Vasquez v. Empress Ambulance Serv., Inc., and the “Cat’s Paw” Approach to Title VII Liability

By: Kyle D. Winnick, Esq.

Associate, Maduegbuna Cooper LLP

In Vasquez v. Empress Ambulance Serv., Inc.,[1] the Court of Appeals for the Second Circuit became the latest circuit to hold that the cat’s paw theory (the “Cat’s Paw Theory”) liability is viable under Title VII of the Civil Rights Act of 1964.  The Cat’s Paw Theory references an Aesop fable, “in which a wily monkey flatters a naïve cat into pulling roasting chestnuts out of a roaring fire for their mutual satisfaction; the monkey, however, devours them fast, leaving the cat with a burnt paw and no chestnuts for its trouble.”[2]  In the context of employment discrimination law, Cat’s Paw Theory liability refers to the situation where the discriminatory animus of a non-decision-maker, typically a supervisor, is imputed to the unbiased decision-maker when the former has singular influence over the latter and uses that influence to cause an adverse employment action.[3]  But the Vasquez court took this one step further by also holding that the Cat’s Paw Theory is applicable even if the biased non-decision-maker is a low-level co-worker, as opposed to the plaintiff’s supervisor, if the employer was negligent in relying on the co-worker’s representations.  This comment discusses Vasquez’s implications and offers advice on compliance.

In Vasquez, the plaintiff complained to her superiors about receiving unsolicited sexual photographs from a non-supervisory co-worker.[4]  Alert to the fact that these actions had been reported to management, the offending employee, Gray, “manipulated a text message conversation on his iPhone to make it appear as though a person with whom he had legitimately been engaging in consensually sexual text banter was” the plaintiff, which he showed management.[5]  Management, wholly adopting Gray’s version of events, and without even viewing the sexual photographs Gray texted to the plaintiff, terminated the plaintiff on the ground that she sexually harassed Gray.[6]  The Second Circuit held that the defendant-employer could be found liable under the Cat’s Paw Theory approach, since Gray, though a non-decision-maker and non-supervisor, “became the entire case against [the plaintiff] when [the defendant-employer] negligently chose to credit his, and only his, account.”[7]  The court clarified that liability will not be imputed where an employer “non-negligently and in good faith, relies on a false and malign report of [a biased] employee[.]”[8]  Thus, distilled to its elements, a non-supervisor’s animus will be imputed to an employer in the Second Circuit if: (1) the non-decision-making employee performs an act(s) motivated by impermissible bias that is intended to cause an adverse employment action; (2) that act(s) in fact proximately causes the plaintiff to suffer the adverse employment action (the “proximate cause prong”); and (3) the decision-maker was negligent in relying on the non-decision-maker’s influence (the “negligence prong”).  (If the biased employee is the plaintiff’s supervisor, only the first two prongs need to be met.)

In unpacking Vasquez’s proximate cause prong, it is useful to consider the development of the Cat’s Paw Theory approach by other courts, which similarly require that the non-decision-maker’s animus be the proximate cause of the relevant adverse action.  For example, in the seminal case of Shager v. Upjohn Co.,[9] the plaintiff, a fifty-year-old salesperson, who was supervised by a twenty-nine-year-old (the “supervisor”), was terminated after ostensibly performing inadequately.  At the summary judgment stage, the plaintiff’s case was quite strong, at least when viewed most favorably to him.  Despite the plaintiff covering a far less promising region than the other, younger salesperson at the company, who was not terminated, the plaintiff’s sales performance was “outstanding,” yet “inexplicably rated marginal by his hostile supervisor.”[10]  This evidence was compounded by the supervisor having made comments suggesting he was “uncomfortable with the older workers under his supervision,” as well as plaintiff’s replacement by an inexperienced and much younger salesperson.[11]  But the wrinkle to the case was that the actual decision to terminate the plaintiff was made not by the supervisor, but an allegedly unbiased “Career Path Committee” (the “Committee”).[12]

