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April 19, 2019 |
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In O’Daniel v. Industrial Service Solutions, the 5th Circuit Court of Appeal reaffirmed its position that sexual orientation is not a protected class under Title VII of the Civil Rights Act, including heterosexual orientation. Specifically, “’[s]ex’ discrimination has been held to encompass discrimination based on sexual harassment or sexual stereotyping,” but does not include sexual orientation.
There, an HR manager posted to her personal Facebook account a picture of a man in a dress shopping at Target and objecting to his ability to use female facilities with the employee’s daughters. When her supervisors, one of whom is a member of the LGBTQ community, became aware of the post, they attempted to terminate her employment, but ultimately disciplined her. Subsequently, the employee claimed, in part, she was subject to discrimination and retaliation by her supervisor following the Facebook post, because she was heterosexual and she opposed discrimination on the basis of her heterosexual orientation.
The court stated that because sexual orientation is not protected under Title VII, opposing her alleged discriminatory treatment as a heterosexual was not a protected activity.
Action Items
- Have discrimination policies reviewed for consistency with this ruling.
- Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.
© 2019 ManagEase
EEO-1 Component 2 Reporting for 2017 AND 2018 is Due September 30, 2019
/0 Comments/in HR Alerts /by ManagEaseAPPLIES TO
All Employers subject to EEO-1 Reporting
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May 1, 2019
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The Equal Employment Opportunity Commission (EEOC) recently issued reinstatement of EEO-1 expanded data collection requirements and posted notice on its website that EEO-1 filers are required to submit Component 2 data for calendar years 2017 AND 2018 by September 30, 2019. (EEO-1 filers include employers with one hundred or more employees as well as certain contractors with more than fifty employees.) This has been an ongoing issue since the requirement to collect Component 2 data was implemented in 2016, and the Office of Management and Budget’s (OMB) attempt to block its implementation in 2017. As previously reported, in Nat’l Women’s Law Ctr. v. Office of Mgmt. & Budget, a federal judge in the D.C. Circuit Court stated that the OMB failed to demonstrate good cause for staying the release of the updated EEO-1 report form.
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Class Action Arbitration Cannot Be Compelled Without an Express Agreement
/0 Comments/in HR Alerts /by ManagEaseAPPLIES TO
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April 24, 2019
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In Lamps Plus, Inc. v. Varela, the U.S. Supreme Court recently stated that arbitration agreements must state an express agreement to arbitrate class claims between the parties; otherwise, claims brought on a class basis can be compelled to individual arbitration. There, an employee sued Lamps Plus for leaking private tax information that led to someone filing a fraudulent tax return under the name of the employee. Lamps Plus sought to compel arbitration of the employee’s claims; however, because the arbitration agreement was ambiguous about class claims, the lower courts allowed the employee’s class claims to proceed in arbitration.
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NLRB: Employees Can Discuss Discipline
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April 15, 2019
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The National Labor Relations Board (NLRB) recently released an Advice Memorandum dated August 7, 2018, addressing policies prohibiting employees from publicly disparaging the employer. Specifically, a policy that prohibits employees from “engaging in conduct that could adversely affect [the employer’s] business or reputation,” including “publicly criticizing [the employer], its management, or its employees,” was a violation of the National Labor Relations Act (NLRA), because the impact on employees’ Section 7 rights outweighed the employer’s business justification for the rule. This was a blanket policy that was not narrowly tailored to avoid infringing on employee rights, i.e., “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
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5th Circuit: Title VII Does Not Protect Sexual Orientation, Which Includes Heterosexual Orientation
/0 Comments/in HR Alerts /by ManagEaseAPPLIES TO
All Employers with Employees in LA, MS, and TX
EFFECTIVE
April 19, 2019
QUESTIONS?
Contact HR On-Call
(888) 378-2456
In O’Daniel v. Industrial Service Solutions, the 5th Circuit Court of Appeal reaffirmed its position that sexual orientation is not a protected class under Title VII of the Civil Rights Act, including heterosexual orientation. Specifically, “’[s]ex’ discrimination has been held to encompass discrimination based on sexual harassment or sexual stereotyping,” but does not include sexual orientation.
