Landmark Supreme Court Ruling Defends LGBTQ Rights

June 15, 2020.  In the biggest triumph for gay rights since 2015, the Supreme Court ruled to protect gay, lesbian and transgender workers in Bostock v. Clayton County, GA, a landmark Supreme Court ruling.

This decision has significant impact for equality on the job and is the biggest victory for gay rights since the Supreme Court 2015 decision in Obergefell v. Hodges, which required states to recognize same sex marriages.  The majority in Bostock ruled that Title VII of the 1964 Civil Rights Act, which prohibits discrimination “because of” sex, extends to people who face job bias arising from their gender identity or sexual orientation.  The Civil Rights Act of 1964 makes it illegal for an employer to discriminate against any person on the basis of sex.

In this landmark Supreme Court ruling, the justices struggled over the fundamental question – What exactly does the term “sex” include?  The Court considered two instances where men were fired for being gay and one case where a transgender woman was fired for disclosing her identity to her boss.  The Court decided that discrimination based on sexual orientation or gender identity includes discriminating based on sex, making it clearly illegal under the Civil Rights Act of 1964.

The plaintiff presented the following example:  Think about an employer who has two employees, one male and the other female.  Both employees date men, but the male employee is fired for doing so, while the same action is tolerated in the female employee.  The only material difference between the two employees was their sex.  The Court noted that it is impossible to discriminate against a person for being gay or transgender without discriminating against the individual based on sex.

Prior to this decision, more than 25 states had not established such broad workplace protections for LGBTQ individuals.  As a result of this landmark Supreme Court ruling, employers are federally prohibited from discriminating against individuals for being gay or transgender.  With this ruling in mind, employers must consider their policies and procedures to protect LGBTQ workers and to ensure that they are treated fairly.

Posted by Shira Itskowitz, 2020 Summer Intern (Barnard College, Columbia University), June 19, 2020.

Pennsylvania Supreme Court Rejects Fluctuating Work Week Method

The PA Supreme Court ruled that the “Fluctuating Work Week” method of calculating overtime pay is not permissible under Pennsylvania law. Tawny Chevalier, et al. v. General Nutrition Centers, Inc., et al., Case Nos. 22 WAP 2018 and 23 WAP 2018 (Nov. 20, 2019), PA Supreme Court.

What is the Fluctuating Work Week Method?

Under the fluctuating work week method, non-exempt employees (entitled to overtime pay if they work more than 40 hours a week) who are paid a fixed salary regardless of hours worked are paid for all hours worked in a work week beyond 40 hours at half of their “regular rate” of pay.  That “regular rate” is determined by dividing the employee’s salary by the number of hours worked that week.  As a result, the regular rate of pay “fluctuates” depending on how many hours he or she works in a given week.  Therefore, under this method, an employee may be paid a half time rate for the overtime hours they work.

Is this Allowed?

In short, no.  Not in Pennsylvania.

While the Fair Labor Standards Act (“FLSA“), a federal statute, allows employers to use this method, the PA Supreme Court opinion holds that the Pennsylvania Minimum Wage Act (“PMWA“) does not.  The Court ruled that the fluctuating work week method, which allows employees to be paid at lower overtime rates the more hours they work, violates the PMWA’s requirement that employers pay overtime compensation of at least one and a half times an employee’s regular rate for all hours worked in excess of 40 hours in a work week.

While the FLSA establishes a “national floor” under which wage protections cannot drop, individual states may enact greater protections under their own laws.  The PA Supreme Court Opinion notes that the PMWA, despite being mostly modeled by the FLSA, is silent about whether the fluctuating work week method is permissible.  The PA Supreme Court chose to view this silence as an intent to reject the .5 multiplier utilized under the fluctuating work week method in favor of a 1.5 multiplier.  Thus, the Court rejected GNC’s use of the .5 multiplier for purposes of overtime pay calculation, affirming an earlier decision by the Pennsylvania Superior Court.

