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EMPLOYMENT LAW LEGAL RESEARCH BLOG

Title VII and "Supervisors"

Posted by Nadine Roddy on Thu, Sep 23, 2021 @ 11:09 AM

Nadine Roddy—Senior Attorney, National Legal Research Group

            One of the more difficult issues in the employment discrimination context has been the determination of whether an employee who is charged with misconduct toward another employee is a "supervisor" or a "coworker" for purposes of employer liability under Title VII and related statutes. Initially, the Equal Employment Opportunity Commission ("EEOC") took the position that an individual is qualified as an employee's supervisor if (1) the individual had authority to undertake or recommend tangible employment decisions affecting the employee, or (2) the individual had authority to direct the employee's daily work activities. EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (1999. In its 2013 decision in Vance v. Ball State University, 133 S. Ct. 2434 (2013), however, the Supreme Court narrowed the definition, holding that an employee is a "supervisor" only when empowered by the employer to take tangible employment action—such as hiring, firing, failing to promote, reassigning with significantly different responsibilities, or causing a significant change in benefits—against the employee alleging discrimination. Since then, the lower federal courts have refined this definition in relevant cases.

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Topics: employment discrimination, Nadine Roddy, employee vs. supervisor, indicia of reliance, authoritative input

Supreme Court Rebuffs Another Challenge to the ACA

Posted by Nadine Roddy on Thu, Sep 23, 2021 @ 11:09 AM

Nadine Roddy—Senior Attorney, National Legal Research Group

            In a closely watched case, California v. Texas, 141 S. Ct. 2104 (2021), the Supreme Court recently turned back a third challenge to the federal Patient Protection and Affordable Care Act ("ACA" or "Act")—the extensive health-care reform law enacted in 2010 that includes, among other things, a requirement for all individuals (known as the "individual mandate") to obtain a minimum level of health insurance coverage (known as "minimum essential coverage" or "MEC") or to pay a tax penalty to the Internal Revenue Service ("IRS"). In subsequent legislation, Congress reduced the penalty from $695 to $0. At that point, the State of Texas, joined by several other states and two individual plaintiffs, filed a challenge to the amended Act in a federal district court sitting in Texas. The court held that Congress's effective elimination of the tax penalty had rendered unconstitutional the individual mandate to obtain MEC, as it could no longer be justified as a tax. Further, because the unconstitutional provision could not be severed from the rest of the ACA, the entire Act was invalid. In its June 2021 decision, the Supreme Court did not reach these substantive issues, instead ruling 7-2 that neither the states nor the individual plaintiffs had Article III standing to bring the suit, as none had shown a past or future injury "fairly traceable" to the officials' conduct.

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Topics: Patient Protection and Affordable Care Act PPACA, Nadine Roddy, past or future injury, traceability

Exotic Dancers—Employees or Independent Contractors?

Posted by Nadine Roddy on Wed, May 12, 2021 @ 11:05 AM

Nadine Roddy—Senior Attorney, National Legal Research Group

            An exotic dancer was an "employee" of an adult entertainment club under the Fair Labor Standards Act ("FLSA"), even though a written agreement disclaimed an employment relationship, a federal district court sitting in Florida recently held in Schofield v. Gold Club Tampa, Inc., No. 8:19-CV-3097-VMC-TGW, 2021 WL 533540 (M.D. Fla. Feb. 12, 2021). The summary judgment evidence showed that the economic reality of the relationship was one of employer and employee given the degree of control over the dancer's work exercised by the club, among other factors.

            An exotic dancer who worked at an adult entertainment club brought suit against the club owner and its operator ("club"), seeking a ruling that she had been misclassified as an independent contractor, that she was the club's employee, and that she was thus entitled to employee's protections under the FLSA. The evidence showed that the club's DJ used a list of dancers present at the club on a given shift to set up a rotation for performances on the stage. Each dancer would perform for about two and a half minutes to music she had preselected. In addition to watching dancers on the stage, club patrons could purchase a lap dance in an open booth and/or time with a dancer in a private "VIP room." An employee called a "VIP host" would schedule such activities and collect the money before any activity took place.

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Topics: employment law, Nadine Roddy, FLSA, employee vs. independent contractor, adult entertainment club, degree of control

Gay and Transgender Employees Are Protected by Federal Antidiscrimination Statute, Supreme Court Holds

Posted by Nadine Roddy on Wed, Feb 17, 2021 @ 11:02 AM

Nadine Roddy—Senior Attorney, National Legal Research Group

            An employer that discharges an individual for being homosexual or transgender violates Title VII of the Civil Rights Act of 1964, the Supreme Court held 6-3 in one of the last decisions of its October 2019 term. Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020). Title VII contains the well-known prohibition of discrimination in employment against an individual “because of” the individual's “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Writing for the majority, Justice Gorsuch explained that an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Thus, sex plays a “necessary and undisguisable role” in such decisions—precisely what Title VII forbids.

            Three cases were consolidated for this appeal. Each one started with an employer discharging a long-term employee soon after the employee revealed that he was homosexual or gender-transitioning—and allegedly for no other reason.

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Topics: employment law, Title VII, sexual orientation, gender status

Recent Legislation Provides Coronavirus Relief for the American Workforce

Posted by Nadine Roddy on Tue, May 12, 2020 @ 12:05 PM

Nadine Roddy—Senior Attorney, National Legal Research Group

            On March 18, 2020, the federal Families First Coronavirus Response Act of 2020 ("Families First Act"), Pub. L. No. 116-127, was signed into law. The measure is the second in a series of recent legislative attempts to ameliorate the adverse health and economic effects of the novel coronavirus COVID-19 in the United States.  The Act applies to employers with fewer than 500 employees, and its major provisions require (1) paid sick leave, and (2) paid FMLA leave for child care during the pandemic. The Act's leave provisions are effective April 2, 2020 through December 31, 2020.