Relying on the law of agency, the court, in an opinion by Judge Richard Posner, found that liability would be imputed to the defendant-employer because the Committee’s “decision to fire [the plaintiff] was tainted by [the supervisor’s] prejudice.”[13]  Critically, the court found that the Committee merely rubber-stamped the supervisor’s recommendation, as there was evidence that its deliberations were “perfunctory.”[14]  Presumably, then, had the Committee conducted a thorough, independent investigation of the plaintiff’s performance and found legitimate, non-discriminatory reasons to terminate him, the defendant would have won its summary judgment motion.[15]  Other courts, although employing different verbiage, have generally followed Shager’s standard.[16]

A different scenario therefore presents itself when the decision-maker is not wholly dependent on a single source of information, but instead conducts his/her own investigation, which results in an adverse action for reasons unrelated to the biased supervisor’s assertions; in such a scenario, liability will not be imputed.[17]  For example, in Eiland v. Trinity Hosp.,[18] the plaintiff nurse was fired after a staff physician reported that she injected a pregnant woman with a measles-mumps-rubella vaccine without following proper procedure.  The plaintiff sued, claiming that the staff physician had racial animus against her and had made the report to get her fired.[19]  The court held that even assuming the staff physician reported the incident because of racial animus, there had still been no violation of Title VII, because the supervisor who fired her acted only after reading the staff physician’s incident report, speaking with another supervisor, and confronting the plaintiff herself with the allegations. The supervisor had thus “acted independently and only after she evaluated the circumstances, including [the plaintiff’s] version.”[20]

Thus, Vasquez’s proximate cause prong will most readily be met in those situations where decision-makers fail to independently investigate a supervisor’s recommendation of an adverse employment action.[21]  Or, even if they do perform an independent investigation, they only consider the biased employee’s version of events.[22]  This very much animated the decision in Vasquez.  As the court noted, the defendant-employer “blindly credited Gray’s assertions, obstinately refusing to inspect Vasquez’s phone or to receive any other evidence proffered by Vasquez in refutation.”[23]  In this case, the employer was “at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision.”[24]

But, as explained above, the Vasquez court made clear that causation is not enough if the biased employee is a non-supervisor; in that scenario, “[o]nly when an employer in effect adopts an employee’s unlawful animus by acting negligently with respect to the information provided by the employee, and thereby affords that biased employee an outsize role in its own employment decision, can the employee’s motivation be imputed to the employer and used to support a claim under Title VII.”[25]  In formulating this holding, the court relied on the First Circuit decision of Velazquez-Perez v. Developers Diversified Realty Corp,[26] which is therefore instructive in determining when the negligence prong may or may not be met.

In Velazquez-Perez, a quid pro quo sexual harassment case, the plaintiff was terminated due to the machinations of a scorned human resources employee, Martinez.  Prior to the plaintiff’s termination, he had complained to his supervisors that Martinez had threatened him – often implying that she would have him terminated – after he rejected her romantic overtures.[27]  Martinez eventually complained, in her human resources capacity, about the plaintiff’s alleged misconduct (e.g., being tardy) to his supervisors.[28]  Meanwhile, the plaintiff’s supervisors “began to extensively discuss a number of other accusations against [the plaintiff]” that did not emanate from Martinez.[29]  Eventually, the head of the plaintiff’s office, based on these latter accusations, recommended placing the plaintiff on probation.  But Martinez “was not to be deterred so easily” and after sending management a series of e-mails delineating exaggerated deficiencies in the plaintiff’s performance, he was terminated by one of his supervisors.[30]

In reversing a grant of summary judgment for the defendant-employer, the First Circuit first noted that Martinez’s constant maligning of the plaintiff, which was motivated by quid pro quo harassment, proximately caused his termination.[31]  The court further noted that, although Martinez was not the plaintiff’s supervisor, her animus could be imputed to the defendant-employer because Title VII liability attaches when “an act of discrimination is allowed to cause harm by an employer that knows or reasonably should know of the discrimination.”[32]  In other words, the court found that the defendant-employer was negligent in relying on Martinez’s unverified, tainted representations since it had notice, through the plaintiff’s complaints to his supervisors, that her intentions may have been motivated by impermissible reasons.

