Employment Law This Week®: Sexual Orientation Bias, Religious Discrimination, At-Will Employment Provision, Class Arbitration

Episode 37: Week of August 8, 2016

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We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates.

This week’s stories include ...

(1) Seventh Circuit Panel Finds That Title VII Does Not Cover Sexual Orientation Bias

Our top story: A panel of the U.S. Court of Appeals for the Seventh Circuit ruled that Title VII of the Civil Rights Act of 1964 (Title VII) does not cover sexual orientation bias. A teacher at a community college filed suit after being passed over six times for a full-time position, alleging that the rejections were based on her being a lesbian. The Seventh Circuit panel, in Hively v. Ivy Tech Community College, upheld a lower court's dismissal of the case, noting that sexual orientation is not included in the workplace protections covered under Title VII. The three-judge panel criticized this lack of protection but said that any change must come from the U.S. Supreme Court or a new federal law from Congress. Jeremy Brown, from Epstein Becker Green, has more. Bonus: Watch the extended interview here.

"The real significance of this decision is its 40+ page analysis where it lays out a roadmap and invites, in so many words, the Supreme Court to make its own interpretation finding that sexual orientation is a protected classification under Title VII. And, in so doing, the court emphasized that the Equal Employment Opportunity Commission [EEOC] has ruled last year that sexual orientation discrimination is, in and of itself, sex discrimination, gender discrimination, and enjoys the protections under the law. And while the Seventh Circuit is not bound by the EEOC's decision, it found it persuasive and important." For more on this case, click here.

(2) EEOC Focuses on Religious Discrimination

The Equal Employment Opportunity Commission addresses religious discrimination. The EEOC recently released a fact sheet that helps young workers understand religious discrimination protections. Among other things, the fact sheet explains that Title VII protects traditional religions, newer or less common religions, and people who do not have religious beliefs. This fact sheet comes on the heels of a series of meetings for the Combating Religious Discrimination initiative. The initiative was coordinated by the White House and the Department of Justice in a climate where religious discrimination claims have been on the rise.

(3) NLRB Targets At-Will Employment Provision

The National Labor Relations Board (NLRB) targets an at-will provision in employment agreements. In a ruling last week, the NLRB found that a common at-will employment provision violates employee rights. At issue was Minteq International’s Non-Compete and Confidentiality Agreement, which the company required all employees to sign before beginning a six-month probationary period. Notably, that agreement contained an at-will disclaimer stating that the signatory was an at-will employee and nothing in the agreement would affect that status. The NLRB found that this provision could confuse workers as to whether they would become “just cause” employees after the probationary period. Therefore, the provision could deter workers from engaging in protected concerted activity during the at-will period. This is the first decision of its kind from the NLRB and another step in its ongoing expansion of employee rights.

(4) California’s High Court Issues Landmark Ruling on Class Arbitration

A landmark decision on class arbitration is issued by a divided California Supreme Court. In Sandquist v. Lebo Automotive Inc., a case involving racial bias at a car dealership, California’s High Court found that if an enforceable arbitration agreement exists, there is a presumption that the arbitrator will decide procedural questions, including whether the agreement prohibits class arbitration. Ruling for the employees, the four-justice majority found that there is no law that puts this decision solely in the hands of the court. But as the dissent noted, the majority’s ruling directly conflicts with every federal appellate court that has considered the issue thus far.

(5) Tip of the Week

Shulamith Wegh, Director of Human Resources at Adjmi Apparel Group, is here with some advice on best practices for minimizing turnover.

“Putting the ‘human’ back in ‘human resources’ is critical for employee retention and achieving business goals. It really starts with the hiring process. Finding an employee who is a good fit, both culturally and professionally, is essential. . . . Talk to employees. An open line of communication will enable and empower the employees to flag any managerial concerns that they may have or any points of dissatisfaction. An employee who is heard and listened to will more likely stay with your organization for the long-term. . . . The same goes for employees who are seen, as well. Recognize employees for hitting milestones, achieving goals, going above and beyond. It can be a monetary gift or even just a phone call from the CEO. It will make them feel really good about themselves and valuable to the organization.”

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