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Ninth Circuit Finds Obesity a Protected Disability Under State Law

In recent years, a number of federal courts have drawn differing conclusions with regard to whether obesity is a protected disability under the Americans with Disabilities Act. While some courts have reached this conclusion,...more

New California Law Prohibits Mandatory Arbitration of State Law Employment Claims

On January 1, 2020, a new California law could prevent employers in that state from requiring arbitration of employment claims brought under state law. The new law was prompted by stories revealed as a result of the #MeToo...more

Ninth Circuit Enjoins ACA Religious Exemption Rules

The Affordable Care Act requires that employer-sponsored group medical insurance plans provide contraceptive coverage without cost sharing. Earlier this year, the U.S. Department of Health and Human Services issued final...more

U.S. Labor Department Gives States Latitude on Drug Testing Unemployment Recipients

In 2012 as part of a tax reform bill, Congress directed the Department of Labor to issue regulations that would permit states to condition unemployment insurance benefits for certain recipients on their ability to pass drug...more

Seventh Circuit Says One Use of "N-Word" Insufficient for Racial Harassment Claim

In recent years, a number of federal appellant courts, including the Fourth Circuit, have issued opinions finding that a single use of a racial slur can be enough to constitute a hostile and offensive working environment...more

New NLRB Advice Memo Clarifies Social Media Policy Rules

The National Labor Relations Board continues to provide guidance with respect to employers’ attempts to regulate employee social media behavior. In its Boeing Co. decision, the board made it significantly more difficult for...more

Perfect Attendance Benefits Interfered With FMLA Rights

Under the Family and Medical Leave Act, employers cannot penalize employees for use of FMLA leave. Earlier this month, the Sixth Circuit Court of Appeals found that an employer’s resetting of a perfect attendance program...more

Work Restrictions Alone Do Not Add Up to ADA Disability

The ADA Amendments Act of 2008 (ADAAA) substantially lowered the bar for plaintiffs to demonstrate a protected disability under the Americans with Disabilities Act. However, on occasion we still see federal courts reject ADA...more

Prior Harassment Claims Do Not Eliminate Employer's Use of Faragher-Ellerth Defense

Under Title VII, employers are vicariously liable for incidents of sexual harassment engaged in by supervisors. In its Faragher and Ellerth decisions, the U.S. Supreme Court acknowledged a limited defense to claims of...more

Failure to Immediately Address Employee Behavioral Issues Not Evidence of Pretext in Later Termination

In employment discrimination cases, when the plaintiff makes out a prima facie claim of bias, the employer must articulate legitimate non-discriminatory reasons for the action. The plaintiff then has the ultimate burden of...more

Refusal to Work Can Be Protected Concerted Activity

The National Labor Relations Act guarantees employees the right to engage in protected concerted activity, meaning two or more employees objecting to terms and conditions of employment. Most recent concerted activity cases...more

Performance Counseling and Mediation Session Not Considered Adverse Employment Actions Under Title VII

Employees cannot sue under federal anti-discrimination laws for every perceived slight or workplace occurrence. In order to be actionable, the alleged employer conduct must rise to the level of an “adverse employment action.”...more

Ex-Employees Can Challenge Statistical Impact of Reductions in Force

On occasion, employers defending lawsuits filed by their employees raise questions over the legal validity of what most attorneys consider to be settled law. A good example comes from a recent decision by the U.S. Court of...more

Fourth Circuit Affirms Age Discrimination Verdict Despite Shaky Evidence of Bias

For employers in North Carolina and South Carolina, perhaps the most important change in their exposure to legal claims from employees has resulted from the appointment of new judges to the Fourth Circuit Court of Appeals who...more

Fifth Circuit Reasserts View That Sexual Orientation Discrimination Is Not Protected Under Title VII

The U.S. Supreme Court has agreed to settle deep divisions between federal appellate courts on the question of whether an employee’s or applicant’s sexual orientation or gender identity are protected under Title VII’s sex...more

Proposed Overtime Exemption Rules Allow Use for Bonuses or Commissions for 10% of Minimum Salary

Last week, we reported on new proposed Department of Labor regulations that would raise the minimum salary for claiming the “white collar” overtime exemptions to $35,308 per year. In addition to the new salary level, the...more

Seventh Circuit Says ‘Hellish' Work Environment Is Not Necessary to Prove Title VII Harassment

Over the past decade, federal courts have gradually reduced the evidentiary burden necessary for a plaintiff to reach a jury trial on claims involving sexual or racial harassment. The relevant legal standard calls for the...more

Fourth Circuit Says Disclosure of Depression Triggered FMLA Obligations

Most employers know that an employee does not have to ask for Family and Medical Leave by name in order to fall under the FMLA’s protections. At what point, however, does the employee’s disclosure of a medical condition...more

Fourth Circuit Sets Low Bar for Employee to Challenge Medical Exam Requirement

According to the Americans with Disabilities Act, employers may only require employees to submit to medical exams or inquiries when there is a business necessity for determining the employee’s ability to perform the essential...more

Eighth Circuit Says ADA Does Not Require Waiving Attendance Policy

Job-protected leave continues to be the most common accommodation requested by employees under the Americans with Disabilities Act. For employers, the question remains at what point does the amount of work missed end the...more

OSHA Obtains Criminal Indictment of Managers Who Allegedly Obstructed Investigation

Most prosecutors will tell you that the cover-up is often worse than the underlying crime. This adage was again proven correct earlier this month when OSHA announced that the U.S. Department of Justice had obtained federal...more

Lack of Adverse Employment Action Dooms ADA Failure to Accomodate Claim

The Americans with Disabilities Act requires employers to provide reasonable accommodations that permit a disabled employee to perform the essential functions of his or her job. What happens, however, when an employer...more

Eleventh Circuit Refuses to Allow Expanded OSHA Inspection

Occupational Safety and Health Administration workplace inspections are often triggered by an employee injury or complaint. In such circumstances, OSHA rules only permit the inspector to investigate the workplace safety...more

Management Company Possibly Considered Hotel Worker's Employer for Title VII Liability

In the hospitality industry, it is fairly common for a hotel to retain a management company to run housekeeping, food and beverage, and other functions. While the management company may supervise and direct the work of hotel...more

Seventh Circuit Says Employer Liable for Customer Stalking Employee

Title VII of the Civil Rights Act of 1964 protects employees from workplace harassment. As most employers know, these protections apply not only to behavior by co-workers and supervisors but also to harassment by customers,...more

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