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EMPLOYMENT LAW UPDATE:Hot Topics in 2017By: Janis L. Adams

MARO Spring Leadership Conference June 7, 2017

Agenda

• LGBT as a Protected Classification Under Title VII

• FMLA – Recent Cases (Interactive)• ADA – Recent Cases (Interactive)• Sex Harassment – Recent Cases

(Interactive)• Use of False Academic Credentials

LGBT as a Protected Classification Under Title VII

• Title VII does not expressly prohibit discrimination based on sexual orientation or gender identity

• Quickly evolving area of law• Varies from jurisdiction to jurisdiction in

federal and state courts• State laws and ordinances – include both

expansion of rights, and prohibition of rights

LGBT as Protected Classification Under Title VII

• U.S. Supreme Court has expanded LBGT rights by finding state and federal laws unconstitutional, but has not addressed Title VII

• Lawrence v. Texas (2003): Law prohibiting sexual activity between consenting adults of same-sex is unconstitutional

• Obergefell v. Hodges (2015): State laws prohibiting same-sex marriage are unconstitutional


• The Employment Non-Discrimination Act (ENDA) - federal legislation to change Title VII to expressly add categories of “sexual orientation” and “gender identity” as protected classes

• ENDA has been proposed in most congressional sessions since 1994


• Without EDNA, lawsuits for sexual orientation discrimination based on “sex” as a protected class under Title VII have traditionally been premised on “gender stereotyping,” which is prohibited by Title VII

• Gender stereotyping, however, is limiting, as it does not include all types of sex discrimination

• Recent federal court cases seek expanded interpretation of sex discrimination


• Federal district court (trial court) examples of expanded rights:– Isaacs v. Felder Services (M.D. Ala. 2015)

Federal district court in Alabama held that claims of sex orientation are cognizable under Title VII because “an allegation of discrimination base on sexual orientation is necessarily an allegation of sexual discrimination.”


• 7th Circuit: Hively v. Ivy Tech Comm College –In April 2017, the Seventh Circuit became the first federal appellate court to break with precedent when it decided to rehear and issue a new opinion on a lesbian professor’s lawsuit against her former employer in which she claims that she was passed over for job opportunities because of her sexuality


• Videckis v. Pepperdine (C.D. Cal. 2015) Federal district court in California held that “the line between discrimination based on gender stereotyping and discrimination based on sexual orientation . . . is illusory and artificial, and that sexual orientation discrimination is not a category distinct from sex or gender discrimination.”


• The decision reversed the July 2016 ruling by a conflicted three judge panel of the circuit which struggled with “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday” when ruling that claims for sexual orientation discrimination are not cognizable under Title VII


2nd Circuit: Zarda v. Altitude Express – A gay skydiving instructor was fired after a customer complained about his sexuality. In May 2017, the Second Circuit granted enbanc review to consider the question: “Does Title VII prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of . . . sex’?”


• 2nd Circuit: Christiansen v. Omnicom - In March 2017, the Second Circuit revived case filed by gay advertising executive alleging that his employer allowed him to be harassed over his perceived effeminacy. Two judges urged the court to revisit precedent set by its 2000 decision that Title VII does not cover sexuality, suggesting it may have erred in making that ruling.


• If the 7th and/or 2nd circuit courts rule in favor of the plaintiff on this issue, it would create a split in the circuit courts

• Such split may compel the U.S. Supreme Court to grant review of the case(s) and decide the issue

• Textbook situation for U.S. Supreme Court to grant certiorari and hear case


• Other cases involving transgender individuals and use of restrooms involving Title IX and Title VII:

• North Carolina’s HB2 law: Prohibited local governments from passing laws creating access for bathroom use by transgender individuals, and required transgender persons to use bathroom that corresponds to the sex on their birth certificate when in state buildings and public schools


• HB2 Law – In May 2016, U.S. Justice Department sued NC alleging law violates Title VII and Title IX because it treats transgender employees differently from similarly situated non-transgender employees by restricting their access to restrooms and changing facilities. NC counter-sued.


• In reaction to HB2, NCAA announced it would not allow North Carolina to host basketball championship games.

