EEOC v. Catastrophe Management Solutions: Title VII Does Not Prohibit Race Discrimination Based On Mutable Characteristics

Murray,JoeJoseph S. Murray IV

In the 50 years since Congress enacted Title VII, scientists, contemporary thinkers, and society in general have reassessed the concept of race. No longer do we view race solely in terms of biology (immutable characteristics). We now understand that race includes social context, culture, and life experiences (mutable characteristics). While society’s understanding of race has changed, Title VII’s original definition — or lack thereof — remains stuck in 1964. Whether a racial characteristic is mutable or immutable matters, as the Court of Appeals for the United States Court of Appeals for the 11th Circuit recently reminded the EEOC: Title VII only protects against discrimination based on immutable characteristics. EEOC v. Catastrophe Mgmt. Solutions, No. 14-13482, 2016 U.S. App. LEXIS 16918 (11th Cir. Sep. 15, 2016).

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Knowing When a Bonus Must Be Included In Overtime Pay

murphyfletcher2By Murphy H. Fletcher

Everyone likes a bonus, right?  Employees enjoy receiving them, for obvious reasons, and employers use them as a means of rewarding employee achievements and increasing morale.  But while paying employees a bonus can seem like a relatively straightforward benefit, depending on how the employer structures the bonus, the bonus can have long-reaching affects by increasing a non-exempt employee’s regular rate of pay for overtime purposes.

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Fourth Circuit Approves Legislative Prayer

willjamisonEditor’s note:  On Oct. 31, 2016, the 4th Circuit Court of Appeals agreed to re-hear the case en banc.  Oral arguments are tentatively scheduled for Jan. 24-26, 2017.

By Will Jamison

On March 4, 1789, the First United States Congress met in Federal Hall in New York City.  The air was (probably) thick with dust from the street and powder from their wigs.  With the ink still drying on the U.S. Constitution, the actions of that First Congress shed light on how the founders of our nation interpreted the supreme law of the land…that is, according to our U.S. Supreme Court.

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Tully v. City of Wilmington: The Constitution Requires Public Employers To Play By Their Own Rules

parkerkaty-2By Katy Parker

The North Carolina Court of Appeals recently ruled that a police officer has a valid property and liberty interest in requiring his employer, the City of Wilmington, to comply with its own established promotional process.

When Corporal Kevin Tully of the Wilmington Police Department sat for the sergeant’s test in fall of 2011, he felt pretty good about his chances for promotion.  Aside from being named “Wilmington Police Officer of the Year” for 2011 and receiving several other commendations and awards, Corporal Tully is also an avid student of police policy and procedure, and the United States Constitution.  He is often the guy that other officers go to with questions about the finer points of Fourth Amendment search and seizure law.  After taking the test, Corporal Tully felt even better, feeling certain that he had answered most of the questions correctly.  And so it was quite a shock when Corporal Tully was informed that he had failed the test.  He asked for copies of the answers, as he is entitled to do under WPD policy.  Upon receipt of the answer key, Corporal Tully immediately realized that the answer key was wrong – and that the so-called “correct answers” on questions related to Fourth Amendment search and seizure issues were actually based on outdated law.

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Arbitrability Of Arbitration: Judge Takes Backseat to Arbitrator in 9th Circuit Uber Case

kornbluthmichaelBy Michael A. Kornbluth

Last week the U.S. Court of Appeals for the 9th Circuit held that whether or not a contract should be arbitrated was a question to be decided by an arbitrator, not a judge. In Mohamed v. Uber Technologies, 15-16178 (9th Cir. Sept. 7, 2016), the circuit court used scathing language in reversing the district court, which had held that the issue of arbitrability was properly before  the district court and went on to determine that the arbitration clause at issue was unconscionable.

This case originated in 2015 in the U.S. District Court for the Northern District of California, where a number of Uber drivers filed a class action against Uber and a few other companies, alleging violations of the Fair Credit Reporting Act, the Massachusetts Consumer Credit Reporting Act, and the California Consumer Credit Reporting Agencies Act, for improperly using consumer credit information to effectively terminate the plaintiffs’ ability to work for Uber.

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EEOC Issues Updated Retaliation Guidance

herrmannseanBy Sean F. Herrmann

Retaliation, which finds its way into nearly 45 percent of all charges filed nationwide, remains the most prevalent bias allegation to come across the desk at the EEOC. This has the EEOC’s attention. On Aug. 29, 2016, it issued its Enforcement Guidance on Retaliation and Related Issues, laying out its most recent interpretation of the law on this topic. The guidance addresses retaliation under Title VII and all other federal anti-discrimination laws.

