As we kick off the New Year, William D. Edwards, Partner and Chair of Ulmer’s Employment & Labor Practice Group, examines the landscape of employment and labor law and shares three things to look for on the employment law horizon.
1. The Influence of the #MeToo Movement Will Continue into 2019
There is no doubt that the #MeToo movement continues to transform workplace culture for many employers. It has also spurred states such as New York and California to pass anti-discrimination legislation which mandate, among other things, compulsory sexual harassment prevention training to both supervisory and non-supervisory employees. Existing employees in New York state, for example, must undergo training by October 9, 2019. While California law now mandates that anti-harassment training take place for employers with five or more employees by 2020, New York’s training will be required of all employees annually, and its new law applies to all employers regardless of size.
Even if you are an employer outside of New York or California, now is a good time to revisit existing organizational policies dealing with harassment to make certain that employees know what is covered and where they should go in the event of an issue at work. How investigations are conducted and who should be selected as the appropriate investigator will continue to evolve in 2019 as well. In 2018, a cautionary tale emerged from the Hotchkiss School’s investigation into allegations of sexual misconduct by faculty and staff against students. Hotchkiss replaced its independent investigator in response to an outcry from alumni who learned that the initial investigator had represented institutions in cases involving victims of clergy abuse. Thus, employers should be careful to scrutinize their potential investigator up front and thoroughly to ensure that the appearance of objectivity is completely satisfied, particularly in high profile cases with anticipated press coverage.
2. Pay Equity Disputes Will Flourish in 2019
The U.S. Supreme Court is expected to announce in the not too distant future whether the Court will hear a case to determine if employers who rely on prior salary to establish starting pay can continue to do so in compliance with the federal Equal Pay Act, 29 U.S.C. Section 206(d)(1) (“EPA”). The EPA prohibits sex-based wage differentials between men and women who perform equal work, but allows employers to justify wage differentials between such employees based on merit, production, seniority, or “any other factor other than sex.” In Rizo v. Yovino, 887 F.3d 453 (9th Cir. 2018), the Ninth Circuit held that “prior salary alone or in combination with other factors cannot justify a wage difference” because prior salary is not a “factor other than sex.” Id. at p. 456. The Ninth Circuit explained that a “factor other than sex” must be “job-related” and thus rejected the employer’s exclusive reliance on prior salary as a benchmark against which to set starting pay for new hires. In August 2018, the Fresno County Superintendent of Schools filed a writ of certiorari asking the Supreme Court to review the Ninth Circuit’s decision in Rizo because the decision differs from other circuit courts addressing the issue of whether prior salary is a “factor other than sex.” (See e.g., Wernsing v. Dep’t of Human Servs., State of Illinois, 427 F3d. 466, 469 (7th Cir. 2005). Long story short – stay tuned.
3. The Rights of Transgender and Transitioning Individuals in the Workplace Will Continue to Develop in 2019
In March 2018, the Sixth Circuit Court of Appeals held in EEOC v. R.G. & G.R., 884 F.3d 560 (6th Cir. 2018), that discrimination based on transgender and transitioning status constitutes an actionable form of sex discrimination under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”). This was the first time that a federal appellate court explicitly held that Title VII extends specifically to transgender and transitioning employees. The Sixth Circuit’s ruling is also noteworthy because it is in line with other appellate courts from the Second and Seventh Circuit Court of Appeals favoring an expanded view of “sex discrimination” under Title VII. Conversely, in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), the Eleventh Circuit declined to recognize a sexual orientation claim as actionable under Title VII. Given the split between federal appeals courts at the moment, don’t be surprised if this issue makes its way to the Supreme Court.