Articles Posted in Supreme Court

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Owen H. Laird, Esq.

This should not come as a surprise: tomorrow is Election Day.   Coverage of the presidential race started over a year ago and has been inescapable for the last several months.  Putting aside the vitriol, nonsense, and mudslinging, the outcome of this election will have a significant impact on the employment of millions of Americans, and not just in terms of the candidates’ claims about job creation.  Should Hillary Clinton win the presidency, Americans will likely see a continuation of the worker-friendly policies instituted under President Obama.  However, should Donald Trump win, we will likely see a Republican administration roll back much of the progress of the past eight years, to the detriment of workers and the benefit of employers.

The Obama administration has influenced employment law policy through three main avenues: (1) executive order, (2) administrative agencies, and (3) appointment.

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Yarelyn Mena and Edgar M. Rivera, Esq.

Courts in the United States generally recognize that marijuana use is a legitimate reason to terminate an employee. However, with an increasing number of states now legitimizing both recreational and medical marijuana use, employers and employees alike are left with uncertainty as to the potential repercussions of marijuana use with respect to employment.

Twenty-three states and the District of Columbia have legalized medical marijuana. In addition, in some states, including Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada and New York, an employer cannot take an adverse action against an employee simply because of his or her participation in a recognized medical marijuana program. Medical marijuana use also implicates federal and state disability laws. Additionally, a medical marijuana user may be considered disabled if he or she has a disability under the Americans with Disabilities Act (ADA) or similar state statutes. While the ADA itself does not require an accommodation based on marijuana use, it does require other accommodations related to a covered disability. As such, if an employee tests positive for marijuana, the employer should ask the worker to verify that he or she is a participant in a recognized medical marijuana program.

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Yarelyn Mena  and Edgar M. Rivera, Esq.

On March 23, 2016, North Carolina Governor Pat McCrory signed in to law the Public Facilities Privacy of Security Act (or H.B. 2), which bans transgender people from using the public bathroom that corresponds to their gender identity, overturns Charlotte, North Carolina’s anti-LGBT discrimination law, prevents other localities from passing anti-discrimination laws, and prevents cities from raising their minimum wages higher than that of the state. H.B. 2 was passed days before Transgender Day of Visibility, a day that recognizes the accomplishments of the transgender community. Although there were many recent victories for the LGBT community, H.B. 2 is an important reminder that there is still a lot of work to be done before LGBT individuals have the same rights everyone enjoys.

On February 22, 2016, the city of Charlotte, North Carolina passed a law prohibiting discrimination against gay, lesbian, bisexual and transgender people in the workplace. The most controversial part of the law was that it would allow transgendered people to use the bathroom that corresponds with their gender identity. Opponents of the bill nicknamed it the “bathroom bill” and argue that it made bathrooms unsafe for women and children. University of North Carolina at Greensboro, Payton McGarry, a transgender student, is one of the Plaintiff’s in a lawsuit challenging H.B. 2, who has been assaulted and ridiculed for using the bathroom that comports with his gender identity at his university, experiences which will only grow worse with H.B. 2 in place. H.B. 2 abrogated that law.

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Yarelyn Mena and Edgar M. Rivera, Esq.

On February 13, 2016, Supreme Court Justice Antonin Scalia passed away after 30 years of service on the bench. Justice Scalia was widely renowned for his conservative political views and eloquent legal opinions. His passing left a vacanct seat at the Supreme Court, without Justice Scalia, the Supreme Court; is evenly split between four liberals and four conservatives. The Constitution tasks the President to fill that vacancy by appointing a candidate “by and with the advice and consent” of the Senate.

The media has been whirling as it awaits President Obama’s nomination in light of the President’s ongoing battle with the Republican-filled Senate’particularly because any Republicans in  the Senate have vowed to block any of President Obama’s nominations. In fact, many Republicans in the Senate wish to prevent President Obama from nominating any Justice in hopes that when his term is over at the end of 2016, a new Republican President will nominate a conservative justice.

