Category: Civil Rights

NLRB Strikes Down Employee Handbook Language and Issues First Social Media Decision

The National Law Review recently published an article by Doreen S. Davis, Jonathan C. Fritts, Ross H. Friedman, and David R. Broderdorf of Morgan, Lewis & Bockius LLP regarding the NLRB and Social Media:

 

Continuing its aggressive foray into nonunion workplaces, the NLRB has weighed in on social media and employee handbook issues, finding certain language to be unlawful under Section 8(a)(1) of the National Labor Relations Act.

In September, the National Labor Relations Board (NLRB or Board) issued two decisions confirming that it will now use Section 8(a)(1) of the National Labor Relations Act (NLRA or Act) to find basic (and widespread) handbook and policy language to be unlawful even when it does not involve protected activity under Section 7 of the NLRA. In Costco Wholesale Corp., 358 N.L.R.B. No. 106 (Sept. 7, 2012),[1] the Board reviewed a variety of handbook provisions protecting certain confidential information and found them unlawful under the Act. The Board’s more recent decision in Knauz BMW, 358 N.L.R.B. No. 164 (Sept. 28, 2012),[2] built on the Costco decision and deemed that a rule requiring workplace courtesy violated Section 8(a)(1). The Knauz case is the Board’s first decision in a case involving posts to the social media website Facebook. Given the Board’s expansive interpretation of Section 8(a)(1), it is likely that one or both of these decisions could face appellate court scrutiny in the near future.

Costco Wholesale Case

In its Costco decision, issued on September 7, the Board found that the following policy language was unlawful under Section 8(a)(1) of the NLRA:

  • Prohibiting “unauthorized posting, distribution, removal or alteration of any material on Company property.”
  • Discussing “private matters of members and other employees . . . includ[ing] topics such as, but not limited to, sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers’ compensation injuries, personal health information, etc.”
  • Disseminating “[s]ensitive information such as membership, payroll, confidential financial, credit card numbers, social security numbers, or employee personal health information.” The policy stated that such information “may not be shared, transmitted, or stored for personal or public use without prior management approval.”
  • Sharing “confidential” information, such as employees’ names, addresses, telephone numbers, and email addresses.
  • Electronically posting statements that “damage the Company, defame any individual or damage any person’s reputation.”

The Board’s decision confirms that even basic policy language common in nonunion workplaces will be struck down if there is a reference to one “inappropriate” item. In this case, a reference to “payroll” information (as in the third bullet above) rendered an entire section unlawful. As a result, employers should carefully review their employee handbooks to avoid an adverse finding by the NLRB.

Knauz Case

Knauz—issued on September 28, three weeks after Costco—involved a nonunion car dealership with a handbook provision stating that

[c]ourtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The Board majority found this rule unlawful under Section 8(a)(1) of the NLRA because employees would reasonably view the prohibition against “disrespectful” conduct and the “language which injures the image or reputation of the Dealership” to encompass Section 7 activity. Employees who wished to avoid discipline, according to the majority, would mind this rule in the context of disputes related to wages, hours, or terms and conditions of employment and therefore would be inhibited in exercising NLRA rights. It also is noteworthy that the Board upheld, in a footnote, the administrative law judge’s (ALJ’s) dismissal of the allegation that the dealership fired an employee based on his Facebook postings about an automobile accident at one dealership. These Facebook postings were deemed unprotected under Section 7. The judge had reasoned that the employee posted the information apparently “as a lark, without any discussion with any other employee of the [dealership], and had no connection to any of the employees’ terms and conditions of employment.”

The one Republican NLRB member, Brian Hayes—who was not on the panel for theCostco case—issued a dissenting opinion on Knauz. Member Hayes discussed the Board’s overreach in applying Section 8(a)(1) and cited a great deal of precedent in support. He also signaled that the appellate courts likely would pare back the Board’s recent expansion into the world of employee handbooks and social media policies. Specifically, Member Hayes cited case law holding that the Board must not review policy language in isolation or come up with a theory whereby employees “conceivably could construe [language] to prohibit protected activity,” as opposed to whether they “reasonably would do so.” Member Hayes pointedly argued that the majority’s “analysis instead represents the views of the Acting General Counsel and Board members whose post hoc deconstruction of such rules turns on their own labor relations ‘expertise.'”

