Wyatt Employment Law Report

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Seventh Circuit Rejects Claim of Sexual Orientation Discrimination

By Jordan M. White

rainbow flagJust last year, the Equal Employment Opportunity Commission (“EEOC”) ruled that sexual orientation discrimination is unlawful under Title VII of the Civil Rights Act.  On July 28, 2016, the U.S. Court of Appeals for the Seventh Circuit rejected the EEOC’s determination and ruled that Title VII does not protect employees from workplace discrimination on the basis of sexual orientation.  In Hively v. Ivy Tech Community College, Kimberly Hively, a part-time adjunct professor, claimed that she was denied full-time employment and promotions because she was a lesbian.  Hively began her teaching career at Ivy Tech in 2000.  Between 2009 and 2014, she applied for six full-time positions. She alleged that the college never even interviewed her for any of those positions, despite having the necessary qualifications and a record of positive work performance evaluations.

In December 2013, Hively filed a charge with the EEOC, alleging that she had been discriminated against on the basis of her sexual orientation and had been “blocked from full-time employment without just cause.”  Ivy Tech did not renew her part-time employment contract in July 2014 and she filed suit.  Ivy Tech successfully argued at Continue reading

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Employee Handbook Review: 6 Topics Employers Should Consider

By R. Joseph Stennis, Jr.

An out-of-date employee handbook that fails to recognize ever-evolving laws and regulations is more harmful than helpful to an employer.  It is important to ensure that your company’s handbook stays current and ‘with the times.’  The following are six employment law topics that should be taken into consideration during your handbook review and revision process:

1. LGBT Protections. Laws, courts, and administrative agencies (State and Federal) continue to expand protections for lesbian, gay, bisexual, and transgender employees.  From the EEOC’s perspective, Title VII of the Civil Rights Act forbids any employment discrimination that is Continue reading

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Obama Administration Issues Guidance to Public Schools Regarding Transgender Access to Restrooms

By Amanda Warford Edge

diverse classroomOn Friday, May 13th, 2016, the Obama administration issued guidance directing all public schools in the country to allow transgender students to use the bathroom that corresponds with their gender identity. This guidance was issued amidst a court fight between North Carolina and the federal government over North Carolina’s controversial House Bill 2, which bans people from using public bathrooms that do not correspond with their biological sex.

U.S. Secretary of Education John B. King, Jr. said that the guidance comes in response to schools and parents seeking direction on the issue. According to the Obama administration, the guidance ensures that all “transgender students enjoy a supportive and nondiscriminatory school environment.” The guidance also states schools cannot require transgender students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate before treating them consistently with their gender identity.

While this guidance does not have the force of law, its message was clear: gender identity is protected under Title IX as far as Continue reading

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EEOC Weighs In On Bathroom Issue for Transgender Employees

By Michelle Wyrick

Following recent news reports about Target’s bathroom controversy and North Carolina’s bathroom law, the U.S. Equal Employment Opportunity Commission (“EEOC”) has issued a Fact Sheet outlining its views on bathroom access rights for transgender employees under Title VII of the Civil Rights Act.  You can view the Fact Sheet here.

According to the EEOC, Title VII’s prohibition on sex discrimination also prohibits discrimination based on gender identity and sexual orientation.  Consequently, denying a transgender employee access to a common restroom corresponding to the employee’s gender identity constitutes sex discrimination.  An employer cannot require an employee to provide proof of surgery or any other medical procedure in order to use a particular restroom.  Nor can an employer avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom (although an employer can make a single-user restroom available to all employees who choose to use it).  The hostility or discomfort of other employees cannot overcome the right of a transgender employee to use the restroom corresponding with his or her gender identity.  Moreover, contrary state law is no defense.  Sorry, North Carolina.

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Is It Time for an Internal Audit to See if Your Company’s Compensation is in Compliance with the Law? What We Can Learn From the U.S. Women’s Soccer Team Suit

By Sharon L. Gold

wage increaseThis month, five members of the U.S. Women’s National Soccer team filed a wage disparity complaint with the EEOC against the U.S. Soccer Federation.  The Women’s team alleges that despite the fact that they are doing equal work, they are not receiving equal pay as the Men’s National Soccer Team.  The Women’s team alleges their top-tier players earn between 38% and 72% of their male counterparts, although the Women’s Team is more successful.  One article noted that in 2015, they were paid far less for winning the tournament than the men were paid to lose their tournament.  The EEOC will investigate the complaint and then make a decision as to the validity of the women’s claims.

The EEOC has jurisdiction over claims alleging discrimination in pay under the Equal Pay Act of 1963, Title VII, ADEA, and ADA.  The EPA requires that men and women be given equal pay for equal work.  In order for jobs to be considered equal, they must be substantially equal.  In order to make this assessment, the EEOC looks to Continue reading

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EEOC Now Using An Online Charge System

By Michelle Wyrick

EEOCAiming to improve public service, ease the administrative burden on staff, and reduce the amount of paper submissions and files, the U.S. Equal Employment Opportunity Commission (“EEOC”) has begun using an online charge system. The new system allows an individual who has filed a charge of discrimination to check the status of the charge online. In addition, the system provides an overview of the steps that charges go through from intake to resolution and provides contact information for EEOC staff assigned to the charge. Employers can also obtain information about the status of pending charges and communicate with the EEOC through the new system. All EEOC offices now use a digital charge system in which employers transmit and receive documents regarding discrimination charges through a secure online portal.

The Online Charge Status System may be used for charges filed on or after September 2, 2015. The system cannot Continue reading

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Kentucky Supreme Court Clarifies “Similarly Situated” Standard for KCRA Claims

By Courtney Ross Samford

NKU-library-1On March 17, 2016, the Kentucky Supreme Court addressed the “similarly situated” standard that must be established by all plaintiffs in Kentucky Civil Rights Act (KCRA) claims in The Board of Regents of Northern Kentucky University v. Weickgenannt, 2016 WL 1068245 (Ky. March 17, 2016) (unpublished).  Plaintiff Andrea Weickgenannt sued the Board of Regents of Northern Kentucky University (NKU), claiming that her application for tenure was denied because of her gender, in violation of the KCRA.  Initially, NKU’s accounting department recommended Weickgenannt for tenure to the Dean of the College of Business.  In his first tenure review since joining NKU, the Dean disagreed with this recommendation, based on his belief that Weickgenannt failed to publish three peer-reviewed articles in journals of “good quality” and her lack of a “continuing commitment to do scholarly activity in the future,” as required by the College of Business’s scholarship requirements.

Weickgenannt’s application was then reviewed by NKU’s female Provost.  She supported the Dean’s recommendation after speaking with faculty members from other Kentucky universities, each of whom confirmed that Weickgenannt’s articles were published in a journal that was insufficient to warrant tenure.  The Provost also Continue reading