Posts

MRR Legal Update: Second Circuit Court Decision ~ “Because of…Sex” Discrimination Protections for Sexual Orientation

By: Tami Z. Hannon

“Because of…sex.”  Three small words have garnered much spilled ink and legal opinions.  What is “sex?”  When is an employee discriminated against “because of” his or her sex?  Most importantly for this article, is an employee who is terminated due to his or her sexual orientation discriminated against “because of…sex?”

The support for sexual orientation as sex discrimination under Title VII is growing.  On February 26, 2018, the Second Circuit Court of Appeals became the second circuit to hold that discrimination due to sexual orientation is discrimination “because of…sex” as under Title VII.  This opinion joins the recent Seventh Circuit Court of Appeals opinion which likewise held that sexual orientation discrimination is prohibited by Title VII.  These opinions have established new law for New York, Vermont, Connecticut, Illinois, Indiana and Wisconsin, while leaving the remaining states in confusion over the scope of Title VII’s protections.

Title VII Background

Title VII of the Civil Rights Act of 1964 prohibited employers from discriminating against current and potential employees on the basis of several characteristics.  The issue at hand in recent rulings has been the prohibition against discrimination “because of…sex.”  Prior to 2015, the courts largely agreed that “sex” discrimination applied to biological gender, and gender stereotyping (i.e. beliefs on how a male or female should act).  Courts largely rejected the notion that “sex” included discrimination based on sexual orientation.

Evans v. Georgia Regional Hospital

In March of 2017, the Eleventh Circuit Court of Appeals was asked to determine whether sexual orientation discrimination violated Title VII.  The Eleventh Circuit held that it was bound by its prior decisions that sexual orientation was not protected under Title VII.  As such, it dismissed Ms. Evans’ complaint alleging that she was subjected to harassment and discrimination as a result of her sexual orientation.  Ms. Evans sought review by the U.S. Supreme Court; however, on December 11, 2017, the U.S. Supreme Court declined to hear the appeal.

Hively v. Ivy Tech

In April of 2017, the Seventh Circuit Court of Appeals held that discrimination “because of…sex” included sexual orientation discrimination.  In so ruling, the Seventh Circuit held that decisions based on sexual orientation are inherently based upon an individual’s gender as a female who enters into a romantic relationship with a male is treated differently than a male who enters into a romantic relationship with another male.  The only variable is the biological gender of the employee.  As such, the sole factor was biological gender, or sex.  This ruling was not appealed to the U.S. Supreme Court.

It was on this stage that Zarda v. Altitude Express was recently decided.

Zarda v. Altitude Express

Mr. Zarda was a tandem sky diving instructor for Altitude Express.  Mr. Zarda stated that he would occasionally reveal his sexual orientation to female clients as a way of making them feel more comfortable about being closely strapped to an unfamiliar male.  One of Mr. Zarda’s clients alleged that he touched her inappropriately and then revealed his sexual orientation as a way of excusing his conduct.  She told her boyfriend of this exchange.  Her boyfriend contacted Altitude Express to complain.  Mr. Zarda was subsequently terminated as a result of the complaint.  Mr. Zarda alleged that his termination was the sole result of his sexual orientation and his failure to conform to the stereotype of a “straight male.”

Under prior rulings in the Second Circuit, claims of gender stereotyping could not be based on sexual orientation nor was sexual orientation recognized as sex discrimination.  As such, Mr. Zarda’s complaint was initially rejected.  Mr. Zarda appealed the dismissal to the Second Circuit Court of Appeals, which upheld the dismissal.  He then requested, and was granted, an en banc hearing. An en banc hearing is held before all judges appointed to that Circuit and provides the process for a court to overrule its prior decisions.  The granting of such a hearing signals the potential for a significant departure from prior cases.

After the en banc hearing, the Second Circuit Court of Appeals issued a lengthy and disputed opinion holding that sexual orientation constitutes discrimination “because of…sex” as defined by Title VII.  The Court held that the purpose of Title VII was to make sex and those traits associated with sex irrelevant to employment decisions.  The Court recognized that sexual harassment claims were initially not considered discrimination as they were not based on being a female, but for refusing to submit to sexual requests.  However, courts soon drew the distinction that the employee was the target of the sexual advances because of her gender, making sexual harassment a form of gender discrimination.  Male-on-male harassment was also barred as being based on gender and as “a reasonably comparable evil” against which Title VII was designed to protect.  Based on those cases, the Second Circuit Court of Appeals held that sexual orientation discrimination was necessarily the result of the sex of the people involved in the relationship and ultimately a decision based on sex.  Accordingly, sexual orientation discrimination was found to be discrimination “because of…sex” in violation of Title VII.

