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Employment Law This Week, February 15, 2017: Transgender Discrimination, Travel Ban Ruling, “Honest Belief” Defense, NY’s Wage Discussion Law

We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! 

This week’s stories include ...

(1) Texas Court Dismisses Transgender Discrimination Claims

Our top story: Transgender discrimination claims were dismissed by a federal court in Texas. A transgender employee of L-3 Communications filed suit against the company and its health insurance provider after she was denied coverage for breast implants. The implants were deemed medically necessary by a health care professional to treat gender dysphoria. The employee alleged discrimination in violation of Section 1557 of the Affordable Care Act, ERISA, and Title VII of the Civil Rights Act of 1964 (Title VII). The Texas court dismissed the Section 1557 and ERISA claims, finding that neither includes protections against gender identity discrimination. The judge declined to dismiss the employee’s Title VII claims against L-3 Communications, rejecting the company’s argument that the denial of benefits was not an adverse employment action.

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(2) Travel Ban Remains Blocked

The U.S. Court of Appeals for the Ninth Circuit won’t reinstate President Trump’s travel ban. On February 9, 2017, a three-judge panel unanimously ruled that the executive order that suspended the entry of foreign nationals from seven mostly Muslim countries should remain blocked while the issue is in litigation. In an ironic twist, the Ninth Circuit cited a Fifth Circuit case opposing President Obama’s 2014 “Dreamers” executive action for the nationwide scope of the temporary restraining order and for Minnesota and Washington’s standing to bring the case. The Trump administration could appeal to the U.S. Supreme Court. In the meantime, the case is proceeding toward a hearing for a preliminary injunction back in the federal district court in Washington State.

(3) Third Circuit: Honest Belief Defeats FMLA Retaliation Case

The Third Circuit rules that an “honest belief” can defeat a Family and Medical Leave Act (FMLA) retaliation claim. An employee was arrested for driving under the influence on a day that he had taken leave under the FMLA and subsequently fired. He filed an FMLA retaliation claim against his employer. In a precedential opinion, the Third Circuit found that an employer’s honest belief that a worker misused FMLA leave is a nondiscriminatory justification for termination, whether or not the belief was mistaken.

(4) NYSDOL Implements New Wage Discussion Law

The New York State Department of Labor (DOL) clarified the pay transparency provisions of the equal pay law. In 2015, New York’s equal pay law made it illegal for employers to prohibit employees from discussing the wages of other employees. The law does allow employers to implement a written policy limiting these discussions without the other employees’ “prior permission.” The DOL issued new regulations that explain that a co-worker’s verbal authorization, if given voluntarily and in advance, is sufficient to meet the “prior permission” requirement.

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(5) Tip of the Week

Maria VanHees, Edgewell Personal Care’s Assistant General Counsel for Labor and Employment, shares some advice on best practices in developing a beneficial relationship between legal and HR professionals:

“To develop a beneficial relationship with human resources, learn about their challenges and their goals. To do this, get involved. Join group HR meetings, train on topics that are of interest to them, and visit their work sites. If you do this, you will foster a good working relationship, and you will gain valuable insight on how to best support human resources.”

©2017 Epstein Becker & Green, P.C. All rights reserved.

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About this Author

George Carroll Whipple III, Epstein Becker Green, Workforce Management Lawyer, Hiring Matters Attorney
Member

GEORGE CARROLL WHIPPLE, III, is a Member of the Firm in the Employment, Labor, and Workforce Management practice, in the New York office of Epstein Becker Green. He hosts the firm's innovative weekly video program, Employment Law This Week.

Mr. Whipple:

  • Counsels employers on workplace issues, including hiring and promotion, firing and discipline, wage and hour, and the implementation of employment policies, to ensure compliance with federal and state laws

  • ...
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