The cases discussed, as well as those contained in the endnotes, provide some lessons for employers wishing to comply with Vasquez.  First, an employer should independently investigate an employee’s allegations of illegal bias in their treatment by supervisors or co-workers.  Second, an employer should ensure that an internal complaint procedure exists that allows and requires employees to inform the employer of allegedly illegal bias in employment decisions, even if those decisions are not sufficiently material to rise to the level of an “adverse employment action.”  Third, if the basis for potential discipline and/or termination is predicated on the assertions of a supervisor or co-worker who has been accused of bias, employers should treat those assertions with skepticism and investigate their veracity.  Finally, employers should mandate equal employment opportunity training for its employees.  Taking these steps, especially in combination, should limit employers’ exposure to Cat’s Paw Theory liability.

[1] Vasquez v. Empress Ambulance Serv., Inc., No. 15-3239-CV, 2016 WL 4501673 (2d Cir. Aug. 29, 2016).

[2] Vasquez, 2016 WL 4501673 at *3 (brackets and ellipsis omitted); see also Staub v. Proctor Hosp., 562 U.S. 411, 415 n. 1 (2011).

[3] See Staub, 562 U.S. at 422 (applying the Cat’s Paw Theory to USERRA claims); Cook v. IPC Intern. Corp., 673 F.3d 625, 628 (7th Cir. 2012) (Posner, J.).

[4] Vasquez, 2016 WL 4501673 at *1-2.

[5] Id. at *2.

[6] Id. at *2-3.

[7] Id. at *6.

[8] Id. at *6.

[9] Shager v. Upjohn Co., 913 F.2d 3 98 (7th Cir. 1990).

[10] Id. at 400.

[11] Id. at 401-402

[12] Id. at 404.

[13] Id. at 405.

[14] Id.

[15] Id. at 405 (If the Committee fired the plaintiff “for reasons untainted by any prejudice of [the supervisor’s] against older workers, the causal link between that prejudice and [the plaintiff’s] discharge is severed, and [he] cannot maintain this suit even if [the defendant] is fully liable for [the supervisors] wrongdoing.”).

[16] See, e.g., Laxton v. Gap Inc., 333 F.3d 572, 584 (5th Cir. 2003) (“[T]he discriminatory animus of a manager can be imputed to the ultimate decision-maker if the [manager] … had influence or leverage over” the decision-making process.); Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 285-86 (3d Cir. 2001) (“Under our case law, it is sufficient if those exhibiting discriminatory animus influenced or participated in the decision to terminate.”).

[17] See, e.g., Kregler v. City of New York, 987 F.Supp.2d 357, 368-69 (S.D.N.Y. 2013).

[18] Eiland v. Trinity Hospital, 150 F.3d 747 (7th Cir. 1998).

[19] Id. at 749.

[20] Id. at 752.

[21] See Arendale v. City of Memphis, 519 F.3d 587, 604 n.13 (6th Cir. 2008) (“When an adverse hiring decision is made by a supervisor who lacks impermissible bias, but that supervisor was influenced by another individual who was motivated by such bias, this Court has held that the employer may be held liable under a ‘rubber-stamp’ or ‘cat’s paw’ theory of liability.”); Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007) (“[T]he subordinate’s bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decision-making process.”).

[22] See Staub, 562 U.S. at 421 (“We are aware of no principle in tort or agency law under which an employee’s mere conduct of an independent investigation has a claim-preclusive effect.”).

[23] Vasquez, 2016 WL 4501673, at *7.

