Sixth Circuit Issues Ruling Regarding Modified Work Schedules

By Amanda Warford Edge

Last week, the Sixth Circuit issued an opinion in Hostettler v. College of Wooster, — F.3d — (6th Cir. July 17, 2018), reminding employers that determining the essential functions of a position is a highly fact-specific endeavor.  In that case, the College of Wooster had hired Heidi Hostettler in 2013 when she was four months pregnant.  She worked as a full-time HR Generalist.  After giving birth to her child, Hostettler experienced severe postpartum depression and separation anxiety.  As a result, her doctor determined it was medically necessary that Hostettler work a reduced schedule, working on a part-time basis for the “foreseeable future.”  After two months of working a reduced schedule, Hostettler was fired for being “unable to return to [her] assigned position of HR Generalist in a full time capacity.”

Hostettler brought suit under the Americans with Disabilities Act (“ADA”)¹, 

The Sixth Circuit Rules an Employer Violated Title VII by Terminating its Transgender Employee

By R. Joseph Stennis, Jr.

On March 7, 2018, the United States Court of Appeals for the Sixth Circuit reversed a district court decision and ruled in favor of a transgender employee who claimed she was terminated by her employer based on her sex pursuant to Title VII of the Civil Rights Act of 1964.  Aimee Stephens, formerly known as Anthony Stephens, worked as a funeral director at R.G. and G.R. Harris Funeral Homes, Inc.  The funeral home had a dress code policy, requiring male employees to wear suits and female employees to wear skirts and business jackets.  The funeral home provided free suits to the male employees, but did not (at least initially) provide female employees with any clothing to comply with the company’s dress code policy.  Stephens informed the funeral home that she would be transitioning from male to female and therefore would begin to dress to be in compliance with the company’s dress code for females.  Shortly thereafter,

Sixth Circuit to Weigh In on Religious Protection and Transgender Rights

By Amanda Warford Edge

Last week, a Detroit funeral home filed a brief with the Sixth Circuit arguing that it could fire a transgender employee who refused to follow its sex-specific dress code. According to the funeral home, allowing the employee (who was transitioning from male to female) to wear women’s clothes at work — namely, a skirt suit — would violate the religious beliefs of the home’s owner.

Last year, at the district court level, the Court said that the Religious Freedom Restoration Act (“RFRA”) shielded the funeral home from liability because the termination stemmed from its owner’s devout Christian worldview. In other words, the Court held that the funeral home was entitled to a religious exemption under RFRA and, therefore, did not violate federal employment discrimination law. In making its ruling, the Court reasoned, in part, that transgender people are not protected by federal anti-bias law.

The EEOC appealed this ruling and filed its brief in February. The funeral home has now asked the Court to affirm the holding that Title VII does not protect transgender people because the meaning of “sex” when Title VII was passed did not include the concept of gender identity. The funeral home also remains adamant that RFRA provides a legal defense for its enforcement of its sex-specific dress code.

The case is EEOC v. RG & GR Harris Funeral Homes, Case No. 16-2424.

Sixth Circuit denies request to reconsider Hardin County’s “right to work” ordinance

By Courtney Samford

Last week, the Sixth Circuit denied a request by several collective bargaining organizations to rehear a challenge to Hardin County, Kentucky’s “right to work” ordinance.  The union challengers, including the ALF-CIO, argued that the county ordinance was preempted by the National Labor Relations Act (“NLRA”).  More specifically, they claimed that Hardin County’s ordinance was preempted by the NLRA, which only permits “State or Territorial” laws prohibiting security agreements between employers and unions.  The County, on the other hand, took the position that its ordinance was valid because it was a political subdivision of the Commonwealth of Kentucky.  The lower court found in favor of the union plaintiffs and struck down the ordinance.

Hardin County appealed to the Sixth Circuit, and a three-judge panel reversed the lower court’s ruling, finding that “State or Territorial” laws include ordinances passed by

To Aggregate or Not to Aggregate, Under the WARN Act, That Is the Question

By Michael D. Hornback

On January 5, 2016, the Sixth Circuit answered that question with a “No” under the facts and circumstances presented in Morton v. The Vanderbilt University, 2016 WL 52439 (6th Cir. 2016).

The Sixth Circuit began its opinion by noting the unusual circumstances presented.  The plaintiffs in the case consisted of 194 employees (the “Plaintiffs”) who were terminated by Vanderbilt and who were claiming violations of the Worker Adjustment and Retraining Notification Act (the “WARN Act”), 29 U.S.C. §2101 et seq.  However, whether these 194 terminated employees actually had a claim under the WARN Act was wholly dependent upon how Vanderbilt treated 279 other employees (the “Second Group”) who were not plaintiffs in the lawsuit and who had not protested Vanderbilt’s treatment of them.

Under the WARN Act, an employer of 100 or more employees is generally required to provide at least 60 days’ written notice to affected employees before a mass layoff may occur.  A “mass layoff” is defined as “an employment loss at the single site of employment during any 30-day period for . . . at least 500 employees.”  However, the WARN Act permits

Stellar Performance Record Does Not Prove Pretext in Age Discrimination Lawsuit

By Michael D. Hornback

Past performance is usually a decent indicator of future performance . . . but not always. Employees who were once excellent performers have periods of time when, for various reasons, their work product takes a dip. It happens to everyone. However, when a good employee admittedly violates numerous policies of the employer, termination may be warranted, as the Sixth Circuit Court of Appeals recently held in Hughey v. CVS Caremark Corp., 2015 WL 6123550.

In Hughey, the plaintiff was hired by CVS as a Pharmacist in Charge about one month prior to his 40^th birthday. For over a decade, the plaintiff was a star performer, receiving “Exceeds Expectations” marks on his annual performance reviews. He was also named the Pharmacist of the Year in his district on two occasions.

As a pharmacist with CVS, the plaintiff was expected to comply with the policies contained in the CVS Operations Manual. Of import in this case were

Sixth Circuit Reversed in Union Benefits Health Case: Supreme Court Rules Against Retired Workers

By Amanda Warford Edge

On Monday, in M&G Polymers USA, LLC v. Tackett, No. 13-1010, the U.S. Supreme Court ruled that ambiguous provisions in union contracts should not be automatically interpreted in favor of a company’s retired workers. The case concerned a union contract from the 1990s that provided free health care benefits to the retirees of a chemical plant in Apple Grove, West Virginia who received pensions. In 2000, M&G bought the plant, and in 2006, it sought to make its retirees contribute to the health care costs. The retirees sued, alleging that they had been promised free benefits for life. The contract, of course, did not directly state whether the parties intended lifetime investiture.

The district court found for M&G—but according to the Sixth Circuit, the retirees’ benefits had, in fact, vested for life. The Sixth Circuit relied on a long line of precedent, dating back to 1983, in support of this holding. Essentially, this precedent presumed the existence of lifetime benefits, even when the contracts at issue did not specify them. In Tackett, the Sixth Circuit expanded upon this presumption, holding that