When the calendar flips from December to January, it’s a good time to take stock of what to expect over the next 12 months. Here are four major issues in employment law that we’ll be watching in 2018:
1. Does Title VII Protect Against Discrimination Based on Gender Identification or Sexual Orientation?
The Supreme Court has not yet resolved whether Title VII of the Civil Rights Act—which forbids discrimination in employment based on “sex”—protects those who are gay, lesbian, or transgender from discrimination, but this issue is percolating up through the court system.
In 2017, we covered a key decision from the Seventh Circuit, Hively v. Ivy Tech Community College of Indiana, which held that Title VII does in fact protect against sexual orientation discrimination. Later in the year, however, the Eleventh Circuit held in Evans v. Georgia Regional Hospital that “a gender non-conformity claim is. . . separate, distinct avenue for relief under Title VII,” but “sexual orientation discrimination is not actionable under Title VII.”
While the Supreme Court refused to hear the Evans plaintiff’s appeal, it may still tackle this issue in the coming year.
We’ll also be watching the positions that the government takes on these issues. As of now, the Equal Employment Opportunity Commission says that Title VII protects against discrimination based on gender identification or sexual orientation, but President Trump’s Department of Justice has backed away from that stance.
2. Does the Dodd-Frank Act Shield Internal Whistleblowers?
Last month, the Supreme Court heard argument in the case of Somers v. Digital Realty Inc., in which it will decide whether the Dodd-Frank Act’s whistleblower retaliation provision applies to those who only report internally and do not report wrongdoing to the Securities & Exchange Commission.
The Court’s decision, which is expected by July, could affect whether internal whistleblowers can seek immediate court relief for retaliation, instead of being forced to pursue relief through the Department of Labor first.
If the Court rules that Dodd-Frank does not shield internal whistleblowers, that ruling could also lead more whistleblowers to report externally to the SEC so that they can be protected by Dodd-Frank. Be sure to check back for a report on the decision when it is released.
3. Can Employers Enforce Waivers of Class and Collective Proceedings in Arbitration Agreements?
In 2018, the Supreme Court will also decide Epic Systems Corp. v. Lewis, another important case that will affect employees’ legal remedies against employers. In Epic Systems, the issue is whether an employer can enforce a class and collective action waiver in an arbitration agreement to prevent its employee from proceeding with a class action.
In dealing with this issue, the Court will need to address the potential conflict between the Federal Arbitration Act, which creates a strong federal policy in favor of upholding arbitration agreements, and the National Labor Relations Act, which safeguards collective action in the workplace.
Upon the change from the Obama administration to the Trump administration, the government switched sides in the case, and now supports the employers’ view that the class action waiver can be upheld. New Justice Neil Gorsuch could provide the deciding vote in their favor.
4. Will the Trump Administration Head Into Overtime?
2017 was a year of upheaval for the Obama administration’s overtime rule. In 2016, the Department of Labor doubled the minimum salary level that was required for employees to be exempt from overtime requirements, from $455 to $913 per week. However, the Trump administration abandoned the rule, and a Texas district judge later invalidated it.
DOL observers expect that the Department will soon release a new notice of proposed rulemaking on the overtime rules, and predict a smaller increase in the minimum salary level required for overtime exemption.