[24] Staub, 562 U.S. at 421.

[25] Vasquez, 2016 WL 4501673, at *7.

[26] Velasquez-Perez v. Developers Diversified Realty Corp., 753 F.3d 265 (1st Cir. 2014); see also Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013) (In the hostile work environment context, if the harassing employee is the victim’s co-worker, the employer is liable under Title VII only if it was negligent in controlling working conditions.).

[27] Id. at 268.

[28] Id. at 268-69.

[29] Id. at 269.

[30] Id. at 269-70.

[31] Id. at 274.

[32] Id. at 273.

Car Dealership Denied High Court Review of NLRB Decision Ordering Union Bargaining

By: Petra Person

An Illinois federal court held that a closed Chrysler car dealership must pay six unionized mechanics previously missed pension and welfare benefits, after the dealership tried to move the employees to another location.[1]  The federal judge determined that the dealer violated the Employment Retirement Income Security Act (“ERISA”).[2]  The disgruntled mechanics, who were union members of the Automobile Mechanics Industry Welfare and Pension Funds of the International Association of Machinists and Aerospace Workers AFL-CIO, Local 701, sought $575,000 including unpaid pension benefits, welfare payments, interest, damages and attorneys’ fees.[3]

The judge ruled that the participation agreements for the workers’ welfare and pension funds were still valid, and subsequently, the dealership violated ERISA standards.  “The employer admits that it has not made welfare and pension contributions to the trustees on behalf of the union mechanics since October 2010,” the judge said. “Therefore, the court finds Dodge of Naperville and Burke Automotive Group in violation of section 515 of ERISA.”[4]

This matter stems from Chrysler Corp.’s bankruptcy proceedings, which required the owner of the Chrysler dealership to consolidate his holdings and to close the dealership in question.[5]  Specifically, Ed Burke owned two Illinois car dealerships: Burke Automotive Group Inc., which carried out business as Naperville Jeep Dodge in Lisle, Ill., and Dodge of Naperville in Naperville, Ill.[6]  As of June 2009, the Lisle dealership employed fourteen non-union mechanics, in contrast to the Naperville dealership which employed six unionized mechanics.[7]  The union had represented employees at the Naperville dealership for twenty years.

When the Chrysler Group filed for bankruptcy in 2009, a group of trustees formed to oversee the pension and welfare benefits of union members, who were in a division of the AFL-CIO.[8]  The Naperville dealership shut its doors after bankruptcy was entered, and offered employment to the six union mechanics at the other Burke Automotive Group location, provided the mechanics surrendered their union membership.[9]  This gave rise to the union’s cause to file a complaint with the NLRB, asserting that Burke Automotive Group had violated the National Labor Relations Act by moving the six mechanics to the new location without opportunity to remain unionized.[10]  The dealership argued that the unionized mechanics were prohibited from continuing their union membership in the Lisle dealership because they now made up a minority of the relevant bargaining unit, and in furtherance of a single community of interest.[11]  The NLRB ruled the dealership had violated the NLRA by failing to bargain with the union over the move’s effects until after the relocated mechanics began working at the new facility.[12]

[1] Melissa Daniels, Closed Chrysler Dealership Owed Unpaid Employee Benefits, Law360 (Nov. 17, 2016),

[2] Id.

[3] Id.

[4] Id.

[5] Kevin McGowan, Car Dealer Denied High Court Review of NLRB Ruling, BNA (Mar. 22, 2016),

[6] High Court Refuses to Review Decision Ordering Dealership To Bargain With Union, (Apr. 7, 2016),

[7] Id.

[8] Id.

[9] Id.

