Category: Uncategorized

Big Bob supervises an all-male make-ready crew. The team gets along well—they get their work done but have fun doing it. The guys banter throughout their shift, calling each other inappropriate names, telling dirty jokes, mimicking sexual acts, and interspersing their conversation with crude profanity. They talk about “guy stuff” and tease one another about each individual’s habits.

For instance, Clean Carl is ribbed as “kind of gay” for his use of hand sanitizer, Selective Sam is nicknamed “baby girl” because of his “feminine” preference for using wet wipes, and Discerning Dan is called “princess” because he bypasses the team’s water and Cokes for only Gatorade. Big Bob thinks the guys don’t mind this banter; in fact it is the “man stuff” that keeps the team close-knit. No harm in a little locker-room talk among the guys, right?

Not so fast said the U.S. Court of Appeals for the Fifth Circuit in a recent case, EEOC v. Boh Brothers Construction Company.^[1] In Boh Brothers, evidence of similar interactions among an all-male crew supported a claim for sexual harassment of one crew member.

The use of gender-stereotyping evidence to prove sex discrimination is not new.^[2]However, the Fifth Circuit clarified two major points regarding the use of gender stereotyping to support sex discrimination claims based on same-sex harassment. It is likely that this decision will expand plaintiffs’ ability to bring sex discrimination claims based on gender stereotyping.

First, the Fifth Circuit held that a plaintiff’s ability to show that same-sex harassment was sex discrimination is not limited by Supreme Court precedent. The court looked to the Supreme Court case that first provided that sex discrimination could be based on same-sex harassment, Oncale v. Sundowner Offshore Servs., Inc.^[3]

In Oncale, the Supreme Court outlined three ways in which same-sex harassment could constitute sex discrimination. The plaintiff could:

(1) show that the harasser is homosexual and the harassment was motivated by sexual desire;

(2) show that the harassment was in such sex-specific and derogatory terms that the harasser was clearly motivated by general hostility to the presence of a particular gender in the workplace; or

(3) offer direct comparative evidence on how the harasser treated members of both sexes in a mixed-sex workplace.

Significantly, the Fifth Circuit held that this list was not exclusive—claims based on same-sex harassment need not fit into one of these categories. Instead, sufficiently severe and pervasive harassment based on the plaintiff’s nonconformity with gender stereotypes is sex discrimination, regardless of the harasser’s sexual desire, hostility to the plaintiff’s gender in the workplace or treatment of individuals of the opposite gender.

Second, the Fifth Circuit held that the plaintiff could be discriminated against based on gender stereotypes even if the plaintiff objectively conformed to those stereotypes. In the Boh Brothers case, the plaintiff was not overtly effeminate. However, the court held that Boh Brothers discriminated against him based on his sex because he “fell outside of [his supervisor’s] manly-man stereotype.”

The court focused on the harasser’s subjective perception of the plaintiff and explicitly rejected any requirement that the harasser’s discriminatory motivation be based on objective facts. What matters is the harasser’s motivation, regardless of whether the harasser is correct about the individual’s actual conformance to stereotypes. In the same way that an employer harassing an individual because of his race (but mistakenly thinking that he is Indian rather than African-American) is still liable for race discrimination, an employer harassing a male because he is not “man enough” is liable for sex discrimination regardless of how “manly” the individual is or is not.

Several judges on the Fifth Circuit disagreed with the majority, arguing that the expansion of sex discrimination based on same-sex harassment obligates employers to “purge every workplace of speech and gestures that might be viewed in any way as tokens of sex discrimination.” One judge even wrote a proposed notice to employees listing all of the behavior that would be inappropriate, including banter about bodily functions, discussions about sex, “non-inclusive” topics such as football or hunting, competitive activity such as a lifting contest, gender-based nicknames, vulgar humor or crude gestures. Although the memo was (intentionally) extreme, it highlights new issues for employers to consider following the Boh Brothers decision.

