In early October, the Supreme Court will hear two cases that seek to clarify whether Title VII protects against discrimination of employees based on their sexual orientation and gender identity. In R.G. and G. R. Funeral Homes v. EEOC (a case we have ...


Supreme Court to Hear Sexual Orientation and Transgender Cases under Title VII - DOJ Goes Against EEOC and more...

Supreme Court to Hear Sexual Orientation and Transgender Cases under Title VII - DOJ Goes Against EEOC

In early October, the Supreme Court will hear two cases that seek to clarify whether Title VII protects against discrimination of employees based on their sexual orientation and gender identity. In R.G. and G. R. Funeral Homes v. EEOC (a case we have reported on as it traveled through the court system), the plaintiff sued her former employer after she notified them that she would begin presenting as a woman upon return from vacation. Prior to the employee's vacation, the employer discharged the worker stating “this is not going to work out” despite the excellent performance record of the employee. The 6th Circuit joined the 7th and 2nd Circuits in holding that Title VII prohibits discrimination based on gender identity.

In Zarda v. Altitude Express, the 2nd Circuit Court of Appeals decided in 2018 that Title VII should be interpreted to prohibit sexual orientation discrimination. The plaintiff, now deceased from a skydiving accident, was a sky-diving instructor who told a female student when he was preparing for a tandem sky-dive that he was "100-percent gay." Her boyfriend complained about the comment, and the plaintiff claimed he was fired because he was gay. The 2nd Circuit held that Title VII already is interpreted to cover sex stereotyping and so should also protect against discrimination based on sexual orientation.

Conversely, the 11th Circuit Court of Appeals ruled in 2018 in Bostock v. Clayton County, Ga., that binding court precedent holds that Title VII doesn't prohibit employers from discriminating against workers based on sexual orientation. The case involved a court child welfare services coordinator who alleged he was fired because he's gay.

Interestingly, although the EEOC argues that Title VII prohibits discrimination on the basis of sexual orientation and gender identity, the Department of Justice has taken the opposite position in each of these cases. The DOJ, by the way, also represents the EEOC.

In any event, rulings on these cases will clarify these issues once and for all with respect to Title VII coverage. In Illinois, though, as in a number of other states, state law prohibits employers from discriminating against workers based on these factors. Regardless of how the Supreme Court rules in these cases, employees in Illinois will remain protected from adverse action based on both of these categories.

As Much As You Might Want To, Don’t Bash That Employee You Just Fired

Most employers don’t enjoy firing employees. But getting rid of that toxic employee who causes drama throughout the workplace can feel good. And you wouldn’t be human if you didn’t have at least some desire to tell the world why you are so happy to get rid of that employee. We all need to vent.

But it is an urge you should resist, especially if you are a public employer. Bad mouthing a former employee could lead to legal trouble. If a public employer fires an employee and then inflicts reputational harm on that employee so that it makes it difficult for that employee to find another job, the employee could argue that his or her procedural due process rights were violated and sue the employer.

The Due Process Clause protects one’s liberty interest to pursue an occupation of his or her choice. Courts have found that when an employer fires an employee and then bad mouths him or her, it can interfere with the employee’s right to pursue his or her occupation of choice. The bad-mouthing must be so severe that it makes it difficult for the employee to find another job. With social media, this is easier to do than it was in the past. Posting something online about how terrible an employee you have just fired was could make it difficult for that employee to get a job in the future.

I recently came across a case where this legal principle was applied. It did not involve an employer/employee relationship, but it is an interesting case that highlights what has gone so very wrong in college, so I figured it would be something interested readers may want to check out.

The case, titled Doe v. Purdue University, involved a male college student who sued Purdue because he claimed the University violated his due process right to pursue his occupation of choice. The male student began dating a female student in his ROTC program. They engaged in consensual sexual relations. Soon after they began dating the female student began acting erratic and attempted suicide in front of the male student. The male student reported this suicide attempt to his RA and then broke up with the girl. The two seemed to move on with their lives with each entering into new relationships.

