Certiorari granted to review exemptions to Affordable Care Act’s birth control mandate.

The US Supreme Court has granted certiorari to review Little Sisters of the Poor v. Pennsylvania [Briefs] and Trump v. Pennsylvania [Briefs], which deal with the Affordable Care Act’s requirement that employers to provide female employees with health insurance that includes access to certain forms of birth control. In 2013, the government exempted churches and other religious institutions, and provided an “opt-out” process for religious nonprofits. In 2017, the government expanded the exemption to allow private employers with religious or moral objections to opt out.

The rulings now under review (1) affirmed a nationwide injunction of the 2017 rules, (2) held that the government lacked statutory authority under the Patient Protection and Affordable Care Act and the Religious Freedom Restoration Act to expand the exemption, (3) held that adopting the rules violated the Administrative Procedure Act, and (4) held that Little Sisters of the Poor lacked appellate standing.

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SCOTUS orders more briefs in federal sector ADEA case

On January 15 the US Supreme Court heard oral arguments in Babb v. Wilkie [Briefs] [Transcript] [Audio], in which the issue is "Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967, which provides that personnel actions affecting agency employees aged 40 years or older shall be made free from any 'discrimination based on age,' 29 U.S.C. §633a(a), requires a plaintiff to prove that age was a but-for cause of the challenged personnel action."

On January 17 the Court issued the following order:

“The parties are directed to file supplemental letter briefs addressing the following question: What prospective administrative or judicial relief may a federal employee obtain under laws other than the ADEA, including under the civil service laws or the Constitution, against age-related policies, practices, actions, or statements that were not the but-for cause of an adverse employment action against the complaining employee? The briefs, not to exceed 10 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Thursday, January 23, 2020.”

Interesting, to say the least.

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Double mastectomy, but no ADA disability

[Video]

You would think an employee would win an Americans with Disabilities Act lawsuit If she was fired two weeks after having a double mastectomy.

But here's a case where the employee actually did not have breast cancer.

She had the BRCA1 gene mutation, which makes it way much more likely to get breast cancer in the future.

This case went to a federal district court in Ohio and the court said that she's going to lose this case because she cannot show that she has a current limitation of a major life activity.

A future likelihood — Yes, but there's no present disability. So she loses her ADA case.

[I learned about this case from a blog post by  Daniel Pasternak at Squire Patton Boggs. He writes for the Employment Law Worldview. Read his interesting thought here: Genetic Mutation Is Not A Disability under the ADA, Says Ohio Federal Court (US).]

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Paul Grossman's Employment Discrimination Law Update

Paul Grossman just sent out his 152 page Employment Discrimination Law Update. If you practice employment law, this is something you must have. It’s thorough, objective, accurate, and easy to read.

In an act of great generosity, Paul sends this out periodically during the year to those who ask for it. Simply send your full contact information to Paul's secretary Cathy Smith-Joo: cathysmithjoo@paulhastings.com.

Paul Grossman is a partner at Paul Hastings, and is based in Los Angeles. He is a management-side employment lawyer and a frequent speaker on employment law.

Paul's Employment Discrimination Law Update is a supplement to Lindemann, Grossman & Weirich, Employment Discrimination Law (5th ed. 2013), and the 2017 Supplement put out by the ABA Section of Labor and Employment Law (Debra A. Millenson, Laurie E. Leader, and Scott A. Moss, Executive Editors). It is organized by book chapters. The 2017 Supplement includes Court of Appeals decisions through 2016 and some Supreme Court cases issued during the 2016-2017 term. With a few exceptions, the current update begins with cases decided after January 1, 2016. It focuses almost exclusively on Court of Appeals and Supreme Court decisions.

Thank you, Paul.

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Is expert testimony required whenever an employee is trying to prove a disability?

[Video]

Is expert testimony required whenever an employee is trying to prove a disability?

Maybe. Maybe not.

The 10th Circuit had a case in which the trial court held that expert testimony is required in every single case. And the 10th Circuit reversed. Tesone v. Empire Marketing Strategies (10th Cir 11/08/2019) [PDF].

The court says you have to take a case-by-case look – and it depends upon the type of disability – in order to decide whether or not expert testimony is required.

This was an employee that had a chronic lower back pain.