[10] Kevin McGowan, Car Dealer Denied High Court Review of NLRB Ruling, BNA (Mar. 22, 2016),

[11] Kali Hays, Ill. Car Dealer Brings Union Recognition Suit To High Court, Law360 (Jan. 15, 2016),

[12] Kevin McGowan, Car Dealer Denied High Court Review of NLRB Ruling, BNA (Mar. 22, 2016),

Ghostwriting, So Spooky It’s Illegal

By: Julia Szaniawska

The court has seen cases in recent years that involve the issue of an attorney drafting legal documents for a client, but not disclosing their name or not informing the court that they are doing so. [1] The court has not addressed the issue head on, but has seen cases that normally fall into three categories: (a) cases in which the attorney’s drafting of a pleading is not disclosed at all; (b) cases in which the litigant informs the Court that an attorney drafted a pleading, but does not disclose the attorney’s name; and (c) cases in which the drafting attorney’s name is disclosed, without that attorney entering an appearance or signing the pleading. [2]

The Federal Rules of Civil Procedure require that “every pleading, written motion and other paper shall be signed by at least one attorney of record in the attorney’s individual name, or if the party is not represented by an attorney, shall be signed by the party.” [3]

Many jurisdictions have condemned ghostwriting as a violation of both the Model Code of Professional Responsibility and the Federal Rules of Civil Procedure. [4] The federal courts have, for the most part, ruled that ghostwriting should not be allowed, but the issue has been more extensively discussed by the district courts.[5] However, a few bar association ethics committees have been more lenient, by allowing ghostwriting. [6]

The Tenth Circuit Court in Duran v. Carris, stated that the attorney acted inappropriately when he ghostwrote a pro se brief for his former client without signing his name. [7] They viewed the attorney’s actions as a misrepresentation and in violation of the Federal Rules of Civil Procedure. [8] The court viewed that the attorney’s actions of assisting Mr. Duran in substantial legal matters, without having appeared within the case, only benefited the attorney by granting him immunity from “responsibility and accountability for his actions and counsel.” [9] In re Ellingson the court ruled that the attorney in drafting bankruptcy documents for the client without being signing these documents was an “attempt to persuade her clients to misstate the facts and conceal her unauthorized practice of law.” [10] The court found that the act of ghostwriting was in violation of the court rules and the ABA ethics. [11]

New York currently allows for ghostwriting, as per the recent case of In re Liu, the court ruled that there is no rule or precedent governing ghostwriting in New York, and therefore concluded that the attorney had no way of knowing that there was an obligation on her to disclose her participation the court. [12] The court determined that the attorney was not acting in bad faith, and in fact was acting in the best interest of her client and therefore chose to not discipline her ghostwriting. [13]

Courts are clearly split on how to address this issue.[14] Many attorneys believe they are helping their clients by ghostwriting and providing them with legal assistance for a lower price.[15] They are not aware of the risk they run by helping these pro se clients and that they could be potentially sanctioned, depending on the jurisdiction.[16] This becomes very confusing for attorneys that practice in multiple jurisdictions. Hopefully soon we will see some sort of uniformity so that lawyers can know whether this would be allowed or not.

[1] See In Re Liu, 664 F.3d 367 (2011).

[2] Id. at 369.

[3] Fed. R. Civ. P. 11(a).

[4] See Johnson v. Board of County Comm’rs, 868 F. Supp. 1226, 1231-32 (1994) (deciding that ghostwriting as a violation of Fed. R. Civ. P. 11 and ABA Model Code of Professional Responsibility DR 1-102(A)(4)); Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971) (finding that a brief that was “prepared in any substantial part by a member of the bar,” must be signed by that attorney).

[5] In Re Liu, 664 F.3d 367, 369 (2011).

[6] Id.; See Ass’n of the Bar of the City of New York, Comm. on Prof’l & Judicial Ethics. Op. 1987-2 (1987) (requiring any attorney that drafted a pleading for a pro se litigant to only disclose that he had a role in the drafting, but not to identify himself); ABA Standing Comm. on Ethics & Prof’l Resp., Formal Op. 07-446, Undisclosed Legal Assistance to Pro Se Litigants (2007) (concluding that a “lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance”); NYCLA Comm. on Prof’l Ethics, Op. 742 at 1 (2010) (Committee on Professional Ethics for the New York County Lawyers’ Association concluded that “it is now ethically permissible for an attorney, with the informed consent of his or her client, to play a limited role and prepare pleadings and other submissions for a pro se litigant without disclosing the lawyer’s participation to the tribunal and adverse counsel”).

[7] Duran v. Carris, 238 F.3d 1268, 1271-73 (10th Cir. 2001) (per curiam).

[8] Id. at 1271-72.

[9] Id.

[10] Ellingson v. Monroe (In re Ellingson), 230 B.R. 426, 435 (Bankr. D. Mont. 1999).

[11] Id.

[12] In re Liu, 664 F.3d 367, 372 (2011).

[13] Id. at 373.

[14] See Id. at 367; In Re Ellingson, 230 B.R. 426 (Bankr. D. Mont. 1999).

[15] Benjamin Klebanoff, Ghostwriting- More Than Meets the Eye; Ghostwriting- Attorneys in Disguise: A Proposal For Handling Pro Se Parties Who Seek Limited Representation in Federal Court, 40 Thurgood Marshall L. Rev. 31, 41 (2014).

[16] Id. at 42.

Don’t “Just Smile and Wave, Boys”: The Right to be Unhappy at Work

By: Allison Stapleton

You have the right to complain about how miserable your job is. A former employee has filed a complaint with the National Labor Relations Board (hereinafter “NLRB”) alleging that his employment at a Manhattan Trader Joe’s location was terminated due to the fact that he “was repeatedly reprimanded because managers judged his smile and demeanor to be insufficiently ‘genuine.’”[1] There have been similar allegations made by several employees in Trader Joe’s store locations throughout the east coast.[2] The former employee’s complaint “challenges policies that appear in the crew handbook and job bulletins . . . [o]ne of the latter required employees to maintain a ‘positive attitude.’”[3]

Pursuant to the National Labor Relations Act (hereinafter “NLRA”), individual employees have the right to engage with other employees in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”[4] The NLRB describes the “protected concerted activities” of the NLRA as when two or more employees of a business attempt to address or discuss work-related issues such as pay, working conditions, or safety conditions.[5] These protections are designed to protect employees against retaliation from their employer for voicing their concerns or their dissatisfaction with their job or conditions of employment.[6] The NLRA has been interpreted to protect an employee’s right to complain to other employees as a matter of “concerted activity,” even if his complaint itself lacks merit.[7] The District of Columbia Circuit Court has further stated that the NLRA’s protection of “concerted activity” could potentially be interpreted by the NLRB to not be limited to conduct engaged with or by the authority of other employees, but stated that the court will defer to the NLRB’s interpretation, which currently limits the scope to  “concerted activities.” [8]

The complaint filed against Trader Joe’s argues that “not smiling” is an expression of the employee’s dissatisfaction with the terms and conditions of his employment to the employee’s fellow workers, and thus the act of “not smiling” falls under the “protected concerted activities” of the NLRA. [9] The complaint seeks damages for this alleged wrongful termination of his employment with the grocery chain.[10]

This is not the first allegation against Trader Joe’s for violating the “protected concerted activities” of the NLRA.[11] In 2014, Trader Joe’s settled a $5 million whistleblower lawsuit brought by a former employee who accused the grocery chain of terminating his employment “for protesting unsanitary food practices and unsafe working conditions.”[12] The instant compliant was filed with the NLRB on November 3, 2016 in New York and is pending review by the Board.[13]

[1] Noam Scheiber, At Trader Joe’s, Good Cheer May Hide Complaints, N.Y. Times (Nov. 3, 2016),…yp=cur…1&_r=0.

[2]  Id.

[3]  Id.

[4] 29 U.S.C.S. § 157.

