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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.

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.

Mazanec, Raskin & Ryder Announces 2017 Ohio Super Lawyers and Rising Stars

Mazanec, Raskin & Ryder Co., L.P.A., today announced that seven of its Ohio-based attorneys have been selected to the 2017 Ohio Super Lawyers and Rising Stars lists. In the firm’s Cleveland office, Todd Raskin, John McLandrich, and Frank Scialdone were named to the Super Lawyers list, while Tami Hannon and Cara Wright were included in the ranks of Rising Stars. In the Columbus office, Doug Holthus earned Super Lawyers honors and Stacy Pollock was named a Rising Star. Each year, no more than five percent of lawyers in the state are named to the Super Lawyers list, and no more 2.5 percent are selected to the Rising Stars list.

Todd M. Todd RaskinRaskin is a founding partner of Mazanec, Raskin & Ryder, Co., L.P.A., and is based in the firm’s Cleveland office. He has a diverse legal practice with an emphasis on civil rights and government liability defense, as well as the defense of employers, both public and private. He has tried more than 100 cases to conclusion in 35 years of private practice in many courts throughout Ohio and the Midwest and is a member of a number of professional organizations, including the American Board of Trial Advocates, the Association of Defense Trial Attorneys, the Federation of Defense and Corporate Counsel, and the Litigation Counsel of America. Todd earned his Super Lawyer rating for his work in State, Local & Municipal Law, Employment Litigation: Defense, and Professional Liability: Defense.

 

John McLandrichJohn T. McLandrich is a partner and Chairman of the Board. John’s practice focuses on the representation of municipalities, including defending cases on behalf of police and public entities accused of violations of civil rights and in employment matters. For over 28 years he has handled matters including claims of jail suicide, police pursuit, false arrest, excessive force by police officers, and failure to properly train police officers. He has represented civil defendants in federal and state courts throughout Ohio, serving as lead trial counsel. He has represented clients in class action matters, including municipalities relating to class action sewer cases. His appellate experience consists of handling and arguing matters before the Sixth Circuit Court of Appeals, where he has argued over 100 cases, as well as hundreds of cases before many of Ohio’s Courts of Appeal, including the Ohio Supreme Court, where he has won eight favorable decisions. John earned his Super Lawyer rating for his work in Appellate Law, State, Local & Municipal Law, and Civil Rights Law.

 

Doug HolthusDoug Holthus is listed as a Super Lawyer for his work in Civil Litigation: Defense, Employment Litigation: Defense, Construction Litigation, and Civil Rights Law. His primary areas of focus are professional negligence defense, civil rights and government liability, corporate law, employment, and general liability matters. He has tried, advocated and or arbitrated nearly one hundred cases before civil juries, administrative licensing (and other) boards and arbitration panels throughout Ohio (and California), in both state and federal court. Among other professional and civic activities, Doug is immediate past-Chair of the Columbus Bar Association’s Professionalism Committee (by appointment) and is a Member of the Board of Directors of the Professional Liability Defense Federation.

 

Frank SciadoneFrank H. Scialdone is a partner in the firm’s Cleveland office and focuses his practice on appellate advocacy in state and federal courts with an emphasis on employment law, constitutional torts (Section 1983), public entity defense, and insurance defense. He has handled more than 200 appellate cases in the Ohio Supreme Court, Ohio’s intermediate appellate district courts, and the Sixth Circuit Court of Appeals. He routinely consults with trial attorneys on error preservation and pre-appeal strategy. Frank has prosecuted and defended original actions (e.g., mandamus, prohibition, etc.) and has submitted amicus curiae (friend of the court) briefs on behalf of clients and organizations. Frank is also one of the first attorneys to be certified as a specialist in appellate law by the Ohio State Bar Association. He is listed as Super Lawyer in the categories of Appellate Law, State, Local & Municipal Law, and Civil Rights Law.

 

Tami HannnonTami Zupkow Hannon is a partner in the firm’s Cleveland office and is a listed Rising Star in State, Local & Municipal Law, Employment Litigation: Defense, and Civil Litigation: Defense. She focuses her practice on defending governmental entities, their employees and elected and appointed officials, particularly those in law enforcement and corrections. Tami also practices extensively in the field of employment law, providing personalized and comprehensive guidance to address not only the direct employment issue at hand but also the larger civil liability context. In addition to providing guidance during the critical decision making process, Ms. Hannon assists in later defending decisions should they be challenged before the courts or an administrative agency. She also provides timely and personalized training in various employment matters, and has experience under the ADA, ADEA, FMLA, FLSA, Title VII, and their state-law counterparts.

 

Stacy V. Pollock, an associate in the firm’s Columbus office, focuses her practice on employment and labor law and has been a certified Professional in Human Resources since 2013. She advises public and private employers in matters involving leave and discipline issues, personnel policy matters, and labor negotiations and arbitrations. 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. Stacy also has considerable experience in education law, representing schools and school administrators in matters involving employee and student discipline. Stacy is listed as a Rising Star for her work in Employment & Labor Law and Workers’ Compensation Law.

 

Cara WrightCara M. Wright, a Cleveland associate, represents counties, municipalities, and their employees in a variety of cases, including claims related to alleged violations of the United States Constitution, violations of Ohio’s public record laws, and state law tort claims. She has successfully defended clients in cases involving the use of deadly force, jail suicides, and claims that inmates were provided inadequate medical care while incarcerated in county jails. Cara also represents public and private employers in cases alleging employment discrimination. Additionally, her experience includes representing professionals, including physicians, nurse practitioners, nurses, behavioral health specialists, accountants and attorneys, in claims of professional negligence. In addition to her representation of clients in state and federal court, she has also appeared in cases before the Ohio Civil Rights Commission and the U.S. Equal Employment Opportunity Commission. Cara earned the designation of Rising Star for State, Local & Municipal Law.

