Kullman Firm Newsletter

Sixth Circuit Expands Title VII Protection To Transgender and Transitioning Individuals

The Sixth Circuit recently expanded Title VII’s prohibition against discrimination on the basis of someone’s “sex” to encompass a person’s “transgender” or “transitioning” status.  In Equal Employment Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., the EEOC sued a funeral home on behalf of a transgender woman for wrongful termination.  The transgender woman had been working as a funeral director while living and presenting as a man.  Her employment, however, was terminated shortly after informing the funeral home that she intended to transition from male to female and would be representing herself and dressing as a woman at work.  The lower court concluded that the EEOC could not bring a claim on the basis of someone’s transgender status because it was not a protected trait under Title VII.  The Sixth Circuit reversed, reasoning, in part, that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”  The bottom line for employers in the Sixth Circuit, which covers Kentucky, Ohio, Michigan and Tennessee, is that discrimination on the basis of someone’s transgender or transitioning status is unlawful under Title VII.



We have all read the headlines and chuckled about some of the more interesting choices of emotional support animals (ESAs) that sometimes travel on airlines.  Imagine having to sit next to a pot-bellied pig, a turkey, an alpaca, a turtle or even a peacock on a four-hour flight.  And you thought a colicky infant was bad…. When will the madness end?

While amusing to us all, it is somewhat frightening and potentially problematic for employers.  How does an ESA differ from your average seeing-eye dog?  What would you do if one of your employees announced one day that he or she wants to bring a large, feathered or four-legged friend to work?  What are your rights?  And, most importantly, what are your responsibilities under the law?

The Americans with Disabilities Act draws a distinction between ESAs and service animals.  According to ADA regulations, a service animal is “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”  Miniature horses can, in some instances, qualify as a service animal.  Other species, whether wild or domestic, are not service animals.   In addition, the tasks performed by a service animal must be directly related to the individual’s disability.  For example, seeing eye dogs may assist individuals who are visually impaired.  The hearing impaired may use dogs to alert them to the presence of people or other sounds.  Individuals with psychiatric or neurological disabilities may use service dogs to prevent or interrupt impulsive or destructive behaviors.

ESA’s, by comparison, are not limited to dogs and miniature horses.  ESAs are defined as any animal that provides comfort just by being with a person.  The range of species that may qualify as ESAs are virtually endless.  ADA regulations, however, expressly exclude animals whose sole purpose is to provide emotional support, well-being, comfort, or companionship.

Title III of the ADA, which applies to places of public accommodation (i.e., any place of business that is open to the public), requires those entities to allow the use of service animals (but not ESAs) in their establishments under certain conditions not amounting to a direct threat to the health or safety of others.

Two federal statutes do allow ESAs in places of public accommodation.  Under the Fair Housing Act (“FHA”), housing providers, including landlords, colleges and other providers of residential facilities, must reasonably accommodate individuals with disabilities by allowing ESAs in the residential unit.  Similarly, the Air Carrier Access Act (“ACAA”) requires domestic and foreign air carriers to accommodate the use of ESAs on flights.  Both the FHA and the ACAA contain exceptions for animals that may pose a direct threat to the health or safety of others.

Title I of the ADA, which applies to employers with 15 or more employees and prohibits discrimination in employment, does not have specific provisions for service animals or ESAs.  Title I does require employers, however, to provide reasonable accommodation in the work environment sufficient to allow a disabled employee to perform the essential functions of their job.  So, if an employee makes a request for a reasonable accommodation because of their disability, and that accommodation involves the use of a service animal or ESA on-site because it mitigates the effects of that disability, the employer will have to engage in the interactive process, just like with any other request for accommodation, to determine if the service animal or ESA would be an appropriate and reasonable accommodation under the circumstances.  Remember, both parties are required to participate in the interactive process in good faith, so employers should take such requests seriously and follow their ADA procedures, no matter how unique the request may be.

The requirements set forth in Title III of the ADA may be considered in employment situations, but not relied upon solely.  But, unlike Title III, the employee does not have an automatic right to utilize a service animal or ESA as a reasonable accommodation.  The obligation to provide reasonable accommodation through use of a service animal or an ESA in an employment setting may be limited if the presence of the animal presents an undue hardship on the operation of the business, or, like the other laws, if it poses a direct threat to the health or safety of the employee or others.

Finally, it should be noted that the above discussion pertains only to requirements under federal law.  Individual states, counties or localities may provide additional rights to the disabled.

Supreme Court Narrows Definition of Whistleblower

The U.S. Supreme Court has limited the term “whistleblower,” within the meaning of Dodd-Frank, to workers who report their concerns to the SEC.  In Digital Realty Trust Inc. v. Paul Somers, the high Court was asked to determine whether an employee could bring a whistleblower claim under Dodd-Frank’s anti-retaliation provision, even if the employee did not report his or her concerns to the SEC.  Resolving a circuit split on the issue, the Supreme Court adopted the narrow definition of the term and held that Somers, who did not provide information to the SEC prior to his termination but instead reported it only internally within the company, did not qualify as a “whistleblower” at the time of his alleged retaliatory termination.

City of Austin Requires Employers to Provide Workers With Paid Sick Leave

Austin, Texas has become the first southern city to require that employees receive paid sick leave.  Beginning this October, Austin workers will begin to accrue one paid hour off per 30 hours worked.  The City’s new paid sick leave policy requires private employers with more than 15 employees to allow those workers to accrue up to 64 hours or eight days of paid sick leave annually.  Small businesses with 15 or fewer employees must provide up to 48 hours of paid sick leave.  Employers with five or fewer employees will need to provide 48 hours of paid sick leave beginning in October 2020.  Sick days under Austin’s new policy will also include “safe days” for families dealing with domestic violence.  State lawmakers have already indicated they will seek to override the ordinance in the next legislative session.

California Adopts More Generous Overtime Formula

The cost of doing business in California just got a little higher. Earlier this month, the State Supreme Court considered how an employee’s overtime pay rate should be calculated when the employee had earned a flat sum bonus during a single pay period.  Following the methodology laid out in the DLSE’s Enforcement Manual, the Court held that a flat sum bonus should be factored into an employee’s regular rate of pay by dividing the amount of the bonus by the number of non-overtime hours actually worked during the relevant pay period (as opposed to the total number of hours worked).  Additionally, the Court held that overtime on the bonus must be paid at 1.5 times the regular rate derived from the bonus as opposed to the 0.5 rate permitted under the FLSA.  Notably, rather than being limited to prospective application, the Court’s decision operates retroactively.  The decision is Alvarado v. DART Container Corp.

Nucor Corp. On the Hook for $22.5 Million in Race Bias Case

A South Carolina district judge has granted final approval of a hefty settlement between Nucor Corporation and a class of 157 African-American workers who alleged that they were discriminated against based on their race.  Plaintiffs claimed that they were denied promotions in favor of white workers employed by Nucor Corporation or Nucor Steel Berkeley at the manufacturing plant in Huger, South Carolina. Under the terms of the settlement agreement, nearly half the $22.5 million settlement – $10 million – will be paid to the plaintiffs’ attorneys.  The case, Brown v. Nucor Corp., has been pending since 2003 and was scheduled to go to trial this Spring.