Title VII Suits Involving Job Transfers – No Harm vs. Some Harm vs. Significant Harm – What is the Standard?

By Natalie M. Stevens and Kimana A. Bowen*

On April 17, 2024, in a unanimous decision, the U.S. Supreme Court ruled in Muldrow v. St. Louis that Title VII of the Civil Rights Act requires “some harm” in the job transfer context.

The Opinion

Background

The plaintiff alleged that the defendant employer “discriminate[d] against” her based on sex “with respect to” the “terms [or] conditions” of her employment in violation of Title VII. Specifically, the plaintiff, a female Sergeant in the St. Louis Police Department, alleged she was transferred to another unit, and replaced by a male, and that while her rank and pay remained the same, her responsibilities, perks, and schedule did not.

The Eastern District of Missouri granted the defendant employer’s motion for summary judgment, and the Eighth Circuit affirmed the District Court’s decision holding that the plaintiff must, but could not in this case, prove that the transfer caused her a “materially significant disadvantage”; rather, the transfer only caused “minor” changes in her working conditions.
Muldrow v. City of St. Louis, 30 F.4th680, 688 (8th Cir. 2022).

Title VII Standard

Title VII provides that it is unlawful for a private employer or a state or local government “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. 2000e-2(a)(1).

Several courts have interpreted the statute to require that a transfer subject an individual to “worse treatment” or “harm,” and that the harm be “significant.”

In Muldrow v. St. Louis, the Supreme Court held that the requirement that the harm be “significant” would be adding words to the statute that Congress enacted, holding:

To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment. The transfer must have left the transferee worse off but not significantly so. The transferee does not need to establish an elevated threshold of harm. This would impose a new requirement on a Title VII claimant, so that the law as applied demands something more of them than the law as written.

No. 22-193, slip opinion, at p. 6.

What Now for Employers?

Employers should ensure that they have Equal Employment Opportunity and Anti-Discrimination policies and that any transfers are for legitimate, non-discriminatory and non-retaliatory reasons.

*Please contact ZR Team member Natalie M. Stevens (nms@zrlaw.com) or Kimana A. Bowen (kab@zrlaw.com) ^[1] if you have questions relating to the interplay of job transfers and Title VII.

^{[1] Presently barred in D.C. only.}

EEOC’s Final Rule Implementing the Pregnant Workers Fairness Act

By Natalie M. Stevens*

The Pregnant Workers Fairness Act (“PWFA”) went into effect June 27, 2023. On Monday, April 15, 2024, the Equal Employment Opportunity Commission (“EEOC”) released its final rule implementing the PWFA, which is set to be published in the Federal Register on April 19, 2024. The final regulation will go into effect sixty (60) days from April 19, 2024.

The PWFA

The PWFA requires covered entities (most employers with 15 or more employees) to provide “reasonable accommodations” for a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless doing so will cause an undue hardship on the covered entity.

The Final Rule

According to the EEOC, the final rule is intended to “provid[e]important clarity that will allow pregnant workers the ability to work and maintain a healthy pregnancy and help employers understand their duties under the law.”

Known Limitations

The final rule explains what constitutes a “known limitation.” Specifically, “known” refers to the employee or applicant or their representative having informed the employer of the limitation.

Additionally, “limitation” is defined as “a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”

Further, “pregnancy, childbirth, or related medical conditions” include, but are not necessarily limited to, current pregnancy; past pregnancy; potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception); labor; and childbirth (including vaginal and cesarean delivery); termination of pregnancy, including via miscarriage, stillbirth, or abortion; ectopic pregnancy; preterm labor; pelvic prolapse; nerve injuries; cesarean or perineal wound infection; maternal cardiometabolic disease; gestational diabetes; preeclampsia; HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome; hyperemesis gravidarum; anemia; endometriosis; sciatica; lumbar lordosis; carpal tunnel syndrome; chronic migraines; dehydration; hemorrhoids; nausea or vomiting; edema of the legs, ankles, feet, or fingers; high blood pressure; infection; antenatal(during pregnancy) anxiety, depression, or psychosis; postpartum depression, anxiety, or psychosis; frequent urination; incontinence; loss of balance; vision changes; varicose veins; changes in hormone levels; vaginal bleeding; menstruation; and lactation and conditions related to lactation, such as low milk supply, engorgement, plugged ducts, mastitis, or fungal infections.