[5]  National Labor Relations Board, Employee Rights,

[6] National Labor Relations Board, Rights We Protect,

[7] NLRB v. Halsey W. Taylor Co., 342 F.2d 406 (6th Cir. 1965),

[8] Prill v. NLRB, 755 F.2d 941 (1985).

[9] Melissa Daniels, Ex-Trader Joe’s Worker Says He Was Fired For Not Smiling, Law 360 (Nov. 4, 2016),

[10] Id.

[11] Martin Bricketto, Trader Joe’s Settles With Whistleblower in Relations Suit, Law 360 (Nov. 5,  2014),

[12] Id.

[13] National Labor Relations Board, Recent Filings,

Playing the Trump Card: How Unions Fare under President-Elect Trump

By: Sydney Spinner

Where does the country stand under a Trump Presidency, when blue-collar workers are one of the key constituencies that propelled Trump into the White House,[1] but as a businessman, his practices are often anti-union, pro-employer, and with little regard for the plight of workers?[2]

Historically, the Republican Party has pledged “to protect more effectively the rights of labor unions.”[3]  Eisenhower even championed the unions in 1956, when his campaign said “[t]he protection of the right of workers to organize into unions and to bargain collectively is the firm and permanent policy of the Eisenhower Administration.”[4] Since then, the Republican party has gone a different route and the 2016 platform includes: “attacks [on] the use of the Fair Labor Standard Act to protect workers; rips [on] the use of Project Labor Agreements to raise wages and improve working conditions; and propos[als] to gut the 85-year-old Davis-Bacon Act, which guarantees “prevailing wage” pay for workers on federal projects.”[5] The party has come a long way from the Eisenhower days; we are faced with President-Elect Donald J. Trump, a businessman who purports that “ having a low minimum wage is not a bad thing for this country.”[6]

Donald Trump has been a businessman his entire life, and is often attacked for his treatment of employees at his hotels, golf courses, and other businesses. [7] He is actually known as a businessman who fails to pay his employees, who often win lawsuits to obtain the compensation they were entitled to in the first place.[8] As someone who wants to “Make America Great Again,” and someone who wants bring back jobs to America,[9] he does not practice what he preaches, and actually hires immigrants over American workers.[10] Some of his employees actually pledged to vote against him before Election Day.[11]

So how did this anti-union business tycoon get elected? Against the urging of the AFL-CIO, many union members and their households voted for Trump.[12] While many polls indicated that Clinton would do exceedingly well with union voters (as almost every union endorsed her),[13] Trump wound up exceeding expectations and garnered a significantly higher number of union voters than expected because he appealed directly to the workers.[14] His outreach to blue-collared workers, and his promises of a better tomorrow, led to a significantly higher number of votes from union members than anyone could have imagined.[15]

What does this actually mean for labor unions? In spite of proposed policies that will favor big business,[16] many union workers hope “the America that they hope the president-elect can make great again is one from an era in which unions were strong and incomes more equal, the mid-20th-century period that economists call the Great Compression.”[17] It will be interesting to see which side of history Donald Trump comes out on.

Will Trump take the Republican Party back to the Eisenhower days, or will he make American Big Business Great Again? The latter appears to be true.[18] IATSE President Matt Loeb said it best “[t]he middle class and working people are in jeopardy of experiencing severe consequences based on the positions and proposed policies espoused by President-elect Trump. Moreover, his anti-union statements virtually guarantee a rough road ahead for unions and the members they represent.”[19]

Trump America could either lead to the demise of unions, or lead to a resurgence of their power and popularity, but either way, there is a rough road ahead for unions because if Trump keeps his word, unions (and their workers) could be sent back decades, if not centuries.[20]

[1] Vin Gurrieri, Trump Spells Trouble for Obama’s Employment Legacy, Law360 (Nov. 9, 2016, 2:40 AM),

[2] John Nichols, Donald Trump is the Anti-Labor Day Candidate: Running Against Fair Wages, Workers Rights, and Unions, The Nation: Election 2016 (Sept. 4, 2016),

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7]  Steve Reilly, USA TODAY exclusive: Hundreds allege Donald Trump doesn’t pay his bills, USA Today (Sept. 6, 2016),

[8] Id.