Conclusion

While the Acting General Counsel’s view and the views of some ALJs on these issues have been widely publicized, the decisions in Costco and Knauz provide the first look at the Board’s majority view. The law is changing, and handbook language should be reviewed to determine if the language “could be” read to restrict Section 7 activity, even with a strained interpretation. The Acting General Counsel will continue to prosecute these types of cases against nonunion employers, which constitute 93% of all private sector workplaces. While many employers have already reviewed their policy language based on the legal developments in this area over the past several years, as developed by the Acting General Counsel’s three guidance memoranda, the Costco and Knauz decisions provide another opportunity to review policy language in order to minimize the risk of a violation. Notably, unions have and will continue to use handbook policies to threaten and file unfair labor practice charges against an employer at strategic times—including organizing campaigns and collective bargaining negotiations.

[1]. Read the Costco decision at here.

[2]. Read the Knauz decision here.

Copyright © 2012 by Morgan, Lewis & Bockius LLP

Seventh Circuit Reverses Course on Reassignment Accommodation, Leaving United Airlines Grounded

An article by R. Holtzman Hedrick of Barnes & Thornburg LLP regarding Reassignment Accommodations, recently appeared in The National Law Review:

 

In arguably its most significant decision under the Americans with Disabilities Act (ADA) in years, the Seventh Circuit, in EEOC v. United Airlines, Inc., reversed its own previous holdings regarding the viability of competitive transfer policies for disabled employees. The case can be found here.

For over a decade, employers in the Seventh Circuit have been able to rely onEEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), to adopt perfectly valid policies allowing for disabled employees who can no longer perform the essential functions of their current jobs to be considered for reassignment on a competitive basis.  In other words, if a more qualified candidate sought the same position as the disabled candidate, the employer could select the best-qualified candidate without running afoul of the ADA.  No longer, says the Seventh Circuit.

The circuit court held that under the Supreme Court precedent of U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) (requiring an employee to show that an accommodation is reasonable on its face, which then shifts the burden to the employers to demonstrate case-specific undue hardship), reassignment of a disabled but qualified employee to a vacant position is mandatory in the absence of an undue hardship.  Despite reaffirming its best-qualified candidate rule even after Barnett was decided (reasoning that that ADA does not require preferential treatment and that violating facially-neutral employment policies creates an undue hardship), the Seventh Circuit decided last week that it had been wrong all along:  the “ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.”

The importance of this new automatic reassignment interpretation cannot be overstated.  Indeed, questions about an employer’s reassignment obligations are among the most frequently received inquiries by attorneys under the ADA.  United Airlines, whose policy in question provided for preferential treatment of disabled employees, although not for automatic reassignment for those who were qualified – meaning the company actually went beyond what the Seventh Circuit required it to do before last week – must feel blindsided by the court.  Indeed, this Seventh Circuit panel issued an earlier version of an opinion in this case dismissing the lawsuit under Humiston-Keeling before vacating that decision and issuing a new opinion.

Obviously, employers in the Seventh Circuit (and likely beyond, as the D.C. and Tenth Circuits provide for automatic reassignment, and the Eighth Circuit relied onHumiston-Keeling in deciding that competitive transfer policies were legal) will need to adjust their reassignment policies for disabled employees.  In light of this new ruling, it is critical to consult with experienced counsel to navigate what is likely uncharted territory.

© 2012 BARNES & THORNBURG LLP

Smartphones – 24/7 Access: When are employees off the clock?

The National Law Review recently published an article by Cynthia L. Effinger of McBrayer, McGinnis, Leslie and Kirkland, PLLC regarding Smartphones and Employees:

With instant access to all things via smartphones and the internet, it has become increasingly easy for employees and employers to stay connected to work all the time. Smartphone access and being constantly connected is part of our professional make-up, and necessary to keep pace with the speed of the information highway. Right? Connectivity is firmly woven into everyday business practices but at what price?

If your company issues smartphones or similar devices to all or some of its employees so they can stay in touch, checking emails or responding to phone calls after-hours or on the weekends; your company could be at risk for ‘off-the-clock’ lawsuits.  The Fair Labor Standards Act (“FLSA”) requires employers to compensate non-exempt employees overtime pay for any time worked beyond a 40-hour workweek. Exempt employees (so long as they are classified correctly), are the exception. Under FLSA failure to pay an employee wages and overtime due will result in serious fines, and is a growing area of class action law suits.

