Employment Law This Week®: Title VII & Sexual Orientation Discrimination, Joint-Employer Test, Dodd-Frank Protections, Equal Pay LawsuitEpisode 107: Week of March 5, 2018 March 5, 2018
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This week’s stories include ...
(1) Second Circuit: Title VII Covers Sexual Orientation Discrimination
Our top story: “Legal doctrine evolves.” Those words from the U.S. Court of Appeals for the Second Circuit spoke volumes as the court ruled that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination, overturning their own long-standing precedent. The court ruled in favor of a skydiving instructor who claimed that he was fired for telling a client that he was gay. Nathaniel Glasser, from Epstein Becker Green, has more:
“The majority opinion began by looking at whether sex is a motivating factor in the alleged unlawful practice. And, in this case, looking at sexual orientation discrimination, the court concluded that sex is a factor and inextricably linked to sexual orientation, and therefore sexual orientation acts as a proxy for sex. The Second Circuit now joins the Seventh Circuit in finding that Title VII does protect against sexual orientation discrimination, and deepens a circuit split with the Eleventh Circuit, which went the other way last year. Because of that circuit split, we would expect this issue to be taken up by the Supreme Court. The question is just when that will happen. In the meantime, we would expect that other circuits will consider these issues and, especially because the Second Circuit decision was so broad and considered so many issues, there's a good chance that at least one of those theories will be adopted by other circuits around the country.”
For more, click here: http://bit.ly/2FHWUeq
(2) NLRB Vacates Hy-Brand Joint-Employer Decision
The National Labor Relations Board’s (“Board’s”) Browning-Ferris test is once again the law of the land. A three-member panel has reversed the Board’s December Hy-Brand decision, which had nixed the Browning-Ferris joint-employer test and returned to a “direct control” standard. The reversal comes after an inspector general report that found that Member William Emanuel should have recused himself. The Browning-Ferris test considers a company a “joint employer” if it has the right to exercise either direct or “indirect control” over employees. Once the Senate acts on the nomination of Republican John Ring to fill the Board’s vacant fifth seat, the Board is expected to once again roll back Browning-Ferris with a test like the one in Hy-Brand.
For more, click here: http://bit.ly/2oB6to7
(3) Supreme Court: Dodd-Frank Protections Are Limited
The Supreme Court of the United States has ruled that whistleblower protections under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) apply only to those who report violations to the Securities and Exchange Commission (“SEC”). Dodd-Frank protects whistleblowers from termination, demotion, and harassment. People who report to the SEC, to other regulatory or law enforcement agencies, or to company management are still protected under the 2002 Sarbanes-Oxley Act. Dodd-Frank’s anti-retaliation provision permits whistleblowers to recover double back-pay damages—Sarbanes Oxley does not.
For more, click here: http://bit.ly/2t8jJp2
(4) Eleventh Circuit Revives Equal Pay Suit
Equal pay gets another day in court. The Eleventh Circuit has revived an equal pay suit against an auto auction company. A female employee sued the company after learning that her male predecessor had been paid almost 45 percent more for the exact same role. The lower court ruled in the company's favor but the Eleventh Circuit reinstated the claim, noting that a valid Equal Pay Act claim shifts the heavy burden onto a company to prove that the pay gap was due to factors other than sex.
(5) Tip of the Week
Kate Bally, from Thomson Reuters, is back, this time with some advice on going beyond job titles for compliant exemptions:
“Fair Labor Standards Act exemption mistakes are some of the most expensive errors employers can make. Although most savvy employers generally understand the concepts, it's vital for employers to keep a few things in mind. Job titles are not dispositive of exemption status. The burden to demonstrate exempt status falls squarely on the employer. Exemptions are construed narrowly and against employers. Let's take a look at the restaurant industry. You might think the title ‘sushi chef’ suggests a level of training and seniority that would lend itself to an executive exemption. Not so, says an Ohio federal court in Solis v. Suroc. The court found the sushi chef was non-exempt, despite his training and his title.”
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