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From #MeToo to marijuana, an employment law year in review

The area of employment law experienced a great deal of media attention in 2017. With the rise of the #MeToo movement, employment issues experienced a level of discussion not often seen in recent years. With this media attention also came a new presidential administration aimed at curbing many of the regulations placed on employers in previous years. Some important updates were couched in non-employment legislation, such as the tax bill.

  1. Equal Employment Opportunity Commission strategic plan: The EEOC began to implement its four-year strategic plan last year. This includes directing resources where the EEOC feels they are most likely to achieve the organization’s goals, including focusing more on bringing claims itself and an increased focus on systemic discrimination cases.

  2. Sexual orientation and Title VII: Certain courts held sexual orientation to be protected under Title VII last year, while others held the opposite. The Trump administration’s Department of Justice has taken the latter position, while the EEOC has taken the former. Employers should consider how their handbooks address sexual orientation, as the handbooks can give rise to potential contract claims where no claim would exist otherwise.

  3. Transgendered persons and religious freedom: A federal court has recently shielded an employer from liability for firing a transgender person under the Religious Freedom Restoration Act. This was in a lawsuit brought by the EEOC directly, as other courts have held RFRA to be inapplicable in private party lawsuits.

  4. Marijuana use under ADA: The Massachusetts Supreme Court allowed an employee to sue for disability discrimination under state law when she was fired for using medical marijuana to treat Crohn’s disease. The court held it was not an undue hardship on the employer to allow the employee to consume marijuana while not at work or before work, despite the drug’s status as illegal under federal law. As legalization spreads, more courts across the country will be confronted with these issues, and employers should be aware of how courts in their jurisdictions handle the problem.

  5. Office of Management and Budget suspends EEOC reporting requirements: The OMB suspended the enforcement of a 2016 EEOC requirement for employers to submit additional wage information in attempts to point out pay disparity by gender. This suspension is unlikely to be lifted under the Trump administration.

  6. Employer risk due to sexual harassment: While the subject received a great deal of publicity over the past year, there was little in the way of actual changes in the law. One subtle change was in the December tax bill, as employers can no longer deduct sexual harassment settlements if the settlement is subject to a nondisclosure agreement. More significantly, employers should be aware of a recent South Dakota jury verdict. In the case of Laura Zylstra Kaiser v. Bryan Gortmaker, a jury awarded the plaintiff $1.2 million in a claim of gender discrimination and retaliation, with an additional award of attorneys’ fees, which has not yet been determined. Employers should be aware of supervisor behavior and should do their best to ensure proper training to avoid this type of liability.

Employers who have questions about updates should contact legal counsel and ensure compliance to avoid exposure. Woods Fuller attorneys Melanie Carpenter and Tyler J. Coverdale will discuss these and other topics as the featured presenters at the Southeast South Dakota SHRM Spring Conference on March 13.

February 26, 2018