The court said you will need to have expert testimony when “a condition would be unfamiliar to a lay jury and only an expert could diagnose that condition.”

In this case: maybe not.

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Title VII, LGBT employees, and the US Supreme Court

Three upcoming LGBT-Title VII cases will test the US Supreme Court's views on original intent, stare decisis, and statutory construction. These will be among the most important cases of the 2019-2020 term of the Court.

Title VII bars discrimination "because of … sex." How does that work with gay, lesbian and transgender employees? Courts are split. Badly split.

Oral arguments on October 8 include Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC.

Zarda and Bostock claimed they were fired because they were gay. Their suits claimed violations of Title VII. The 2nd Circuit ruled that Zarda's suit could go to trial because discrimination based on sexual orientation is “is motivated, at least in part, by sex and is thus a subset of sex discrimination.” However, the 11th Circuit said Bostock could not go to trial because Title VII simply does not apply to sexual orientation discrimination.

The employees have two main arguments: (1) Men, but not women, are fired because they are sexually attracted to men. (2) Title VII forbids discriminating based on sex stereotypes – men should be sexually attracted to women and women should be attracted to men.

The employers argue that (1) Title VII prohibits treating one sex better than the other, which is not what happened here. (2) In 1964 nobody thought Title VII prohibited LGBT discrimination. (3) A change of the magnitude involved here should come from Congress rather than the courts.

The government sides with the employers.

In the Clayton County case, the employee presented and dressed as a man for years, but later announced an intent to live and work as a woman. The employer fired her. The 6th Circuit held in favor of the employee, saying "Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII." The arguments in this case parallel the arguments in the other two cases.

It's a matter of some interest that the transgender case was originally brought an won by the EEOC, but the current government is siding with the employer.

My views:

Gay discrimination is sex discrimination. This is similar to the "sex plus" cases we saw in the early days of Title VII. For example, you can't treat women with pre-school children differently than men with pre-school children. I think the analogy is apt.

Transgender discrimination is sex discrimination. My analogy is to a Catholic employee who decides to become a Baptist. That's religion discrimination, and you don't need to find another employee who is a Baptist switching to becoming a Catholic.

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Retaliation with a double twist

The allegation was that a supervisor retaliated against the plaintiff after she left the job.

The supervisor’s defenses were (1) I never was her employer, and (2) there was no effect on the terms and conditions of her employment.

The Oregon Supreme Court found in favor of the plaintiff. McLaughlin v. Wilson (Oregon 09/12/2019) [PDF]. First reported by LawMemo on September 12, 2019 at 11:09am.

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Sexual orientation harassment at the porn store

It can happen anywhere – this time at a pornographic video store.

Wilford Bearden, an openly gay man, was a clerk in a pornographic video store. In graphic detail, the Oregon Court of Appeals described harassment at the hands of other clerks. This included sexually offensive comments written on copies of a magazine (over a period of three months) plus an extraordinarily raunchy cartoon drawn by a clerk. The manager terminated Bearden soon after the cartoon incident.

Bearden won a judgment after a bench trial on his claim of discrimination on the basis of his sex and sexual orientation and his claim of retaliation for complaining about sexual harassment. The trial court denied the employer's motion for a directed verdict. The Oregon Court of Appeals affirmed the verdict, and remanded for reconsideration of the attorney fee award. Bearden v. N. W. E. Inc (Oregon Ct App 08/07/2019) [PDF].

On the retaliation claim, the court found sufficient evidence that Bearden complained to a clerk, who passed that information on to the manager, so the manager knew of Bearden's complaint when she terminated him.

On the discrimination claim, there was evidence that the harassment was because of Bearden's sexual orientation (in spite of the perpetrators' testimony that they did not intend their comments to be sexual) and evidence that the materials were objectively offensive to a gay man.

The court found that the harassment was severe or pervasive enough to alter the conditions of employment and create an abusive working environment; it lasted three months and culminated in the raunchy cartoon. Management was aware of the situation "enough to require an investigation, which would quickly have yielded the information that plaintiff's complaint was legitimate."

The court remanded for a re-determination of attorney fees. The trail court had categorically denied fees incurred during BOLI proceedings, but must now evaluate how much was reasonably incurred to achieve Bearden's success in the litigation. The trial court must also provide a more complete explanation of why it awarded less than the full amount of fees Bearden requested in connection with his motion for summary judgment, which was denied.