Being smart about smartphones usage by employees is crucial. It is essential to have a clear electronic-use policy that outlines specific guidelines explaining work hours and use of any such device (laptops, tablets and phones). As an employer you are financially responsible for work hours that are requested and voluntary. Which means if a non-exempt employee is using a smartphone (company issued or personal) outside of work hours, for work purposes – even when not required or requested – the company is responsible for overtime pay to that employee for the hours worked. So, an electronic use policy needs to be very specific about what is permitted and what is prohibited.

Of course it is not enough to have a policy in place, it must be enforced. To enforce such a policy that applies to work performed after-hours and off-premises, the employer must institute a strong system of reporting and monitoring the activity. This could include a specific time-recording tool, as well as an essential versus non-essential activity list, which could temper an employee’s overtime.

There is a “de minimus” rule, which has been adopted in several federal court proceedings that classifies minimal time spent checking or replying to emails or texts as not compensable.  However, if the employee tracks and presents the aggregate of these de minimus actions, the time often becomes comprehensive enough for an overtime claim.

Having the correct system and policy in place to control smartphone usage is no longer an afterthought; it is an essential element of employment and a critical policy. Smartphones have changed the way we work, and as in many areas of business, technology surpasses our ability to keep up with the changes it creates. If you don’t have an electronic-use policy in place, we recommend you make it priority number one for the HR Department. Have it reviewed by an attorney, educate your staff and enforce its rights and restrictions.

© 2012 by McBrayer, McGinnis, Leslie & Kirkland, PLLC

New York Enhances Employee and Consumer Privacy Rights Under its Social Security Number Protection Law

Four years ago, New York enacted a Social Security Number Protection Law, N.Y. Gen. Bus. Law, §399-dd, aimed at combating identity theft by requiring employers to better safeguard employee social security numbers in their possession.  (Click here for our summary of the law).  Now, New York is going one step further with its passage of two new Social Security Number Protection laws.

First a note: as of November 12, 2012, §399-dd – the original Social Security Protection Law – will be re-codified as new §399-ddd, and it will also add the statutory language of the first of these two new laws, which prohibits employers from hiring inmates for any job that would provide them with access to social security numbers of other individuals.

The second law, which is codified as a separate new §399-ddd, enhances the requirements for safeguarding employee social security number while also adding similar protections for consumers.  This law prohibits companies from requiring employees and consumers to disclose their social security numbers or to refuse any service, privilege or right to the employee or customer for refusing to make that disclosure, unless (i) required by law, (ii) subject to one of its many exceptions, or (iii) encrypted by the employer.  This law also applies to any numbers derived from the individual’s social security number, which means that it extends, for example, to situations where the company asks the individual for the last four digits of their number.  It is unclear whether this law will prove effective in accomplishing its objectives.

First, it contains an exception with the potential to swallow the rule – where the individual consents to the use of the social security number, which many individuals may freely provide absent knowledge of this law’s protections.  Even with an employee’s consent, however, employers must still be mindful that other provisions of the original Social Security Number Protection Law requires them to institute certain safeguards to protect against the number’s disclosure.  And further, even if the employer obtains the employee’s consent, the original law still prohibits employers from utilizing an employee’s social security account number on any card or tag required for the individual to access products, services or benefits provided by the employer.

Second, the penalties for violations are minimal – up to $500 for the first violation and $1,000 for each violation thereafter, and can be avoided where the employer shows the violation was unintentional and occurred notwithstanding the existence of procedures designed to avoid such violations.  Further, there is no private right of action, and only the Attorney General can enforce the law.

Governor Cuomo signed the acts into law on August 14, 2012.  The inmate law will take effect on November 12, 2012 and the disclosure law will take effect thirty days later on December 12, 2012.  Now if he would only sign the recently passed wage deduction law.

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

FTC Proposes New Rules on Children’s Online Privacy Issues

Michelle Cohen of Ifrah Law recently had an article regarding Children’s Online Privacy published in The National Law Review:

On August 1, 2012, the Federal Trade Commission announced that is issuing a Supplemental Notice of Proposed Rulemaking to modify certain of its rules under the Children’s Online Privacy Protection Act (COPPA). Industry has been waiting on FTC action regarding COPPA, as the agency previously undertook a COPPA rulemaking in September 2011 and proposed modifying certain COPPA rules to account for changes in technology, particularly mobile technology.

The FTC received over 350 comments during that time. After reviewing those comments, the FTC has decided to propose certain additional changes to its COPPA rule definitions.

In summary, COPPA gives parents control over the information websites can collect from their kids. It applies to websites designed for children under 13 – or those that have reason to know they are collecting information from a child. It requires a specific privacy notice and that consent be obtained from parents in many circumstances before children’s information may be collected and/or used.