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Lucie Rivière and Edgar Rivera, Esq.

On October 22, 2015, at the Empire State Pride Agenda’s 25th Anniversary Fall Dinner, Governor Andrew Cuomo announced new regulations to protect transgender New Yorkers from discrimination in housing, credit lending, education, public accommodations, and employment. In support of the new regulations, Governor Cuomo stated, “In 2015, it is clear that the fair legal interpretation and definition of a person’s sex includes gender identity and gender expression.”

The State of New York has a long history of protecting the rights of transgender persons. In the landmark 1977 case Richards v. U.S. Tennis Association, the New York County Supreme Court first allowed a transgender individual to bring a discrimination claim based on her transgender status pursuant to the New York State Human Right Law (“NYSHRL”). In that case, a professional tennis player, Richards, who had male-to-female sex reassignment surgery brought an action to enjoin the U.S. Tennis Association from requiring her to pass a sex-chromatin test to be eligible to play.  A sex-chromatin test determines whether a second X chromosome is present; therefore, only women biologically born female will pass it.  U.S. Tennis used that test to determine whether an athlete was eligible to participate in the U.S Open tennis tournament. The Supreme Court of New York County held that requiring the plaintiff to pass the sex-chromatin test was “grossly unfair, discriminatory, and inequitable” and a violation of the NYSHRL. However, the court did not state how U.S. Tennis Association violated the NYSHRL; it only stated that the NYSHRL prohibits discrimination for an employer because of “age, race, creed, color, national origin, sex or disability, or marital status” and that that U.S. Tennis, among defendants, violated Richards’ rights. In other words, the court was not clear on how the defendant violated Richard’s rights.

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Yarelyn Mena and Owen H. Laird

When the Supreme Court of the United States affirmed the right for same-sex couples to marry, the LGBT community won a long and hard-fought battle for marriage equality. The Human Rights Coalition (HRC), one of America’s largest civil rights organizations committed to ensuring legal rights for the LGBT community, continues the struggle for LGBT rights by supporting the Employment Non-Discrimination Act (ENDA), legislation aimed at protecting the LGBT community from discrimination in the workplace. ENDA would make it illegal for employers to discriminate against potential or current employees based on their sexual orientation or identity.

ENDA resembles Title VII of the Civil Rights Act of 1964 in its purpose to prevent and eradicate discrimination of protected classes in the workplace. The HRC supports passing ENDA because there “is no federal law that consistently protects LGBT individuals from employment discrimination; there are no state laws in 29 states that explicitly prohibit discrimination based on sexual orientation, and in 32 states that do so on gender identity.” Currently, in the states that do not offer protection to LGBT workers, employees and prospective employees face routine and often legal discrimination because of their sexual orientation or gender identity. ENDA will provide LGBT workers with nationwide protection from employment discrimination, filling in the gaps left by state laws. Protection against sexual orientation and gender identity based discrimination is already widespread. According to a report by the HRC, 8 out of 10 voters already believe that discrimination based on sexual orientation and gender identity was illegal, showing that ENDA would provide the legal framework for rights that most Americans already believe exist.

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Edgar M. Rivera, Esq. 

On April 29, 2015, the Supreme Court of the United States (“SCOTUS”) decided Mach Mining L.L.C. v. Equal Employment Opportunity Commission, which addressed the issue of whether and how courts may review the U.S. Equal Employment Opportunity Commission (“EEOC”)’s efforts to attempt to remedy unlawful workplace practices through conciliation prior to filing a lawsuit.

The EEOC is the federal agency tasked to enforce federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964 (“Title VII”), which requires the EEOC to attempt conciliation between the parties before filing a lawsuit.  After an aggrieved individual files a charge of an unlawful workplace practice with the EEOC, the EEOC must notify the employer and undertake an investigation. If the EEOC does not find reasonable cause to pursue the claim, it dismisses the charge and notifies the parties. The aggrieved party may then pursue his or her own lawsuit if he or she chooses to do so. If the EEOC finds reasonable cause to bring a Title VII claim, it must, “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion,” prior to filing a lawsuit against the employer.

