Legal Watch - April 19, 2017
April 19, 2017
By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP
The U.S. Court of Appeals for the Seventh Circuit (covering Illinois, Wisconsin and Indiana) ruled in favor of the long-held position of the Equal Employment Opportunity Commission (EEOC) that Title VII’s sex discrimination provisions cover sexual orientation discrimination (Hivey v. Ivy Tech Community College (2017 BL 110393, 7th Cir., No. 15-1720, enbanc decision, 4/4/17)).
This is the first appeals court decision favoring this protection under the federal antidiscrimination act known as Title VII. Many, but not all, state antidiscrimination statutes already cover sexual orientation discrimination specifically. Title VII is silent on sexual orientation, but the court ruled that its ban on sex discrimination is broad enough to cover sexual orientation.
The Eleventh and Second Circuits (covering Alabama, Georgia and Florida, and New York, Vermont and Connecticut, respectively) recently came to the opposite decision. This will ultimately set up a decision by the Supreme Court.
This decision was made by the full Seventh Circuit panel of judges, sitting “en banc,” which reheard the case, which was initially rejected by a smaller three-judge panel of the Seventh Circuit. LGBT groups may support the same strategy in trying to get the Eleventh Circuit to sit “en banc” and likewise reverse an earlier, adverse three-judge panel decision. Regardless of the silence under federal and some state laws, many colleges and universities already voluntarily cover sexual orientation discrimination under their internal antidiscrimination policies.
The National Labor Relations Board (NLRB) decision of August 2016 involving Columbia University continues to pave the way for graduate student employees to organize at private colleges and universities. The Columbia University decision reversed 12 years of precedent under which graduate student employees were considered by the NLRB to be students and not employees who could organize under the National Labor Relations Act.
Most recently, graduate student employees at American University in Washington, D.C., voted in favor of SEIU representation in an NLRB-supervised election. Members of that bargaining unit of over 700 are teaching, research, graduate and lab assistants, teaching apprentices, deans’ fellows, instructors and tutors.
SEIU Local 500, which organized this group of employees, now represents approximately 5,000 non-tenure-track faculty at three of Washington, D.C.’s major universities.
Under the federal Age Discrimination in Employment Act (ADEA) and many state statutes, an employee does not need to prove that he/she was replaced by a worker outside the protected age class to recover damages in an age discrimination lawsuit. Rather, the plaintiff must allege that they were replaced by someone “substantially younger,” and the gap necessary to demonstrate a substantial difference varies from court to court.
Recently a 74-year-old custodian who was replaced by a 68-year-old worker and filed an age discrimination complaint in state court in Massachusetts was awarded $141,650 in damages. A Massachusetts’ appellate court recently affirmed the plaintiff’s victory and the damages. The court also found the employer guilty of disability discrimination because the employer “regarded” the employee as disabled following his return to work from a heart attack (Massasoit Industries Corp. v. Massachusetts Commission Against Discrimination (2017 BL 91368, Mass. App. Ct. No. 16-P-459, 3/23/17)).
In a novel position, the NLRB now claims that as part of a claimant’s compensable damages in discriminatory discharge cases, the claimant should be reimbursed for the expenses incurred while searching for a new job after job termination if that termination is found to be unlawful or otherwise a result of illegal discrimination. The NLRB’s position is being reviewed by the U.S. Court of Appeals for the D.C. Circuit as a result of the employer’s appeal of the NLRB’s adverse determination and imposition of these additional expenses as compensatory damages (King Soopers Inc. v. NLRB (DC Cir., No. 16-1316, oral argument, 4/3/17)).
Before this change in its enforcement position, the NLRB did not award job search expenses as compensatory damages where it found that the claimant was in fact discriminatorily discharged, but did allow a claimant to deduct those expenses from interim earnings which are used to set off back pay in such cases.
The Court of Appeals for the Sixth Circuit (covering Michigan, Ohio, Kentucky and Tennessee) recently reversed a trial court’s dismissal of a plaintiff’s complaint holding that a job applicant whose job offer was rescinded after the company found out she signed an online petition in favor of a women’s shelter, which the company objected to on separate real estate issue grounds, was entitled to sue. The court found the plaintiff was entitled to sue based on the Ohio state FHA law, which prohibits sex discrimination in housing and prohibits discrimination, retaliation, intimidation and coercion against people who aid or encourage individuals exercising their rights under the Act (Linkletter v. Southern & Western Financial Group (6th Cir., No. 16-3265, 3/23/17)).
The appeals court ruled that the plaintiff’s signing of the online petition did in fact, contrary to the trial court’s decision, amount to “aiding or encouraging” individuals who are asserting their rights under the statute, and therefore should be protected against retaliation.