Attorney General Jeff Sessions on October 4, 2017 issued a memorandum to all US Attorneys signaling a change in the previously articulated position of the United States Department of Justice (DOJ) on transgender employment discrimination. The memorandum, entitled Revised Treatment of Transgender Employment Discrimination Claims, states that in pending and future cases, the DOJ will take the position that Title VII of the Civil Rights Act of 1964 does not provide protection against discrimination based on gender identity. Sessions concedes that some federal courts have interpreted the law differently, and advises his US Attorneys to preserve the issue for “further review” or appeal.
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Department of Justice Contradicts EEOC in Sexual Orientation Discrimination Case
Our April 5, 2017 post highlighted a decision of the Seventh Circuit Court of Appeals finding that Title VII protections against discrimination on the basis of gender extend to sexual orientation. That court referenced US Supreme Court decisions such as the 2015 same sex marriage case, Obergefell v. Hodges, in concluding that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”
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Massachusetts High Court Reinstates Suit by Employee Fired for Off-Duty Medical Marijuana Use
In a highly-anticipated decision issued yesterday, the Massachusetts Supreme Judicial Court reversed a lower court’s dismissal of a suit filed by a woman who was fired because of her off-duty use of medical marijuana. The SJC held that the woman’s claims for disability discrimination under the Massachusetts antidiscrimination statute, G.L. ch. 151B, could go forward.
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New Survey Shows How Questions About Prior Salary Harm Female Job Applicants
One of the key provisions of the new Massachusetts Equal Pay Act (which goes into effect on July 1, 2018) is that it prohibits employers from requiring prospective employees to disclose their salary history. The reasoning behind this provision is as follows: if employers are allowed to ask applicants about their salary history, and base compensation on the answers to those questions, applicants who have been on the receiving end of discriminatory pay practices in the past will continue to be hampered by past pay inequity throughout their careers. If employers cannot base pay on what an applicant made previously, so the thinking goes, employers will have to set pay based on what the job is worth.
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Holder’s Advice to Uber: Focus on Tone at the Top, Trust, Transformation and Accountability
On June 13, 2017, Uber released to its employees excerpts of a damning independent investigation report authored by independent investigators Eric Holder and Tammy Albarran, attorneys with the law firm of Covington & Burling LLP. On February 19, 2017, former Uber engineer Susan Fowler published a blog post detailing allegations of harassment, discrimination and retaliation at the company during her tenure. She also decried the ineffectiveness of Uber’s policies and procedures in addressing such workplace issues. The very next day Uber hired Former Attorney General Holder and his law firm to conduct a review of the issues raised by Fowler as well as diversity and inclusion more broadly at Uber.
Continue Reading Holder’s Advice to Uber: Focus on Tone at the Top, Trust, Transformation and Accountability
Seventh Circuit Holds that Sexual Orientation is Protected by Title VII
Late yesterday, the Seventh Circuit became the first federal appeals court to hold that Title VII’s prohibition on discrimination on the basis of a person’s sex also extends to sexual orientation.
The plaintiff, who is a lesbian, was a part-time adjunct professor at a community college in South Bend, Indiana. She repeatedly and unsuccessfully applied for full-time teaching positions at the college, and ultimately, her part-time teaching contract was not renewed. She believed that the college was discriminating against her because of her sexual orientation, and she filed a claim with the EEOC, and later in federal court. The college moved to dismiss the lawsuit, arguing that she had failed to state a claim on which relief could be granted, relying on a string of cases from the Seventh Circuit and elsewhere holding that sexual orientation is not protected under Title VII. The district court agreed and dismissed the case. A three-judge panel of the Seventh Circuit upheld the dismissal. On further appeal, the full Seventh Circuit took “a fresh look” at its position on the issue, and ultimately decided to overrule its prior precedent.
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EEOC Unveils Its Enforcement Focus for Next 4 Years — 2017 to 2021
In October, the EEOC unveiled its four year Strategic Enforcement Plan (SEP). The SEP provides employers insight into areas the EEOC plans to focus on in the coming years. This heads-up plan allows companies to take steps to ensure their businesses are
Massachusetts Expands Gender Identity Protections
Effective October 1, 2016, “places of public accommodation” in Massachusetts are prohibited from discriminating against persons based on their gender identity. Under this new anti-discrimination law signed by Governor Charlie Baker this summer, places of public accommodation must allow individuals to use or access gender-segregated areas such as bathrooms and locker rooms consistent with their
One Step Closer to Closing the Pay Gap? EEOC Proposes Expanding EEO-1 Report
Co-written by: Jacqueline Botchman, a third year law student at the University of New Hampshire School of Law
The U.S. Equal Employment Opportunity Commission on Wednesday, July 13, 2016 publicized a revised proposal to expand pay data collection through the Employer Information Report (EEO-1). The proposed revision would require private employers and federal contractors with
Equal Pay for “Comparable Work” Becomes Law in Massachusetts
In a historic moment, yesterday, Governor Charlie Baker signed into law a comprehensive pay-equity bill aimed at eradicating the wage gap in Massachusetts. With the bill’s passage, Massachusetts has become the first state in the nation to prohibit employers from asking job applicants to provide a salary history during the interview process.
Supporters of the