The FTC has proposed several changes that are of interest. Some are meant to “tighten” the COPPA rule, others are meant to provide some additional flexibility to operators.

  • The proposed change would make clear that an operator that chooses to integrate the services of third parties that collect personal information from visitors (like ad networks or plug-ins) would itself be considered a covered “operator” under the Rule.
  • The FTC is also proposing to allow websites with mixed audiences (e.g., parents and over 13) to age-screen visitors to provide COPPA’s protections only to those under 13. However, kid-directed sites or services that knowingly target under-13s as their primary audience or whose overall content is likely to attract kids under that age could not use that method.
  • Also, the FTC has proposed modifying the definition of what constitutes “personal information” relating to children to make it clear that a persistent identifier falls within that definition if it can be used to recognize a user over time or across different sites or services. The FTC is considering whether activities like site maintenance and analysis, use of persistent identifiers for authenticating users, maintaining user preferences, serving contextual ads, and protecting against fraud and theft should not be considered the collection of “personal information” as long what’s collected is not used or disclosed to contact a specific individual, including through the use of behaviorally-targeted advertising.

Comments on the FTC’s proposed rule changes are due by September 10, 2012.

© 2012 Ifrah PLLC

Illinois Employers Beware: New Law Prohibits Employers from Seeking Social Media Password Information

The National Law Review recently published an article regarding Social Media Passwords and Illinois Employers written by Norma W. Zeitler of Barnes & Thornburg LLP:

Employers in Illinois will be prohibited from seeking social networking password information from employees and applicants starting Jan. 1, 2013, now that Illinois Governor Pat Quinn has signed into law Public Act 097-0875, which is an amendment to the Right to Privacy in the Workplace Act, 820 ILCS 55/10.

As we previously reported , the legislation makes it unlawful for an employer to require an employee or applicant to disclose passwords or other related social networking account information in order for the employer to access information that might otherwise be considered private by the employee or applicant. However, employers are not barred from accessing information that is in the public domain

Illinois becomes the second state, after Maryland, to enact such a law, according to a press release from Governor Quinn’s office announcing that he signed the legislation into law on August 1. The new law does not limit an employer’s right to promulgate and maintain otherwise lawful workplace policies regarding the use of the employer’s computer equipment, Internet use, social networking site use, and electronic mail use.

Illinois employers should consider reviewing existing policies and practices with an eye toward ensuring compliance with this new law.

© 2012 BARNES & THORNBURG LLP

Still Waiting for Guidance on Informed Consent of Decisionally-Impaired Subjects

A July 11, 2012 article by Gina Kolata in the New York Times describes a recent discovery of a rare gene mutation that protects people from Alzheimer’s disease by slowing the production of beta amyloid.  Excessive amounts of beta amyloid in the brain are believed to cause Alzheimer’s.  The discovery bolsters hope that drugs, currently in development, that reduce levels of brain amyloid will prove effective in slowing the progression of Alzheimer’s.

The lack of clear guidelines for enrolling in clinical research decisionally-impaired subjects, or those who may become impaired over the course of a study  may hinder efforts to conduct trials of Alzheimer’s drugs.  In 2010, an Institute of Medicine summary  of a workshop on the state of clinical trials in the United States noted that 27% of investigators in the U.S. failed to enroll any subjects in trials in which they agreed to participate, and 90% of all clinical trials worldwide fail to enroll the target number of subjects on time and must extend their enrollment periods.  Though the federal Office for Human Research Protections and the Secretary’s Advisory Committee on Human Research Protections have considered the issue of participation of decisionally-impaired subjects in research in recent years, no guidance has been released.  Further, few states’ laws explicitly address who has authority to consent to research participation on behalf a decisionally-impaired individual.

In the absence of clear guidance, to be in the best position to participate in Alzheimer’s research and other research involving subjects who are or may become decisionally-impaired, institutions and their IRBs should develop their own policies on enrollment of and consent for decisionally-impaired subjects and subjects whose capacity may diminish over the course of a study.  Having policies in place before opportunities to participate in such studies arise will help ensure consistent and efficient review by institutions and IRBs.  Individuals who have a strong interest in participating in Alzheimer’s research studies should complete health care power of attorney documents, record their wishes in writing, and discuss them with their designated health care agents.

