Wyatt Employment Law Report


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Employers Must Accommodate Religious Practices Even Without Actual Knowledge: Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___ (2015)

By Chelsea K. Painter

Supreme CourtClothing retailer Abercrombie & Fitch (“Abercrombie”) refused to hire Samantha Elauf (“Elauf”), a practicing Muslim, because the headscarf required by her religion violated Abercrombie’s “Look Policy” prohibiting “caps” of any kind. Although Elauf’s interviewer informed the store manager that she believed “Elauf wore her headscarf because of her faith,” the store manager directed her not to hire Elauf. Elauf did not mention her faith and/or religion to her interviewer or the store manager prior to their decision.  After Abercrombie refused to hire Elauf, the EEOC sued Abercrombie on Elauf’s behalf, claiming religious discrimination under Title VII. The District Court granted the EEOC summary judgment on the issue of Continue reading


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Courts May Review EEOC’s Pre-Suit Conciliation Efforts Under Title VII

By Courtney Ross Samford

Gavel and scalesOn Wednesday, the U.S. Supreme Court released an important decision concerning the EEOC’s obligation to engage in pre-suit conciliation efforts under Title VII. The decision of Mach Mining v. EEOC, No. 13-1019, 2015 WL 1913911 (Apr. 29, 2015), involves a woman who filed an EEOC charge against Mach Mining, LLC, claiming that she was denied employment as a coal miner based on her gender. Following an investigation, the EEOC found reasonable cause to believe that Mach Mining had discriminated against the woman and other similarly situated women in their hiring process. The EEOC sent a letter to both parties informing them of its decision and advising them that it would “contact [them] to begin the conciliation process.” Id. at *3. Approximately one year later, the EEOC sent a second letter to Mach Mining announcing that “such conciliation efforts…have occurred and have been unsuccessful.” Id. The EEOC then sued Mach Mining in federal court.

In its answer, Mach Mining raised the EEOC’s failure to “conciliat[e] in good faith” as an affirmative defense. Id. The EEOC moved for summary judgment on this ground, claiming that its conciliation efforts are not subject to judicial review. Mach Mining argued that Continue reading


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Texas Federal Court Stays Enforcement of DOL’s New Definition of Spouse in Texas, Arkansas, Louisiana and Nebraska

medical leave requestThe U.S. Department of Labor (DOL) issued a final rule, effective March 27, 2015, changing the definition of spouse for purposes of same-sex spousal leave under the FMLA. The former rule, a “place of residence” rule, stated that an employer was required to provide same-sex spousal leave to qualified employees under the FMLA only if the marriage was enforceable in the employee’s state of residence. The new “place of celebration” rule states that same-sex spousal leave must be provided to qualified employees if the marriage is valid in the place where the marriage is performed. Therefore, under the new rule, if an employee is married in California (where same sex marriage is valid), but resides in Kentucky (where same sex marriage is not valid), the Kentucky employer must provide spousal leave to qualified employees.

Texas, joined by several other states, sued the DOL over the new rule and sought a preliminary injunction in federal court enjoining its enforcement. Texas argued that Continue reading


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U.S. Supreme Court Sets Forth Test for Evaluating Pregnancy Discrimination Claims

By Michelle High

The Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), dictates that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same” as other employees who are “similar in their ability or inability to work.”  The Act has two sections.  The first section provides that employers can’t discriminate on the basis of pregnancy because it would be sex discrimination and the second section provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability to work.”  The second section of the law has been the source of repeated questions for employers and employees alike.

pregnancyIn Young v. United Parcel Service, Inc., a newly released 6-3 opinion, the U.S. Supreme Court has provided a test detailing when the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees to extend such accommodations to pregnant employees who are similar in their ability or inability to work.

Peggy Young was a driver with UPS.  When she became pregnant, her obstetrician advised her not to lift more than 20 pounds.   Generally, UPS drivers were expected to carry packages of up to 70 pounds, but the company offered accommodations to those injured on the job; those with conditions recognized as Continue reading


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Do Federal Drug Laws Preempt State Laws Legalizing Marijuana? We’ll See.

By Michael D. Hornback

Various states have enacted laws legalizing marijuana in some form, either for medical purposes and/or recreational use. For those considering relocating, you might want to think about Alaska, Washington state, or Colorado. In Alaska, it is legal for adults 21 years and older to transport, buy or possess up to an ounce of marijuana and grow up to six plants for individual use. In Washington state, persons over the age of 21 can carry up to one ounce of marijuana, commercial sales of the drug are allowed, with the requisite licenses. Similarly Colorado voters approved “Amendment 64” legalizing the personal use and commercial sale of marijuana. Under Colorado law, it is legal to carry up to an ounce of marijuana for personal use and it is legal to grow marijuana for commercial purposes with the appropriate license.

gavel 2Before you move to one of these states for “greener pastures” (literally and figuratively) you should be aware that a lawsuit has been filed alleging that the federal drug laws preempt state law on the issue of whether marijuana is legal. On March 5, 2015, Sheriffs from Colorado and elsewhere filed a lawsuit against the Governor of Colorado alleging that the Colorado law allowing recreational use of marijuana and its commercial sale is preempted by the federal Controlled Substance Act. Smith v. Hickenlooper, Case No. 1:15-cv-00462, United States District Court for the District of Colorado. The Complaint alleges that Continue reading


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House Unanimously Passes the Kentucky Pregnant Workers Fairness Act, Bill Now Onto Senate

The House unanimously passed the Kentucky Pregnant Workers Fairness Act (HB 218), which would require employers subject to the Kentucky Civil Rights Act to provide reasonable accommodations for “pregnancy, childbirth, and related medical conditions.” It would also amend the Civil Rights Act to make it unlawful for employers to “fail to accommodate an employee affected by pregnancy, childbirth, or related medical condition [and would] require employers to provide notice to all employees regarding discrimination for pregnancy, childbirth, and related medical conditions.” In addition, a “related medical condition” would be amended to include “lactation or the need to express breast milk for a nursing child and has the same meaning as in the Pregnancy Discrimination Act, 42 U.S.C. sec. 2000e(k).” The bill is now headed to the Senate.

pregnancy, workAccommodations for pregnant employees is a hot topic in employment news right now. This year, the U.S. Supreme Court will decide in Young v. UPS whether employers are required under the Federal Pregnancy Discrimination Act to provide accommodations for pregnancy–related symptoms. Young had requested light duty due to Continue reading


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FMLA Protections Apply to Same-Sex Couples if Marriages Are Valid in State of Celebration

The Department of Labor issued a final rule yesterday that extends FMLA protections to eligible employees in same sex marriages so long as the marriages are legal where the ceremonies were performed. This is the so-called “place of celebration” rule. The former rule authorized FMLA spousal leave only if same-sex marriage was valid in the employee’s state of residence (i.e. “state of residence” rule). Under the new place of celebration rule, if an eligible employee is married in a state that authorizes same-sex marriage, FMLA spousal leave is permitted even if same-sex marriage is not valid in the employee’s state of residence.

medical leave requestThe issue of whether the FMLA permitted same-sex spousal leave arose after the United States Supreme Court ruled in United States v. Windsor, 133 S.Ct. 2675, 2693 (2013), that the Federal definition of marriage excluding same-sex marriage was unconstitutional. Courts had held that the Federal definition of marriage applied to FMLA spousal leave, even though the FMLA regulations stated the state’s law of the employee’s residence applied to determine the validity of the marriage. Since Windsor found the Federal definition of marriage unconstitutional, the FMLA definition of “spouse” applied. Many commentators were dissatisfied with the FMLA place of residence rule because Continue reading