Are you in the know?
Yeah, I'm sorry. I should have an in-depth, incisive legal analysis of the Sixth Circuit panel decision in EEOC v. R.G. and G.R. Harris Funeral Homes, Inc. That was my plan, and I promise that I will -- soon -- but I couldn't get it done soon enough for this morning. Will some quiz questions do for now?
1. In R.G. and G.R., the U.S. Court of Appeals for the Sixth Circuit found in favor of the Equal Employment Opportunity Commission in a case involving transgender discrimination. When the owner of the funeral home found out that his employee was going to start presenting as female, what did the owner say?
a. "You go, girl!"
b. "Hmm. That's a big decision. Are you sure?"
c. "I just don't see you in a frilly little dress."
d. "This isn't going to work out."
ANSWER: d. The owner of the funeral home fired the employee shortly after she told him that she would be transitioning. This is apparently undisputed.
2. The funeral home won summary judgment when the case was before a federal district court judge in Detroit. The Sixth Circuit reversed on appeal and granted summary judgment to the EEOC instead, but which of these was a reason that the funeral home won at the district court?
a. Gender stereotyping isn't against the law.
b. The employee couldn't console the bereaved and couldn't embalm worth a darn. This is a legitimate, non-discriminatory reason for discharge.
c. The employer, a devout Baptist who believed in traditional gender roles, was protected from enforcement action by the federal government under the Religious Freedom Restoration Act.
d. The EEOC's lawsuit was untimely.
ANSWER: c. Although the employer clearly discriminated against the employee, the District Court found that he was protected under the RFRA, that his religious practice was burdened by the EEOC's action, and that there were less burdensome alternatives that the EEOC could have pursued but didn't. (Again, this argument did not win the day on appeal.)
3. In another case, the U.S. Department of Justice sued Ozaukee County, Wisconsin, this week. The county operated a nursing home and rehabilitation center that required employees to get annual flu shots. A certified nursing assistant had a religious objection to getting the shots. After the employer told her to get a shot or be fired, she got the shot. What happened next?
a. She became distraught and suffered severe emotional distress, out of terror that she was going to go to hell.
b. She got the flu anyway.
c. She didn't get the flu and didn't infect any patients.
d. She had a sore arm for a few days, but then she was ok.
ANSWER: a. That is why the county got sued.
4. What was it about the employer's religious accommodation policy that was a problem, in the eyes of the DOJ?
a. The employer did not accommodate employees who had religious objections to flu shots.
b. The employer accommodated Christians, but not employees of other faiths.
c. The employer accommodated employees with religious objections to flu shots, but only if they brought a note from their clergy person.
d. The County required separation of church and state.
ANSWER: c. The employer has since changed its policy, but at the times relevant to the lawsuit, it required employees to bring a note from their clergy person. Which worked great for those who were members of organized places of worship, but not so great for people like our CNA, who had a sincere religious belief but no church and therefore no pastor to write a note for her. Employers are generally required to accommodate employees' religious beliefs even if those beliefs are individualized, or (ahem) "unique."
(Off topic: Ozaukee County looks like a lovely place.)
5. At his recent confirmation hearing, NLRB nominee John Ring, a partner with a big, national law firm that represents employers such as Amazon, Microsoft, and Boeing, was grilled vigorously about what?
a. Whether he would join the employee- and union-friendly "Obama wing" of the NLRB, or the employer-friendly "Trump wing."
b. Whether he would stick around at the NLRB for a full term even though he'll be taking a huge pay cut.
c. How his law partner and former NLRB Chairman, Philip Miscimarra, is doing these days.
d. How he will handle recusals if cases come before him that involve his law firm's clients.
ANSWER: d. As my colleague David Phippen discussed recently, NLRB Member William Emanuel (R) came under fire after he did not recuse himself from Hy-Brand, a joint employer case that kinda-sorta-indirectly involved one of the clients of his old law firm. None of the clients of Mr. Emanuel's law firm were parties in the Hy-Brand case. However, the Hy-Brand decision overruled another NLRB decision (Browning-Ferris) that did involve a client of Mr. Emanuel's old law firm, and the NLRB decision in Browning-Ferris was awaiting review by a court. (In other words, the Browning-Ferris case was still "live.") After the Office of the Inspector General issued a report saying that Mr. Emanuel should have recused himself, the NLRB decided to rescind its decision in the Hy-Brand case.
Now back to Mr. Ring: Because Mr. Ring is a partner in another big law firm, he got a lot of questioning about how he would handle similar situations. He promised to do right. (I'm not implying that Mr. Emanuel did anything wrong.)
6. The U.S. Department of Labor quietly removed some Obama-era guidance from its website this week. Which two legal issues did the guidance relate to?
a. Family and Medical Leave Act, and criminal background checks.
b. Joint employment and independent contractor misclassification.
c. Employee benefits and discrimination based on genetic information.
d. Sexual harassment and retaliation.
ANSWER: b. An encouraging signal for employers.
7. Speaking of the DOL, they also formally introduced a pilot program this week that is expected to limit employer liability for overtime and minimum wage violations, provided that the employers do what?
a. Publicly apologize for their misdeeds on national television.
b. Pay a fine to the DOL.
c. Pay 100 percent of the lost wages going back two years and self-report the violations to the DOL.
d. Bribe the Wage and Hour investigator to look the other way.
ANSWER: c. If an employer violates the overtime and minimum wage provisions of the Fair Labor Standards Act, it can be liable for back pay for two years, plus that same amount again as liquidated damages (usually). If the violation is willful, the employee can recover for a three-year period. In addition, employees can recover their attorneys' fees. Under the self-reporting program, employers will pay only 100 percent of the back wages (no liquidated damages), for only a two-year period, and will not be liable for attorneys' fees. Plaintiffs' class action lawyers hardest hit.
That was fun -- thanks for playing! And I really will get back to that transgender case.