Super Lawyers and Rising Stars have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations. For more information about Super Lawyers, visit SuperLawyers.com.

News Release: MRR Promotes Tami Zupkow Hannon to Partner

Tami HannnonMazanec, Raskin & Ryder Co., LPA (MRR) is pleased to announce Tami Zupkow Hannon has been elected to the firm’s partnership.

Tami joined MRR’s Cleveland office in 2007. Her practice concentration is civil rights defense. She has represented numerous governmental agencies, elected and appointed officials, and has extensive experience in defending law enforcement departments, officers and correctional facilities. She combines her civil defense experience with her knowledge of employment law to provide timely, personalized and comprehensive employment guidance to both public and private employers. Tami has been named an Ohio Super Lawyer Rising Star for Municipal Law since 2013. She graduated magna cum laude from the University of Akron School of Law. She received her undergraduate degree from Geneva College in Beaver Falls, Pennsylvania.

“We are very proud of Tami’s accomplishments and extremely pleased to welcome her as a partner,” said MRR Managing Partner and President Joe Nicholas. “She is a remarkably talented and creative lawyer.”

MRR Article: Long Term Experience Need Not Apply!

Can Requesting Certain Experience Levels Expose You to Liability for Age Discrimination?

By: Tami Z. Hannon, Esq.

We’ve all seen the ads – “seeking a candidate with 5 – 7 years of experience” or “seeking entry level candidates.” But at some point do these ads put you and your company at risk for a claim of age discrimination?  That was just the issue recently addressed by Ohio’s Tenth District Court of Appeals in the case of Ceglia v. Youngstown State University when the Court was called upon to determine whether a request for a “mid-career level” applicant was code for age discrimination.

In that case, Youngstown State sought an applicant for a full-time instructor position. The plaintiff, who had over 20 years of experience, applied for the position. When he was not interviewed or selected for the position, the plaintiff asked why. He was told that the University was looking for “mid-career” applicants and not “someone who had been around for a long time.” Neither of these requirements was expressly stated in the job posting. Instead, the University chose to hire a 44-year old applicant who had little prior teaching experience.

The plaintiff sued alleging age discrimination. The Court of Claims dismissed the case, finding that the search committee had a legitimate, non-discriminatory reason for not offering the position to the plaintiff in light of alleged past performance issues. The plaintiff appealed. The Tenth District Court of Appeals reversed the decision, finding that it was a question for the jury as to whether “mid-career level” and not wanting “someone who had been around for a long time” was actually code for age discrimination.

In addressing these issues, the Court reasoned that these comments created an inference that the Committee denied the applicant the position because of his age, despite the Committee’s statements that they were referring to career experience. Further troubling to the Court was the fact that the position was awarded to someone who was NOT a mid-career level individual. While the Court did not ultimately determine whether there was in fact discrimination, the Court found that there was enough evidence to present the case to a jury. In other words, the court was not willing to dismiss the case without going to a full trial.

So what can you do to protect yourself from similar claims?

  • Clearly state what qualifications are being sought in the job posting. Make certain any specified qualifications are related to the position being sought and the needs of the organization.
  • Focus on the needs of the position, not the qualifications of the candidate – especially qualifications that can directly relate to the age of a candidate. For example, rather than “mid-career level” applicant, use phrases such as “entry-level position” or “mid-level position” to refer to the job level.
  • Interview applicants that fit within the parameters of the stated requirements and qualifications for your job. If you are listing a requirement in your posting, the individuals interviewed and selected should fit within those requirements.

In light of developing and changing laws, it is always a good idea to constantly review hiring procedures. If you have any questions or concerns about your practices or policies, please contact MRR and we would be happy to review those with you.


For questions or more information on “Long Term Experience Need Not Apply!,” contact:


Tami Z. Hannon  – MRR Cleveland
Phone: 440.424.0009
Fax: 440.248.8861
Email: thannon@mrrlaw.com

News Release: MRR attorneys named 2016 Ohio Super Lawyers and Rising Stars

MRR is pleased to announce that two of its Ohio attorneys have been selected as 2016 Ohio Super Lawyers and another four have been named 2016 Ohio Rising Stars by Super Lawyers magazine.

The Super Lawyers selection process evaluates lawyers based upon multiple criteria, including professional achievement and peer recognition; honors and awards; firm and bar involvement and leadership; scholarship and professional writings; community service and pro bono activities; and other outstanding achievements.

“Rising Stars” are the top up-and-coming attorneys who have been practicing for no more than 10 years. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

MRR’s attorneys selected as 2016 Ohio Super Lawyers:

Cleveland: Todd M. Raskin and Frank H. Scialdone

Todd Raskin

Raskin

Frank Sciadone

Scialdone

 

 

 

 

 

 


MRR’s attorneys selected as 2016 Ohio Rising Stars:

Cleveland: Tami Z. Hannon, Mary Beth Klemencic, and Cara M. Wright.

Columbus: Stacy V. Pollock

Tami Hannnon

Hannon

Mary Beth Klemencic

Klemencic

Cara Wright

Wright

SVP.V2

Pollock

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