The Second Circuit Court of Appeals also held that sexual orientation discrimination constituted associational discrimination.  Associational discrimination was originally recognized under Title VII largely to offer protection for interracial marriages.  It was held that, in those case, employees were subjected to discrimination based on their own race and the race of those with whom they associated as it was the perceived racial misalignment that was the motivation for the discrimination.  The Second Circuit Court of Appeals found that rational applied with equal force to sexual orientation discrimination as it punished an employee based on the sex of the individual with whom he or she intimately associated.  As it is widely accepted a female should not be fired for having male friends, the Court found a lesbian employee should be similarly protected for associating with females, rather than males.

Impact of Zarda v. Altitude Express

The Zarda decision was far from unanimous.  Only 7 of the 13 judges hearing the case agreed that sexual orientation discrimination constitutes discrimination “because of…sex.”  Eight of the 13 judges found it was associational discrimination.  The allegation that sexual orientation discrimination is a form of gender stereotyping was only accepted by 6 of the 13 judges.  This sharp division shows that Title VII’s coverage of sexual orientation is far from settled.

Under President Obama, the Equal Employment Opportunity Commission was active in advancing protections for sexual orientation.  Under President Trump, the Commission has taken a more conservative view.  Regardless, once positions and protections are established by the courts, it becomes more difficult to change them as courts are bound to follow their prior rulings and interpretations issued by their circuit.  Given this, ongoing and future litigation will be impacted by these rulings regardless of any policy decisions made by the governmental administration.

The Zarda, Evans and Hively decisions have created a split among the courts as to whether sexual orientation discrimination is covered under Title VII.  Employers will need to be aware of the coverage for their specific business locations.  As courts are beginning to consider and reverse prior case rulings, we are also likely to see claims of sexual orientation discrimination increase as individuals seek to clarify Title VII protections.

The U.S. Supreme Court recently declined to hear the Evans case as to whether Title VII includes protections for sexual orientation.  The decision not to hear that appeal was not explained, but could be the result of several factors including poorly developed legal analysis by the lower courts and allegations by the employer that it had never been served with the complaint.  As the split among the circuits grows, it will likely only be a matter of time before the Supreme Court agrees to decide the issue.


For  more information, contact Tami Z. Hannon at thannon@mrrlaw.com or 440.424.0009.

MRR Columbus Office Expands with Partner Paul-Michael La Fayette

MRR is pleased to announce the addition of Paul-Michael La Fayette to its Columbus office. He represent clients in lawsuits involving professional malpractice, premises liability, contracts, employment, construction, civil rights, zoning, wrongful death and products liability.

“We are thrilled to expand our services in Columbus with the addition of Paul,” MRR President and Managing Partner Joseph F. Nicholas, Jr. said. “He brings to the firm expertise in a number of practice areas, a set of exceptional legal skills, and a client-focused commitment to excellence.”

Mr. La Fayette represents several professionals in administrative licensure proceedings before their professional Boards. In addition to professional liability, he regularly represents governmental entities in litigation and as general counsel. Paul is a member of the Ohio State Bar Association, Columbus Bar Association, The Defense Research Institute (DRI), PIAA, as well as a guest lecturer for The Ohio State University College of Dentistry.

In the community, Paul is the past president of the Epilepsy Foundation of Central Ohio, member of the Boy Scouts of American (Simon Kenton Council), Plain City Area Baseball Association member, and serves as baseball coach at Jonathan Alder Junior High.

A graduate of West Virginia Wesleyan College, Mr. La Fayette sought his Master’s at West Virginia University and then earned his J.D. from Capital University Law School in 1996.

 

Stacy Pollock to present “Texts, Tweets, and Tags – A Look at Public Officials’ Digital Communication” at OHPELRA’s Annual Training Conference on February 6, 2018

MRR Columbus Partner Stacy V. Pollock will present “Texts, Tweets, and Tags – A Look at Public Officials’ Digital Communications” at the 34th Annual OHPELRA Training Conference in Columbus on February 6, 2018.