Posted by Taylor Gillan, a former associate with Feinstein Doyle Payne & Kravec, LLC.

SCOTUS Decision Impacts Workers’ Rights

The US Supreme Court stood up for workers’ rights in its March 22, 2016 decision in Tyson Foods, Inc. v. Bouaphakeo, et al.  Writing for the majority, Justice Anthony Kennedy confirmed that class action plaintiffs may prove their case using statistical or “representative” evidence.

This decision is very important for workers’ rights.  Employers sometimes do not pay workers for time they spend “donning and doffing” (putting on and removing) protective gear.  Nurses, factory workers, environmental workers and others often use protective gear.  If an employer does not keep records of unpaid work time, the workers would not be able to recover the pay they are owed.  This Supreme Court decision helps workers to prove their claim by using statistical or representative evidence.

In Tyson, the plaintiffs were employees at the defendant’s meat-processing plant.  These workers claimed that they were not paid for time they spent putting on and taking off protective gear that was necessary to safely perform their job.  Since their employer did not keep records of the time spent putting on/taking off protective gear, the plaintiffs hired an expert to observe some employees to determine the average time spent putting on/taking off their protective gear.  The defendant argued that plaintiffs could not use this sample to prove their claims on behalf of a class of similarly situated workers at the plant.

The Supreme Court found that the Federal Rules of Civil Procedure (the rules that govern civil procedure in US district courts) do permit the plaintiffs’ use of the sample to prove claims on behalf of the class.  This decision is positive for workers’ rights throughout the United States.

The Court explained that, in this case and in many cases involving unpaid wages, it was proper to use the statistical sample to prove claims on behalf of a class.  Otherwise, the Court noted, the failure of the employer to maintain time records would exclude any worker at the plant from proving their claims and recovering wages. An individual worker could use this type of evidence to prove their claim and the Court found that the same evidence may be used to prove class claims.

In this ruling, the Court also clarified that one of its previous rulings regarding workers’ rights (the 2011 Wal Mart v. Dukes decision) did not prohibit the use of statistical sampling to prove class actions, as some employers had mistakenly argued.

Click here to review the Tyson v. Bouaphakeo opinion.

The Department of Labor is Unresolved About Overtime and Electronic Devices

September 18, 2015.  The Department of Labor (DOL) is scrambling to update its policies regarding what constitutes compensable work to reflect how to handle overtime and electronic devices.

Digital labor culture is rapidly changing.  Personal electronic devices have dramatically transformed the way we do — and often cannot stop doing — our jobs. We get home from work, start up our smartphones, and then refresh our office email inbox or cast a glance at our company’s Facebook page.  We complete a bunch of seemingly insignificant, one-off tasks on our synced electronic devices.  The time spent on our electronic devices can add up quickly.

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There have been lawsuits against companies like Verizon and T-Mobile for asking their employees to keep working remotely on electronic devices after hours.  (See West v. Verizon Communications, Inc., (M.D.Fla. Sept. 10, 2009), and Agui v. T-Mobile USA Inc., (E.D.N.Y. July 10, 2009)).  Now, the big question the DOL must answer is:  When do those tasks completed on electronic devices become significant enough to be deemed work-related and thus, compensable?

In June, the DOL announced that it was to issue a request for public information on the topic of overtime and electronic devices by the end of August.  It’s been more than three months now, and no formal request has been issued.  The DOL just cannot seem to make headway on this complex issue.  The main challenge is determining what electronic devices use will count as compensable time under the FLSA for minimum wage and overtime purposes, and how to count it; versus what use is truly insignificant, or “de minimis,” in legal terms.

Once the DOL finally adopts and then publishes a rule, employers’ policies may have to change in ways that will not only affect our jobs, but also our relationship with our electronic devices (cell phones, tables, and laptops).