This case expands the conduct that can be actionable sex discrimination based on same-sex harassment. Employers should train both their supervisors and employees that gender-stereotyping behavior can be sexual harassment. Significantly, the harasser in Boh Brothers was unaware that a heterosexual male could sexually harass another heterosexual male. Although conduct must be sufficiently severe or pervasive to constitute sexual harassment, employers will be well-advised to stop over-the-top gender-stereotyping behavior before such behavior reaches the level of sex discrimination.

---

_{[1] No. 11-30770 (5th Cir. Sept. 27, 2013).}

_{[2] See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (holding that an accounting firm’s decision not to grant a female accountant partnership because her “aggressive” personality was not feminine, and suggesting that she walk, talk and dress more femininely, constituted sex discrimination).}

_{[3] 523 U.S. 75 (1998).} 

 

Article by:

James H. Kizziar Jr.

Amber K. Dodds

Of:

Bracewell & Giuliani LLP

Bulletin shows severe retrogression of the cutoff date for individuals born in India in the employment-based second preference category and continued advancement of the cutoff date for individuals born in China in the employment-based third preference category.

The U.S. Department of State (DOS) has released its December 2013 Visa Bulletin. The Visa Bulletin sets out per country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their status to that of permanent resident or to obtain approval of an immigrant visa at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the December 2013 Visa Bulletin Say?

As a result of significant advancements in cutoff dates for individuals chargeable to India in the EB-2 and EB-3 categories at the end of fiscal year 2013, there have been dramatic increases in applicant demand in these categories. Consequently, the cutoff dates for individuals chargeable to India in both categories will retrogress in December to once again regulate demand. Meanwhile, the cutoff date for individuals chargeable to China in the EB-3 category continues to move swiftly ahead of the cutoff date for individuals chargeable to China in the EB-2 category.

A cutoff date of September 1, 2013 for individuals in the family-based F2A category from Mexico, as well as a cutoff date of September 8, 2013 for individuals in the F2A category from all other countries, remains in effect from October.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date for individuals in the EB-2 category chargeable to India will retrogress by 3.5 years to November 15, 2004. The cutoff date for individuals in the EB-2 category chargeable to China will advance by 31 days to November 8, 2008. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date for individuals in the EB-3 category chargeable to India will retrogress by 21 days. The cutoff date for individuals in the EB-3 category chargeable to China will advance by 365 days. The cutoff date for individuals in the EB-3 category chargeable to the Philippines will advance by 24 days. The cutoff date for individuals chargeable to Mexico and the Rest of the World will advance by 365 days.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: October 1, 2011 (forward movement of 365 days)
India: September 1, 2003 (backward movement of 21 days)
Mexico: October 1, 2011 (forward movement of 365 days)
Philippines: January 8, 2007 (forward movement of 24 days)
Rest of the World: October 1, 2011 (forward movement of 365 days)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

Since November 2012, the EB-2 category for individuals chargeable to all countries other than China and India has been current. The December Visa Bulletin indicates no changes to these cutoff dates. This means that EB-2 individuals chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through December 2013.

China

The December Visa Bulletin indicates a cutoff date of November 8, 2008 for EB-2 individuals chargeable to China, reflecting forward movement of 31 days. This means that EB-2 individuals chargeable to China with a priority date prior to November 8, 2008 may file AOS applications or have applications approved in December 2013.

India

The cutoff date for EB-2 individuals chargeable to India advanced by more than three years in August and by an additional 5.5 months in September. There was no movement of this cutoff date in October or November. The December Visa Bulletin indicates a cutoff date ofNovember 15, 2004, reflecting retrogression of 3.5 years. This means that only EB-2 individuals chargeable to India with a priority date prior to November 15, 2004 may file AOS applications or have applications approved in December 2013.

Developments Affecting the EB-3 Employment-Based Category

There were significant advancements in the cutoff dates from April through July, and again in September, for EB-3 individuals chargeable to most countries. There was no significant movement in this category in October. In November, the cutoff dates in the EB-3 category for individuals chargeable to China, Mexico, and the Rest of the World advanced by 92 days, while the cutoff dates in the EB-3 category for individuals chargeable to India and the Philippines remained unchanged.

