January 18, 2022

Volume XII, Number 18


January 15, 2022

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Employment Law This Week, April 10, 2017: Sexual Orientation Discrimination, Indefinite Leave, “Purple Communications” Decision, Lawsuit with 10K Opt-Ins [VIDEO]

We invite you to view Employment Law This Week - a weekly rundown of the latest news in the field. We look at the latest trends, important court decisions, and new developments that could impact your work.

This week’s stories include ...

(1) Seventh Circuit Breaks Ground in Hively v. Ivy Tech Community College

Our top story: A groundbreaking ruling from the U.S. Court of Appeals for the Seventh Circuit finds that discrimination on the basis of sexual orientation violates Title VII of the Civil Rights Act of 1964 (Title VII). The court ruled 11-3 in favor of the plaintiff, who claimed that she was denied promotions and ultimately terminated because she is a lesbian. The majority held that her claim was “no different from the claims brought by women who were rejected for jobs in traditionally male workplaces” and that Title VII protections against “sex” discrimination extend to sexual orientation. This ruling comes just a few weeks after the Eleventh Circuit reached the opposite conclusion. With courts across the nation grappling with this issue, we could see the Supreme Court of the United States address the circuit split in the not-too-distant future.

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(2) Indefinite Leave Not a Reasonable Accommodation

The Fifth Circuit has reaffirmed that indefinite leave is not a reasonable accommodation for an employee’s disability. An employee requested extended medical leave beyond the Family and Medical Leave Act (FMLA) with the intent of retiring before the end of his leave. He was terminated upon making this request and filed suit under the Americans with Disabilities Act. The court held that, since the employee’s requested leave would not have allowed him to ever return to work, it was not a required reasonable accommodation. Marc Mandelman has more:

“The case stands as a valuable reminder that while employers may have an obligation to provide extended medical leave beyond the 12 weeks of FMLA leave as a reasonable accommodation, that obligation is not without limits. The court reaffirmed that requests for indefinite leave are not reasonable accommodations under federal law. Nevertheless, employers must always evaluate requests for extended medical leave on a case-by-case basis to determine whether or not the leave really is indefinite or if the requested extension is reasonable under the circumstances.”

(3) NLRB: No Reversal on Purple Communications

The National Labor Relations Board (NLRB) has rejected the request of Purple Communications to discard the NLRB’s controversial 2014 decision. The Purple Communications ruling held that businesses must allow employees to use work email for activity protected by the National Labor Relations Act when they are not on duty in most circumstances. Acting Chairman Phil Miscimarra dissented in this 2-1 ruling, as he did in the initial decision. He argued that employers should be able to control their own information systems and that the NLRB should return to its earlier standard, where employers’ property rights took precedence.

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(4) Tenth Circuit Allows Collective Action with 10,000 Opt-Ins

A Colorado collective action against Chipotle with 10,000 potential opt-ins can move forward—that’s according to the Tenth Circuit. The restaurant chain argued that the district court ignored circuit precedent by presuming that the plaintiffs could join as a collective action so long as they were bringing the same claim against the same employer. But while the appeals court agreed that it had approved of a different standard in the past, it never precluded district courts from using another approach, as in this case. The Tenth Circuit permitted the case to go forward on a collective basis.

(5) Tip of the Week

Rick Budd, former Vice President and HR Business Partner for Pearson, has some advice on top strategies for improving your performance review process:

“First and foremost, have a well-thought-out plan prior to your conversation, and don't just shoot from the hip. Second, no surprises. Keep in mind that nothing in the year-end review should come as a surprise. ... Third, own the review, especially the difficult ones. Don't fall into the trap of blaming others for lower performance ratings. ... Lastly, don't let the conversation end here. Use the PA as a springboard for setting up individual development plans for your employee. Remember, a solid plan moving forward goes a long way in setting your employees up for continued success.”

©2022 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume VII, Number 100

About this Author

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

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

  • ...
Marc A. Mandelman, Epstein Becker Green, Workforce Management Lawyer, Restructuring Strategy Attorney

MARC A. MANDELMAN is a Member of the Firm in the Employment, Labor, and Workforce Management practice, in the New York office of Epstein Becker Green. He represents a variety of clients—including major corporations in the financial, insurance, fashion, retail, publishing, technology, and health care field—in all aspects of labor and employment relations.

Mr. Mandelman:

  • Routinely advises clients on designing and implementing restructuring strategies and the management of litigation risks associated with...