Labor & Employment Law Section
By Sean F. Herrmann
Practitioners in our field have grown accustomed to seeing others’ dismay as they discover that Title VII does not bar sexual orientation discrimination. “That can’t be true—it’s 2017!” For decades, the prevailing belief, and reality, was that employers could discriminate against employees on the basis of their sexual orientations with relative impunity and the wronged employees would generally have no legal recourse. Hardened employment lawyers got used to this, but for most people this situation was nearly impossible to comprehend.
That common-sense disbelief has finally led somewhere. On April 4, 2017, the full 7th Circuit U.S. Court of Appeals, in an 8-3 decision, ruled that sex discrimination extends to sexual orientation. The case is Hively v. Ivy Tech Community College of Indiana, No. 15-1720, (7th Cir. Apr. 4, 2017) (https://assets.documentcloud.org/documents/3536022/Hively-Opinion.pdf_) and we should get to know it.
Kimberly Hively, the plaintiff-appellant, was a part-time, adjunct professor at Ivy Tech Community College. She was, as the court put it, “openly lesbian.” Hively applied for six full-time positions and received none of them. Ivy Tech eventually decided not to renew her existing contract. Without the assistance of counsel, Hively filed an EEOC Charge that bluntly stated, “I believe I am being discriminated against based on my sexual orientation. I believe I have been discriminated against and that my rights under Title VII of the Civil Rights Act of 1964 were violated.”
By Kevin Murphy
The repeal of House Bill 2 ends a year of high drama in The Old North State, but many challenges remain for the LGBTQ community. Gone is the clause prohibiting anyone from using a restroom other than that which corresponds to their birth certificate. But also missing is any protection affirmatively granting transgender, genderqueer, and gender nonconforming people the right to use the restroom corresponding to their gender identity.
This vacuum is a return to the status quo pre-HB2. For publicly owned facilities, gone is the worry that using the restroom is against the law. Without any legal protection, however, the simple act of using the restroom continues to be dangerous in light of potential harassment or physical aggression from others in the bathroom.
As to private employers, it remains legal in North Carolina to deny someone employment or access to public accommodations on the basis of their sexual orientation or gender identity following this repeal. Local governments are powerless to provide otherwise until Dec. 1, 2020.
Labor & Employment Section
By Laura J. Wetsch
On March 23, 2016, the General Assembly enacted, and Gov. McCrory signed, HB2, which became Session Law 2016-3. On July 18, 2016, Gov. McCrory “approved” HB169 (the legislative “fix”), which became Session Law 2016-99.
On the one-year anniversary of HB2, the NCAA set a deadline of March 30, 2016, for North Carolina to repeal HB2 or be eliminated as a possible venue for hosting any NCAA championship games through 2022. Accordingly, on March 30 the General Assembly filed, passed, and Gov. Cooper signed, HB142, which repeals both S.L. 2016-3 and S.L. 2016-99, and amends NCGS § 143-760 (created by HB2) to prevent any “local government in this State” from enacting or amending “an ordinance regulating private employment practices or regulating public accommodations” until Dec. 1, 2020 (at which point that provision expires), and preempt regulation of access to multiple occupancy restrooms, showers or changing facilities by “State agencies, boards, offices, departments, institutions, branches of government, including the University of North Carolina and the North Carolina Community College System, and political subdivisions of the State, including local boards of education,” “except in accordance with an act of the General Assembly.”
Labor & Employment Law Section
By Laura J. Wetsch
In July 2016, and again on Dec. 14, 2016 (during the fourth special session ostensibly called to deal with HB2), N.C. House representatives introduced bills to statutorily exempt franchisors from responsibility and liability regarding North Carolina’s wage and hour, OSH, Workers Comp, and unemployment insurance requirements. The proffered language created a new statute (N.C.Gen.Stat. § 95-25.24A) providing,
“Neither a franchisee nor a franchisee’s employee shall be deemed to be an employee of the franchisor for any purposes, including, but not limited to, this Article and Chapters 96 and 97 of the General Statutes. For purposes of this section, “franchisee” and “franchisor” have the same definitions as set out in 16 C.F.R. § 436.1.”