Companies may require their employees to limit their work-related electronic devices usage away from the workplace to avoid overtime for which they have not budgeted. Employees may have to carefully track and claim their digital overtime.  Managers and supervisors may have to monitor their off-hours communications with employees who are not exempt from FLSA overtime requirements and to set “electronic curfews” for their electronic devices.  We are left with the question, is this the end of the “electronic leash,” or just the beginning of a more rewarding one?

Paid Sick Days – Pittsburgh City Council Passes Paid Sick Days Act

On August 3, 2015, Pittsburgh City Council passed an ordinance requiring most employers within the city limits to give their workers paid sick days. Employees will be able to use the paid sick days to treat their own illnesses or injuries or to care for a sick family member.

If Mayor Peduto signs the bill into law, which he is expected to do, employers with 15 or more employees will have to offer their workers at least five paid sick days a year. Employers with fewer than 15 employees will have to provide three sick days a year. Employees will accrue one hour of sick leave for every 35 hours worked and can use the sick leave after working for three months.

Employees on paid sick leave will receive their normal rate of pay, and the ordinance contains an anti-retaliation provision to punish employers who discriminate against employees for utilizing their paid sick days. An employer can be fined $100 for each violation of the ordinance.

Seasonal workers and employees state and federal employees are not covered by the law.

If the Mayor signs the Paid Sick Leave Act, it won’t go into effect for several months. In that time period, the city’s Law Department expects the Act to be challenged in court by local businesses.

Click to review City of Pittsburgh File No. 2015-1825 – Ordinance supplementing the Pittsburgh Code, Title VI, Article 1, to add a new Section 626, “Paid Sick Days Act.”

EEOC Holds that Sexual Orientation Discrimination is Illegal Under Title VII

On July 15, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued an historic administrative decision stating that sexual orientation discrimination by an employer is illegal under Title VII of the Civil Rights Act of 1964 (“Title VII”).

Click here to review the decision:  EEOC Sexual Orientation Discrimination Decision

The EEOC’s decision states that if an employer makes an adverse employment decision on the basis of an employee’s sexual orientation, the employer is violating the Civil Rights Act.  Sexual orientation discrimination is a type of sex discrimination, and is explicitly prohibited under Title VII. “[S]exual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”

The EEOC provided a simple hypothetical situation to explain its position:  A lesbian female employee and a straight male employee both display pictures of their wives on their desks.  If the employees’ boss suspends the woman because she had the photo on her desk, but does not do the same to her male co-worker, she may allege a charge of discrimination by claiming that her boss wouldn’t have suspended her if she were a man with a wife.

While the administrative decision provides clear insight into the EEOC’s interpretation of Title VII, at this time the decision is not binding on any claim made by non-federal employees.  Nonetheless, courts may likely be persuaded by the EEOC’s decision when considering the discrimination claims of private sector employees.

If courts do adopt the EEOC’s interpretation of sexual orientation discrimination, this decision should come as a relief to LGBTQ residents of Western Pennsylvania.  Until this decision, no federal or state law made it illegal for employers to fire, harass, or refuse to hire LGBTQ workers on the basis of their sexual orientation.

The City of Pittsburgh and Allegheny County, along with several other Eastern Pennsylvania municipalities, have had local Human Relations Acts in place for several years that prohibit this type of discrimination against workers. Now, through the EEOC, LGBTQ residents of Westmoreland, Fayette, and Beaver Counties (to name just a few) have a way to fight workplace sexual orientation discrimination.

Victory in One Federal Appeals Court for Employees with Temporary Disability

A 2014 decision by the Fourth Circuit of Appeals  (Summers v. Altarum Institute, Corporation, No. 13-1645 (4th Cir. Jan. 23, 2014)) found that an employee’s temporary condition may be considered a disability.  

In October 2011, Carl Summers, a statistical analyst for Altarum (a government contractor), fell as he was getting off a train.  He broke bones and tore tendons in both legs and needed surgery.  His doctors told him he would not be able to put any weight on his legs for at least six weeks. Doctors also estimated that it would be seven months before Summers could walk normally again.

Summers called Altarum’s HR Department from his hospital bed to ask about temporary disability (short term disability) benefits.  He also asked about working from home. The HR employee suggested that Summers should focus on getting well and that he could discuss accommodations for his temporary disability at a later time. Summers also contacted his supervisors to discuss working from home.  No one at the company ever followed up on his requests and in November Altarum fired Summers.  His position was filled by another analyst.

Summers sued Altarum, claiming that he was discriminated against because of his temporary disability in violation of the Americans with Disabilities Act (“ADA“). Congress enacted the ADA in 1990 to prevent discrimination of people with physical and mental disabilities in employment and other areas of life (education, public transportation, etc.)

According to the ADA, if an employee or applicant is otherwise qualified to do a job, the employer is required to make reasonable accommodations for a physical or mental impairment which greatly limits a major life activity (for example, breathing, walking, hearing, etc.) unless the accommodation would cause an “undue hardship for the employer.”

In order for the ADA to apply, the employee must inform his employer of the temporary disability. The employer and employee must then have a conversation (called “the interactive process”) to determine what kind of reasonable accommodations would be helpful and are available. An employer cannot take action against the employee (such as terminating or demoting) just because of the temporary disability and the employer does not want to be inconvenienced by offering an accommodation.

After the Supreme Court held in 2002 that a temporary disability due to injury or illness could not be considered a disability under the ADA, Congress amended the ADA in 2008 to expand the definition of “disability.” The Equal Employment Opportunity Commission “EEOC” (the government agency responsible for enforcing federal anti-discrimination laws) issued regulations stating that, for purposes of proving disability under the ADA, “an impairment lasting or expected to last fewer than six months can be substantially limiting.”

In Summers’ case, the lower court judge ignored the change in the ADA and the EEOC regulations.  That court found that Summers was not disabled because his injuries were temporary and he was expected to heal within one year.  That court concluded that Altarum had not violated ADA when it fired Summers.

Summers appealed the decision to the Court of Appeals for the Fourth Circuit, which reversed the lower court’s ruling.  The Appeals Court found that, under the ADA amendments and the EEOC regulations, even if an impairment is short-term it may qualify as a disability if it is “sufficiently severe.”  The Appeals Court concluded that the extensive injuries Summers suffered to both his legs could be considered “sufficiently severe” to justify protection under the ADA as a temporary disability. The Appeals Court sent the case back to the trial court for further litigation pursuant to this finding.

Feinstein Doyle Payne & Kravec attorneys assist clients in getting disability benefits under employer sponsored disability plans.

If a serious medical condition makes it so that you cannot work, even temporarily, you may be entitled to disability benefits from your employer sponsored disability plan.  Be careful:  The process of applying for benefits has many pitfalls.

If you submitted a claim for disability benefits from your employer sponsored disability plan and your claim was denied, you should receive a letter from the insurance company informing you that you have the right to appeal the decision within 180 days.

That letter may have failed to tell you other important information, such as how to “perfect” your appeal and successfully reverse a claim denial.  If the letter fails to provide this information, this is a violation of a federal law known as Employee Retirement Income and Security Act (ERISA) and U.S. Department of Labor regulations that insurance companies are required to follow.

Your Employer Sponsored Disability Claim File

The insurance company’s letter may not inform you that you have the right to a copy of all the documents in your claim file.  You need to have these documents to be sure that the insurance company has all of your medical records and also to determine whether any important records are missing or were ignored.

It is important to see if your file contains a report from a medical professional who reviewed your records (but did not understand your medical issue) so that you can have your own doctor respond to that report.  You also should look at how the insurance company determined what your occupational duties are to see if the job description in your file accurately describes the demands of your job.

You have a right to review all of the employer sponsored disability benefit plan documents.  The insurer may have disregarded the language of your employer’s plan – which governs your right to benefits – and applied the terms of its own insurance policy instead.  You may need to request the plan documents from your employer, but the insurance company will not tell you so.

Even if the insurance company denial letter seems to inform you of your rights, the reasons why they denied your claim may be questionable.  The letter may show that your records were reviewed by an in-house physician.  Reviews by in-house physicians are problematic for several reasons:

(1) The review may be biased.  It is in the insurance company’s financial interest to deny your claim.  Insurance company employees who review your claim may be pressured to “cherry pick” your records for statements to show that the claim should be denied, and to downplay records that would support your disability claim.

(2) A “paper review” of your claim file, without a physical examination, may ignore some of your symptoms, such as pain, limited mobility, or impairment of your cognitive (thinking) abilities.

(3) The reviewer assigned to your file may not have the appropriate training and knowledge to interpret your records or understand the side effects of your prescription medications.

(4) The insurance company’s reviewer may say that your condition is due to “subjective” symptoms, and ignore your doctor’s clinical examination findings, or discount your condition because you did not have objective diagnostic testing, even though there may not even be tests for your condition.

The insurance company may have undertaken surveillance or searched social media sites to try to show that you are capable of the activities of daily living.  While such tactics are not illegal, insurance companies often misstate what a video surveillance shows.  For example, if you leave your house for a short period of time to go to a medical appointment or to care for yourself, it does not mean that you have the ability to work full time.  You have a right to review any surveillance and determine whether the denial letter accurately describes it.

You may have called the insurance company to explain why you believe that your claim should not hve been denied.  If you were told by the insurance company that your claim will be straightened out on appeal and you do not need to send any additional information, DO NOT BELIEVE IT.  If you do not make sure that all the information necessary to support your claim is in your claim file, and your appeal is denied, it will be difficult to add more information if you need to file a lawsuit in order to receive your employer sponsored disability benefits.

If you suspect that your employer sponsored disability benefits were improperly denied, attorneys Tybe Brett and Ruairi McDonnell are available for a no obligation consultation.

Fifth Circuit Affirms Viability of Gender Stereotyping Claim in Same-Sex Sexual Harassment Case

An en banc panel of the Fifth Circuit affirmed a jury verdict for a male employee who had been subjected to gender stereotyping.

In Equal Employment Opportunity Commission v. Boh Bros. Construction Co., No. 11-30770, 2013 WL 5420320 (5th Cir. Sept. 27, 2013), an en banc panel of the Fifth Circuit affirmed a jury verdict for a male employee subjected to same-sex sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964.

Although the panel of judges affirmed that the employer had engaged in intentional discrimination, it overturned the jury’s award of punitive damages because the panel felt that the employer did not subjectively perceive that it was violating federal law.  After reversing the punitive damages award, the Fifth Circuit sent the case back to the district court for consideration of the compensatory damages award.

Plaintiff Kerry Woods worked as an ironworker for Boh Brothers Construction Company under the supervision of crew superintendent Chuck Wolfe.  Wolfe regularly targeted Woods for sexually explicit verbal and physical abuse and even exposed himself to Woods on multiple occasions.

Wolfe’s gender stereotyping harassment originated, in part, from Woods’ use of moist towelettes at the work site, which Wolfe viewed as “feminine.”  Woods reported Wolfe’s harassing behavior to both his foreman and general superintendant, but Wolfe was never disciplined.

In November 2006, Boh Brothers transferred Woods to a different crew to avoid further problems with Wolfe and laid him off for lack of work in February 2007.

Woods originally filed a charge of discrimination with the EEOC in November 2006.  In September 2009, the EEOC brought suit against Boh Brothers, alleging sexual harassment and retaliation under Title VII.

The jury found in favor of Woods and awarded him $451,000 in compensatory and punitive damages for gender stereotyping, which the district court reduced to comply with the $300,000 statutory damages cap.  On appeal, a three-judge panel of the Fifth Circuit reversed, holding that there was insufficient evidence as a matter of law to sustain the jury’s verdict that Boh Brothers had discriminated against Woods by gender stereotyping.

