Courts and government agencies have been busy this year in the area of employment law. This presentation addresses the key new developments and cases from the last year and covers a wide variety of topics to keep you up-to-date on what is new in employment law and how to make sure your workplace is compliant.

1. Parsons Behle & Latimer IDAHO EMPLOYMENT LAW SEMINAR
NEW DEVELOPMENTS AND LEGAL
DECISIONS IN EMPLOYMENT LAW 2015
Christina M. Jepson
cjepson@parsonsbehle.com
WEDNESDAY, OCTOBER 21, 2015 | BOISE CENTRE
parsonsbehle.com

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 So what was happening in employment
law in the last year?
 What do you need to know?
 What are the trends?
 What might we see next year?
Overview

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 Pregnancy Discrimination & Accommodation
– Young v. United Parcel Service
– EEOC Guidance
 Religious Accommodation
– EEOC v. Abercrombie & Fitch Stores
 LGTBQA
– Ogergefell v.Hodges—same sex marriage
– EEOC positions on sexual orientation and
transgender status
– Lawsuit trends
Overview

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 Fair Labor Standards Act—security clearance
– Integrity Staffing Solutions v. Busk
 ERISA
– Tibble v. Edison Int’l
– Plan fiduciaries duty to monitor and remove
imprudent investments
Overview

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 The issues of pregnancy discrimination and
accommodation have been front and center the
last few years
 Lactation rules
 EEOC Guidance on pregnancy discrimination
and accommodation
 Supreme Court decision in Young v. UPS
Pregnancy

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 In thinking about pregnancy in the workplace,
there are a number of laws at play
– Pregnancy Discrimination Act (PDA) make Title VII
applicable to pregnancy – An employer cannot treat
an employee differently because of pregnancy
– The Americans with Disabilities Act (ADA) – must
accommodate disabilities (including pregnancy-
related disabilities)
– The Family Medical Leave Act (FMLA) – 12 weeks
unpaid leave if employee qualifies including for
pregnancy-related conditions and/or to care for
newborn child
Pregnancy Laws

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 PDA amended Title VII to explicitly prohibit
discrimination based on
– Current pregnancy
– Past pregnancy
– Potential or intended pregnancy
– Medical conditions related to pregnancy or
childbirth
Pregnancy Discrimination Act

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 On July 14, 2014 the EEOC issued Updated
Enforcement Guidance on Pregnancy
Discrimination
 Also issued Questions and Answers and a
Fact Sheet on the guidance
 Updated Guidance in July 2015
 Worth reviewing
EEOC Guidance on Pregnancy

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 This EEOC Guidance was unusual in that it was
issued without first allowing for public comment
 This was because the Young v. UPS case was
pending before the US Supreme Court
addressing whether an employer that provides
work accommodations to non-pregnant
employees with work limitations must provide
work accommodations to pregnant employees
with similar work limitations
EEOC Guidance on Pregnancy

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Young v. United Parcel Service, 575 U.S. ___ (2015)
 Peggy Young worked as a part-time driver for UPS. Her
job duties included pickup and delivery of packages.
 UPS required drivers like Young to lift parcels weighing
up to 70 pounds and up to 150 pounds with assistance.
However, Young presented evidence showing that she
rarely, if ever, had to lift items that heavy.
 When Young became pregnant, her doctor told her she
should not lift more than 20 pounds during the first 20
weeks of pregnancy or more than 10 pounds thereafter.
Pregnancy—Young Decision

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 In a collective bargaining agreement, UPS had
agreed to:
(1) Provide temporary alternative work assignments to
employees unable to perform their normal assignments
due to an on-the-job injury;
(2) Make a good faith effort to comply with requests for
a reasonable accommodation because of a permanent
disability under the ADA; and
(3) Give “inside” jobs to drivers who had lost their
DOT certifications because of a failed medical exam, a
lost driver’s license, or involvement in a motor vehicle
accident
Pregnancy—Young Decision

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 UPS denied Young’s request to accommodate her
lifting restrictions and told her she could not work
while under a lifting restriction because she did not
meet any of the union categories
 Young brought claims for violations of the PDA and
ADA alleging UPS had subjected her to pregnancy
discrimination (disparate treatment) by failing to
accommodate her pregnancy-related lifting
restriction when it accommodated other employees
Pregnancy—Young Decision

