August 2022 E-Update

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Gender Dysphoria Constitutes a Disability Under the ADA, According to the Fourth Circuit

The U.S. Court of Appeals for the Fourth Circuit has ruled that gender dysphoria, a medical condition defined in the DSM-5 as “clinically significant distress or impairment related to gender incongruence, which may include desire to change primary and/or secondary sex characteristics[,]” can constitute a disability under the Americans with Disabilities Act (“ADA”). The decision substantially alters the legal landscape under the ADA, as “gender identity disorders” are expressly excluded from the definition of disability under the ADA. For more, click here.

Offensive Language May Be Protected Concerted Activity

The U.S. Court of Appeals for the D.C. Circuit ruled that the National Labor Relations Board sufficiently addressed the conflict between an employer’s obligations under federal antidiscrimination laws and employee’s rights under the National Labor Relations Act in finding unlawful an employee’s termination for writing “whore board” at the top of two overtime sign-up sheets. The result turned on what the employer had previously tolerated in the workplace – a warning to employers to be careful of what behavior they permit. For more, click here.

Federal Contractor Update – Revised Compensation Analysis Directive, Objections to Disclosure of EEO-1 Reports, and New Construction Contract Portal

The Office of Federal Contract Compliance Programs had a busy month, issuing several documents and resources of interest to federal contractors and subcontractors For more, click here.

Reasonable Accommodations Must Be Required, Not Just Desired. Under the Americans with Disabilities Act, an employer is obliged to provide only those reasonable accommodations that are necessary to enable an employee to perform their essential job functions (or enjoy the privileges and benefits of employment), and not those that would arguably maximize an employee’s productivity. For more, click here.

Establish and Enforce Clear FMLA Reporting Mechanisms. This was the lesson from a recent case from the U.S. Court of Appeals for the Fourth Circuit, in a case under the Family and Medical Leave Act where the employer allowed communications beyond what was specified in its written policy. For more, click here.

Be Careful Not to Cut Off the Interactive Process Too Quickly. “Just as an employee may not terminate the interactive process quickly to create liability, so too an employer may not cut off the interactive process so early that the parties cannot find a position to reasonably accommodate the employee,” stated the U.S. Court of Appeals for the Tenth Circuit in a recent case involving the Americans with Disabilities Act. For more, click here.

Can Non-Employers Be Sued for Interference with an Employee’s ADA Rights? Addressing this “novel” question, the U.S. Court of Appeals for the Sixth Circuit answered: No. However – be careful – companies may be held liable under a joint employer theory. For more, click here.

Training and Reporting Obligations for DC Employers of Tipped Workers Take Effect. The “Tipped Wage Workers Fairness Amendment Act of 2018” was enacted by the District of Columbia Council back in 2018, but certain provisions are taking effect only now – including mandatory sexual harassment training and reporting of sexual harassment complaints. D.C. has created a new website setting forth the required obligations, for which employers must certify compliance by December 31, 2022 through an online portal. (A printed copy of the portal form may be found here.) To reiterate, these obligations include…For more, click here.

501(c)(3) Status May Trigger Title IX Obligations for Private Schools. In a case of first impression, the United States District Court for the District of Maryland concluded that independent schools receiving a 501(c)(3) tax exemption is the substantial equivalent of receiving a cash grant from the government in the amount of tax otherwise owed, which subjects them to the requirements of Title IX. For more, click here.

Many employers would like to have a policy that provides light duty only to those workers who suffer on-the-job injuries, but not others, like pregnant employees. The Equal Employment Opportunity Commission, however, took the position that the Supreme Court’s 2015 ruling in Young v. UPS necessarily required employers with occupational light duty policies to extend light duty to pregnant employees. But, according to the U.S. Court of Appeals for the Seventh Circuit, Young is not so categorical and an employer may be able to establish an occupational light-duty policy – under the right circumstances and with caveats. For more, click here.