A few months after the breakup, the female student attended a workshop provided by the University on sexual assault. The organization hosting the event posted things on its Facebook page like “Alcohol isn't the cause of campus sexual assault. Men are.” Soon after attending this workshop, the female student reported that the male student had sexually assaulted her. She said that when the two were sleeping together in the same bed the male student groped her when she was asleep. She also claimed that while they were dating he went through her underwear drawer without her permission.

The male student was brought before the school’s Title IX commission to investigate the allegations, where he denied groping her or doing anything that constituted sexual assault. Somehow, the Title IX commission found that the male student had confessed to the female student’s allegations. The commission never interviewed the female student, but apparently took her word about what happened at face value. In fact, two of the three members of the commission claimed that they had not even read the investigative report. They, apparently, just assumed the male student’s guilt. They suspended him for a year, and due to this suspension and the commission’s finding that the student engaged in sexual assault, he was kicked out of his ROTC program.

The male student sued Purdue, claiming that they deprived him of his right to pursue his occupation and inflicted such severe reputational harm on him that he would have difficulty pursuing any career in the future. The court agreed and found that he stated a claim that the University violated his rights under the Due Process Clause. If the student is able to prove his claims Purdue could be on the hook for a lot of money.

The lesson from this case is that when public employers engage in actions that harm the ability of employees they have fired to obtain future employment, they could be setting themselves up for a lawsuit. So as much as you may want to bad mouth that employee you just fired, don’t do it, especially on social media.

7th Circuit Cautions that ADA Telecommuting Accommodations Must Be Viewed in Light of New Technology

For a long time, it was pretty much black letter law that if an employee couldn’t physically report to work then the employee couldn’t perform the essential functions of their job. The 7th Circuit Court of Appeals recently acknowledged that while an employer’s determination that in-person attendance at work weighs heavily in analyzing whether telecommuting is a reasonable accommodation under the ADA, technology, and the ability to work from a variety of locations, must be considered in that decision.

In the case of Blinsky v. American Airlines, the plaintiff was a long-time employee of the company, who developed MS. Her position allowed her to work from home as a reasonable accommodation, which the company acknowledged that she did successfully for several years. After a company merger, plaintiff’s workgroup, which had moved to Dallas, was “repurposed,” according to the company. The new focus of the department, now under a new supervisor, required more face to face collaboration and in-person backup. Plaintiff was informed that she could no longer telecommute and would be required to move to Dallas and report to work at the office. Plaintiff refused to move, claiming that her medical condition would be exacerbated by the hot climate in Dallas. The company sought other accommodations for her, including alternative positions. Failing to reach an agreement with the plaintiff, the company discharged her.

Plaintiff filed suit claiming, among other things that she was denied a reasonable accommodation under the ADA. The company argued that she was not a “qualified individual” under the Act. The issue boiled down to whether the plaintiff could perform the essential functions of her job remotely. Plaintiff argued that she had successfully performed her duties with a work from home accommodation for several years. The company argued that the department, and thus plaintiff’s duties, had undergone an informal change in focus which required more face to face collaboration.

The court affirmed summary judgment for the company, noting:
“[A]lthough we look to see if the employer actually requires all employees in a particular position to perform the allegedly essential functions, we do not otherwise second-guess the employer’s judgment in describing the essential requirements for the job…. [B]ut we’ve also cautioned that although the employer’s judgment is an important factor, ... it is not controlling….[T]he ADA does not give employers unfettered discretion to decide what is reasonable.”

The court then took a large step back from its previous position on telecommuting by stating:
“we offer a note of caution to future ADA litigants. We once said that "[a]n employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced"... Litigants (and courts) in ADA cases would do well to assess what’s reasonable under the statute under current technological capabilities, not what was possible years ago.

