Labor & Employment Developments Blog

I recently wrote about OSHA’s plan to develop and distribute information to ensure transgender employees have safe and adequate access to workplace restrooms.  This week, OSHA issued “Best Practices - A Guide to Restroom Access for Transgender Workers,” with the stated Core Principle that “[a]ll employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”  The OSHA Guide notes the following:

When I think of Abercrombie & Fitch, which is an infrequent occurrence, I think of soft core porn catalogues and over-priced t-shirts; now, I can add religious discrimination to the list.  The Supreme Court ruled this week against Abercrombie & Fitch for refusing to hire a young Muslim because she wore a hijab, which violated the store’s “look policy” for salespersons. 

Unless you’ve been out of the country or purposely avoiding news about sports, you’ve probably heard a lot about “Deflategate” and the punishment handed down by the National Football League (NFL) against the New England Patriots and star quarterback Tom Brady.  The short version of the scandal is that during the AFC Championship game on January 18, 2015, some of the New England Patriots’ game footballs were discovered to be underinflated, which could provide a competitive advantage to a quarterback by making them easier to grip. 

The widely discussed Bruce Jenner interview has been a media sensation but for employers there are more important recent stories on transgender issues in the workplace. Last month, the EEOC issued a ruling that Title VII was violated by the Army when it refused to allow a transgender, male-to-female, civilian employee to use the women’s common restroom.   

In a potentially important decision over workplace accommodations in an environment when telecommuting is more common, the Sixth Circuit ruled on April 10 that an employer does not need to permit an employee to work from home when an essential aspect of the employee’s position requires being in the office. 

With the announcement of the April 24 release date for the long anticipated Apple Watch (http://www.cnet.com/products/apple-watch/), this is a good time for employers to consider the topic of wearable technology. 

New Rules for Federal Contractors:

On December 3, 2014, the Department of Labor announced a Final Rule changing OFCCP’s regulations so that they prohibit discrimination based on, and require treatment of applicants and employees without regard to, sexual orientation or gender identity.  These final rules were issued as a result of President Obama signing an executive order in July, 2014, extending workplace protections to lesbian, gay, bisexual and transgender (LGBT) Americans in the federal contracting workforce. 

In a reversal of precedent, a divided National Labor Relations Board (“NLRB”) held yesterday that employees have a right to use their employers’ email systems for non-business purposes, including statutorily protected communications regarding the terms and conditions of their employment and regarding union organizing efforts. See Purple Communications, Inc., 361 NLRB No. 126 (December 11, 2014).  The NLRB’s ruling stemmed from a case brought by the Communications Workers of America union after it unsuccessfully attempted to organize employees of Purple Communications, Inc., a company that provides interpreting services for the deaf and hearing-impaired.  The union argued that prohibiting the company’s workers from using the company’s email system for non-business purposes and on behalf of organizations not associated with the company interfered with the CWA’s organizing efforts. 

On Tuesday, the Supreme Court issued a highly-anticipated ruling in the case of Integrity Staffing Solutions, Inc. v. Busk, No. 13-433 (Dec. 9, 2014, Thomas, C.).   

This Wednesday, December 3, 2014, the United States Supreme Court will hear oral arguments in the case of Young v. UPS, No. 12-1226, on appeal from the Fourth Circuit Court of Appeal.  The Young case has received significant attention because it asks the Court to directly address the question of what, if any, accommodation is required for a pregnant worker with work limitations under the Pregnancy Discrimination Act, incorporated into Title VII of the Civil Rights Act in 1978, where the employer provides work accommodations to non-pregnant employees with work limitations, such as those affected by on-the-job injuries or a disability as defined by the Americans with Disabilities Act.