Stacy is a certified Specialist in Employment and Labor law and a certified Professional in Human Resources. She advises public and private employers in matters involving leave and discipline issues, personnel policy matters and labor negotiations and arbitrations. When necessary, she defends them in state and federal court. She has experience representing clients before various governmental administrative agencies including the Equal Employment Opportunity Commission, the Ohio Civil Rights Commission, the State Personnel Board of Review, the State Employment Relations Board and the Ohio Department of Education. Ms. Pollock regularly speaks to the OHPELRA membership at trainings and seminars throughout the year.

 

Akron Legal News features Tom Mazanec in article: “Experts Weigh in on a Recent Dram Shop Act Ruling”

Experts Weigh in on a Recent Dram Shop Act Ruling

Published on December 8, 2017 – Akron Legal News

Ohio’s Dram Shop Act, Revised Code 4399.18, states that a person injured by an intoxicated individual can seek damages from a liquor permit holder if the injuries occur on the property and were caused by the permit holder’s negligence or if the injuries happen off premises, but the permit holder “knowingly sold” alcohol to a “noticeably intoxicated” person or to someone under 21 and the person’s intoxication proximately caused the injuries.

In September 2017 the Ohio Supreme Court put liquor permit holders and others on notice that patrons are not the only “persons” covered by the act.

In its 6-1 decision in Johnson v. Montgomery the court affirmed that the Dram Shop Act is “the exclusive remedy for innocent persons injured off premises by an intoxicated person against liquor permit holders and excludes all other common law negligence claims against permit holders,” said Thomas S. Mazanec, a partner in the Cleveland office of Mazanec, Raskin & Ryder Co.

“The court concluded that according to the law it does not matter whether the intoxicated ‘person’ was a patron or a worker, the same standard applies,” and that “a liquor permit holder’s responsibility for serving intoxicated persons does not change if that person is a worker or an independent contractor,” said Mazanec.

To read the full story, click here.

MRR sponsors Kentucky League of Cities 2017 “City Employee of the Year” Award

The Kentucky League of Cities (KLC) has announced its annual awards for Elected City Official of the Year, the City Employee of the Year and Enterprise Cities Awards for innovative city programs and projects. The winners were recognized on October 4 at the KLC Conference & Expo in Covington, Kentucky.

The City Employee of the Year Award, sponsored by Mazanec, Raskin & Ryder (MRR), brings recognition to an exceptional city employee who performs at a distinguished level to improve his or her local government and community. This year there was a tie resulting in two winners, Simpsonville City Administrator David Eaton and Georgetown City Attorney/Chief of Staff Andrew Hartley. 

MRR provides a $500 donation to the charitable choice of each winner.  To view the short awards video, click here.

“Person” Means Person In Ohio’s Dram Shop Act

Mary Beth Klemencic
E: mbk@mrrlaw.com

It seems the Ohio Supreme Court agrees with Dr. Seuss’s Horton Hears a Who!
“A person’s a person”

The Supreme Court recently affirmed that Ohio’s Dram Shop Act is the exclusive remedy against liquor permit holders for third parties injured off-premises by an intoxicated person and excludes all other common law negligence claims against the liquor permit holder. In Nichole Johnson v. Mary E. Montgomery, et al., Slip Opinion No. 2017-Ohio-7445, the plaintiff was seriously injured in a motor vehicle accident caused by an intoxicated dancer on her way home from work after leaving the strip club where she danced and was allowed to drink while she worked.

The question before the Court was whether the strip club dancer[1] qualified as an ‘intoxicated person’ under the statute or whether the term included only club patrons.  The plaintiff argued that the Dram Shop Act did not apply to intoxicated workers or independent contractors, but that the term “intoxicated person” in the Act really means “intoxicated patron.”  Plaintiff claimed that since she was injured by an intoxicated worker, and workers and patrons are different, the club was responsible under the common law theory of negligence for failing to act as carefully as a reasonable person would in the same circumstances.

The twist to the plaintiff’s argument was that the club encouraged the dancers to drink on the job and accept drinks from patrons, thereby the club took on additional responsibility.  However, the Justices noted that the dancers were not required to drink.  The club argued the Act applies to “person(s)” no matter whether that “person” is a patron or a worker; there is no difference.