©2012 Drinker Biddle & Reath LLP

NLRB Chills At-Will Acknowledgements of Social Media in Employee Handbooks

The National Law Review recently published an article about the NLRB’s Social Media Rulings written by Jerrold J. Wohlgemuth of  Drinker Biddle & Reath LLP:

 

 

Having warned employers about the legality of their social media policies under theNational Labor Relations Act, NLRB Acting General Counsel Lafe Solomon has apparently turned his attention to at-will employment statements in employer handbooks and manuals.  Employers of union and non-union workforces need to pay careful attention to this development.

Many employers use standard language in their handbooks and manuals in which their employees acknowledge that their employment is at-will; that the employer may terminate the employment relationship at any time, for any reason; and that the at-will employment relationship cannot be amended, altered or modified except by a writing signed by a senior member of management.  The Acting General Counsel apparently believes that such at-will disclaimers may interfere with or chill the right of employees to engage in protected concerted activity.

In a case that did not receive extensive publicity, the General Counsel’s Office filed an unfair labor practice charge in February 2012 against Hyatt Hotels (NLRB v. Hyatt Hotels Corp., Case 28 CA-061114) in which it alleged that the at-will disclaimer in the company’s employee handbook violated Section 8(a)(1) of the Act to the extent it required employees to acknowledge that their at-will employment status could not be altered except by a writing signed by management.  The charge appears to reflect the Acting General Counsel’s belief that such an acknowledgement will have a chilling effect on the Section 7 right of employees to engage in concerted activity for the purpose of organizing to alter their employment relationship with the employer by choosing union representation.  The Hyatt case was settled before the issue was presented for a hearing.  An Administrative Law Judge issued a similar ruling in a case decided in early February against the American Red Cross; the case was resolved when the Red Cross agreed to modify its at-will disclaimer before the issue could be presented to the Board for review. (NLRB v. Am. Red Cross, 2012 WL 311334, Feb 1, 2012).

This is an important initiative on the part of the Acting General Counsel.  As we have seen in the social media context, in analyzing handbooks and policy manuals the Acting General Counsel will apply Section 7 broadly to find statements unlawful to the extent they could be interpreted in almost any fashion to chill employee rights to engage in protected concerted activity.  Accordingly, employers may want to take proactive steps to avoid NLRB scrutiny by including a disclaimer in the at-will sections of their handbooks to the effect that the at-will acknowledgment does not, and is not intended to, undermine or interfere with the employee’s right to engage in protected concerted organizing activity under Section 7 of the Act.

©2012 Drinker Biddle & Reath LLP

What Does One Need to ‘Know’ to Commit a Federal Crime?

The National Law Review recently featured an article by Sarah Coffey of Ifrah Law regarding Federal Crimes:

On July 2, 2012, the U.S. Court of Appeals for the 11th Circuit tackled an interesting question of statutory interpretation that centered on the precise usage by Congress of the word “knowingly” in a federal criminal law that prohibits luring people under 18 years old into prostitution.

In United States v. Daniels, the appeals court was reviewing the conviction of Robert Daniels, a pimp who had induced a 14-year-old girl to become a prostitute. One of Daniels’ arguments was that he didn’t know the girl was under 18 and thus could not be convicted under the wording of the statute.

The statute provides that anyone who “knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense” can be convicted of a federal crime. The question before the court was whether the adverb “knowingly” applies to the age of the person lured into prostitution, or only to the persuading, inducing, enticing or coercing. In other words, in order for someone to be guilty of the crime, does he have to know that the prostitute was under age?

The court ruled that in order to sustain a conviction, the prosecution does not have to prove that the perpetrator knew the prostitute was under 18.

The court reasoned that although in general, criminal law applies a presumption that a knowledge requirement “applies to every element in a statute,” it is also the case that laws “concerned with the protection of minors are within a special context, where that presumption is rebutted.” The goal, the court wrote, is to honor “the congressional goal of protecting minors victimized by sexual crimes.”

Delicate issues relating to the meaning of a statute are not limited to questions relating to prostitutes and pimps, of course. In statutes defining white-collar crimes such as fraud or illegal gaming, or setting forth the punishments for such crimes, there are often ambiguous terms or complicated sentence structures.

One thing that we can learn from the Daniels opinion in the 11th Circuit is that appeals courts don’t always follow strict rules of interpretation based on the placement of an adverb or of a comma. They often look at the broad purpose of the statute and the goals that Congress sought to achieve in passing it and creating the crime. It will be interesting to see how the Daniels opinion and similar cases will be applied in the white-collar context.