• On April 14, 2017, the lawsuits were dismissed after NC legislature repealed HB2 and replaced it with HB142, which limits local governments from passing access to restroom ordinances until 2020, and puts control of the issue in the hands of the state legislature.


• 4th Circuit - GG v. Gloucester Co. Sch Bd: A case involving a transgender boy alleging sex discrimination under Title IX after his school forced him to use a private bathroom, will be heard by Fourth Circuit

• The ruling will also impact the meaning of “sex discrimination” under Title VII


• Employer Best Practices based on current trends:– Review current policies to ensure they avoid

illegal gender stereotyping under Title VII– Be proactive in management of situations

involving employee gender transitions, and bathroom access rights

– Given the quickly evolving landscape, seek legal counsel to ensure compliance

FMLA Retaliation-Causation• Hartman v. Dow Chem. Co., (6th Cir. 2016):• Plaintiff administrative assistant took 12

weeks FMLA leave to have surgery; she returned to work part-time for one month and then resumed full-time work.

• Around the time she requested leave and after she returned, management noticed a discrepancy in the hours she claimed to have worked and her actual arrival and departure times; a review of time cards showed a 60 hour discrepancy.

FMLA Retaliation-Causation

• Plaintiff was terminated for time card fraud• Plaintiff sued, claiming retaliation • The case went to jury trial and the jury

found the employer had retaliated against the plaintiff based on her taking FMLA leave

FMLA-Retaliation-Causation

• Should the employer have fired employee?

• What questions would you have for the employer?

• What should the employer have done?• What are the legal issues?

FMLA Retaliation-Causation• 6th Circuit held: The court reversed on

appeal, holding that the close temporal proximity could not overcome evidence that the company had a good faith belief that she had committed time card fraud. The court noted that the company was not required to be exhaustive in its investigation to benefit from the honest belief doctrine, just reasonable.

FMLA – Family Member• Smith v. Senderra (E.D. Mich Mar 6, 2017)

An employee’s performance began to deteriorate and she was placed on a PIP

• After learning that employee’s daughter was sick, employer offered her information about FMLA

• The medical certificate specified employee required time off to take her daughter to medical appointments

FMLA-Family Member

• Plaintiff failed to show up for work or to notify her employer for 5 days, and employer sent termination letter

• Plaintiff brought an interference claim under FMLA

• Plaintiff claimed she needed to stay home with her sick daughter because she was uncomfortable leaving her alone

FMLA-Family Member

• What questions would you have for the employee?

• What questions would you have for the employer?

• What are the legal issues?• Who should prevail?

FMLA – Family Member

• Court held that plaintiff failed to show she was entitled to leave under FMLA because it was not medically necessary for her to stay at home with her daughter

• FMLA only allows leave when employee “needs to care” for a family member. Here, medical certification only specified time off for medical appointments

FMLA – Family Member

• The court noted that employees may take FMLA to provide psychological comfort to a sick child

• Here, the plaintiff told employer she needed to stay home because she was uncomfortable leaving her sick daughter alone - not because daughter was sick and needed care

ADA-Reasonable Accommodation

• Williams v. AT&T (6th Cir. 2017) Customer service rep suffered from depression and anxiety attacks. She requested as accommodations:– additional 10-minute breaks every 2 hours

due to stressful calls that triggered anxiety attacks

– flexible work start times, and – additional leave time


• What facts would you want to know?• What should the employer have done?• What are the legal issues?• Who prevails - employer or employee?


• Court held: Employer did not violate ADA by failing to accommodate because:– Additional breaks would not have alleviated

issue of stressful customer service calls triggering anxiety attacks given that employee’s attacks were unpredictable;


– Flexible start times would not have helped as employee’s disability rendered her unable to work for days or weeks; and

– Additional leave time was unreasonable, as employer had already granted employee leave and there was no clear prospect for recovery.

ADA-Direct Threat Defense

• Felix v. Wisconsin DOT (7th Cir. 2016) –• Employee who suffered from mental

health disabilities was terminated after she had a mental breakdown at work and an IME concluded that she remained at risk of repeating such behavior.


• Employee sued for disability discrimination and failure to accommodate, claiming employer had a history of disability discrimination


• What facts would you want to know?

