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Volume 6, Issue 6
June 2017
Next stop Supreme Court? The circuit split over Title VII's coverage of sexual orientation discrimination

The newest employment discrimination law battle is heating up over the question of whether sexual orientation discrimination is barred by Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e.

A trio of federal appellate cases decided within a month of each other - Hively v. Ivy Tech Community College of Indiana, Anonymous v. Omnicom Group Inc. and Evans v. Georgia Regional Hospital - have yielded inconsistent results and set the stage for either an uneven application of Title VII or a showdown in the U.S. Supreme Court. Continue reading article by Eve B. Masinter and Rachael M. Coe.
OSHA Withdraws Fairfax Memo, Employers Are No Longer Required to Allow Non-Employees to Accompany OSHA Investigators

Good news! OSHA has rescinded an interpretation letter commonly referred to as the "Fairfax Memo." It has also removed a related guidance from OSHA's Field Operations Manual. 

The Fairfax Memo mandated that non-employees, aka union business agents, must be permitted to accompany OSHA during the walk-around portion of an inspection. Examples mentioned in the memo of who could participate in the inspection included officials of labor organizations that did not represent the employer's employees and "community organizers." Continue reading article by Jerry L. "Jay" Stovall, Jr.
Marvin Kaplan and William Emanuel Nominated for Key NLRB Positions
The Trump Administration has submitted Marvin Kaplan and William Emanuel for FBI background checks and plans to nominate them to fill the two vacancies on the National Labor Relations Board. As reported in our March edition of Management Update, Kaplan and Emanuel were both on President Trump's short list to fill the two vacancies on the board. The administration hopes to see the new members confirmed before the August recess. Kaplan is an attorney for the Occupational Safety and Health Review Commission and previously served as the Republican workforce policy counsel for the House Education and the Workforce Committee. Emanuel is a management-side lawyer at Littler Mendelson. If confirmed, they will flip the Board to a Republican majority.
OSHA Extends Electronic Recordkeeping Deadline
In a May 17, 2017 email distributed to various stakeholders, the Occupational Safety and Health Administration (OSHA) stated that it will extend the July 1, 2017 compliance date for electronic submissions of the 2016 Form300A report of injuries and illnesses because the agency has yet to roll out the secure website for posting the reports. While OSHA has not specified a substitute deadline, the original July 1, 2017 deadline had been applicable to LeadingAge members in the following categories: 
  • Employers with 250 or more employees - OSHA Forms 300, 300A and 301 must by submitted annually by the employer.
  • 20 or more, but less than 250 in certain identified industries - OSHA Form 300A must be submitted annually by the employer. (Certain identified industries include: nursing care facilities (NAICS 6231), community care facilities for the elderly (NAICS 6233) and other residential care facilities (NAICS 6293)).
  • Other employers who receive notification from OSHA to electronically submit their OSHA Forms 300, 300A, and 301.
Louisiana Appellate Court Says Employer is Responsible for Failing to Protect Employee Off-Duty Threat of Violence by Coworker
An appellate court in Louisiana has ruled that Towana Carr may sue her employer, Sanderson Farms, Inc. for injuries sustained on the job stemming from a dispute that began outside of the workplace. In February 2016, Carr filed a claim of negligence against her employer for injuries sustained from an assault that occurred at work. She alleged that her coworker, Kevin Webb deliberately hit her with a pallet jack multiple times. She further claimed that Webb had threatened her with bodily harm while they were away from the workplace and despite reporting these threats to Sanderson Farms, they refused to take action because the threats had not been made at the workplace. At the trial court level, Sanderson Farms filed a motion arguing that under the Louisiana Workers' Compensation Act, Carr's claim was barred. The trial court agreed and granted a motion to dismiss the case, but Carr appealed the decision. The appeals court, relying on La. R.S. 23:1031(E), explained that "although negligence claims by an employee against her employer for injuries sustained on the job are typically barred by the exclusivity provision of the Workers' Compensation Act, the act does not cover injuries arising out of a 'dispute with another person or employee over matters unrelated to the injured employees employment.'" The court emphasized that Carr's claim for workers' compensation benefits was dismissed because of the finding that her injury was sustained because of a "non-work related dispute." The court also considered whether "a cause of action can be stated in negligence against an employer by an employee who was the subject of an intentional act committed by a co-employee, after the employee notified the employer of threats by the co-employee made away from the workplace." Because Carr had informed Sanderson Farms of Webb's bodily threats that were made off-site, the court found that "a duty may be owed by Sanderson Farms." However, the court said the employee would need to give the employer detailed information about the threats to establish the foreseeability of the injuring conduct in order for there to be a duty on the part of the employer. The First Circuit Court of Appeal sustained the trial court's initial decision to grant the motion against Carr but reversed the dismissal to allow Carr to plead additional facts. After Carr filed an amended petition, Sanderson Farms re-urged its exception of no cause of action, which was granted, resulting in the dismissal of the claim again. Carr appealed again and in 2017, the Louisiana Court of Appeal, First Circuit reversed the trial court decision and declared that the negligence claim, as now plead, was not barred by the exclusive remedy provision of the Workers' Compensation Act. The court relied on additional facts provided in the amended petition, including information indicating the nature of the threats  made to Carr, and Sanderson Farms' knowledge of Webb's history of criminal behavior and "propensity for violence." 
$100,000 Settlement for Pregnancy Discrimination Lawsuit
A Daytona Beach based Insurance Brokerage Firm, Brown & Brown agreed to pay $100,000 and furnish significant relief to settle a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) that alleged pregnancy discrimination. According to the suit, Brown & Brown made a written job offer to an applicant and sent her an employment agreement for a "personal lines technical assistant" position in its Daytona Beach office along with proposed start dates. The applicant responded with her interest  by email. About two hours later, while communicating with the department leader's assistant about the position, the applicant inquired about maternity benefits because she was pregnant. The assistant informed the department leader of the applicant's pregnancy, and a few minutes later the job offer was rescinded according to the complaint. The company stated that it "had a very urgent need to have somebody in the position long term." The EEOC filed the suit in the U.S. District Court for the Middle District of Florida, Tampa Division after attempting to reach a pre-litigation settlement through its conciliation process. In the settlement consent decree, the company agreed to adopt and distribute a policy on pregnancy discrimination, training of managers, supervisors, and human resources personnel at the company's Daytona Beach location, as well as other Brown & Brown locations in Florida. The program will cover sex discrimination, including pregnancy discrimination. In addition, Brown & Brown agreed to provide annual information to the EEOC during the two-year monitoring period concerning its handling of pregnancy discrimination complaints. 
Supreme Court Limits Forums Where Rail Workers Can Sue Employers

