The work-from-home trend presents a host of employment law challenges, including unavoidable changes to how employers investigate and defend claims of hostile work environments. Non-traditional work settings may even give rise to new types of harassment and discrimination, challenging employers to rethink workplace policies and training to make sure they apply to all work environments, whether in the office or remote.
On July 21, 2020, the National Labor Relations Board (NLRB or the Board) issued a long-awaited decision giving employers more freedom to discipline employees who engage in abusive, obscene or profane conduct in connection with their work. In General Motors, LLC, 369 NLRB No. 127 (2020), the NLRB rejected three context-specific rules formerly used to assess whether an employee’s inappropriate conduct is protected by Section 7 of the National Labor Relations Act (NLRA or the Act). Instead, the NLRB will now assess that conduct under the Wright Line standard, which is used to evaluate all other claims of discriminatory conduct under the Act.
On June 15, 2020, the U.S. Supreme Court decided three cases, holding that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, bars discrimination on the basis of sexual orientation and transgender identity.
In each of the three cases, an employee was fired shortly after revealing that he or she was homosexual or transgender. Each plaintiff brought suit under Title VII, alleging unlawful discrimination on the basis of sex. The Eleventh Circuit held that Title VII does not protect against discrimination in employment on the basis of sexual orientation, while the Second Circuit held that it did. The Sixth Circuit held that Title VII protects against discrimination on the basis of transgender identity.
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On June 15, 2020, in the month and year that marks the 50th anniversary of LGBTQ+ Pride traditions, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity. In the 6-3 decision authored by Trump-appointed Justice Neil Gorsuch, the Court said that Title VII’s message is simple: “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions . . . [and] it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Bostock v. Clayton County, Georgia, 590 U.S. ___ (2020).
This opinion resolves a circuit split arising from decisions by the Second, Sixth and Eleventh Circuit Courts of Appeal. In each case, an employer fired a long-time employee shortly after the employee disclosed being “homosexual” or “transgender” and allegedly for no reason other than the employee’s sexual orientation or gender identity.
In the wake of the #MeToo movement, a number of states are considering legislation that would limit an employer’s ability to use non-disclosure agreements (“NDAs”) when settling sexual harassment claims. New York was the first state to enact such legislation, which was passed as part of a wide-ranging budget bill that takes effect July 11, 2018. New York’s law bans non-disclosure provisions in settlements of claims involving sexual harassment allegations, unless confidentiality is the “complainant’s preference,” provided some onerous procedures are complied with. Washington State passed a similar law. Arizona, California, and Pennsylvania are also considering legislation to restrict the use of NDAs.