In a unanimous decision, the U.S. Supreme Court held that an employee’s failure to exhaust administrative remedies is not a jurisdictional prerequisite to filing a lawsuit, rather it is a procedural requirement that could be waived by the employer’s failure to timely raise the issue.
In Fort Bend County, Texas v. Davis, --- S.Ct. ---- (U.S. June 3, 2019) the plaintiff, Davis, filed a charge of discrimination alleging sex discrimination and retaliation. While that charge was pending, Davis was told to report to work on a Sunday. When Davis refused due to a prior church commitment, her employment was terminated. Intending to amend her earlier charge, Davis submitted an EEOC Intake Questionnaire on which she handwrote “religion” under “Harms or Actions” and checked the boxes for “discharge” and “reasonable accommodation.” However, Davis made no change to her formal charge of discrimination document to allege discrimination on the basis of her religion.
The Missouri Supreme Court held on Feb. 26, 2019, that under the Missouri Human Rights Act (MHRA), sex-based stereotypical attitudes can form the basis of a sex discrimination claim when the complaining party is homosexual. While finding sexual orientation is not protected under the MHRA, and standing alone, the characteristic of being lesbian, gay, or bisexual cannot sustain a sex stereotyping claim, the court’s holding does offer greater protections for LGBTQ employees in Missouri.
2018 was a relatively quiet year in federal employment law developments, but the stage is set for a much more active 2019. Below is a summary of major federal employment law headlines and a look at what employers can expect in 2019.
For Missouri and Illinois employers, a review of 2018 state updates and a look forward at 2019 can be found here.
In an age when companies are more progressive than ever and employers are focused on keeping employees happy and healthy, employee benefits such as vacation days and paid leave are on the rise. Bloomberg reports that more than one in three U.S. employers now offers paid maternity leave beyond the amount required by law, up from one in six earlier this decade. Similarly, benefits such as paternity leave for new fathers and parental leave for new adoptive parents and same-sex couples have become more common.
In recent years, “English-only” workplace policies have garnered increased scrutiny under employment discrimination laws on the state and national levels. Employers with these policies need to take note of recent updates to state statutes and regulations governing the lawfulness of “English-only” workplace policies and the overall broadening scope of other bases for discrimination claims.
On June 4, 2018, the U.S. Supreme Court released its long-awaited decision in Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, 584 U.S. ___ (2018), which examined whether a Colorado bakery violated that state’s Anti-Discrimination Act by refusing to bake a wedding cake celebrating a same-sex marriage ceremony. While a 7-2 majority of the court sided with the bakery, the much-anticipated decision left more questions unanswered than answered. The decision and concurring and dissenting opinions can be read here.
The U.S. Department of Health and Human Services (HHS) earlier this year announced that it would create a new division within the Office of Civil Rights (OCR) to enforce certain federal laws to protect religious freedom and the rights of conscience of workers in health and human services. This new Conscience and Religious Freedom Division will provide an avenue for HHS to more aggressively enforce laws protecting the rights of conscience and religious freedom.
In a landmark decision released April 4, 2017, the Seventh Circuit Court of Appeals ruled that Title VII protection extends to sexual orientation. The Seventh Circuit has become the first appeals court to rule in such a manner, directly contradicting the recent decisions of the Eleventh and Second Circuits.
The 11th Circuit Court of Appeals created a likely split in federal courts of appeals this week when it upheld a district court’s dismissal of a complaint alleging harassment on the basis of sexual orientation.
The 11th Circuit’s decision in Jameka Evans v. Georgia Regional Hospital rested on the ground that discrimination on the basis of an employee’s sexual orientation is not prohibited under Title VII of the Civil Rights Act (Case No. 15-15234). The plaintiff in this case, a former hospital security guard, alleged that she was harassed because she is a lesbian and because she did not conform to gender norms. As precedent for its decision, the 11th Circuit cited to a 1979 case out of the 5th Circuit (Blum v. Gulf Oil Corp., 597 F.2d 926).
With a new year and a new presidential administration, the restroom access debate is a hot topic again.
On Feb. 22, 2017, the Trump administration withdrew the Obama-era directive to public schools that instructed schools to permit transgender students access to restrooms and locker rooms that correspond with their expressed gender identity or risk violating Title IX’s prohibition on sex discrimination. The Trump administration clarified that its action in rescinding President Obama’s guidance was not an attack on the LGBTQ community, but an action taken on the premise that this is a state’s rights issue. Education Secretary Betsy DeVos explained in a statement: “We have a responsibility to protect every student in America and ensure that they have the freedom to learn and thrive in a safe and trusted environment…This is an issue best solved at the state and local level. Schools, communities, and families can find — and in many cases have found — solutions that protect all students.”