The U.S. Supreme Court ruled on May 30, 2017 that Montana courts cannot assert jurisdiction over claims made by injured nonresident employees whose injuries were sustained while working out of state. The Justices' 8-1 decision sides with BNSF Railway Co.'s argument that such suits must be brought in the state that the employer is incorporated or headquartered. The ruling reverses the Montana Supreme Court's ruling in 2016 that individuals have the right to sue in the state even though they have no connection to it, under both the Federal Employers Liability Act, a 1908 law that protects railroad workers injured on the job, and Montana state law. Specifically, the Justices said that a state court must follow precedent of the Supreme Court's 2014 decision in Daimler AG v. Bauman - which held that the due process clause forbids a state court from exercising general personal jurisdiction over a defendant that is not at home in the forum state - in a suit against an American defendant under FELA. 
27 Year Sexual Discrimination Case Against D.C. Goes Before 10th Judge
In 1990, Deborah Jean Bryant filed a sexual discrimination complaint against the District of Columbia that has been litigated for the past 27 years. Bryant, now 59, worked in a typing pool for the District's Department of Corrections, and accused her former supervisor of denying her a promotion because she rejected his sexual advances. In 1992, the now-defunct Department of Human Rights and Minority Business Development ruled in her favor, but the matter was not so easily settled. What followed was a still unsettled dispute of the amount of money owed to Bryant, which will now include almost 30 years of interest. Bryant's case has been heard by nine judges and is scheduled to go before a tenth judge soon. Bryant's attorney, Robert Adler, who has represented her since the case was filed in 1990, believes her case is the oldest in the District, and perhaps in the country. According to the original complaint, Bryant began working as a secretary for John Lattimore, a senior prison administrator who liked socializing with his employees in 1987. Initially, Bryant said she enjoyed the outings with her boss and fellow co-workers, but the relationship with Lattimore soon became uncomfortable. In a sworn affidavit, Bryant claimed that Lattimore repeatedly asked her out, told her she had a "nice derrière" and remarked in front of another prison worker that she "could have whatever she wants if she does the right thing." She testified that Lattimore repeatedly told her he was "in love" and told her to sit in his lap "so that he could play Santa Claus." Bryant said she did not initially complain because of the pervasive sexism at the corrections department, which settled a class-action lawsuit in the late 1990s that alleged widespread sexual harassment of female employees. She also worried Lattimore would block her from better jobs in retaliation. City investigators would later find that in the fall of 1988, Bryant had been demoted to work as a typist in a cell block where she was responsible for helping inmates write up their complaints. In late 1989, she checked herself into the psychiatric ward at Mary Washington Hospital and was diagnosed with major depression. She was unable to return to work full-time for two years. In September 1992, District human rights director Margie A. Utley found that Bryant had been denied advancement because of sexual discrimination and ordered corrections officials to promote her and pay her back wages for what should have been a better job. However, the corrections department appealed the decision. Bryant and Adler fought the city over the merits of Utley's ruling for the next 11 years. An additional 9 years were spent in a dispute over whether Bryant was entitled to interest on her still-unpaid back wages. In 2012, a D.C. Court of Appeals panel found that Bryant was indeed entitled to the interest. The department wrote her a check for $100,480, which was $52,000 less than it previously said she was owed in back wages. Corrections officials said, after revisiting records, their initial assessment of unpaid wages was incorrect because it included pay for hours Bryant had not worked. Including interest, the total payment was $150,000, of which $50,000 went to Adler's law firm. The past five years have been spent trying to claim the additional $52,000 plus interest that they believe Bryant is owed, a third of which would go to pay Adler's fees which he estimates amount to $600,000 of work. The case is now pending before a D.C. administrative law judge. 
Breazeale, Sachse & Wilson, L.L.P. Labor & Employment Attorneys

John Andrishok


Rachel Coe

Leo Hamilton


Jake Roussel


Melissa Shirley


Jen Sims


Jay Stovall


Sunny West
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