A link to this guide can be found here

The EEOC issued a more-user friendly Questions and Answers document to accompany the guidance. 

Finally, the agency also issued a small business fact sheet.

Fourth Circuit Takes On ‘Me Too’ Evidence and ‘Mini-Trials’ In Recent Decision

herrmannseanBy Sean F. Herrmann

Recently, in Calobrisi v. Booz Allen Hamilton, Inc, No. 15-1331 (4th Cir. Aug. 23, 2016), the U.S. 4th Circuit Court of Appeals specified certain types of evidence that district courts must, at a minimum, consider when ruling on summary judgment motions. It held that the trial court erred when it granted summary judgment, in part, to the employer in an age and gender discrimination and retaliation case. This decision will impact practitioners and district court judges alike.

In partially reversing the district court’s decision, the 4th Circuit first noted that the lower court did not “individually analyze each piece of other employee evidence.” Specifically, the appellant-plaintiff, a then age 55-year-old female, submitted testimony from seven other “middle-aged women,” who stated that they experienced adverse actions at the workplace similar to those alleged by the plaintiff. The district court, in one sentence, determined that the plaintiff’s “me-too” evidence would not be admissible at trial and, accordingly, did not consider it when ruling on the summary judgment motion.

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Fourth Circuit’s RLM Communications, LLC v. Tuschen Tackles Noncompetition and Trade Secret Misappropriation Issues

Wall,JonBy Jonathan Wall

Noncompetition agreements (“non-competes”) present thorny issues.  In most cases, you have a former employee who has signed a black-and-white contract prohibiting him or her from engaging in certain employment, and the employee goes and does the one thing that the contract specifically prohibits.  Not that long ago, most judges would view the matter purely as a contract issue, and once an employee’s attorney admitted that yes, that was the client’s signature on the agreement, they did not want to hear much else, with visible disinterest giving way to agitation the longer the argument proceeded.

On rare occasions, if the employee could present special circumstances, the trial courts would do more than pay lip service to the maxims like “noncompetes are strongly disfavored in North Carolina.”  Was the territory much more expansive than where the employee actually operated?  Was this really a lower-level employee, with the noncompete designed to keep the employee hostage rather than protecting legitimate employer interests?

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Update From the EEOC: New Charge-Handling Procedures

Nicholson,Travis (2)By Travis Nicholson

EEOC has implemented new procedures to be followed in all of our offices for the submission and release of position statements. The procedures apply to EEOC requests for position statements to employers made after Jan. 1, 2016. The purpose of the new procedures is to advance investigations by facilitating more pertinent information from both parties, including a response from the charging party.

An effective position statement is clear, concise, complete and responsive. EEOC recommends these practices for employers:

  • Submit position statements that are fact-based and thorough;
  • Ensure that the position statement focuses on the allegations in the charge;
  • Provide relevant documentation, evidence, and/or information that supports the employer’s position;
  • Segregate confidential information in attachments, including personally identifiable information, sensitive medical information, confidential financial information, etc.

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The Chair’s Comments: Big Plans For the New Year

Leaven,JessicaBy Jessica E. Leaven

As I was preparing my first comments as chair, this tune kept coming to my mind. “To everything – turn, turn, turn – there is a season – turn, turn, turn.” Maybe it’s because the summer is ending and the kids are going back to school. Or maybe it’s because it’s blueberry season in the mountains, and going blueberry picking with my family always marks the end of summer and beginning of fall. It could be because during this election season, I’ve too often thought of the lines “a time for love, a time for hate, a time for peace, I swear it’s not too late.” Either way, it’s time to welcome everyone to the new bar year for the Labor & Employment Section, and it’s my turn to be our chair.

I’m very excited and honored to serve as chair of the Labor & Employment Section this year. It was my pleasure working closely with our immediate past chair, Grant Osborne, over the past year, and I am grateful to have the assistance of our section’s new officers, Vice Chair Margaret Manos, Secretary Michael Kornbluth, and Treasurer Melanie Tuttle, and committee leadership this year. We have big plans for our section this year, and I would like to use this comment as an opportunity to let you know about some changes we have made to the section’s newsletter, the wonderful lineup for the annual CLE and social events planned for this October in Asheville, and the push to develop podcasts for our section.

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