            A third piece of legislation, the Coronavirus Aid, Relief, and Economic Security Act of 2020 ("CARES Act"), Pub. L. No. 116-136, was signed on March 27, 2020. A massive relief package, it provides for increased public health spending, cash relief for individual citizens earning under $75,000 a year ($150,00 a year for married couples), enhanced unemployment benefits, a lending program for small businesses, and targeted relief for certain heavily impacted industries.

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Topics: Nadine Roddy, wrongful burial statute, virtual juries, COVID-19, Families First Act, CARES Act, child care leave, employer tax credits, paid sick leave

The Virginia Values Act of 2020 Bans Discrimination Against LGBT

Posted by April Wimberley on Thu, Apr 2, 2020 @ 12:04 PM

April Wimberley—Senior Attorney, National Legal Research Group

     Virginia is poised to become the first Southern state to prohibit discrimination based on a person's "sexual orientation" or "gender identity." The Virginia Values Act ("VVA") was passed by the General Assembly on February 26, 2020 and is expected to be signed by Governor Ralph Northam. The bill will have a significant impact on the law governing discrimination in employment, public accommodations, housing, banking, and education, and it creates a new cause of action for unlawful discrimination in public accommodations.

     The VVA will amend several existing statutes to prohibit discrimination on the basis of sexual orientation and gender identity. "Sexual orientation" is defined as "a person's actual or perceived heterosexuality, bisexuality, or homosexuality," while "gender identity" means "the gender‑related identity, appearance, or other gender‑related characteristics of an individual, with or without regard to the individual's designated sex at birth."

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Topics: gender identity, discrimination, April Wimberley, Virginia Values Act, public accommodation discrimination, LGBT

The ADEA's Numerosity Requirement Does Not Apply to Governmental Defendants

Posted by Steven G. Friedman on Fri, Aug 2, 2019 @ 11:08 AM

Steve Friedman—Senior Attorney, National Legal Research Group

            The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634, is federal legislation intended "to prohibit arbitrary age discrimination in employment."  29 U.S.C. § 621(b). In relevant part, the ADEA provides that "[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." Id. § 623(a)(1).

            A threshold determination for implicating the ADEA is whether a potential defendant is an "employer" within the meaning of the ADEA. The ADEA defines "employer," in part, as "a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year."  Id. § 630(b). One notable qualifier for "employer" is having a minimum of 20 employees.

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Topics: civil rights, Steven G. Friedman, ADEA, numerosity requirement, exemption of state entities

When Can an Employer Require an Employee to Undergo a Medical Exam Under the ADA?

Posted by Suzanne L. Bailey on Tue, Mar 26, 2019 @ 09:03 AM

Suzanne Bailey—Senior Attorney, National Legal Research Group

            Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111-12117, makes it unlawful for an employer to "require a medical examination" or to "make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity."  Id. § 12112(d)(4)(A). According to the Equal Employment Opportunity Commission ("EEOC"), this means that an employer should not make disability-related inquiries or require a medical examination of an employee unless the employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition."

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Topics: employment law, disability discrimination, ADA, medical exam, employee requirement

Arbitration—“Gateway Issues”

Posted by Nadine Roddy on Tue, Feb 5, 2019 @ 11:02 AM

Nadine Roddy—Senior Attorney, National Legal Research Group

            When an arbitration agreement is in effect, who decides whether an employment dispute—or any dispute for that matter—is arbitrable? The Supreme Court recently released a pair of decisions that address this issue under the Federal Arbitration Act (FAA), Henry Schein, Inc. v. Archer & White Sales, Inc., ___ S. Ct. ___, 202 L. Ed. 2d 480, 2019 WL 122164 (Jan. 8, 2019), and New Prime, Inc. v. Oliveira, ___ S. Ct. ___, 2019 WL 189342 (Jan. 15, 2019).

            Each case involved an arbitration agreement that contained a clause delegating the issue of arbitrability of disputes to an arbitrator rather than a court. The Supreme Court had previously held that such clauses are enforceable under the FAA. Rent-A-Center W., Inc. v. Jackson, 561 U.S. 63 (2010) (applying 9 U.S.C. § 2). Some courts of appeals developed an exception to this general rule, holding that a court need not grant a motion to compel arbitration under § 4 of the FAA if the argument that the underlying claim is within the scope of the arbitration agreement is "wholly groundless."

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Topics: contracts, Federal Arbitration Act, arbitration clause, Nadine Roddy, gateway issue of arbitrability, exceptions to Act

Disability Discrimination in Employment—Health-Care Employer Could Condition Employment on Health Screening and Vaccination

Posted by John M. Stone on Thu, Jan 24, 2019 @ 11:01 AM

John Stone—Senior Attorney, National Legal Research Group

            The Americans with Disabilities Act ("ADA") prohibits covered employers from discriminating against qualified individuals on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). This prohibition against discrimination can apply to certain medical examinations and inquiries.

            However, the ADA does not forbid all medical examinations and inquiries. Their permissibility and scope varies depending on the stage of employment. Employers are generally prohibited from making any disability-related inquiries or requiring medical examinations of applicants before offering employment. Id. § 12112(d)(2)(A). After an offer has been made, however, the ADA permits employers to require a medical examination of a prospective employee, and it permits employers to condition a final offer of employment upon the results of the examination under certain circumstances. Id. § 12112(d)(3). The ADA also generally prohibits employers from requiring current employees to undergo medical examinations or inquiries unless the employer can demonstrate they are “job-related and consistent with business necessity.” Id. § 12112(d)(4)(A).

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Topics: employment discrimination, ADA, John M Stone, health-care employer, screening and vaccination, state's employer mandates

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