Breaking News from the U.S. Supreme Court: Title VII Prohibits Discrimination Based on Sexual Orientation and Transgender Status

By David R. Vance*

On June 15, 2020, in a landmark decision, the U.S. Supreme Court held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. The decision in Bostock v. Clayton County, Georgia, one of three consolidated cases before the Supreme Court, resolves a circuit split over the scope of Title VII’s protections for homosexual and transgender persons.

Title VII makes it “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In Bostock, the Supreme Court ruled that an employer violates Title VII if it intentionally fires an employee based, in part, on sex, which includes an employee’s sexual orientation and gender identity.

In reaching this conclusion, the Supreme Court reasoned that discrimination on the basis of an individual’s sexuality or gender identity necessarily “requires an employer to intentionally treat individual employees differently because of their sex.” The Supreme Court further stated that an "individual’s homosexuality or transgender status is not relevant to employment decisions … because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."

In light of the Supreme Court’s decision, employers should:

• Review and, if necessary, update their policies to specifically prohibit discrimination and harassment based on sexual orientation and gender identity; and
• Train employees, particularly those in management and human resources, that Title VII prohibits discrimination based on sexual orientation and gender identity.

It is imperative that employers address the Supreme Court’s decision quickly and thoroughly.

*David R. Vance, an OSBA Certified Specialist in Employment & Labor Law, regularly advises clients on labor and employment matters, including equal employment opportunity policies, employer handbooks, and employment decisions. If you have questions about the Supreme Court’s recent decision, please contact David at drv@zrlaw.com or (216)696-4441.

Pandemic Fallout Continues: Employment Related COVID-19 Lawsuits Begin to Surge

By Tiffany S. Henderson*

COVID-19 has changed the world as we know it, including the world of work.

With new COVID-related laws, regulations, and guidance impacting virtually every aspect of the employment relationship, a surge of COVID-19 related lawsuits is sure to follow. Per information available through LexisNexis, as of June 5, 2020, plaintiffs have filed approximately 2,544 state and federal COVID-19 related lawsuits. The following is a summary of the various types of COVID-19 related labor and employment lawsuits that employees have filed:

• Unsafe work environment. Lawsuits alleging an unsafe workplace (i.e., an employer failed to sanitize or take appropriate measures to prevent spreading COVID-19) caused COVID-19-related sickness and/or death.
• Discrimination. Lawsuits alleging that employers denied a work from home request or otherwise failed to accommodate COVID-19-related concerns due to disability, age, or another protected class.
• Leaves of Absence. Lawsuits encompassing employee allegations regarding COVID-related leaves of absence under the Family and Medical Leave Act (FMLA), the Families First Coronavirus Response Act (FFCRA), or state laws.
• Wage and Hour. Lawsuits alleging improper payment of wages under the Fair Labor and Standards Act or similar state/local laws for work completed before or after COVID-19-related business closures, remote work completed by non-exempt employees, or “off the clock” employer temperature checks or COVID-19 testing.
• Unlawful Termination. Lawsuits alleging retaliation or employment termination for complaining about exposure to COVID-19 in the workplace, including whistleblower complaints.
• Other. Lawsuits alleging violations of the notice provisions of the Worker Adjustment and Retraining Notification Act (WARN) or the Consolidated Omnibus Budget Reconciliation Act (COBRA).

As states begin to reopen, employers should expect increased COVID-19-related lawsuits and other activity:

• In some states, including Ohio, pending legislation could extend workers’ compensation coverage to certain employees (generally first responders and other essential workers) under a rebuttable presumption that COVID-19 was contracted at work.
• The Occupational Safety and Health Administration (OSHA) has reported receiving 1,342 COVID-related complaints since May 22, 2020.

What can employers do?

• Review and follow all state and local reopening guidance applicable to your business.
• Stay abreast of guidance from the Centers for Disease Control and Prevention (CDC), including Interim Guidance for Businesses and Employers (accessible here).
• Stay up to date on new COVID-19 laws, regulations, and guidance. Review COVID-19-related guidance from the Equal Employment Opportunity Commission, OSHA, Department of Labor, and other relevant authorities.
• Confirm all relevant policies and procedures are current, and ensure all management and human resources personnel are familiar with the revised policies.
• Ensure Workplace Safety. Develop a plan for reducing COVID-19 transmission in the workplace and communicate the plan to employees. Emphasize appropriate workplace infection control practices like handwashing, sanitizing, and social distancing. Include a process for employees to report COVID-related concerns, and prohibit retaliation for using that process.

Each employment situation is unique, and employers must do what works best for their current situation and employees. As always, please consult Z&R to discuss your particular circumstances.

Z&R has developed form policies, request forms and other guidance documents related to COVID-19 issues. Z&R will continue to monitor the latest information governing employers. Previous Z&R articles addressing employer requirements and considerations during the COVID-19 pandemic can be found here:

• EEOC Allows Employers to Test Employees for COVID-19 before Resuming Work
• Coronavirus Considerations for Employers
• Ohio Provides Some Cover for Employers and Employees in Wake of COVID-19
• Federal COVID-19 response mandates paid leave (for now)
• Application of the Worker Adjustment and Retraining Notification Act (“WARN”) to Closures Caused by the COVID-19 Pandemic
• Ohio BWC: Allows Deferment of Premium Payments and Addresses Compensability of Contracting COVID-19
• Ohio Department of Insurance Provides Coverage Flexibility for Ohio Employees in the Wake of COVID-19
• FLSA Implications for Employers Considering Reductions in Pay
• Ohio Legislature Passes Emergency COVID-19 Response Legislation
• U.S. Department of Labor Issues Families First Coronavirus Response Act Model Notice
• Loans, Unemployment Assistance, and Other Relief Under the CARES Act
• U.S. Secretary of Labor Releases Temporary Rules Implementing The Emergency Family and Medical Leave Expansion Act and The Emergency Paid Sick Leave Act
• CORONAVIRUS TESTING: The Equal Employment Opportunity Commission Says Employers May Test Employees for COVID-19 Before Allowing Them to Work
• SharedWork Ohio: An Alternative Option to Employer Layoffs Made Even More Attractive by the CARES Act
• What Employers Need to Know as They Reopen or Bring Employees Back
• As Unemployment Claims Surge, The Ohio Department of Jobs and Family Services Urges Employers to Report Employees Who Refuse to Return to Work

*Tiffany S. Henderson practices in all areas of labor and employment law. If you have questions regarding COVID-19 and your workforce, please contact Tiffany at tsh@zrlaw.com or 216-696-4441.