There, an HR manager posted to her personal Facebook account a picture of a man in a dress shopping at Target and objecting to his ability to use female facilities with the employee’s daughters. When her supervisors, one of whom is a member of the LGBTQ community, became aware of the post, they attempted to terminate her employment, but ultimately disciplined her. Subsequently, the employee claimed, in part, she was subject to discrimination and retaliation by her supervisor following the Facebook post, because she was heterosexual and she opposed discrimination on the basis of her heterosexual orientation.
The court stated that because sexual orientation is not protected under Title VII, opposing her alleged discriminatory treatment as a heterosexual was not a protected activity.
Action Items
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.
© 2019 ManagEase
Arkansas: 2019 Legislative Employment Updates
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All Employers with AK Employees
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As indicated
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The Arkansas state legislature’s 2019 session ended on April 10, 2019 with several changes to employment-related laws. Key points are summarized below. All bills go into effect on July 23, 2019 unless otherwise stated.
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Kentucky: New Pregnancy Accommodation Law Coming Soon
/0 Comments/in HR Alerts /by ManagEaseAPPLIES TO
All Employers with 15 or more KY Employees
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June 27, 2019
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Earlier this year, the Kentucky legislature passed the Kentucky Pregnant Workers Act (the Act), building on federal anti-discrimination protections for pregnant workers and adding new requirements for accommodations. Under the Act, covered employers are required to provide reasonable accommodations with regard to pregnancy, childbirth, or related medical conditions.
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Maine: Salary History Inquiry Ban and Equal Pay Update
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September 17, 2019
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Governor Janet Mills recently signed L.D. 278 prohibiting employer inquiries into the salary history of job applicants until after an offer of employment is made stating “all terms of compensation,” except where federal or state law otherwise requires disclosure or verification of compensation information for employment purposes. Any attempt to directly or indirectly (including through an employment agency) obtain compensation information from a job applicant before an offer of employment has been made, qualifies as unlawful employment discrimination under the Maine Human Rights Act.
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Massachusetts: Paid Family and Medical Leave Deadlines Extended and Notices Issued
/0 Comments/in HR Alerts /by ManagEaseAPPLIES TO
All Employers with MA Employees
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May 1, 2019
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(888) 378-2456
In July 2018, Massachusetts signed H. 4640 – also called the “grand bargain” – into law, which included implementation of a state-mandated paid family and medical leave program starting January 1, 2021. To prepare for rollout of this program, employers were required to provide their workforce notice of the new leave by May 31, 2019. The Massachusetts Department of Paid Family and Medical Leave (PFML) recently extended two pending deadlines: (1) written notice to employees of their rights under the PFML must be provided by June 30, 2019; and (2) companies can file an application for a private plan exemption up to September 20, 2019. The PFML program is funded through an employee payroll tax with a supplementary amount paid by employers.
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New Mexico: What’s New in New Mexico? A Lot of Employment Laws
/0 Comments/in HR Alerts /by ManagEaseAPPLIES TO
All Employers with NM Employees
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June 14, 2019 (Unless otherwise noted)
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New Mexico employers, brace yourselves: new employment laws are coming. The state legislature has enacted a flurry of new laws that affect employment practices, covering a variety of areas like gender-neutral bathrooms, unions, health benefits, medical marijuana, and leave time. Below is a summary of key provisions in these legislative updates. Unless otherwise noted, all provisions will take effect on June 14, 2019.
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New York, NY: New Sexual Harassment Prevention Training Video and FAQs Now Available
/0 Comments/in HR Alerts /by ManagEaseAPPLIES TO
All Private Employers with New York City, NY Employees
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April 1, 2019
QUESTIONS?
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(888) 378-2456
Last summer, the New York City mayor signed a packet of bills into law that greatly expanded employee protections and employer responsibilities with regard to sexual harassment prevention. Among these bills was a new requirement to provide sexual harassment training to employees incorporating specified topics on an annual basis. Training must be completed by December 31, 2019, although New York state regulations also contain a training requirement that must be fulfilled by October 9, 2019.
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