Seventh Circuit Expands Title VII To Include Sexual Orientation Discrimination

In Hively v. Ivy Tech Community College, the U.S. Court of Appeals for the Seventh Circuit (Illinois, Indiana, and Wisconsin) held that Title VII of the Civil Rights Act of 1964, a federal antidiscrimination law, prohibits discrimination on the basis of sexual orientation. Although several state laws—including the California Fair Employment and Housing Act—forbid this type of discrimination, Title VII has historically been construed to exclude sexual orientation as a protected category. This ruling represents a significant shift in federal law interpretation, one that may require resolution by the U.S. Supreme Court.

Including Additional Information in Wage Statements Does Not Violate California Labor Code

The U.S. Court of Appeals for the Ninth Circuit held in an unpublished decision, Apodaca v. Costco Wholesale Corp. (January 10, 2017), that the inclusion of a line for “vacation pay/nonexempt salaried vacation or float overtime” did not constitute a violation of California Labor Code § 226. According to the Court, the inclusion of information on vacation pay deals with paid time off that an employer is not specifically required to provide under Section 226, and, accordingly, the inclusion of this additional information or the purported failure to provide corresponding hourly rates did not violate Section 226.

Separately, the plaintiff argued that the wage statements failed to identify the total hours worked and the corresponding hourly rates. But the Court found that there was no violation of Section 226 because the employees could engage in basic math to calculate total hours and determine the applicable hourly rate for the hours worked.

While the Apodaca decision provides some relief to employers, employers should note that litigation around wage statements remains hyper-technical and plaintiffs will continue to argue that an employer must comply to the letter with each and every requirement under Section 226. Employers should partner closely with their payroll provider to ensure that they comply with Section 226’s itemized requirements and with any other wage statement requirements under local laws (for example, for San Francisco employers, the requirement that they track San Francisco paid sick leave accrual).