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 The trial court granted summary judgment for
UPS, and the Fourth Circuit Court of Appeals
affirmed the trial court’s ruling
 The U.S. Supreme Court vacated the Fourth
Circuit Court of Appeals’ decision and held that
the McDonnell Douglas framework applied to
establishing a prima facie disparate treatment
pregnancy discrimination claim through indirect,
or circumstantial, evidence
Pregnancy—Young Decision

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S.C. held (6-3, BREYER; ALITO concurring in
judgment; SCALIA, THOMAS and KENNEDY,
dissenting):
 Young established a prima facie case;
remanded for a determination regarding pretext
 PDA claim governed by McDonnell Douglas
 Pretext may include that many non-pregnant are
accommodated
Pregnancy—Young Decision

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 The Supreme Court held an employee claiming that an
employer’s denial of her requested pregnancy-related
accommodation can establish a prima facie Pregnancy
Discrimination Act claim by showing:
(1) She belongs to the class protected under the Act;
(2) She sought an accommodation;
(3) The employer did not accommodate her; and
(4) The employer did accommodate other employees
“similar in their ability or inability to work ” (but whose
need for the accommodation was not pregnancy-
related)
Pregnancy—Young Decision

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 After the employee makes out a prima facie case, the
employer may seek to justify its refusal to accommodate
the employee’s requested pregnancy-related
accommodation by showing there were “legitimate non-
discriminatory” reasons for denying the accommodation
 “But consistent with the PDA’s basic objective, that
reason normally cannot consist simply of a claim that it is
more expensive or less convenient to add pregnant
women to the category of those (“similar in their ability or
inability to work”) whom the employer accommodates.”
Pregnancy—Young Decision

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 The employee may then show the employer’s
proffered legitimate nondiscriminatory reasons
are a pre-text for pregnancy discrimination
– “We believe that the plaintiff may reach a jury on this
issue by providing sufficient evidence that the
employer’s policies impose a significant burden on
pregnant workers, and that the employer’s
“legitimate, nondiscriminatory” reasons are not
sufficiently strong to justify the burden, but rather—
when considered along with the burden imposed—
give rise to an inference of intentional discrimination.”
Pregnancy—Young Decision

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 The Supreme Court held Young had established a prima
facie discrimination claim under the PDA
– “Here, for example, if the facts are as Young says they are, she
can show that UPS accommodates most nonpregnant
employees with lifting limitations while categorically failing
to accommodate pregnant employees with lifting limitations.
Young might also add that the fact that UPS has multiple policies
that accommodate nonpregnant employees with lifting
restrictions suggests that its reasons for failing to accommodate
pregnant employees with lifting restrictions are not sufficiently
strong—to the point that a jury could find that its reasons for
failing to accommodate pregnant employees give rise to an
inference of intentional discrimination.”
Pregnancy—Young Decision

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 The Court rejected Young’s broader interpretation:
– Young asks us to interpret the second clause broadly and,
in her view, literally. As just noted, she argues that, as long
as “an employer accommodates only a subset of workers
with disabling conditions,” “pregnant workers who are
similar in the ability to work [must] receive the same
treatment even if still other nonpregnant workers do not
receive accommodations.” She adds that, because the
record here contains “evidence that pregnant and
nonpregnant workers were not treated the same,” that is
the end of the matter, she must win; there is no need to
refer to McDonnell Douglas.
Pregnancy—Young Decision

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 It seems to say that the statute grants pregnant workers
a “most-favored-nation” status. As long as an
employer provides one or two workers with an
accommodation—say, those with particularly
hazardous jobs, or those whose workplace presence
is particularly needed, or those who have worked at
the company for many years, or those who are over
the age of 55—then it must provide similar
accommodations to all pregnant workers (with
comparable physical limitations), irrespective of the
nature of their jobs, the employer’s need to keep them
working, their ages, or any other criteria.
Pregnancy—Young Decision

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 The status of the EEOC Guidance changed
somewhat after the Young decision
 EEOC Updated Guidance on 6-25-15 to address
Young
 Guidance focuses on three areas of concern
– ADA accommodation of pregnancy-related disabilities
and childbirth-related disabilities
– Discrimination in how employers write and/or enforce
their own policies
– Discrimination in how employers treat pregnant
employees and parents--stereotypes
Pregnancy—EEOC Guidance

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 One of the main points of the Guidance is to
address the interplay between the Pregnancy
Discrimination Act (PDA) and the American with
Disabilities Act (ADA) which was not at play in
Young
 Although PDA does not include accommodation
requirement, the ADA does require
accommodations for disabilities and the
definition of disability was significantly expanded
with the 2008 Amendments (after Young
scenario)
ADA and Pregnancy

