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Beyond the Pandemic:  What Else Is Going On in Employment Law? Beyond the Pandemic:  What Else Is Going On in Employment Law?

Beyond the Pandemic: What Else Is Going On in Employment Law?

Recently, I was asked if anything was going on in employment law besides the pandemic (e.g. vaccine mandates, OSHA rules, healthcare provider rules, employee bodily integrity “rights,” etc.). Of course, the wheels of employment justice continue to turn on fronts unrelated to the pandemic. What follows constitutes a snapshot of some recent nationwide developments of note.

Intersectional Discrimination 

The Supreme Court, in the Bostock decision, by a vote of 6 – 3, ruled that federal law prohibits employers from terminating employees because of their sexual orientation or gender identity. The Supreme Court stated that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex . . . When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies).”  The ramifications of this decision continue to radiate. Most recently, the 10th Circuit relied on Bostock to reverse summary judgment in a Title VII “sex plus age” case. The 10th Circuit relied on Bostock’s holding that “if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” Thus, “termination is ‘because of sex’ if the employer would not have terminated a male employee with the same ‘plus-’ characteristic.”  This may be viewed as the courts beginning to endorse the concept of “intersectional” discrimination—illegal discrimination based on the particular mix of protected statuses.  

The Definition of “Disability” under the ADA Continues to Expand   

Out of the Sixth Circuit comes a decision further expanding what constitutes a “disability.” An employee notified her supervisor that she had been diagnosed with breast cancer and was scheduled for a double mastectomy. The supervisor expressed doubt about whether the company would allow the employee to remain employed when her surgery date fell within her 90-day probationary period. The employee moved the procedure to the day after her probationary period expired. The employer terminated the employee on the last day of her probationary period. The employee filed suit under the ADA, noting that she was never disciplined for behavior issues. In reviewing the employee’s medical records, the company learned that the employee was never diagnosed with cancer; she had a family history of cancer and the BRCA1 “pre-cancerous genetic mutation.” The district court stated that the definition of physical impairment does not include a condition that might lead to cancer, and dismissed the case. The Sixth Circuit reversed and found the threat of a cancerous condition sufficient for ADA coverage. The substantial impairment of “normal cell growth” constituted a major life activity warranting ADA protections.

Broadening of Who Constitutes a “Comparator”   

Out of the Fifth Circuit we find an employer who gave light-duty assignments to four employees who had lifting restrictions due to injuries on the job. But when the plaintiff requested light duty because of a lifting restriction her doctor had recommended during her pregnancy, she was told that she could not receive a temporary light-duty assignment because those assignments were only available to employees on worker’s compensation, not to those with off-the-job injuries. She was also told that, because of her doctor’s recommended lifting restrictions, she could not remain on the job absent a medical release clearing her for full active duty as an EMT with the ability to lift 100 pounds. 

The district court granted summary judgment for the employer after concluding that the plaintiff had failed to establish the fourth element of her prima facie case—that non-pregnant employees whose off-the-job injuries resulted in lifting restrictions were placed on light duty assignment. On appeal, the Fifth Circuit reversed, saying that the correct comparators were simply other temporarily disabled employees, rejecting the worker’s comp/on-the-job injury distinction. Ergo, a new trap for the unwary employer now exists, at least pertaining to pregnancy discrimination.

More twists and turns remain, as the wheels of justice spin. The existence of a pandemic fails to negate the need of HR departments to remain vigilant on all fronts, not just the COVID one.

For more information about any of the above topics, contact David Carr or any of Ice Miller’s Workplace Solutions Group members.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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