The Court concluded that the phrase “intoxicated person” in Ohio’s Dram Shop Act includes any person, including intoxicated workers or independent contractors, not just a permit holder’s patrons, whose intoxication causes an injury.  “The statute is straightforward” and “does not limit the definition of “person” based on the individual’s relationship to the permit holder.” As Horton Hears A Who has told us, “A person’s a person…”

[1] The dancer paid the club $30 a night to lease space to dance and only wages received were tips from patrons.  No paychecks or W-2s were provided.

 

Stacy V. Pollock Promoted to Partner at Mazanec, Raskin & Ryder

Mazanec, Raskin & Ryder, Co., L.P.A. (MRR), is proud to announce the promotion of attorney Stacy V. Pollock to partner. Stacy is based in the firm’s Columbus office.

Stacy joined MRR in 2015 as an associate. At MRR, she concentrates her practice on employment and labor law – advising public and private employers in matters involving leave and discipline issues, personnel policy matters and labor and negotiations and arbitrations. When necessary, she defends them in state and federal court.

“We are delighted to reward Stacy’s dedication and hard work with this promotion. She is a talented and ambitious lawyer and we look forward to her ongoing contributions, both to our clients and the firm,” said Joe Nicholas, MRR’s President and Managing Partner.

Accomplished in her profession, Stacy earned the distinction as an Ohio Bar Association Certified Specialist in Labor and Employment Law in early 2017. This certification marks Ms. Pollock as one of a small number of attorneys in the state of Ohio to have earned this distinction.

Ms. Pollock has experience representing clients before various governmental administrative agencies including the Equal Employment Opportunity Commission, the Ohio Civil Rights Commission, the State Personnel Board of Review, the State Employment Relations Board and the Ohio Department of Education. Ms. Pollock also advises clients on workers’ compensation matters and regularly appears before the Industrial Commission. She also has considerable experience in education law, representing schools and school administrators involving employee and student disciplinary matters.

In addition to her Ohio State Bar Association certification in labor and employment law, she is also a Certified Professional in Human Resources through the HR Certification Institute. Ms. Pollock is a member of the Ohio State Bar Association, the Columbus Bar Association, the Ohio Council of School Board Attorneys, and the National School Board Association’s Council of School Attorneys. In addition, she has been selected as a “Best Lawyer in America” for Education Law (2016-2018) and named an Ohio Super Lawyers “Rising Star” in Employment Law by Ohio Super Lawyers magazine (2014-2017).

A graduate of Wittenberg University in 2002, Stacy went on to earn her J.D. from the Chicago-Kent College of Law.

Bidwell Named Chief Operating Officer of Mazanec, Raskin & Ryder

Mazanec, Raskin & Ryder, Co., L.P.A. (MRR), is pleased to announce the promotion of Christina M. Koeth-Bidwell  (Chris) to Chief Operating Officer, after having served as the firm’s Controller over the last 10 years.

“This promotion is well deserved. Chris has been an integral part of MRR’s strategic growth and success, since joining us in 2007,” commented Joe Nicholas, MRR’s President and Managing Partner.

During her tenure, Chris has led and managed a variety of operational activities including financial management and reporting, operations management, IT and facility management and implemented protocols which have improved efficiency in time and billing, security, and various organizational costs. As controller, Chris also assisted with the administration of the firm’s various benefit plans and the execution of the firm’s expansion to Kentucky with the opening of the Lexington office in 2015.

She began her career as a manager and analyst for a multinational manufacturing company and has spent a considerable amount of time since performing strategic development and general accounting functions for both public and privately held companies. Along with her professional responsibilities, she is a member of the National Association for Professional Women (NAPW), Association of Legal Administrators (ALA), Northern Ohio Association for Financial Professionals (NOAFP), Association for Financial Professionals (AFP), and serves as Deputy Patrol Director of the Alpine Valley area of the BMBWAV Ski Patrol, an OEC Instructor and member of the National Ski Patrol. Additionally, Chris is a Certified Cash Manager and Registered Tax Preparer.