The December Visa Bulletin indicates that the cutoff date for individuals in the EB-3 category from China, Mexico, and the Rest of the World will advance by one full year, whereas the cutoff date for individuals in the EB-3 category chargeable to India will retrogress by 21 days.

China

The cutoff date for EB-3 individuals chargeable to China advanced by 547 days in September and by an additional 92 days in November. The December Visa Bulletin indicates additional forward movement of one year to October 1, 2011. This means that EB-3 individuals chargeable to China with a priority date prior to October 1, 2011 may file AOS applications or have applications approved in December 2013. As noted above, this cutoff date is later than that imposed for the EB-2 category for individuals chargeable to China.

India

The cutoff date for EB-3 individuals chargeable to India advanced by 243 days in September. There was no movement in this category in October or November. The December Visa Bulletin indicates retrogression of this cutoff date by 21 days to September 1, 2003. This means that EB-3 individuals chargeable to India with a priority date prior to September 1, 2003 may file AOS applications or have applications approved in December 2013.

Rest of the World

The cutoff date for EB-3 individuals chargeable to the Rest of the World advanced by 547 days in September and by an additional 92 days in November. The December Visa Bulletin indicates additional forward movement of this cutoff date by one full year to October 1, 2011. This means that EB-3 individuals chargeable to the Rest of the World with a priority date prior to October 1, 2011 may file AOS applications or have applications approved in December 2013.

Developments Affecting the F2A Family-Sponsored Category

In October, a cutoff date of September 1, 2013 was imposed for F2A spouses and children of permanent residents from Mexico, and a cutoff date of September 8, 2013 was imposed for F2A spouses and children of permanent residents from all other countries. The December Visa Bulletin indicates no movement of these cutoff dates. This means that AOS applicants with a priority date that falls on or after the applicable September cutoff date will be unable to file AOS applications or have applications approved in December 2013.

Anticipated Developments in the Coming Months

The December Visa bulletin predicts the following potential changes in visa availability in the coming months:

EB-1: All EB-1 categories are expected to remain current.

EB-2: The cutoff date in the EB-2 category for all countries other than China and India is expected to remain current. The cutoff date for individuals in the EB-2 category chargeable to China is expected to advance by three to five weeks per month. The cutoff date for individuals in the EB-2 category chargeable to India is not expected to move forward.

EB-3: The cutoff date in the EB-3 category for all countries other than China and India has advanced rapidly over the last seven months in an effort to generate new demand. It is anticipated that the number of applications within these categories will increase rapidly, which could have a significant impact on cutoff dates. Therefore, rapid forward movement of worldwide cutoff dates is not expected to continue beyond February 2014. The cutoff date for individuals in the EB-3 category chargeable to China and Mexico is expected to remain consistent with the worldwide date. The cutoff date for individuals in the EB-3 category chargeable to India is not expected to move forward. The cutoff date for individuals in the EB-3 category chargeable to the Philippines is expected to advance by three to six weeks per month.

F2A: The cutoff date for individuals in the F2A category chargeable to Mexico is expected to retrogress at some point in the coming months. The cutoff date for individuals in the F2A category from all other countries is expected to remain unchanged.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the December 2013 Visa Bulletin in its entirety, please visit the DOS website at http://www.travel.state.gov/visa/bulletin/bulletin_6211.html.

Article by:

On Friday, November 1, 2013 the Federal Trade Commission (FTC) ended a seven-month investigation of the proposed merger between Office Depot Inc. and OfficeMax Inc., allowing the transaction to move forward.

The merger between the second and third largest office supply superstores (OSS) is not the first time the FTC has been interested in OSS transactions.  In 1997, the FTC successfully blocked a proposed merger between the two largest OSS in FTC v. Staples, Inc., 970 F.Supp. 1066 (D.D.C. 1997).  The FTC’s seemingly contradictory positions can be discerned, however, by the changes in the competitive landscape for OSS.

