screamed at her on three occasions with his hands raised and fists clenched. He said, “Just shut up. Just shut up, I’m sick of you.” He was also accused of throwing punches at her, although he never actually made contact. In accordance with company policy, Ms. Hahn complained to human resources. In response, Dr. Davidson called her into his office so that he could show her what actual screaming was as opposed to what he had done previously to her.

The parties reached a settlement, but before they did, the jury reached a verdict. The jury awarded in excess of one-million dollars. The doctor was held individually liable. Dr. Davidson’s conduct was described as hostile and threatening. Whether his conduct met the standard of sexual harassment was unclear. What was clear: Dr. Davidson’s bullying behavior resulted in a verdict against an employer. Ms. Hahn’s attorney stated, “A verdict such as this should serve as a warning and wake up call to bosses everywhere that they cannot scream, demean or otherwise bully their employees.”

Tuesday, August 23, 2016

Unintended Consequences Of “Ban The Box”

President Obama recently “banned the box” for federal government employment applications. Approximately 24 states have some form of “ban the box” legislation. However, a recent study has shown that these laws may result in unintended discrimination against the very minorities it sought to protect.

Ban the Box refers to the “box” on an employment application that asks prospective employees whether they have prior criminal convictions. A research paper from the National Bureau of Economic Research looked at how ban-the-box policies have thus far impacted employment. For young, low-skilled black men, their likelihood of employment went down 5.1 percent while the same category of Hispanic men went down 2.9 percent. This type of discrimination happened more in the Northeast, Midwest, and West where black individuals are not the majority. In the South, discrimination was less likely to occur because the applicant pool was largely black.

Another study by the University of Michigan Law School found similar results. After submitting fake job applications in New York, which has a ban-the-box law in effect, the results showed discrimination based on race. White applicants received about 7 percent more callbacks than equally qualified black candidates without ban the box. After Ban the Box, the number went up to 45 percent more callbacks. In the National Bureau study, the researchers theorized that employers are less likely to interview low-skilled black men in ban-the-box areas because they are perceived as more likely to include individuals with a criminal history.

Thursday, August 18, 2016

Seventh Circuit Finds No Protection For Sexual Orientation Discrimination

In a major decision on this issue, the Seventh Circuit Court of Appeals has ruled that Title VII does not offer protection against sexual orientation discrimination.

Kimberly Hively worked as an adjunct professor at Ivy Tech Community College. She claimed that her contract was not renewed nor was she promoted to full-time professor because she was openly gay. She sued. The court of appeals concluded that it was bound by prior cases in the circuit that had rejected sexual-orientation bias cases under Title VII as well as a lack of congressional action to amend federal civil rights laws to expressly include protection for gay employees. This holding was distinguished from prior decisions that had offered gay employees protection under a sexual stereotyping theory. It was noted that the line between sexual stereotyping and sexual orientation discrimination is a very difficult one for courts to grapple with.

The Seventh Circuit looked carefully at the EEOC’s decision in Baldwin v. Fox, and its bulletin on the issue. The EEOC’s opinions were given deference, however, such rulings were not binding on the court. In its opinion, the court noted that “[p]erhaps the writing is on the wall” for a different outcome in the future. However, the court contended that the change must come from the U.S. Supreme Court or Congress.