Named “VIP Woman of the Year” by NAPW in 2015, Chris is also a board member of the BMBWAV Ski Patrol and NOAFP. She earned her B.S.B.A from John Carroll University and her M.B.A. from Lake Erie College.

Six MRR Attorneys named Best Lawyers in America 2018

Mazanec, Raskin & Ryder Co., LPA (MRR) is pleased to announce that six attorneys have been named to the 2018 Edition of Best Lawyers®, the oldest and most respected peer-reviewed publication in the legal profession. Lawyers on The Best Lawyers in America© list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise.

MRR would like to congratulate the following attorneys named to the 2018 Edition of The Best Lawyers in America© list:

Todd M. Raskin (Cleveland), Civil Rights Law

John T. McLandrich (Cleveland), Civil Rights Law

Thomas S. Mazanec (Cleveland), Product Liability Litigation – Defendants

Joseph F. Nicholas, Jr. (Cleveland), Transportation Law

George V. Pilat (Cleveland), Insurance Law

Stacy V. Pollock (Columbus), Education Law

 

About Best Lawyers®

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Over 79,000 leading attorneys globally are eligible to vote, and we have received more than 12 million votes to date on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2016 Edition of The Best Lawyers in America©, 6.7 million votes were analyzed, which resulted in more than 55,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.” For more information, visit bestlawyers.com.

Department of Labor Issues Request For Information on Overtime Rule

Today, the Department of Labor (DOL) published a Request for Information seeking comment from the public regarding the regulations governing overtime exemptions. As you likely recall, the DOL revised the salary requirement in 2016 to require that exempt employees be paid a minimum of $913 per week (or $47,476 per year). This was a substantial increase from the 2004 level, which was set at $455 per week, or $23,660 per year. That regulation met with a legal challenge and was temporarily blocked by a federal court in Texas. While that litigation is still ongoing over whether the DOL has the authority to require any minimum salary requirement, the DOL has indicated its intent not to enforce the $913 per week requirement.

In light of the litigation, along with President Trump’s Executive Order requiring administrative agencies to minimize regulatory burden, the DOL has issued a Request for Information to assist it in creating updated overtime rules. The Request for Information is open until September 25, and indicates that the DOL is open to considering a large change to the overtime regulations. The Request seeks feedback on everything from the amount of the minimum salary to the duties of exempt employees to whether there should be no minimum salary requirement at all.  Specifically, the DOL requests comment on:

  1. Whether the $455 minimum level should be increased by an amount equal to inflation? If so, what is the appropriate measure of inflation?
  2. Whether the $455 minimum level should be modified to continue to exclude the lowest 20% of salaried workers in the lowest paying region, as was used in establishing the 2004 level?
  3. Alternatively, should the minimum level be set based upon a defining factor, such as employer size, geographic region, metropolitan area, or other factor?
  4. Should different minimum salary levels be set for the executive, administrative and professional exemptions rather than having one generally applicable level?
  5. How well does the salary amount match with the duties test? Does the salary level become the predominate factor? If not, at what point does the salary level no longer serve as a reliable indicator of exempt status? Would it be better to have solely a duties test? If so, what duties would accurately show exempt status?
  6. Should the standard duties test be updated? If so, with what duties?
  7. How did you respond to the 2016 revisions? Did you increase wages, decrease hours, switch to an hourly rate, lower the hourly rate to maintain the same pay level, change overtime policies, or some other method?
  8. Does it appear that certain occupations were no longer included as exempt under the higher rate? Did those occupations spend 20 – 40% of their time performing exempt functions?
  9. Was the cap at permitting no more than 10% of the minimum salary requirement to be paid by non-discretionary bonus a good level? Should it be tied to salary level?
  10. Should the minimum level be set to automatically adjust? If so, what measurement should be used? How often should it be adjusted?

This is merely the first step in the review process, but it does indicate a likelihood that revisions are forthcoming, potentially substantial. Given the political climate, any revisions would likely be more business friendly. I would not anticipate seeing any new regulations this year, but perhaps a Notice of Proposed Rulemaking and draft regulations could be out next spring.  Comments can be submitted by mail or electronically. Instructions for submitting comments are included in the Request for Information. MRR will continue to monitor the DOL for any new guidance on this subject.

Tami Hannon is a Partner in MRR’s Cleveland Office. For more info, contact her at thannon@mrrlaw.com.