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Title VII – cert petition on "ultimate employment decisions"

Sometimes a US Supreme Court cert petition catches my eye. Today it was Peterson v. Linear Controls [briefs]

Formally, the question presented is "Whether the 'terms, conditions, or privileges of employment' covered by Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 are limited only to hiring, firing, promotions, compensation and leave."

The 5th Circuit, in an unpublished opinion, reiterated its stingy interpretation of Title VII's anti-discrimination language. In this race discrimination lawsuit, the court said it "strictly construes adverse employment actions to include only 'ultimate employment decisions,' such as 'hiring, granting leave, discharging, promoting, or compensating. '” Peterson v. Linear Controls (5th Cir 02/06/2019) [PDF]

Peterson alleged that he was on a team of five white employees and five black employees, and the black employees had to work outside and were not permitted water breaks, while the white employees worked inside with air conditioning and were given water breaks. The 5th Circuit ruled that – assuming the allegations are true – it was not error for the trial court to hold that these working conditions are not adverse employment actions because they do not concern ultimate employment decisions.

Of course, the 5th Circuit is wrong, but that's usually not enough to rally the four Justices needed to grant certiorari. The fact that there is a split of authority among the circuits will be a major factor in deciding whether to grant certiorari. The 3rd Circuit is almost as strict as the 5th (some say it's just as strict). Seven other Circuits reject the 5th Circuit's restrictive approach – the 2nd, 6th, 7th, 8th, 9th, 10th, and 11th Circuits.

The key statutory language:

“to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual” with respect to “compensation, terms, conditions, or privileges of employment” because of the individual’s race, religion, sex, or other protected status.

The brief from Linear Controls isn't due until September 9, so we have a bit of a wait before we know whether the Supreme Court will take up this case.

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COTW #34 - Obesity is always an impairment under Washington State disability discrimination statute

Casey Taylor sued the employer under the Washington Law Against Discrimination (WLAD) for refusing to hire him due to his obesity. After the case was removed to federal district court, it granted summary judgment to the employer. On appeal to the 9th Circuit, that court certified to the state Supreme Court the question of when obesity qualifies as an impairment under WLAD. The state Supreme Court accepted certification and held that obesity always qualifies as an impairment under WLAD. Taylor v. BNSF Railway (Washington 07/11/2019) [PDF].

Worth repeating: Always qualifies as an impairment

The employer refused to hire Taylor, who had a BMI of 41, which meets the technical definition of severe obesity, because it had a policy of not hiring people with BMIs exceeding 35. The district court granted summary judgment to the employer based on federal cases holding obesity is not a disability unless it results from a separate, underlying physiological disorder.

The state Supreme Court answered the certified question by stating obesity is always an impairment under the plain language of WLAD because it is a physiological condition affecting one or more body systems. The court expressly rejected federal court treatment of obesity under the ADA on the basis WLAD is broader than the ADA and offers its own independent protections to employees.

This is Washington State. Most other places require a showing that obesity is a disability only if it results from a separate, underlying physiological disorder.

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COTW #32 - Telecommuting as an ADA accommodation

Today’s Case-of-the-Week — Bilinsky v. American Airlines (7th Cir 06/26/2019) [PDF] —caught my eye because it involved the controversial question of whether telecommuting can be a reasonable accommodation under the Americans with Disabilities Act (ADA).

Well, of course, the answer always is “It depends.”

Here an employee with MS successfully telecommuted from her home in Chicago, while the on-site department was in Dallas. That worked out fine until the Dallas department began changing the nature of its work. Previously it was mainly preparing various written materials. Then it began staging live events in Dallas, and doing crisis management. So the boss began requiring the employee to be on site in Dallas.

The 7th Circuit split 2-1. The majority supported granting summary judgment for the employer on the basis that the employee could not perform the essential functions of the job (i.e., being on site).

The dissent would have let the case go to a jury to decide whether being on site really was an essential function.

Personally, I thought the majority was a little too quick to take a crucial fact-finding function away from the jury. 7th Amendment, and all that.

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Ban on transgender personnel in the military will receive intermediate scrutiny; injunction against the ban is stayed.

