“Crossover” day is over, and so far roughly 39 employment-related bills are still in play at the General Assembly, as listed in this spreadsheet, updated April 27, 2017. We will continue to update throughout the remaining 3-plus months of this long session, but you can also check bill status by clicking on a bill’s number on the spreadsheet, or by running a search here. Please let us know if you have any questions, or if we’ve missed a bill that would be of interest to the section.
Does a pre-litigation, unsworn statement constitute “testimony” sufficient to invoke the sham affidavit rule when a party subsequently testifies in an inconsistent manner? Instead of addressing this important question, both the majority and dissent in Wilson v. Gaston County, No. 15-2522 (4th Cir. April 13, 2017) (unpublished), assume that prior written statements of the plaintiff can be considered “testimony” for purposes of invoking the sham affidavit rule. By failing to make this initial inquiry, the court used the sham affidavit rule to sweep away a party’s deposition testimony in favor of two written statements that were not given under oath.
The 4th Circuit first invoked the sham affidavit rule[1] when it stated “[a] genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the [party’s] testimony is correct.” Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (emphasis added). The use of the word “testimony” is not by accident and has a specific meaning: “evidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition.” Black’s Law Dictionary 1485 (7th ed. 1999). In fact, the 4th Circuit has specifically stated that statements not given under oath and not subject to cross-examination are not equivalent to deposition testimony, and as such, that applying the sham affidavit rule in such contexts is inappropriate. Shockley v. City of Newport News, 997 F.2d 18 (4th Cir. 1993); see also Leslie v. Grupo ICA, 198 F.3d 1152 (9th Cir. 1999). Heeding these principles, virtually all courts have required both versions of the facts to take the form of “testimony,” such as depositions versus affidavits[2], contradictions within sworn statements[3], testimony versus sworn EEOC charge[4], and affidavit versus verified document[5]. But see McDevitt & St. Co. v. Seaboard Sur. Co., 1995 U.S. App. LEXIS 15076 (4th Cir. June 19, 1995) (misquoting Barwick while invoking sham affidavit rule when an affidavit directly contradicted the language in letters between the parties); Williams v. Genex Servs., LLC, 809 F.3d 103 (4th Cir. 2015) (sham affidavit rule invoked when plaintiff’s testimony conflicted with her resume).
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Federal law requires large employers issuing mass layoffs or plant closures to give employees 60 days advance written notice of an upcoming layoff provided that the layoffs occur at a “single site of employment”. The term “single site of employment” greatly limits the applicability of the WARN Act, but it has been given a broad definition when applied to “mobile workers”. But who is a mobile worker? Would this term include a traveling branch manager or salesperson?
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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.”
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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.
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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.”
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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.”
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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.
“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.
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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.
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