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Verrill Dana, LLP

Verrill Dana, LLP is one of New England's preeminent regional law firms. With offices in Portland and Augusta, ME; Boston, MA; Westport, CT; Providence, RI; and Washington D.C. Verrill Dana provides sophisticated legal representation to businesses and individuals in the traditional areas of litigation, real estate, business law, labor and employment law, employee benefits, environmental law, intellectual property and estate planning.  The Firm also has industry-focused specialties including higher education, health care and health technology, energy, and timberlands. 

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Entries in Title VII (22)


Seventh Circuit Holds Sexual Orientation Bias Exists Under Title VII

Earlier this week, the Seventh Circuit in an en banc (all member of the court participating as opposed to only three) decision held that Title VII’s ban on sex discrimination encompasses discrimination based on sexual orientation.  The 8-3 ruling represents the first federal court of appeals ruling to find that Title VII covers sexual orientation bias.

While many state statutes prohibit discrimination on the basis of sexual orientation or gender identity, Courts across the country diverge on whether sexual orientation is protected under Title VII.  This decision (Hively v. Ivy Tech Community College of Indiana) overruled previous Seventh Circuit precedent and makes it much more likely that the Supreme Court will grant review to determine whether Title VII prohibits sexual orientation bias.  Judge Diane P. Wood authored the opinion and noted that the ruling needed to be “understood against the backdrop” of Supreme Court decisions that had discussed sexual orientation including the 2015 decision recognizing a constitutional right to same-sex marriage.

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Western District of Pennsylvania Rules Sexual Orientation Discrimination Protected by Title VII

On Friday, November 4, 2016, the Western District of Pennsylvania issued an order denying Defendant’s Motion to Dismiss in EEOC v. Scott Medical Health Center (No. 2:16-cv-00225) finding that a claim of sexual orientation discrimination is a form of sex discrimination prohibited by Title VII of the Civil Rights Act. The order, penned by U.S. District Judge Cathy Bisson, refuses to adopt the Third Circuit’s prior rulings that sexual orientation is not a protected class under Title VII, noting that there have been “significant intervening legal developments that call into question how the [Third Circuit] evaluated Title VII in Bibby” and also noted that in Bibby, the Court was not faced with the same arguments that the EEOC had presented in the current matter. 

Specifically, the Western District held: “Title VII’s ‘because of sex’ provision prohibits discrimination on the basis of sexual orientation,” and the court saw “no meaningful difference between sexual orientation discrimination and discrimination ‘because of sex.’”

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Zika in the Workplace: Best Practices for Not Getting Bit with Liability

There are things we all need to know about Zika: 1) it is spread mostly by an infected Aedes species mosquito; 2) it can be passed from a pregnant woman to her fetus; 3) there is no vaccine or medicine for Zika; and 4) confirmed cases of the Zika virus have been identified in the United States.  While there are a whole host of things we still need to learn about the virus, there are a number of things you as an employer need to be mindful of when it comes to this virus

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“The Writing is On the Wall”: Seventh Circuit Clears Up Any Misconceptions the Public May Have on the Court’s View on Sexual Orientation Discrimination

Late last week, the Seventh Circuit issued an opinion in Hively v. Ivy Tech Community College, in which it held that Title VII provides no redress for discrimination of the basis of sexual orientation. The Seventh Circuit is the first federal court of appeals court to rule on the issue since the EEOC’s administrative ruling in July 2015 that bias based on sexual orientation is discrimination in violation of Title VII.

While the court relied on previous holding of the circuit that sexual orientation was not a protected case, the court provided an extended analysis of the EEOC’s 2015 decision in Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641, at *5, *10 (July 16, 2015), where the EEOC concluded that: “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” In support of this position, the EEOC has been relying in large part on the United States Supreme Court’s decision in Price Waterhouse where the Court held that gender stereotyping constituted discrimination on the basis of sex in violation of Title VII.

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Is “Boy, you need to pray” Comment to Biscuit Maker A Violation of Title VII?

The EEOC continues its push to recognize job protection for LGBT workers under Title VII. On Wednesday, the EEOC filed a lawsuit against Bojangles Restaurants Inc. alleging that the restaurant chain discriminated and retaliated against former employee Jonathan Wolfe. The Complaint alleges Wolfe, who was transitioning from male to female, was told she could no longer wear makeup or fake fingernails while working, harassed by co-workers, told she could never enter the store dressed as a woman, and ultimately terminated.

While no federal appeals courts have addressed the issue of job protection for LGBT workers under Title VII, previous case law does hold that bias based on gender identity or a failure to conform to traditional gender stereotypes is bias based on sex.

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Benchslapped! EEOC & NLRB May Have to Pull Out Their Debit Cards

For those employment lawyers who believe that the EEOC and NLRB have tended to overreach of late (i.e., the defense bar), two separate decisions handed down against those agencies caused a distinct feeling of schadenfreude.1

Or, as one legal scholar noted in a somewhat different context, “Hey! Gotta gotta pay back!! (The big payback).

On Thursday, the Supremes ruled (8-0) that the EEOC may be ordered to pay an employer’s attorneys’ fees under Title VII when the agency’s lawsuit is dismissed because it failed to satisfy its pre-suit requirements. The ruling in CRST Van Expedited, Inc. v. EEOC reversed the 8th Circuit’s decision that a ruling on the merits of the underlying discrimination claim is required for an employer to be deemed a “prevailing party” that can seek its fees. It sets up a remand to the 8th Circuit in which CRST Van Expedited, Inc. is expected to seek approximately (gulp) $4.5 million in legal fees.

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