Here’s a complicated case, raising important issues about the rights of transgender individuals, the extent of executive branch privileges, and the amount of deference courts should grant to military decisions.

In 2017 the President issued a Memorandum barring transgender individuals from serving in the military, but a federal district court issued a preliminary injunction against enforcement of the 2017 Memorandum. In 2018 the President revoked his 2017 Memorandum and authorized the Secretary of Defense to implement the policies he proposed based on a 44-page report. Defendants then requested that the district court dissolve its preliminary injunction, but the district court struck that motion. While defendants were appealing that order, the district court denied defendants' motion for a protective order of discovery and granted plaintiffs' motion to compel production of documents that defendants withheld under a claim of two executive branch privileges. Defendants then petitioned the 9th Circuit for a writ of mandamus challenging the discovery order.

In Karnoski v. Trump (9th Cir 06/14/2019) [PDF] the 9th Circuit:

(1) vacated the district court’s order striking the Defendants’ motion to dissolve the preliminary injunction and remanded to the district court to reconsider the motion. This was on the ground that the 2018 Policy was significantly different from the 2017 Memorandum. In evaluating whether the significant change warrants dissolution of the preliminary injunction, the 9th Circuit rejected the district court's strict scrutiny approach. "[T]he district court should apply a standard of review that is more than rational basis but less than strict scrutiny." In addition, the district court "must apply appropriate military deference to its evaluation of the 2018 Policy." "In applying intermediate scrutiny on remand, the district court may not substitute its 'own evaluation of evidence for a reasonable evaluation' by the military."

(2) issued a stay of the preliminary injunction (which had previously been ordered by the US Supreme Court).

(3) vacated the district court’s discovery order and directed the district court to reconsider discovery by giving careful consideration to executive branch privileges. These include the deliberative process privilege and the presidential communications privilege.

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SCOTUS: EEOC exhaustion is not jurisdictional

Monday's unanimous US Supreme Court Title VII decision in favor of the employee does not give employee-plaintiffs a free pass. Exhaustion of EEOC administrative processes is still required. All the Court did was say exhaustion is not a jurisdictional question that can be raised after five years of litigation. Employers can still get cases dismissed for failure to exhaust if they raise the issue early on in the litigation.

Fort Bend County v. Davis (US Supreme Ct 06/03/2019) [PDF]

The employee filed an EEOC charge claiming sex harassment. Later she wanted to add religion. So she wrote “religion” on the intake form, but she never revised the formal EEOC charging document.

Then she sued claiming religious discrimination, and the employer — after years of litigation — raised the question that the EEOC form had not been properly filled out. So the question was: is this a jurisdictional issue that the employer can raise at any time even the years later? Or is it a claims processing rule that the employer waived by waiting so long?

The US Supreme Court says it's non-jurisdictional.

So this is something the employer can raise but – use it or lose it.

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Physician loses Title VII case

A hospital terminated a physician's hospital privileges, and she thought she had a Title VII case. But she was not an employee of the hospital. Levitin v. Northwest Community Hosp (7th Cir 05/08/2019) [PDF].

The court applied a five-factor test: (1) the extent of the employer’s control and supervision over the worker, including directions on scheduling and performance of work; (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace; (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations; (4) method and form of payment and benefits; and (5) length of job commitment and/or expectations.

But let's face it. Control is the main factor. The court summarized that this way:

Levitin owned her own medical practice, billed her patients directly, and filed taxes as a self-employed physician. Northwest did not provide Levitin with employment benefits or pay her professional licensing dues. Moreover, Levitin’s work agreement with Northwest confirms her independence. She could set her own hours, subject only to operating-room availability; she could obtain practice privileges at other hospitals and redirect her patients to those locations; and she could use her own staff in surgeries. Most importantly, she made the treatment decisions for her patients.

The physician had a theory that the hospitals' peer-review committee (which recommended terminating her privileges) was exerting the kind of control that made her an employee. But the peer-review committee was reviewing her work after-the-fact. That's not the kind of control that turns her into an employee.

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$3.8 million verdict for a breastfeeding paramedic

She says the fire department didn't provide a proper place for lactation, and retaliated against her after she complained.

Employment Law Case of the Week.

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