Employment Law This Week®: Sexual Orientation Discrimination, NLRB Nominees, Trump’s Travel Ban, Dodd-Frank Whistleblower Protections

by Epstein Becker & Green
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We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. 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) EEOC Weighs In on See more +

We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. 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) EEOC Weighs In on Second Circuit Sexual Orientation Discrimination Case

Our top story: The Equal Employment Opportunity Commission (EEOC) argues that Title VII covers sexual orientation discrimination. The EEOC laid out its position on sexual orientation protections in an amicus brief requested by the U.S. Court of Appeals for the Second Circuit. The court is conducting an en banc review of a case involving a skydiver who claimed that he was fired for disclosing his sexual orientation to a customer. Relying on Second Circuit precedent, a three-judge panel found that sexual orientation was not covered under the law. The court en banc will decide whether that precedent should stand. Sheila Woolson, from Epstein Becker Green, has more:

“The EEOC's position is that Title VII prohibits sexual orientation discrimination for three separate reasons. One, the EEOC believes that it is discrimination based upon sex. In other words, you're treating a man who's in a relationship with a man differently than you would treat a woman who is in a similar relationship with a man. Two, EEOC believes that the discrimination is based on association. In other words, you're discriminating against someone because they associate with a member of the same sex. And for that reasoning, the EEOC draws upon cases that deal with racial discrimination. Third and finally, the EEOC takes the position that sexual orientation discrimination violates Title VII because it is, in effect, gender stereotyping.”

(2) Trump Nominates Kaplan and Emanuel to NLRB

President Trump announced his picks for National Labor Relations Board (NLRB) vacancies. The White House has announced the nomination of Marvin Kaplan and William Emanuel to fill two vacant seats on the NLRB. Kaplan currently serves as counsel for the Occupational Safety and Health Review Commission and previously worked for House Republicans. Emanuel is a management-side labor lawyer in Los Angeles. Both nominees are expected to be confirmed, which would give the NLRB its first Republican majority in nine years. The newly constituted NLRB will most likely reconsider a number of policy changes instituted by the Obama-era NLRB.

(3) Supreme Court Reinstates Limited Parts of Trump’s Travel Ban

Limited portions of President Trump’s travel ban have been reinstated. The Supreme Court of the United States has decided to hear arguments on the travel ban cases when it reconvenes in October. Until then, the Supreme Court has narrowed the scope of the lower courts’ temporary injunctions, allowing the ban to stop the admission of foreign nationals with no bona fide connections to the United States. In most cases, this standard should not affect foreign students or foreign nationals working for employers in the United States. However, this standard may restrict foreign nationals seeking to visit or come here as refugees because recent State Department guidance limits the definition of a “bona fide relationship” to a parent, spouse, son, daughter, son-in-law, daughter-in-law, or sibling already in the United States.

(4) High Court Takes on Whistleblower Split

The Supreme Court also announced last week that it will review the scope of whistleblower protections under the Dodd-Frank Wall Street Reform and Consumer Protection Act. The Supreme Court will hear an appeal from Digital Realty Trust out of the Ninth Circuit. The lower court ruled against the company, which fired an executive after he complained internally about alleged misconduct. The company is arguing that, because the executive did not report to the Securities and Exchange Commission, he is not entitled to whistleblower protections. The Supreme Court’s ruling will resolve a circuit split on the issue.

(5) Tip of the Week

Cecelia Block, Human Resources Director for The Economist Group, shares some of the top considerations to keep in mind before making changes to your health benefits plan:

“Before an employer considers making changes to the health benefits plan, the company should first ask themselves, what is the fundamental reason why your company provides health care benefits? Consider the size of your employee population, and whether a large network access, which is a higher cost, or smaller network access, lower cost, meets your employee needs. As the plan sponsor, you are responsible for exercising fiduciary responsibility over the plan when purchasing these products and exercising control over your vendors. ..."

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