• Was the employer right?

• What are the legal issues?


• Court held: The issue is not whether the employer tended to screen out persons with disabilities, but rather, whether the employer must tolerate threatening and unacceptable behavior because it results from the disability. Employee’s unacceptable behavior rendered her unqualified for the position.

Sex Harassment• Smith v. Rock-Tenn Servs (6th Cir. 2016) – Male

co-worker pinched and slapped a male employees’ buttocks and grinded his pelvis into employees’ backside; he only engaged in such conduct with male employees

• Employer defended on “mere horseplay”• Following complaint, employer took no action for

10 days and remediated by advising accused that further conduct would result in termination

Sex Harassment

• What additional facts would you like to know?

• What are the legal issues?

• Did the employer take the right action against accused?

Sex Harassment

• Court held: Jury finding that this was notmere horseplay was not unreasonable

• Fact that co-worker only engaged in such conduct with male co-workers was direct comparative evidence establishing an inference of discrimination based on sex

• Employer did not take prompt remedial action (10 days after notice of touching)

False Academic Credentials

• MCL 390.1601- Michigan’s Authentic Credentials in Education Act

• Effective July 2005 – rarely used• An Act to prohibit the issuance or

manufacture of false academic credentials; and to provide remedies

False Academic Credentials• The following facts* are from the book

“Degree Mills - The Billion-Dollar Industry that has Sold Over a Million Fake Diplomas” (2012) written by retired FBI Agent Allen Ezell and John Bear, PhD:

• *There are more than 3,300 unrecognized universities worldwide, many outright fakes, selling bachelor’s, master’s, doctorates, law and medical degrees to anyone willing to pay the price.


• *One international diploma mill with offices in Europe and the Middle East run by Americans has sold more than 450,000 degree to clients worldwide who did nothing more than write a check.

• *Their revenues exceeded $450,000,000


• *The number of earned PhD degrees in the U.S. is around 40,000-45,000 each year.

• *The number of fake PhDs bought each year from diploma mills exceeds 50,000.

• *In other words, more than half of all people claiming a new PhD have a fake degree.


• Diploma (or degree) mill: An organization that awards degrees without requiring its students to meet legitimate educational standards for such degrees and receives fees from it so-called students on the basis of fraudulent misrepresentation. These diploma mills do not have real classes, faculty, classrooms, or true academic requirements


• Where are the people with these fake degrees?

• *The Government Accountability Office looked for fake degrees among employees of less than 5% of federal agencies and found enough to suggest that more than 100,000 federal employees have at least one, many paid for by taxpayers

False Academic Credentials• Washington Post: “These high school

journalists investigated a new principal’s credentials; days later, she resigned.” Samatha Schmidt, April 5, 2017.

• Student journalists researched new principal and quickly found discrepancies in her education credentials (MS and PhD)

• The website didn’t work; there was no evidence of an accredited university


• What are costs to employers?– Incompetent and unqualified workers– Many at 100K plus salaries– Higher pay and increased retirement benefits – Reputation– Lawsuits

False Academic Credentials• What can employers do?

– Review resumes carefully– Reference checks– Background checks– Check whether alleged university or college is

approved academic credential website – Employees with fake degrees will frequently

have two degrees from the same university as diploma mills offer “deals” for two or more degrees


• Hire an independent investigator/attorney to evaluate the authenticity of degrees

• Don’t rely on actual diplomas or transcripts for proof – diploma mills also provide transcripts

• Take legal action against applicants and employees who use false academic credentials


• MCL 390.601 et seq – False Academic Credential – Use Prohibited– (1) An individual shall not knowingly use a

false academic credential to obtain employment, to obtain a promotion or higher compensation in employment

False Academic Credentials– (2) An individual who does not have an

academic credential shall not knowingly use or claim to have that academic credential to obtain employment or a promotion or higher compensation in employment

False Academic Credential

• Violation – A person damaged by a violation of this act may bring a civil action and may recover costs, reasonable attorney fees, and the greater of either the person’s actual damages or $100,000.

Janis L. AdamsSmith Haughey Rice & [email protected]

THANK YOU!

employment law update - independence | community · has sold over a million fake diplomas” (2012)...

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