Labor & Employment Law Section
By Joseph S. Murray IV
The U.S. Court of Appeals for the 4th Circuit and the N.C. Court of Appeals issued the following employment law opinions in the past several weeks:
From the U.S. Equal Employment Opportunity Commission:
The Charlotte District Office of the U.S. Equal Employment Opportunity Commission (EEOC) is one of five offices that will pilot the EEOC Online Inquiry and Appointment System, the district office announced this week. The system launched on March 13, 2017, and will allow people who live or work within 100 miles of the district office the ability to electronically submit an inquiry and schedule an in-person interview. The initial inquiry and interview are key initial steps for individuals seeking to file a charge of discrimination with the EEOC.
The EEOC receives about 200,000 inquiries per year through the mail, in person and by phone, and about 90,000 of those inquiries become formal charges of discrimination filed with the agency, making the charge-filing process the agency’s most common interaction with the public. This new online system is part of the EEOC’s ACT Digital initiative to improve service to the public, streamline the administrative process, and reduce the use of paper submissions and files.
People can access the Online Inquiry and Appointment System at https://publicportal.eeoc.gov/Portal/ or from the EEOC’s website at https://www.eeoc.gov/employees/online_inquiry.cfm. The agency plans to evaluate the public’s experience with the new system prior to a nationwide rollout later this fiscal year.
“The Charlotte District Office is pleased to be one of the offices selected for the rollout of the Online Inquiry and Appointment System,” said EEOC Charlotte District Director Reuben Daniels, Jr. “We recognize that more than ever online systems are being used to request services and to conduct business. This system is a way for us to increase our interaction with, and be accessible to, the public we serve. We are available to answer questions and respond to feedback from users and can give presentations on the system for stakeholder organizations. I am confident this system will be as well received as the other phases of ACT Digital.”
The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.
By Michael A. Kornbluth
On March 6, 2017, the Supreme Court remanded a case about a transgender boy’s right to use the bathroom associated with his gender identity. Gavin Grimm, a transgender boy, wanted to use the boys’ restroom at his high school. After Gavin had been using the boys’ restroom for seven weeks with the school’s permission, the local school board passed a policy that banned Gavin Grimm from using the boys’ restroom. Gavin Grimm filed for an injunction to use the bathroom based on his gender identity.
The U.S. District Court for the Eastern District of Virginia, 122 F. Supp. 3d 736 (2015), dismissed Grimm’s Title IX claim. On appeal, the primary issue for the 4th Circuit was whether Title IX requires schools to provide transgender students restroom access that comports with the student’s gender identity as stated in 34 CFR 106.33. G.G. v. Gloucester County School Board, 822 F.3d 719 (2016). The regulation permits the provision of “separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities for students of the other sex.” On Jan. 7, 2015, the Department of Education’s Office for Civil Rights interpreted 34 C.F.R. 106.33 as requiring that if a school treats students differently due to their sex, the school must also treat transgender students consistent with their identity.
By Faith Herndon and Laura Wetsch
This is your weekly update of bills introduced or moving through the legislature. Last week’s blog post listed a variety of bills and their current status. This update will only describe new legislation or updates on significant bills already introduced. If a bill is moving between committees and/or going nowhere we will not necessarily have updated it for you. Again, many of the listed bills are not necessarily going to be enacted, and all are still subject to being rewritten. Here is this week’s update:
By Michael B. Cohen
Beyond requiring that employers comply with statutory minimum and overtime wage provisions for nonexempt employees, the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., renders it unlawful for employers to retaliate against employees for asserting their rights under the law. Employers are prohibited from “discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA].” 29 U.S.C. § 215(a)(3). Retaliation claims under this section generally require the performance of a “protected activity” by an employee, such as filing a complaint, a subsequent “adverse action” by an employer, such as terminating or demoting an employee, and a “causal connection” between the protected activity and the adverse action. It is well established that employers who violate the anti-retaliation provisions of § 215(a)(3) may be liable for legal and equitable relief under § 216(b), including reinstatement, promotion, lost wages, front pay, liquidated damages, and reasonable attorney’s fees. But what about other remedies, such as compensatory damages for emotional distress stemming from the retaliatory act(s)?
By Laura Wetsch and Faith Herndon
We are your legislative co-chairs for this long session. Over the past few weeks, we have seen a number of bills that will potentially impact your practice or your clients. Many of these bills are not likely to pass, but it is too soon to say which will die a lonely, miserable death in a rules committee. We will try to keep you updated, but here’s the list of bills we are watching, so far: