EEOC Guidance Update
The EEOC’s technical assistance document recaps the Bostock v. Clayton County, Georgia decision and provides Q&A format guidance explaining the EEOC’s position on several sexual-orientation and gender-identity-related workplace discrimination issues:
- Non-LGBTQ+ job applicants and employees are also protected against sexual orientation and gender identity discrimination, and employers are not allowed to discriminate against job applicants or employees because the applicants or employees are, for example, straight or cisgender (someone whose gender identity corresponds with the sex assigned at birth).
- An employer’s discriminatory action cannot be justified by customer or client preferences, and as a general matter, an employer covered by Title VII is not allowed to fire, refuse to hire, or take assignments away from someone (or discriminate in any other way) because customers or clients would prefer to work with people who have a different sexual orientation or gender identity.
- Whether or not an employer knows an employee’s sexual orientation or gender identity, employers are not allowed to discriminate against an employee because that employee does not conform to a sex-based stereotype about feminine or masculine behavior.
- Prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination.
- If an employer has separate bathrooms, locker rooms, or showers for men and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities. [This hot button issue is still developing, and the majority opinion in Bostock made it clear that the Supreme Court was not taking a position on the use of “private spaces” and left unresolved the question of whether employers could segregate restrooms by sexual orientation or gender.]
- Although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.
The EEOC’s guidance does not have the force of law, however, it provides helpful insight about how the Commission may address these issues in the future.
On July 29, 2021, the DOL announced a final rule to rescind an earlier rule, “Joint Employer Status under the Fair Labor Standards Act,” that took effect in March 2020. The prior rule established a four-factor balancing test for determining FLSA joint-employer status that was considered narrow and more employer-friendly. According to the DOL, the withdrawn rule “included a description of joint employment contrary to statutory language and Congressional intent” and “failed to take into account the department’s prior joint employment guidance.” The recission marks a return to a broader employee-friendly standard for determining joint employment that will classify more entities as joint employers, increasing potential liability for minimum wage and overtime violations. The rescission, issued July 29, takes effect September 28, 2021.
Court of Appeals Reverses Summary Judgment in Favor of Employer on Plaintiff’s FMLA Interference Claim
Court of Appeals reversed summary judgment in favor of employer on plaintiff’s FMLA interference claim, holding that plaintiff was entitled to notice of her FMLA rights even where plaintiff’s on-the-job injury was designated as a workers’ compensation claim. After plaintiff tripped and fell at work, injuring her knee, she was excused from work temporarily before being referred to physical therapy and restricted to light duty work. Plaintiff’s doctor subsequently cleared her at maximum medical improvement with a zero-percent impairment rating, and plaintiff attempted to return to regular-duty work but failed a physical “essential functions test,” resulting in her termination.
The 11th Circuit held that plaintiff’s original knee injury qualified as a “serious health condition” under the FMLA, and that plaintiff was therefore entitled to twelve weeks leave, despite receiving medical clearance at the conclusion of her workers’ comp claim. Because the employer oversaw plaintiff’s workers’ comp treatment, the Court reasoned, plaintiff had given her employer reasonable notice that she needed FMLA leave without an express request. The 11th Circuit remanded the case back to the district court for factual determinations regarding whether the employer’s failure to provide plaintiff FMLA notice prejudiced her ability to ultimately obtain reinstatement to her job.
- An employee is entitled to FMLA leave if she has a serious health condition that makes her unable to perform the functions of her position. A serious health condition means an illness, injury, impairment, or physical or mental condition that involves continuing treatment by a health care provider. To qualify as continuing treatment under FMLA regulations, treatment (1) must involve a period of incapacity of more than three consecutive, full calendar days, and (2) must require either (a) treatment by a healthcare provider at least twice within 30 days of the first day of incapacity or (b) treatment by a healthcare provider at least once that results in a regimen of continuing treatment under the supervision of the healthcare provider.
- An employer “cannot exempt itself from its FMLA notice obligations by offering [employees] paid workers’ compensation,” and workers’ compensation absence and FMLA leave can run concurrently, provided proper notice and designation by the employer.
- “If FMLA entitles an employee to leave, an employer may not, in lieu of FMLA leave entitlement, require an employee to take a job with a reasonable accommodation.”