As acknowledged in the FTC’s statement concerning the proposed merger, OSS now compete with online retailers and mass merchants far more than in 1997.  In fact, in Staples, the court determined that while mass merchants, wholesale clubs and mail order firms sold office supplies, prices at OSS were primarily affected by the presence of another OSS in the geographic market.  Because of this determination, the FTC was successful in arguing that the relevant product market was the sale of consumable office supplies just through OSS.

Now, OSS compete rigorously with the growing number and size of online retailers and mass merchants. As the FTC found, OSS “closely monitor” and “respond competitively” to non-OSS retailers.  Indeed, the FTC noted that OSS are responding to such competition not only through staples of competition such as price matching and price-checking, but also through innovation, such as “offering in-store pickup for online purchases and using in-store internet kiosks to order products online.”

The rapidly changing landscape in the consumable office supplies market is highlighted by two contrasting outcomes sixteen years apart.  It highlights the importance of staying abreast of how changes in market dynamics and modernizing competition law may affect regulators’ view of potential transactions.  As exemplified in this case, such knowledge can lead to a successful evaluation of a transaction that was previously thought to be impossible.

Article by:

of:
McDermott Will & Emery

The “European Market Infrastructure Regulation,” known as EMIR, was adopted on July 4, 2012, as the Regulation on OTC Derivatives, Central Counterparties and Trade Repositories (EU 648/2012), and took effect in all EU Member States on August 16, 2012. As an EU Regulation, EMIR is effective in EU Member States without the need for national regulations or legislation. 

The EMIR regulatory framework is made up of Regulation EU 648/2012 (the “Regulation”) and several European Commission Implementing Regulations and Delegated Regulations which set out technical standards addressing matters of detail under the Regulation. The Implementing Regulations and Delegated Regulations were published in the Official Journal of the European Union on February 23, 2013, and became effective on March 15, 2013. 

 What Does EMIR Require? 

EMIR is the EU measure implementing the September 2009 Pittsburgh G-20 Summit agreement that all standardized OTC derivatives contracts should be cleared through a central counterparty (CCP) and be reported to a trade repository (TR). Financial counterparties and non-financial counterparties whose aggregate OTC derivatives positions exceed the clearing threshold (see below) are subject to obligatory clearing and reporting of transactions and risk mitigation requirements. Non-financial counterparties with aggregate OTC derivatives positions below the clearing threshold are subject to certain reporting obligations and certain risk mitigation requirements. EMIR also sets out authorization standards for EU-based CCPs and TRs and recognition standards for non-EU CCPs and TRs 

Who Is Within the Scope of EMIR’s Clearing and Reporting Requirements? 

EMIR’s clearing and reporting requirements apply to any entity established in an EU Member State that enters into (is a legal counterparty to) a derivatives contract and to a non-EU entity that enters into a derivatives contract with an EU counterparty. In principle, where both parties to a transaction are located outside the European Union, they are not subject to EMIR’s requirements. However, EMIR’s requirements do apply where two non-EU entities (that would be subject to the obligation if they were entities established in the European Union) enter into an OTC derivatives contract that has “a direct, substantial and foreseeable effect” within the European Union or where “necessary or appropriate to prevent evasion” of EMIR’s provisions. 

Who Is a Financial Counterparty/Non-Financial Counterparty? 

Financial counterparties include EU authorised banks, investment firms, funds and fund managers, insurance undertakings, spread betting firms and pension schemes. A non-financial counterparty is any corporate or other counterparty that is not a financial counterparty, including an entity which is not involved in financial services. 

What Is the Clearing Threshold? 

The following clearing thresholds apply to a party’s rolling average position over 30 working days (excluding hedging transactions): 

• €1 billion in gross notional value for OTC credit derivatives;

• €1 billion in gross notional value for OTC equity derivatives;

• €3 billion in gross notional value for OTC interest rate derivatives;

• €3 billion in gross notional value for OTC foreign exchange derivatives; and

• €3 billion in gross notional value for commodity derivatives and other OTC derivatives not listed above.