Employers should note that although many jobs cannot accommodate telecommuting; an employer cannot automatically dismiss telecommuting, or partial work at home arrangements, as an option for those jobs that might allow for it. Employers with concerns that telecommuting reduces productivity and accountability should consider developing a strong remote working policy which contains rules which will maintain accountability through reporting and other remote working requirements to ensure that workers outside of the office work as diligently as those at the office.

DOL Issues New Opinion Letters on FLSA

Last week the Department of Labor issued three new FLSA opinion letters. One addressed the highly compensated exemption under the FLSA. The letter addressed the exempt status of paralegals in companies, but its application reaches further.

Under the FLSA regulations, highly compensated employees who earn a total compensation of $100,000 or more annually (can include bonuses and stipends) can be exempt from overtime eligibility if they meet the following three criteria:
  • The $100,000 total compensation includes at least $455 per week paid on a salary basis;
  • The primary duty of the employee is office or non-manual work;
  • The employee performs at least one of the exempt duties of an executive, administrative or professional exempt employee.
The opinion letter stressed that while the employee must perform at least one of the duties of the three “white collar” exemptions, that duty does not need to be a primary duty of the employee. So, for instance, if an employee meets the compensation test of a highly compensated employee and occasionally supervises two or more employees, then they have met the administrative exemption test.

In this tight job market, where employers are paying never before heard of salaries to recruit and retain employees, it is important to remember that in exchange for this high salary, the employee might, in fact, be exempt from overtime requirements under the FLSA. Employers should note, though, that the threshold compensation limits may increase when (or if) the DOL regulations on white-collar exemptions change.

Public Sector Employers May Want to Re-Think Putting New Hires on a “Probationary Period”

It is common to find “probationary periods” in personnel policies. The probationary period generally applies to new hires and is usually a training period where the new hire will be supervised more closely and not permitted to act with the same autonomy as a regular employee. It tends to last for a few weeks or months, after which the employee can start to accrue benefits like vacation and sick leave.

What many public sector employers fail to realize is that these probationary periods could be setting them up for future legal trouble. A number of courts in Illinois and other states have ruled that completing a probationary period creates an expectation of continued employment, which means that the employee is entitled to a hearing before he or she can be fired or perhaps can only be fired for good cause. The courts have held that the expectation of continued employment is a property right which the government cannot deprive without due process of the law, which is what necessitates the hearing. Such hearings can be expensive and require supervisors to devote time and attention to that matter instead of work-related tasks. And many employers do not realize that they are required to hold a hearing prior to firing the employee and therefore find themselves being sued unexpectedly.

Probationary periods are unquestionably valuable, and I am not advocating that employers get rid of them. In many jobs, it makes sense to keep a closer watch on new hires and require them to train alongside more experienced employees. So, in order to keep yourself out of legal trouble while keeping the probationary period, I suggest doing the following things:
  • Rename the Probationary Period. The term “probationary period” is a term that courts have found creates an expectation of continued employment. Courts have not found, or have done so much less frequently, that terms like “training period,” “try-out period,” or “evaluation period” create an expectation of continued employment.
  • Explicitly State that the Probationary Period Does Not Create an Expectation of Continued Employment. Include in your personnel manual a sentence explicitly stating that the probationary period (which hopefully you have renamed) does not create an expectation of continued employment. State that each employee is at will and can be fired without a hearing. Employers can then argue that they made it clear to the employee that the employee should not have had an expectation of continued employment upon completion of the probationary period.
  • Expressly State that the Probationary Period Can Be Extended at the Employer’s Discretion. Doing this will make it clear that the employer is in control of the probationary period, and it is not a contract or agreement between the employer and employee in which the employee is entitled to any kind of benefit upon completion.

I suggest checking your personnel manuals, employee handbooks, and collective bargaining agreements to see whether they contain language that might imply that an employee has a right to continued employment and can only be fired for good cause. It might be worth having an experienced attorney review these agreements to make sure that there isn’t anything in them that could create future legal problems. Spending a little bit of money now on an attorney could avoid huge legal costs once a lawsuit has been filed.