Reasonable Accommodations

The final rule contains examples of possible reasonable accommodations, including:

• Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom;
• Changing food or drink policies to allow for a water bottle or food;
• Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to work while standing;
• Changing a uniform or dress code or providing safety equipment that fits;
• Changing a work schedule, such as having shorter hours, part-time work, or a later start time;
• Telework;
• Temporary reassignment;
• Temporary suspension of one or more essential functions of a job;
• Leave for health care appointments;
• Light duty or help with lifting or other manual labor; and
• Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.

Supporting Documentation

The final rule also addresses when it is appropriate to request supporting documentation; specifically, when it is needed to confirm the physical or mental condition, the relation to pregnancy, childbirth, or related medical conditions, and if it is reasonable to do so to determine whether to grant the accommodation. It is not considered reasonable to request documentation when the limitation and accommodation need are obvious, the employer has sufficient information to substantiate the limitation and accommodation need, or when the accommodation request is: (i) to carry or keep water near and drink, as needed; (ii) to take additional restroom breaks, as needed; (iii) to allow an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and (iv) to allow an employee to take breaks to eat and drink, as needed..

What Now?

Employers should evaluate whether their reasonable accommodation policies address the requirements of the PWFA and, if not, revise them, and ensure supervisors, managers, and those responsible for reviewing accommodation requests are informed of the requirements of the PWFA.

*Please contact ZR Team Member Natalie M. Stevens (nms@zrlaw.com) if you have questions relating to the Pregnant Workers Fairness Act and final rule.

New York’s Governor Vetoes New York Non-Compete Ban

By Ami Patel*

On June 20, 2023,the New York State Assembly voted in favor of Bill No. S03100, which would“[prohibit] non-compete agreements and certain restrictive covenants;[authorize] covered individuals to bring a civil action in a court of competent jurisdiction against any employer or persons alleged to have violated such a prohibition.” The bill then moved to Governor Kathy Hochul, who on December 22, 2023, declined to sign the legislation.

Bill No. S03100defined a non-compete agreement as, “any agreement, or clause contained in any agreement, between an employer and a covered individual that prohibits or restricts such covered individual from obtaining employment, after the conclusion of employment with the employer included as a party to the agreement.”

Further, Bill No.S03100 defined those covered individuals as, “any other person who, whether or not employed under a contract of employment, performs work or services for another person on such terms and conditions that they are, in relation to that other person, in a position of economic dependence on, and under an obligation to perform duties for, that other person.” This broad prohibition, if signed into law, would have voided any contract, to the extent a provision restrained a party from engaging in any kind of lawful profession, trade or business.

New York Governor Hochul could not agree with the legislature’s “one-size-fits-all” approach. Had New York signed this bill into law, it would become the fifth state to provide a complete prohibition on non-compete agreements, joining California, North Dakota, Oklahoma, and Minnesota.

While New York decided to protect employers' business interests in protecting confidential and proprietary information for the time being, the Federal Trade Commission continues to contemplate a nationwide ban on restrictive covenants with a decision expected in early 2024.

Recommendations Continuing Forward

Employers should continue to monitor proposed and existing legislation in the states within which they operate, as well as any federal legislation, to forecast any potential issues with their current non-compete and non-solicitation practices. Additionally, employers should assess their current non-compete agreements against any legislation already in place.

*If you have questions relating to the proposed bans of non-compete agreements, restrictive covenants, or any other labor and employment law issues, please contact Zashin & Rich’s Non-Compete/Trade Secret Practice Leader, Ami Patel (ajp@zrlaw.com) at (216) 696-4441.

Seeing Through the Smoke: Ohio’s Legalization of Recreational Marijuana – Key Info for Companies (8-minute read)

By David P. Frantz & Sarah J. Moore*

Don’t roll out your Issue 2 game plan too quickly!

Action Item 1:

Ohio may pass implementation rules. ZR will provide updates – we welcome you to sign up at zashinandrich@zrlaw.com for our legal alerts so you have them hot off the net!

Training Points

Every supervisor, safety team member, and human resource employee interacting with employees should learn the basics about recreational marijuana to best understand its potential impact in the workplace.

Key facts to impart include:

#1: The Federal Government still classifies marijuana as an illegal Schedule I controlled substance. So, Ohio’s “legalization” of medical marijuana (MM) and now recreational marijuana (RM) does nothing to change the fact that use, possession, sale, transfer, or distribution remains illegal under federal law and can result in federal criminal charges.

#2: Marijuana has two primary types: Sativa (energizes with lower CBD and higher THC) and Indica (relaxes with higher levels CBD with equal or lower THC concentration). Cannabis hybrids typically contain increased THC percentage, with unique CBD-to-THC ratios. The cannabis industry now refers to “chemovars” aka “strains” of marijuana: Type I (high THC); Type 2 (THC/CBD combined); and Type 3 (high CBD). The key takeaway – behaviors will vary depending on the cannabis type consumed.

#3: Recreational marijuana (RM) comes in many different forms – hashish (for brewing or smoking), edibles, and topicals – and can be natural or synthetic. Also, THC concentration levels can vary considerably between RM products. So, managers need to be on the lookout for RM in varied forms, some of which may resemble well-known consumer products. For example, Stoney Patch RM edible packaging resembles Sour Patch candy products.

#4: The human body processes RM forms differently. The lungs absorb smoked or vaped RM directly into the bloodstream. The stomach and liver process RM edibles or drinks. So, when one ingests RM, the effects take longer to appear and have stronger effect than inhaling RM. The “delay” in feeling the effects of edibles may result in a person eating a higher THC concentration and can result in an overdose.

#5: One under the influence of RM (or MM) may exhibit symptoms such as: dizziness; loss of coordination; trouble thinking or problem solving; hallucinations; seizures; anxiety; red, bloodshot eyes; short-term memory issues; tiredness; or hostility.

#6: RM containing natural or synthetic THC can be addictive. One dependent on RM may experience withdrawal symptoms.

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Action Item 2:

Provide RM basic training to your management employees as soon as practicable.

Policy Treatment

While Issue 2’s passage legalized RM, it did not require any Ohio employer to alter drug and alcohol policies. Since most Ohio employers had revised their policies after Ohio legalized MM in 2016, little likely needs to be done at this time. That said, companies should confirm to employees that current drug free workplace and drug and alcohol policies remain in full force and effect and that marijuana continues to be prohibited, under policies that prohibit it.

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Action Item 3:

Review the company’s drug and alcohol policy to confirm it received updates after 2016 and continues to prohibit marijuana use, possession, transfer, distribution, or sale in the workplace and on work sites. Should revisions be necessary, contact legal counsel for support. Note: All DOT regulated employers, keep watch for DHHS oral fluid test option – Areas to Watch #1 below.

Federal Drug-Testing Requirements All Remain in Full Force and Effect

#1: Transportation Industry: Passage of Issue 2 does not remove or alter drug testing regulations imposed by the federal government on the transportation industry. Department of Transportation (DOT) drug and alcohol testing programs and requirements must remain in full effect now and after implementation of Issue 2 on December 7, 2023, for all DOT agencies, including but not limited to the: Federal Aviation Administration (FAA), Federal Motor Carrier Safety Administration (FMCSA), Federal Railroad Administration (FRA), and Federal Transit Administration (FTA).

#2: Federal Workplaces and Non-Federal Workplaces with a Federal Contract or Federal Grant: The Federal Drug-Free Workplace Act of 1988 (DFWA) requires implementation of a Drug-Free Workplace Program in all federal workplaces and those non-federal workplaces holding a federal contract of $100,000 or greater or federal grant of any amount. Nothing in Issue 2 alters the DFWA drug testing requirements.

Areas to Watch

#1: Drug Testing Options: DOT published anew rule giving employers an option of utilizing an oral fluid test that took effect June 1, 2023. Companies cannot implement oral fluid testing until the Department of Health and Human Services (DHHS) certifies at least two laboratories (one as primary and the second as the split specimen laboratory).  On November 1, 2023, DHHS publish edits current list of HHS-Certified Laboratories, which stated that no oral fluid specimen certified laboratories exist to date (available here). Companies should remain poised to revisit their drug and alcohol testing policies once DHHS identifies at least two certified laboratories for oral fluid specimen testing. The oral fluid testing would provide a faster and less intrusive option to those employers covered by DOT regulations.

#2:  Workplace Accidents & Injuries: Reports vary on whether a direct link between RM(and/or MM) legalization and increased workplace accidents and injuries exists.

*Please contact ZR Team members David P. Frantz dpf@zrlaw.com and Sarah J. Moore sjm@zrlaw.com with any questions or issues you would like them to address.

Ohio Revises Workers’ Compensation Statute to Preclude Work-From-Home Injuries Absent Specific Factors

By Scott Coghlan*

The changed circumstances precipitated by the COVID-19 pandemic have resulted in a significant (and in some workplaces, dramatic) increase in employees who are working from home. There exists a good possibility that these working conditions will remain permanent for some employers and employees as employers now realize the economic and operational efficiencies generated by having employees from remotely and employees enjoy the work/life balance generated by working from home. Despite this developing trend, Ohio’s workers’ compensation laws have not to this point addressed coverage for employees who are injured while working from home. That omission in the law is about to change.

On June 24, 2022, Governor Mike DeWine signed House Bill 447 into law, and which will go into effect in 90 days (which we believe will be September 22). The bill precludes employees from receiving workers’ compensation benefits for injuries sustained while working from home unless certain factors are met. Ohio Revised Code §4123.01(C) defines an “Injury” broadly as “any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee’s employment.” Prior to June 24, 2022, the statute excluded four categories of injuries from the statutory definition of “Injury” absent specific conditions being met. The four categories are (1) psychiatric conditions in the absence of a physical injury, (2) natural deterioration injuries, (3) injuries incurred in employer sponsored recreation or fitness activities and (4) aggravation of pre-existing conditions.

H.B. 447 revises R.C. §4123.01(C) to exclude work from home injuries from the statutory definition of “Injury” stating that “Injury” does not include:

(4) Injury or disability sustained by an employee who performs the employee’s duties in a work area that is located within the employee’s home and that is separate and distinct from the location of the employer, unless all of the following apply:

a. The employee’s injury or disability arises out of the employment.

b. The employee’s injury or disability was caused by a special hazard of the employee’s employment activity.

c. The employee’s injury or disability is sustained in the course of an activity undertaken by the employee for the exclusive benefit of the employer.

The phrase “arising out of” the employment used in subsection (a) refers to whether there is a causal connection between the employment and the injury. Factors to be considered are the proximity of the scene of the accident to the place of employment, the degree of control the employer had over the scene of the accident and the benefits received by the employer from the employee being at the scene of the accident. This is a low bar to clear. If the employee is working from home, the injury is both proximate to the place of employment and providing a benefit to the employer.

When determining whether a work from home injury is compensable, the focus will be on determining whether the injury was caused by a special hazard of the employment and whether it was sustained in course of performing an activity for the exclusive benefit of the employer.

To demonstrate that a “special hazard” is present, the injured worker must demonstrate that: (1) but for the employment, the employee would not have been at the location where the injury occurred; and (2) the risk of injury is distinctive in nature or quantitatively greater than the risk common to the public. This is significant, because an employee does not have to demonstrate that an injury sustained on the employer’s premises resulted from a risk distinctive or greater than common to the public. Therefore, a slip and fall in a home office may not be compensable because the risk of falling at home is a risk common to the general public. In contrast, a slip and fall on the employer’s premises will be compensable in most circumstances.

The statutory definition of “Injury” requires the injury to be sustained “in the course of the employment.” This phrase refers to activities performed during the workday that are usually and reasonably incident to the work of the employer. For instance, an employee that is injured while on a break on the employer’s premises will generally have compensable claim, although not engaged in a specific work-related task. However, R.C. 4123.01(C)(4)(c) requires that the injury be sustained “in the course of an activity” undertaken by the employee for the exclusive benefit of the employer.” This indicates that the employee must be injured while performing a specific task in furtherance of the employer’s business rather than something incidental to the employment.

H.B. 447 should bring some clarity to employers struggling to determine whether an unwitnessed work from home injury is compensable. However, ambiguity still exists. For instance, the terms “employee’s home” and “work area” are not defined terms and may be subject to interpretation. Employers should require employees to identify the address or location of their “home” and the “work area” within the home that the job duties will be performed. Employers should also provide injury reporting training to its work-from-home employees and require a written injury report. The compensability of work-from-home injuries will be fact-specific, and employers will need to gather sufficient information to determine whether to certify or reject a claim.

*Scott Coghlan, chairs the firm’s Workers’ Compensation Group and regularly advises clients on all workers’ compensation and OSHA related matters. If you have a question about House Bill 447 or any other workers’ compensation or OSHA related questions, please contact Scott at sc@zrlaw.com or (216) 696-4441.

ZASHIN & RICH SCORES ANOTHER SHAREHOLDER FROM A NATIONAL LABOR & EMPLOYMENT BOUTIQUE — Natalie M. Stevens joins Zashin & Rich’s Employment & Labor Group

After snagging shareholder Sarah J. Moore from Fisher & Phillips a few months ago, Zashin & Rich has now hired shareholder Natalie M. Stevens from Ogletree Deakins. With the hiring of Stevens, Zashin & Rich continues its quest to build the most powerful, diverse and inclusive labor and employment boutique emanating from its Cleveland, Ohio headquarters.