The Fifth Circuit judges reversed in part the three-judge panel, holding that a plaintiff can prove same-sex sexual harassment with evidence of gender stereotyping.  Significantly, the Court stated that a plaintiff must only show that the employer subjectively perceived the employee as failing to conform to gender stereotypes without requiring proof that the employee actually had failed to conform to gender stereotypes.

The Fifth Circuit then concluded that a reasonable jury could find that (1) Wolfe harassed Woods because of his sex since he considered Woods to be unmanly and (2) the harassment was severe and pervasive.  In so doing, the Fifth Circuit stated that the three evidentiary paths for proving same-sex harassment described in Oncale v. Sundown Offshore Services, Inc., 523 U.S. 75 (1998), are merely illustrative, and not exclusive.

The majority’s opinion in this case drew several dissents from the en banc panel.  Circuit Judge E. Grady Jolly wrote that the EEOC failed to prove that sex discrimination motivated Wolfe’s harassing behavior, given the more demanding burden for same-sex sexual harassment claims, Wolfe’s similar treatment of other employees, and the baseline crudity of the ironworker worksite.

Circuit Judge Edith H. Jones viewed the decision as “portend[ing] a government-compelled workplace speech code.”

Circuit Judge Jerry E. Smith pointedly criticized the majority for sanctioning Woods’ hypersensitivity and warned that “[t]he only way an employer can avoid the real possibility of suit and ultimate damages is to . . . make sure that nothing is uttered in the workplace that could possibly offend even a single person.”

Senior Circuit Judge Harold R. DeMoss disagreed with remanding the compensatory damages determination to the district court.

Boh Bros. is a victory for employees, as the Fifth Circuit for the first time expressly held that discrimination because of failure to conform to gender stereotypes is discrimination “because of . . . sex” under Title VII.  This provides an important avenue of legal redress for employees in Texas, Louisiana, and Mississippi facing gender stereotyping and/or harassment in the workplace.

Pennsylvania Supreme Court Decision: Acceptance of early retirement incentives no longer precludes receiving Unemployment Compensation Benefits

On December 28, 2012, the Supreme Court of Pennsylvania in Diehl, Jr. v. UCBR, No. 51 MAP 2011, overturned 30 years of Commonwealth Court precedent. The Court held that the voluntary layoff provision of unemployment compensation law allows employees to accept early retirement incentives from their employers without forfeiting their rights to unemployment benefits.

Diehl v. UCBR Opinion.

In a series of decisions referred to as the Renda line of cases, Pennsylvania courts had consistently refused to apply the voluntary layoff provision of the state unemployment compensation law to employees who had accepted early retirement incentives.

Harold Diehl was 63 years old and had spent 23 years working as a shipping clerk for ESAB Welding & Cutting Products. In December 2008, due to financial conditions, the company announced a reduction in work force. Diehl accepted the early retirement incentive package offered to high seniority employees.

The early retirement incentives included payment of unused vacation time, payment of three years of health insurance premiums, and partial payment of insurance for two years.

After accepting the early retirement incentives package, Diehl also filed for unemployment compensation benefits. Diehl’s claim was denied because he had voluntarily quit his job “without a necessitous and compelling reason.”

In issuing its December 2012 Opinion, the Supreme Court of Pennsylvania reversed the denial of benefits. The opinion stated that Pennsylvania state unemployment compensation law did not allow the denial of benefits to an employee because they had accepted a voluntary employer-initiated workforce reduction.

The Court argued that, if the legislature had intended to exclude those who accepted early retirement incentive packages from receiving benefits, it would have made this intent clear. The Court concluded that early retirement incentives fit the definition of “layoff.”

The Diehl decision overturned a long held precedent in Pennsylvania. The Opinion clearly stated that “such programs are merely a different way to accomplish the workforce reduction of a layoff.”