What Is the Clearing Obligation? 

The clearing obligation applies to all OTC derivatives contracts once the applicable thresholds above are reached. It ceases to apply when the gross notional value of a party’s positions remains below the applicable threshold for 30 working days. Effective March 15, 2013, a non-financial counterparty is required to notify the national regulator under whose jurisdiction it falls when it exceeds the clearing threshold and when it no longer exceeds it. 

The clearing obligation pertains to OTC derivatives transactions which meet eligibility criteria established under EMIR under a “bottom up” or “top down” approach. Under the top down approach the European Securities and Markets Authority (ESMA) mandates classes of contracts to be cleared by CCPs; under the bottom up approach CCPs decide to clear certain classes of contracts subject to approval by ESMA. All transactions in a contract subject to mandated clearing entered into by financial counterparties or by non-financial counterparties whose aggregate OTC derivatives positions exceed the clearing threshold must be cleared through a CCP which is EU-authorised or established in a third country and EU-recognised. 

When Will the Clearing Obligation Begin? 

The clearing obligation cannot commence until CCPs are authorised or (in the case of a non-EU CCP) recognised. Transitional provisions apply to CCPs that are currently providing clearing services in the European Union provided that they apply for authorisation or recognition under EMIR within six months after March 15, 2013 (the date the technical standards come into force), in order to benefit from the EMIR transitional provisions. 

What Is the Reporting Obligation? 

All derivatives contracts, both OTC and exchange-traded, entered into by financial counterparties and by non-financial counterparties after August 16, 2012, are required to be reported to a trade repository which is EU-authorised or established in a third country and EU-recognised. 

When Will the Reporting Obligation Begin? 

ESMA will issue technical standards specifying the date the reporting obligation begins. Subject to the authorisation or recognition of TRs, ESMA has stated that reporting obligations for credit and interest rate derivatives are expected to take effect July 1, 2013 at the earliest, and January 1, 2014 at the earliest for derivatives contracts in all other asset classes. 

What Are the Risk Mitigation Obligations? 

Risk mitigation requirements apply to all uncleared OTC derivatives transactions. Different detailed requirements apply to counterparties depending on whether they are subject to the clearing obligation (financial counterparties and above-the-threshold non-financial counterparties) or are not subject to it (below-the-threshold non-financial counterparties). EMIR’s risk mitigation requirements apply where two non-EU entities (that would be subject to the obligation if they were entities established in the European Union) enter into an uncleared OTC derivatives contract that has “a direct, substantial and foreseeable effect” within the EU or where “necessary or appropriate to prevent evasion” of EMIR’s provisions. 

The following risk mitigation requirements apply to all counterparties in respect of uncleared OTC derivatives transactions: 

• Timely confirmation (effective March 15, 2013);

• Portfolio reconciliation (effective September 15, 2013);

• Portfolio compression (effective September 15, 2013); and

• Dispute resolution processes and procedures (effective September 15, 2013).

In addition, financial counterparties and above-the-threshold non-financial counterparties are subject to: 

• Daily valuation and mark to market or mark to model (effective date to be announced).

• Timely, accurate and appropriate segregated exchange of collateral (effective date to be announced).

What Issues Should I Be Considering if I Trade OTC Derivatives? 

Anyone trading OTC derivatives should consider a range of potential questions, including, for example:

• Are you complying with the timely confirmation obligations?

• Do you have access to clearing either as a member of a CCP or a client of a clearing member?

• Do you have agreements in place under which you can provide required collateral?

• Do you have sufficient eligible collateral available?

• Do you have systems for reporting reportable transactions through a TR?

• If you are a non-financial counterparty, do you have systems in place for assessing on an ongoing basis whether you are above or below the clearing threshold?

• Are you required to notify your national regulator that you have exceeded the clearing threshold?

• Do you have the required procedures in place for the applicable risk mitigation techniques?

 

Article By: