The Obergefell Decision and Employers

The recent United States Supreme Court decision in Obergefell v. Hodges significantly altered the legal landscape with respect to same-sex marriages, finding that the Fourteenth Amendment to the United States Constitution requires all states to both license in-state same-sex marriages and recognize valid same-sex marriages performed out-of-state. The Court did not, however, go so far as to reach issues such as discrimination in employment or public accommodation. So, while legal same-sex marriage is the law of the land, those newly-married couples may face legal uncertainty when it comes to discrimination in public accommodations or their place of employment, unless contravening state law applies. That said, there are still several ways that the Obergefell decision and its counterpart, United States v. Windsor, will affect employers and employees.

Wedding Rings 3DAs an initial matter, Windsor changed how federal benefits applied to same-sex couples. Specifically, the Department of Labor published a final rule in February that defined a “spouse” for purposes of the Family and Medical Leave Act (“FMLA”) to include same-sex spouses if their marriage was legal in the place of celebration. Thus, employees can now take FMLA leave to care for sick or injured same-sex spouses. In addition, FMLA now provides leave for employees when a child is born or adopted, and Obergefell opened the door to more adoptions by same-sex married couples, which are now legal in the state of Kentucky.

The real issue for employers is how to treat same-sex spouses for purposes of employee benefits. Many employers offer benefits for employee spouses, but these benefits are not mandatory under state or federal law. Private business benefits plans covered by the Employee Retirement Income Security Act (“ERISA”) are required to provide qualified joint and survivor annuities (“QJSA”) as a form of retirement benefits in the case of all married employees. While the terms “spouse” and “marriage” include all legally-married same-sex spouses, ERISA allows private employers that choose to sponsor an employee health plan to determine who is an “eligible dependent” for the provision of health benefits. However, benefit plans that include exclusionary language and offer benefits only to opposite-sex spouses may come into conflict with what is now the legal definition of the word “spouse” in Kentucky, and employers should be wary of continuing policies that discriminate between same-sex and opposite-sex couples for the purposes of employee benefits.

Obergefell, Title VII of the Civil Rights Act of 1964, and Kentucky state law do not explicitly include same-sex individuals as a protected class for purposes of employment discrimination. However, employers should still be cautious and consider any local laws that prohibit discrimination in employment or public accommodations on the basis of sexual orientation or gender identity. In fact, the Equal Employment Opportunity Commission (“EEOC”) has already taken the position that any discrimination against LGBT employees is impermissible sex discrimination based on Title VII.

Although it will take some time for the legal consequences of Obergefell to become clear, employers should expect discrimination protections to expand.

For more information on how the Obergefell decision affects employers in Kentucky, contact the attorneys of McBrayer.

Amanda StubblefieldAmanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

This article is intended as a summary of state and federal law and does not constitute legal advice.

“Too Black”: Waitress’s Claim of Color Bias Raises Novel Title VII Claim

Title VII of the 1964 Civil Rights Act prevents discrimination in employment decisions based upon an employee’s race, color, religion, sex, or national origin. Bias claims based on a claimant’s skin color are nearly unanimously predicated upon bias against ‘race’ rather than ‘color.’ Circumstances can arise, as the Fifth Circuit found, where ‘color,’ rather than ‘race,’ is a discrete type of alleged discrimination. In a novel holding, the U.S. Court of Appeals for the Fifth Circuit ruled in Etienne v. Spanish Lake Truck & Casino Plaza, LLC that a separate claim of ‘color’ can provide the necessary foundation for a claim of discrimination based on ‘race.’

Esma Etienne worked for Spanish Lake Truck & Casino Plaza as a waitress and bartender, but she was passed over for a managerial position. Spanish Lake then filled the position with a white employee, one claimed by Etienne as being less qualified for the job. The casino countered Etienne’s claim of racial bias by showing that five of the casino’s six management positions were filled by African-Americans. The Fifth Circuit, however, found that the issue of Etienne’s color, rather her race itself, played a key role in the decision to keep her from advancing. Etienne’s affidavit noted that the general manager granted responsibilities to employees based on their skin color, and that he wouldn’t permit “a dark skinned black person” to handle money. She also stated that she was told on several occasions that the manager thought she was “too black” to do various tasks at the casino. The court ultimately held that the district court was in error for granting summary judgment for the casino in finding a lack of racial bias, holding that a ‘color’ claim, despite being a novel claim under past jurisprudence, is within the “clear and unequivocal” wording of Title VII and thus permissible as a claim.

This is the first time that a ‘color’ claim under Title VII succeeds as aExpel separate and distinct claim from ‘race’ in Federal Court at the appellate level and is likely a bellwether, opening the door for a new form of Title VII claim. Employers should take this is an opportunity to review equal opportunity and antidiscrimination policies, as well as train employees thoroughly such policies and any impermissible conduct.

For more information about Title VII issues and what policies and training employers should have in place, please contact the attorneys of McBrayer, McGinnis, Leslie & Kirkland.

Ben RiddleBenjamin L. Riddle  is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or briddle@mmlk.com

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

Employment at Will Comes with Many Exceptions

Kentucky employment law generally recognizes that most employment is “at-will” – meaning, employees serve at the pleasure of the employer, and termination of an employee does not require “just cause.” There are several circumstances, however, where laws and other factors prohibit employers from terminating an employee without a well-documented showing of cause. Employers should be aware of the circumstances under which they may not terminate an employee without just cause.

  • Employers and employees may change the at-will nature of employment through mutual agreement. An employment contract may delineate a term of employment, such as in a multi-year contract for high-level employees. Collective bargaining agreements in unionized employment settings generally contain contract provisions requiring a certain showing before employment may be terminated. There are also circumstances where an employer has led an employee to believe there is an implied contract for employment and words to that effect can be raiFired Office Workersed by an employee in a claim against the employer. If an employer has a specific policy regarding termination, the employer must follow that policy when terminating an employee. Employment at different levels of government is also generally subject to more extensive termination policies.
  • Federal and state anti-discrimination laws prevent the termination of an employee on the basis of race, color, religion, sex, national origin, age, disability, or veteran status. While there is not currently state protection of sexual orientation in Kentucky, local statutes in several cities and counties do provide some protection for lesbian, gay, bisexual and transgender employees. Employers also must make reasonable accommodations for disabled employees as well.
  • The Family and Medical Leave Act (“FMLA”) provides eligible employees with job protections through limited periods of illness or certain other situations. Employers cannot terminate an employee who is both eligible for FMLA leave and is taking time off work to deal with an FMLA-protected illness or family situation. The employer must also provide notice of the employee’s eligibility for the leave as well.
  • While many exceptions may seem obvious, some are not. The National Labor Relations Act (“NLRA”), for instance, has been interpreted by the National Labor Relations Board (“NLRB”) in a series of recent decisions to prohibit firing employees for certain critical comments made against employers on social media. Employees have certain rights with respect to their communications about the work place with other employees, even in such a public forum as social media.
  • Public policy and common law exceptions to at-will employment policies are numerous. For instance, employees cannot be fired in retaliation for reporting an employer’s violation of law to relevant authorities or for exercising a statutory right such as a filing a workers’ compensation claim.

As seen above, “at-will” employment carries with it a host of exceptions, and employers must take careful stock of the purpose for terminating an employee and what laws or regulations apply. Whenever possible, employers should also carefully document misconduct and other determining factors applicable to the termination of an employee to best defend against a claim for wrongful termination.

For more information on at-will employment in Kentucky or other employment law matters, please contact the attorneys at McBrayer.

Ben RiddleBenjamin L. Riddle  is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or briddle@mmlk.com

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

Pregnancy Discrimination in the Workplace – The Supreme Court Weighs In on Employer’s Duties

In our previous blog post, we discussed and detailed the Pregnancy Discrimination Act and the stringent Enforcement Guidelines distributed by the EEOC this summer. On December 3rd, the United States Supreme Court will hear oral argument in Young v. United Parcel Service, and decide whether the EEOC interpreted the Pregnancy Discrimination Act correctly in deciding that an employer is “obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits.”

Pregnant office worker walking with folders in the office

 

 

 

Young v. UPS arose because Peggy Young, a female delivery driver for UPS, became pregnant and asked for a light-duty assignment due to a twenty-pound lifting restriction recommended by her doctor and midwife. After Young approached the appropriate representative at UPS, her request was denied because her situation did not fall within the limited situations in which UPS will grant light-duty assignments. In response to UPS’s refusal to accommodate her, Young took unpaid leave and sued UPS for pregnancy discrimination. The federal district court and the Court of Appeals for the Fourth Circuit found in favor of UPS. Specifically, the Fourth Circuit held that UPS had “crafted a pregnancy-blind policy.” Subsequently, Young (the plaintiff-appellant) appealed to the United States Supreme Court for review, and the petition seeking review was granted. Two weeks later, the EEOC released new Enforcement Guidance on pregnancy discrimination in the workplace, discussed in detail in Monday’s blog.

