Executive Summary: The EEOC has issued new guidance on the reach of the Pregnancy Discrimination Act (“PDA”), and, not surprisingly, taken a very expansive view of the protections to be afforded pregnant employees.
Articles Discussing Sex And Gender Discrimination Under Title VII Of The Civil Rights Act Of 1964
On July 1, 2014, the U.S. Supreme Court agreed to review Young v. UPS, a decision that will determine whether and to what extent an employer must provide pregnant employees with work accommodations, such as light duty, under the Pregnancy Discrimination Act (PDA).
The White House on Monday announced that President Obama will soon issue an Executive Order (E.O.) banning certain federal contractors from discriminating against their employees on the basis of sexual orientation or gender identity. The E.O. is a means of enacting – if only for federal contractors – a scaled-down version of the Employment Nondiscrimination Act (ENDA), which has stalled in Congress. ENDA would make it unlawful for most private employers to refuse to hire or discriminate against individuals on the basis of actual or perceived sexual orientation or gender identity. In November 2013, the Senate passed ENDA with an amendment related to the bill’s exemption for religious entities. The House has not taken up ENDA, nor is it expected to this year.
As expected, Senate supporters of the Paycheck Fairness Act (S. 2199) failed to muster the 60 votes needed to advance the bill to a floor vote. This bill would have, among other things, expanded damages available under the Equal Pay Act (EPA) to include potentially unlimited compensatory and punitive awards for wage discrimination; weakened an employer’s ability to raise the “factor other than sex” affirmative defense in a wage discrimination case; eased the requirements for bringing a class action lawsuit under the EPA; made it unlawful for an employer to prevent employees from discussing or comparing salaries; and imposed additional compensation reporting requirements on employers. The measure needed an additional six votes to ensure filibuster-proof consideration.
Because the House of Representatives is not expected to consider the Paycheck Fairness Act (S. 2199) this term, President Obama will reportedly implement provisions of this measure applicable to federal contractors via Executive actions on Tuesday. The move will coincide with Equal Pay Day, and is the latest in a series of recent Presidential actions designed to implement employment law reform by bypassing Congress.
In advance of an expected floor vote, the Senate Committee on Health, Education, Labor and Pensions held a hearing on April 1 to discuss the merits of the Paycheck Fairness Act (S. 84). Sen. Barbara A. Mikulski (MD), chief sponsor of the legislation, said the Senate needs to “finish the job started by the Lily Ledbetter” Fair Pay Act. The bill, which has been introduced several times in the last few years but has failed to advance, would make the following changes to current wage law:
Executive Summary: The Sixth Circuit recently held that a certified nursing assistant (CNA) should be permitted to take her Pregnancy Discrimination Act claim to trial even though the employer terminated her based on its facially neutral policy that provided light duty work only for employees who were injured on the job. The court held that a jury should determine whether the policy, when considered in conjunction with discriminatory remarks made by managers, was pretext for discrimination. See Latowski v. Northwoods Nursing Ctr. (6th Cir. December 23, 2013).
Since the Supreme Court’s decision in United States v. Windsor holding the Defense of Marriage Act (“DOMA”) to be unconstitutional, and the related guidance issued thereafter by the Internal Revenue Service (see the article linked at http://www.fordharrison.com/9530 and our previous Legal Alerts, IRS Answers Residence Question for Same-Sex Spouses, Labor Department Signs On to State-of-Celebration Rule for Same-Sex Marriages,The Windsor FICA Fix) certain questions have been left unanswered with respect to the administration of welfare plans and cafeteria plans. In Notice 2014-1 (the “Notice”), issued yesterday (December 16, 2013), the IRS has clarified certain questions regarding the way in which the rules governing cafeteria plans, FSAs, and HSAs should be applied in situations involving same sex spouses.
On November 7, 2013, the Senate voted to pass the Employment Non-Discrimination Act, which would prohibit employers from discriminating against LGBT employees. The biggest obstacle facing ENDA is passage in the House of Representatives, which has yet to schedule it for debate. In most states, it is still permissible to discriminate against LGBT individuals in the workplace. If it becomes law, sexual orientation would be added to the list of protected classes and, as a result, ENDA could have significant impact on the workplace. Therefore, employers must take note.
The Senate voted 61-30 to allow a final vote on the Employment Non-Discrimination Act (ENDA) (S. 815) without the threat of a filibuster. All Democrats and seven Republicans voted in favor of proceeding. Introduced by Sen. Jeff Merkley (D-OR) and co-sponsored by 55 others, ENDA would prohibit certain entities, including employers with 15 or more employees, from discriminating against individuals on the bases of actual or perceived sexual orientation and gender identity.
During floor remarks on Monday, Senate Majority Leader Harry Reid (D-NV) announced that he intends to bring the Employment Non-Discrimination Act (ENDA) (S. 815) up for a full Senate vote in the coming weeks. Introduced in the Senate by Jeff Merkley (D-OR) and Mark Kirk (R-IL), ENDA would make it unlawful for an employer with 15 or more employees
On August 29, 2013, the Internal Revenue Service issued Revenue Ruling 2013-17, under which same-sex couples will be treated as married for all federal tax purposes, including income and gift and estate taxes, if their marriage was legally entered into, regardless of where they reside, even if they reside in a state that does not recognize same-sex marriage. This was one of the primary issues left unanswered by the U.S. Supreme Court in its decision in United States v. Windsor two months ago. (For a description of the Windsor decision, please see the article linked at http://www.fordharrison.com/9530).
After months of speculation, the Internal Revenue Service published guidance on August 29, 2013 regarding the treatment of same-sex spouses under the Internal Revenue Code. In Revenue Ruling 2013-17, the IRS confirmed that it will consider a same-sex couple married for federal tax purposes if they were married in a state or foreign country that recognizes same-sex marriage regardless of where the couple resides.
On June 26, 2013, the United States Supreme Court issued a pair of opinions favorable to the gay rights movement, ruling that married same-sex couples are entitled to federal benefits and, by declining to decide a case from California, effectively allowing same-sex marriages in that state. In United States v. Windsor (June 26, 2013), the Court held that Section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional because it violates the Fifth Amendment. The Court’s decision to strike down this provision, which denies more than 1,000 federal benefits to same-sex married couples, may dramatically transform the legal status and financial standing of hundreds of thousands of gay Americans. The decision on the federal law was 5 to 4, with Justice Anthony M. Kennedy writing the majority opinion, which the four liberal-leaning justices – Justices Ginsburg, Breyer, Sotomayor, and Kagan – joined.
In a decision handed down last week, the Second Circuit reaffirmed its long-standing holding that a “paramour preference” — a situation where a supervisor shows favoritism towards one employee over another due to the existence of a romantic relationship between the supervisor and the favored employee — does not give rise to claims for sexual discrimination under either Title VII of the Civil Rights Act of 1964 or the New York State Human Rights Law. Moreover, the court also held that retaliatory acts allegedly taken in response to complaints about the existence of such a paramour relationship were similarly not actionable.