Natalie Stevens has practiced employment law for almost two decades. She concentrates her practice on counseling employers on compliance with workplace laws and regulations. Natalie regularly litigates employment-related matters, including discrimination, accommodation and leave issues and non-compete violations. Natalie also defends unionized employers in grievance and arbitration matters. Co-Managing Partner, Stephen Zashin, stated: “This was a no-brainer. Natalie has an incredible reputation and represents some of the biggest and best employers. We knew that she would fit our diverse and energetic culture and provide an immediate impact on the depth and breadth of our national labor and employment practice.” According to Natalie, she joined Zashin & Rich because of “its strong labor and employment practice and incredible reputation in the business and legal community” and she “looks forward to continuing to provide excellent service to existing and new clients with the Zashin & Rich team!”

Zashin & Rich represents large publicly traded and privately held businesses, non-profit organizations, and public-sector entities. Zashin & Rich is one of the largest, if not the largest, labor and employment boutiques in Ohio and has offices in Cleveland and Columbus, Ohio. If you have any labor or employment law questions, please contact Natalie Stevens (nms@zrlaw.com) or Stephen Zashin (ssz@zrlaw.com) at (216) 696-4441.

Employment Law Game Changer: Federal Law Invalidates Mandatory Arbitration of Sexual Assault and Sexual Harassment Claims Nationwide

By Sarah J. Moore & David P. Frantz*

On March 3, 2022, President Biden signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” (the “Act”). The Act, which received bipartisan support in Congress, amended the Federal Arbitration Act and effectively nullified any pre-dispute arbitration agreement provisions that required arbitration of sexual assault and sexual harassment claims in lieu of proceeding in court. While the Act only covers (1) “sexual assault disputes,” defined as “a dispute involving a nonconsensual sexual act or sexual contact, . . . including when the victim lacks capacity to consent,” and (2) “sexual harassment disputes,” defined as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law,” its potential impact on the overall effectiveness of arbitration agreements in the employment setting remains unclear.

Historical Preference by Employers for Mandated Arbitration

Employers have utilized mandatory arbitration agreements to minimize expenses and, potentially, overall legal exposure by requiring employees to resolve disputes through arbitration rather than litigating cases in court. Arbitration offers a shorter, less expensive process that by many studies yielded lower employee win rates as compared to court actions. Historically, Congress and the courts have treated arbitration as a favored means of dispute resolution, including in the employment context.

Employers Lose Right to Have Sexual Assault & Sexual Harassment Claims Solely Handled in Arbitration

Under the Act, a plaintiff retains an unfettered right to file a sexual assault or sexual harassment claim either in court or under a pre-dispute arbitration agreement. Further, a plaintiff may bring the claim individually or as a class action, even if class waiver provisions in a pre-dispute arbitration agreement would have demanded otherwise. Employers lose any ability to force these matters to arbitration – plain and simple.

Potential Impact on Enforceability of Pre-Dispute Arbitration Agreements on Future Claims

Determination of whether a dispute falls within the scope of the Act falls to courts and not to arbitrators, as does “the validity and enforceability of an agreement to which [the Act] applies.” This remains true even if the underlying arbitration agreement delegates authority to the arbitrator to determine whether a claim falls within the scope of the agreement or whether the agreement is enforceable. By effectively transferring all “gateway” issues of arbitrability to the courts and out of the purview of arbitrators, the Act creates a pathway to erode employers’ contractual rights.

Although Senator Joni Ernst (R-Iowa) stated in support of the Act, “my colleagues agreed with me that this bill should not be the catalyst for destroying pre-dispute arbitration agreements in all employment matters… [and] … [i]t should not be used as a mechanism to move employment claims that are unrelated to these important issues out of the current system,” it is highly unlikely the plaintiff’s bar will roll over and agree. When an employee sues an employer, it is rare to see only one legal claim asserted. Instead, a plaintiff will assert all employment claims known to exist. So, while the Act contemplates an exemption for only two categories of claims, it potentially opens the door for extracting all contemporaneously asserted claims out of mandatory arbitration and into the courts. How the Act impacts the viability of arbitration agreements in the employment arena moving forward remains unclear but will likely involve many hard-fought legal battles. Further, employers may now face multiple cases from the same employee at the same time – e.g., sexual harassment claims in court and other claims in arbitration.

Recommendations Moving Forward

Now that the Act is law, all employers with arbitration agreements should assess their current legal mitigation strategies to determine how to react to the new law with respect to entering into mandatory arbitration agreements with new hires and what to do with mandatory arbitration agreements already in place.

*If you have questions relating to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, arbitration agreements, or any other employment law issues, please contact Sarah Moore (sjm@zrlaw.com) or David Frantz (dpf@zrlaw.com) at (216) 696-4441.