Both Young’s and UPS’s arguments focus on the text of the Pregnancy Discrimination Act. Briefly, UPS relies on its Collective Bargaining Agreement, which establishes three situations where UPS may make alternative work assignments available to workers: (1) injuries sustained on the job, (2) employees who have a cognizable impairment under the ADA, and (3) drivers who lose their Department of Transportation certification because of a failed medical examination, a revoked or suspended driver’s license, or involvement in a motor vehicle accident. Thus, UPS asserts that light-duty assignments were unavailable under the policy to all employees, pregnant or not pregnant, who were unable to perform their normal work assignment due to lifting restrictions or other physical conditions. Likewise, UPS claims that if a pregnant worker did qualify under a category of accommodation, she would receive a light-duty work assignment. Lastly, UPS urges the Court to recognize that Young’s reading of the Pregnancy Discrimination Act would mandate special treatment for pregnant employees, obligating an employer to provide an accommodation to her if the same accommodation has ever been provided to any other employee for any reason, a difficult requirement for employers to meet.

On the other hand, Young claims that because light-duty assignments are provided for other employees, including employees who suffer off-the-job injuries or medical conditions that cause them to lose their Department of Transportation certification, UPS’s failure and refusal to provide accommodated workers who experience similar work restrictions due to pregnancy creates a disparity that violates the Pregnancy Discrimination Act’s requirement that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same … as other persons not so affected by similar in their ability or inability to work.”

As mentioned above, this important issue is now up to the United States Supreme Court to decide. However, it should be noted that the current law in Kentucky was established in a case before the Sixth Circuit, whose rulings apply to all Kentucky employers, and conflicts with the Fourth Circuit’s holding in Young v. UPS. In Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996), the Sixth Circuit determined that the district court erred in granting summary judgment for the defendant and that the plaintiff had established a prima facie case of discrimination where she alleged that the United States Postal Service discriminated against her in violation of the Pregnancy Discrimination Act by refusing to grant her benefits and alternative duties, which were available to temporarily disabled employees, while she was pregnant. Therefore, the Supreme Court’s decision in Young v. UPS could reverse or solidify the law pronounced by the Sixth Circuit in 1996, and is one for Kentucky employers to keep a close eye on.

Amanda Stubblefield

 

 

 

 

Amanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

This article is intended as a summary of state and federal law and does not constitute legal advice.

Employment Law Cases To Watch During U.S. Supreme Court’s New Term

The Supreme Court of the United States began its new term on Monday, October 6, 2014. Typically, the Court hears between 60-70 oral arguments per year and reviews approximately another 50-60 more cases on briefs alone. This year, there are two significant employment discrimination cases on the docket.Gavel on court desk

 

 

The first is Young v. United Parcel Service, set to be heard on December 3. In this case, the Court will decide whether the Pregnancy Discrimination Act (“PDA”) requires an employer that provides work accommodations to non-pregnant employees with work limitations to accommodate pregnant employees who are “similar in their ability or inability to work.” The plaintiff is Peggy Young, a UPS delivery driver who became pregnant and whose doctor recommended that she refrain from lifting packages heavier than 20 pounds. UPS denied Young’s request for accommodation, even though the company had a practice of giving light duty assignments to other employees who were temporarily unable to perform their jobs. UPS instead forced Young to take an extended, unpaid leave of absence until she could return to work after child birth. In addition to wages, Young lost her medical insurance during her leave.

Young sued UPS under the PDA, which amended Title VII of the 1964 Civil Rights Act definition of “discrimination” to include discrimination in employment “because or on the basis of pregnancy, childbirth, or related medical expenses.” The district court granted summary judgment, ruling that UPS did not discriminate against Young, because its policy was based on “gender-neutral,” “pregnancy-blind” criteria, such as whether an employee was injured on or off the job. The Fourth Circuit Court of Appeals upheld the judgment, concluding that the plaintiff did not present any direct evidence of pregnancy discrimination.

The second case, EEOC v. Abercrombie & Fitch Stores, touches on religious liberty. Teenager Samantha Elauf, a Mulsim, wore a head scarf during her 2008 interview for a position at Abercrombie Kids. Ms. Elauf’s religion was not discussed during the interview. Later, a district manager said that, under the company’s “Look Policy,” employees were not allowed to wear hats to work. Ms. Elauf was then given a low score in the company’s “appearance and sense of style” part of the evaluation, and was not offered a job.