© 2012 Ifrah PLLC

How The White House’s Endorsement of Same-Sex Marriage Affects Employment Law

Recently Anjali Chavan of Dinsmore & Shohl LLP had an article regarding the White House’s Endorsement of Same-Sex Marriage, featured in The National Law Review:

On May 9, 2012, President Barack Obama became the first sitting U.S. President to affirm his belief that same-sex couples should be able to get married. Weeks later, the First Circuit Court of Appeals declared a portion of the Defense of Marriage Act (“DOMA”) unconstitutional.1 These announcements are just two of many events that have shaped the current landscape in this country with respect to the rights of lesbian, gay, bisexual, and transgender (“LGBT”) Americans.

As LGBT issues are being placed at the forefront of American politics, employers would do well to pay attention, as these changes may necessitate changing employment policies, educating staff, and potentially defending against employment lawsuits for previously unchartered claims, including discrimination based upon sexual orientation and gender identity or expression.

On June 12, the U.S. Senate Health, Education, Labor and Pension Committee (“HELP Committee”) is set to consider the Employment Non-Discrimination Act (“ENDA”). ENDA seeks to expand the protections of Title VII to cover sexual orientation and gender identity and will prohibit discrimination in hiring and employment by nonreligious employers with at least 15 employees.

ENDA will be a federal mandate proscribing any discrimination based on sexual orientation or gender identity by both public and private employers—thereby bringing employees living in states without such protections like Ohio,2 Kentucky,3Pennsylvania,4 and West Virginia,5 under the umbrella of federal protection.

The Sixth Circuit Court of Appeals has found that Title VII protects transgender employees—holding that discriminating against employees who do not identify with their gender, act like members in their gender, or conform with sexual stereotypes is a form of sex discrimination violates Title VII. Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).

Further underscoring the shifting landscape of LGBT rights was the Equal Employment Opportunity Commission’s (“EEOC”) recent ruling in Macy v. Holder, expanding the prohibition against sex discrimination of Title VII to cover transgender workers.

In Macy v. Holder, the EEOC held that Mia Macy’s complaint of discrimination based on gender identity, change of sex, and/or transgender status can be brought under Title VII. Macy, a former police detective in Phoenix, Arizona, relocated to San Francisco and applied for an open position at the Bureau of Alcohol, Tobacco, Firearms and Explosives (“Agency”) for which she was qualified. Macy originally applied for the position as a man and interviewed with the Director as a man. Macy asserted that the Director told her on two separate occasions that she would have the position pending completion of a background check. A few months after her original application, Macy informed the Agency that she was beginning the process of transitioning from male to female. After the Agency received notice of Macy’s change of name and gender, the agency contacted Macy and told her the position was no longer available due to lack of funding. Macy later discovered that the Agency filled this position with another person.

The EEOC found that charges of discrimination based on transgender status or gender identity are cognizable under Title VII’s sex discrimination prohibition and any such claims must be processed by the EEOC.

That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination based on biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute’s protections sweep far broader than that, in part because “gender” encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.

* * *

[G]ender discrimination occurs any time an employer treats an employee differently for failing to conform to any gender-based expectations or norms.

The growing trend in the United States reveals that employment law is changing and adapting to provide a more inclusive environment for LGBT employees. Even though your state or federal circuit court may not recognize certain protections for LGBT individuals, many cities and counties around the country do have such protections in their local ordinances. As employers are navigating these issues in hiring, promoting, and firing, they should be cognizant of the local, state, and federal laws that may be at play. Employers must take the time to recognize and understand these changes, and consider revising their employee manuals and employment policies to comply with these changes.

(1) Massachusetts v. U.S. Dep’t of HHS, et al., Case Nos. 10-2204, 10-2207, & 10-2214, 2012 U.S. App. LEXIS 10950, (1st Cir. May 31, 2012) (affirming the lower court’s holding finding Section 3 of DOMA which defines marriage for federal purposes as a union between a man and a women, to be an unconstitutional encroachment on the power to define marriage granted to the states by the Tenth Amendment).
(2) Ohio prohibits discrimination by public employers based on sexual orientation.
(3) Kentucky prohibits discrimination by public employers based on sexual orientation and gender identity.
(4) Pennsylvania prohibits discrimination by public employers based on sexual orientation and gender identity.
(5) West Virginia provides no protections for LGBT employees.

© 2012 Dinsmore & Shohl LLP