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 The EEOC Guidance notes that since
passing the ADA amendments in 2008, it is
easier to demonstrate that pregnancy-related
impairments constitute “disabilities” under the
ADA and require reasonable
accommodations
 In such situations employers must consider
accommodations for pregnant workers
ADA and Pregnancy

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 Although pregnancy itself is not a disability, many
pregnancy-related conditions may be disabilities
ADA and Pregnancy--Disabilities
– Conditions requiring bed rest
(including high risk
pregnancies)
– C-section birth
– Anemia
– Sciatica
– Carpal tunnel syndrome
– Gestational diabetes
– Nausea that causes severe
dehydration
– Abnormal heart rhythms
– Swelling (especially in the
legs)
– Depression
– Pelvic inflammation causing
pain and difficulty walking
– Post partum complications
– Breech pregnancy requiring
frequent doctor visits and
bed rest

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 Make sure your clients’ ADA policies are up to
date (include pregnancy-related disabilities) and
are being enforced—include an accommodation
process
 Make sure clients’ discrimination and
harassment policies include pregnancy,
childbirth, and pregnancy-related conditions
 Make sure clients’ FMLA policies are up to date
 Review light duty and related policies
 Train managers and employees on policies
Pregnancy--Best Practices

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 Respond to complaints about pregnancy issues
 Develop accurate job descriptions
 When approached with a situation involving a
pregnant employee, make sure you have the facts,
you have looked at the documents, and the decision
is supported
 Make sure clients document performance and job
decisions
 When it is tricky, your clients need to seek legal
advice
 Wait for new Guidance!
Pregnancy--Best Practices

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EEOC v. Abercrombie & Fitch

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EEOC v. Abercrombie & Fitch, 135 S.Ct. 2028 (2015)
 Whether an employer can be liable under Title VII for
refusing to hire an applicant (or for discharging an
employee) based on a “religious observance and
practice” only if the employer has actual knowledge that
a religious accommodation was required and the
employer’s actual knowledge resulted from direct,
explicit notice from the applicant or employee
Religious Accommodation

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 Abercrombie owns clothing stores each with
its own “style” and its sales people are called
“sales models”
 Company imposes a “Look Policy” that
governs employees dress—a “classic East
Coast collegiate style of clothing” and
“attractiveness”
 The Look Policy prohibits caps as too
informal for the Company image
Religious Accommodation

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 Samantha Elauf was a practicing Muslim and
wore a headscarf as part of her religion
 She applied for and interviewed for a job at
Abercrombie
 The Assistant Manager who interviewed her
gave her solid ratings in the three competencies
required for the job and thus she was qualified to
be hired
Religious Accommodation

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 The Assistant Manager was concerned about the
headscarf given the Look Policy but did not mention
it to the applicant
 The Look Policy said if an applicant asks about the
policy, check with HR—but it didn’t come up
 AM asked her manager & received no response
 She asked district manager and was told headscarf
would violate the Look Policy and was told to lower
the applicant’s score on appearance section
 She was told not to hire the applicant
Religious Accommodation

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 The Tenth Circuit dismissed the case on the
grounds that plaintiff never asked for an
accommodation and could not prove
Abercrombie knew she had a religious
accommodation need
 Tenth Circuit held employer cannot be liable for
failure to accommodate religious practice unless
the applicant/employee provides the employer
with actual knowledge of need
Religious Accommodation

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EEOC v. Abercrombie & Fitch, US Supreme Court
held (8-1, op. per SCALIA, J.; ALITO, J.,
concurring in judgment; THOMAS, J, concurring in
part, dissenting in part):
 An applicant need only show that the need for
accommodation was a motivating factor, not that
employer had actual knowledge of this need
 An employer may not make an applicant’s
religious practice, confirmed or otherwise, a
factor in employment decisions
Religious Accommodation

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 Two related cases
– Halla Banafa claimed the company refused to
hire her for a stockroom position because she
wore a headscarf during a job interview
– Umme-Hani Khan claimed she was fired as a
Hollister store employee for refusing to
remove her headscarf
Religious Accommodation

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 On July 15, 2015 the EEOC issued a
decision holding that discrimination based
on sexual orientation constitutes Title VII
discrimination
– Gay man worked as a supervisory air traffic
control specialist
– Supervisor was aware of his sexual
orientation and allegedly make negative
comments in the workplace
Sexual Orientation