A federal trial judge found the company liable for discrimination, determining that Abercrombie knew Ms. Elauf wore the head scarf for religious reasons. Subsequently, a jury awarded the claimant $20,000 in damages. The appellate court reversed the decision, holding that Ms. Elauf never explicitly notified the company that she had a religious practice that conflicted with company policies. The EEOC said in its petition for review that the ruling could affect civil rights protections in a large number of cases, because job applicants will not always know when their religious practices might present an issue that needs to be addressed with an employer.

Watch this space for details on how the Court rules in these important cases.

Kembra Sexton Taylor

 

 

 

 

Kembra Sexton Taylor, a partner located in the firm’s Frankfort office, practices in the areas of labor and employment, personnel, administrative, regulatory, appellate, and insurance defense law. She has extensive experience in representing clients regarding wage and hour, OSHA, state personnel, and other regulatory matters. She can be reached at taylor@mmlklaw.com or (502) 223-1200.

This article is intended as a summary of federal and state law and does not constitute legal advice.

More Transparency on Horizon for Federal Contractors

The U.S. Department of Labor (“DOL”) has issued a proposed rule that would bar federal contractors from firing or discriminating against employees or applicants who discuss their pay, or the pay of their co-workers. The proposal comes after President Obama’s executive order in April, which instructed the DOL to issue a rule requiring pay transparency among federal contractors.

According to the Office of Federal Contract Compliance (“OFCCP,” a sub-agency of the DOL), pursuant to the rule, federal contractors or subcontractors would be banned from firing or otherwise discriminating against any employee or applicant for discussing, disclosing, or inquiring about their compensation or that of any other employee or applicant. The rule would also require that federal contractors include the nondiscrimination provision in their handbooks and manuals. The rule would also add definitions for key words such as “compensation,” “compensation information,” and “essential job functions.”

OFCCP believes that existing pay secrecy policies interfere with the requirement that those who work for federal contractors be compensated for merit and that such policies can lead to decreased worker productivity, due to employees’ decline in trust and motivation. The proposal was published on September 17, 2014, in the Federal Register and is open for comment until December 16, 2014.

In addition to the ban on pay secrecy policies, the DOL also recently proposed another rule which would require most federal contractors and subcontractors annually to submit Equal Pay Reports on employee compensation to OFCCP. The aim of that rule is to collect summary data on how federal contractors and subcontractors pay their employees, with an eye toward identifying potential gender-based and race-based pay disparities.

In anticipation of these rules becoming final, employers should review and revise current compensation systems with legal counsel. Compensation disparity issues should be identified and addressed immediately in order to minimize future risks.

B. Koch

 

 

 

 

Brittany Blackburn Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

EEOC Sues Home Care Agency for GINA Violation

On September 17, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued a press release announcing it is suing BNV Home Care Agency, Inc. (“BNV”) for practices that are prohibited by the Genetic Information Nondiscrimination Act (“GINA”).

GINA prevents employers from requesting genetic information, including family medical history, or using that information in the hiring process. According to the release, BNV asked for family medical history from a class of thousands of applicants and employees through an “Employee Health Assessment” form. BNV applicants were required to complete the form after a job offer was made, but before hire. Employees had to complete the form annually.

Patient Medical History Form

 

BNV should serve as an important reminder that neither employers nor contracted third-party providers (i.e., doctors’ offices that conduct employment-related physicals or tests on the employers’ behalf) should use forms that ask for applicants or employees to disclose family medical history. In January 2014, just ten months after the EEOC filed its first systemic lawsuit alleging violations of GINA against a nursing and rehabilitation care facility, the agency settled the case for $370,000.  At the time, the EEOC warned that, “When illegal questions are required as part of the hiring process, the EEOC will be vigilant in ensuring that no one is denied employment opportunities on a prohibited basis.” In addition, addressing emerging and developing issues in equal employment law, which includes genetic discrimination, is one of the six national priorities identified by the EEOC’s Strategic Enforcement Plan. In short, employers can be sure that the EEOC is on high alert for any employment practices that may violate GINA.

Don’t risk the legal liability. If you are an employer and have questions about GINA or your employment-related forms, contact a McBryer attorney today.

B. Johnson

 

 

 

 

Brandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.