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Ciera Ambrose and Edgar M. Rivera, Esq.

Lakeland Eye Clinic (“Lakeland”), a Florida based ophthalmology and optometry center, agreed to pay $150,000 to settle a lawsuit for transgender discrimination under Title VII of the Civil Rights Act (“Title VII”). The eye clinic allegedly discriminated against a transgender worker by terminating her employment for failing to conform to the employer’s gender-based expectations. The complaint alleged that although the employee had performed her duties satisfactorily throughout her employment, Lakeland terminated her employment after she began to present herself as a woman.

Gender-identity discrimination in the workplace occurs when an employer discriminates against an employee for not adhering to expected gender norms. According to Workplace Fairness, a non-profit organization working to preserve and promote employee rights, gender-identity discrimination includes: (i) terminating a transgender employee after the employer learns of the employee’s gender identity or planned transition; (ii) denying a transgender employee access to workplace restroom facilities available to other employees; (iii) requiring a transgender employee to use a restroom not consistent with the employee’s gender identity or presentation; (iv) harassing a transgender employee; (v) permitting and/or refusing to investigate claims of harassment by coworkers and supervisors; or (vi) any other adverse employment action taken because of an employee’s gender identity.

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Ciera Ambrose and Edgar M. Rivera, Esq.

On March 26, 2015, the Supreme Court of the United States (“SCOTUS”) articulated the standard for pregnancy discrimination claims under the Pregnancy Discrimination Act of 1978 (“PDA”). In Young v. UPS, the Court interpreted the second clause of the PDA, which requires employers to treat “women affected by pregnancy … the same for all employment-related purposes…as other purposes not so affected but similar in their ability or inability to work.” The Court decided how this clause applies to employers that provide fewer accommodations to pregnant workers than to employees with non-pregnancy related disabilities.

Peggy Young was a part-time UPS driver. After becoming pregnant, her doctor advised her not to lift anything more than 20 pounds. UPS requires drivers are required to lift packages weighing up to 70 pounds.   Young requested UPS to allow her to continue to working without requiring her to lift heavy packages to accommodate her pregnancy. UPS regularly gave such accommodations to employees who sustained work-related injuries or suffered from disabilities covered by the Americans with Disabilities Act (“ADA”). UPS told Young that she could not work if she could not lift packages. Young consequently stayed home without pay during most of her pregnancy. Young sued UPS under the PDA, alleging that UPS had discriminated against her based on her pregnancy.

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Ciera Ambrose and Edgar Rivera, Esq.

Recently, the Supreme Court of the United States (“SCOTUS”) heard oral argument regarding whether an employer can be liable under Title VII of the Civil Rights Act of 1964 (“Title VII”) for refusing to hire an applicant based on a religious observance and practice where the employer had no actual knowledge that a religious accommodation was required. In EEOC v. Abercrombie & Fitch Stores, Inc., plaintiff Samantha Elauf, a Muslim teenager, applied for a sales-associate position at Abercrombie & Fitch Stores, Inc. (Abercrombie) and alleged that Abercrombie refused to hire her because she wears a religious headscarf.

Abercrombie, a national chain of “east coast preppy” clothing stores, requires its employees to comply with its “Look Policy” (the “Policy”), which forbids black clothing and caps. If a question arises about the Policy during an interview, or an applicant requests a deviation from the Policy, the interviewer must contact the corporate human resources department, which then determines whether an accommodation should be granted. Ms. Elauf wears a headscarf every day, and did so in her interview, but she neither mentioned her headscarf during her interview nor indicated that she would need an accommodation from the Policy. The interviewer contacted the district manager who directed the interviewer to lower Ms. Elauf’s rating on the appearance section of the application because she wore a headscarf, which resulted in her not being hired.

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