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– He was not selected for a permanent position
– Contacted the EEOC and filed a complaint
– The EEOC held that a claim of discrimination
based on sexual orientation is a claim for sex
discrimination under Title VII if
• Treated in a way he would not be treated but for
his sex
• Treated differently based on the sex of the person
he associates with
• Discriminated against because of stereotype that
individuals should only be attracted to opposite sex
Sexual Orientation

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– Supreme Court recognized in Hodges that
same sex marriage cannot be prohibited by
the states because it violates the Equal
protection clause
• This will inform employment cases
Sexual Orientation and Marriage

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 In April of 2012 the EEOC issued a
decision in Macy v. Holder that claims of
discrimination based on gender identity,
change of sex or transgender status
constitute sex discrimination
– A transgender woman presenting as a man
applied with ATF and was told the position
was hers. Later expressed that she was in
process of transition from male to female
– Told position no longer available
Gender Identity/Transgender

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 These cases are becoming more prevalent
– In April 2015 in Complainant v. McHugh the
EEOC held that denying a transgender
employee the use of a restroom consistent
with her gender identity constitutes sex
discrimination
– Not using correct name and pronoun can be
discrimination
– Increasing lawsuits over bathrooms and other
transgender issues
Gender Identity/Transgender

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–New cases are coming
• Bathrooms
• Dress
• Gender presentation
• Stereotypes
LGTBQA Rights

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 Integrity Staffing Solutions v. Busk, 2014 WL 6885951
(Dec. 9 2014)
– Hourly warehouse workers waiting to undergo and
undergoing anti-theft security screening argued that
this was compensable time
– Workers alleged that they “were required to remove
all personal belongings from their person[s] such as
wallets, keys, and belts, and pass through metal
detectors before being released from work and
allowed to leave the facility,” a process asserted to
take as long as 25 minutes
Federal Labor Standards Act

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 Integrity Staffing Solutions v. Busk, 2014 WL 6885951
(Dec. 9 2014)
– “[W]hether time spent in security screenings is
compensable under the FLSA, i.e., whether such
activity is “postliminary” under 29 U.S.C. § 254(a)
Federal Labor Standards Act

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What plaintiff argued:
 “If an employer requires a worker to engage in pre- or
post- shift activity for the benefit of the employer, that
activity is work within the scope of the FLSA, even if it is
wholly unrelated to the employee’s shift work”
Federal Labor Standards Act

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What defendant argued:
 Pre-/post-shift activities compensable only if activity in
question is “integral and indispensable” to “primary duty”
of an employee
 “[S]ecurity screening is a paradigmatic example of an
activity that is non-compensable because it is
‘preliminary’ or ‘postliminary’”
Integrity Staffing Solutions v. Busk

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What the Court held (9-0, op. per THOMAS, J.;
SOTOMAYOR and KAGAN, JJ, concurring):
 S.C. reversed 9th Circuit and held that waiting for
and undergoing screening was not compensable
 “An activity is therefore integral and
indispensable to the principal activities that an
employee is employed to perform if it is an
intrinsic element of those activities and one with
which the employee cannot dispense if he is to
perform his principal activities.” (Dictionary)
Integrity Staffing Solutions v. Busk

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Tibble v. Edison Int’l, 2015 WL 2340845 (May 18, 2015)t
 Whether a claim that ERISA plan fiduciaries breached
their duty of prudence by offering higher cost retail-class
mutual funds to plan participants, even though identical
lower-cost institutional-class mutual funds were
available, is barred by ERISA §413(1) when fiduciaries
initially chose the higher cost mutual funds as plan
investments more than six years before the claim was
filed
ERISA Fiduciary Duties

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What the Court held (9-0, op. per BREYER, J):
 Plan fiduciaries have a continuing duty – separate from
the duty to exercise prudence in selecting investments –
to monitor and remove imprudent investments
 So long as a plaintiff’s claim alleging breach of the
continuing duty of prudence occurred within six years of
suit, the claim is timely
 The Court expressed no view on the scope of
respondents’ fiduciary duty
 Do you have ERISA plans?
ERISA Fiduciary Duties

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Wage and hour claims
Exemptions—executive order proposals
Independent Contractors
Interns and volunteers
Remote work
Living wage
General Trends

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Marijuana—25 states legalized medial marijuana and a few
recreational marijuana
E-cigarettes
Affordable Care Act
Wellness programs
Immigration
Computer privacy—cyber security
Social media
Ban the box and background checks
General Trends

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 Christina M. Jepson
801.536.6820
cjepson@parsonsbehle.com
Thank You