[9] Make America Great Again, (last visited Nov. 14, 2016).

[10] Maegan Vazquez, Donald Trump Turned Down Hundreds of American Workers and Hired Immigrants Instead, Indep. J. Rev. (last visited Nov. 14, 2016)

[11] Donie O’Sullivan & Tiara Chiaramonte, The Trump workers voting against the boss, CNN: Pol. (last updated Nov. 2, 2016, 10:44 AM),

[12] Dave Jamieson, It Looks Like Donald Trump Did Really Well With Union Households. That’s A Bad Sign For Unions., Huffington Post: Pol. (Nov. 9, 2016,  2:27 PM),

[13] Gurrieri, supra note 1.

[14] Jamieson, supra note 12.

[15] Id.

[16] Nichols, supra note 2.

[17] Michael Kazin, The Fall of the Unions Paved the Way for Donald Trump, WSJ, (Nov. 11, 2016, 12:57 PM),

[18] David Robb, IATSE: Trump’s Election Will Have “Severe Consequences” For Workers & Unions, Deadline, (Nov. 9, 2016, 11:07 AM),

[19] Id.

[20] Id.

No Animals Were Harmed in the Making of this Blog Post

By: Samantha Snyder

While it is almost certain that everyone has seen a film starring an animal actor, maybe not everyone has taken note to the “No Animals Were Harmed” End Credit Disclaimer,[1] which is only awarded to Screen Actors Guild (hereinafter “SAG”) American productions that were monitored by the American Humane Association (hereinafter “AHA) to ensure their animal safety guidelines were met.[2]  But how truthful and accurate is this disclaimer?

Back in December 2012, a complaint was filed alleging the producers of the HBO show Luck and the AHA had fired an employee, employed under the AHA, in an effort to hinder her from reporting alleged animal abuse.[3]  The alleged animal abuse had occurred in Luck and other television shows and movies deemed with that AHA distinguished stamp of approval.[4]  These allegations consisted of horrific purported acts, including, but not limited to: the near death and almost drowning of the tiger in the film Life of Pi, twenty-seven animals being killed during the production of The Hobbit: An Unexpected Journey, and horses being neglected and abused during the production of Luck.[5]  If these purported accusations are in fact true, why was the “No Animals Were Harmed”[6] disclaimer still included in the end credits?

While it does not appear that this case and these incidents ever received tremendous media coverage or publicity, they raise a unique issue, not for the wrongful termination portion of the suit but for the animal-actor aspect and the concept of actual animal labor laws.  Although the regulation and governance of the child entertainment field has been left to the control of the states,[7] the same cannot be said for the animal-actor field, which has been mostly left to the supervision of the AHA – aside from the supply of animals, which would be covered by the Animal Welfare Act and enforced by the U.S. Department of Agriculture.[8]  While some may take issue with the comparison of child actors and animal actors, it does not delineate from the fact that these animals are defenseless, exposed, and vulnerable to the same pressures and abuse that child actors face. It is important to remember that a child actor’s voice may not be as strong or as well heard as an adult’s, but these animal actors possess no voice at all.  Because of this fact, animal actors need laws and regulations to be their voice and safeguard them from situations like the alleged abuse discussed above.

Unfortunately, however, the AHA’s animal actor “voice” may not be as strong or true as the disclaimer may seem.[9]  Just like the disgruntled employee, many animal rights and welfare groups and respective individuals have taken issue with the fact that the AHA’s impartiality may be compromised. This is due to the fact that its Film & Television Unit, which conducts this animal actor monitoring, operates under a contract with the Industry Advancement and Cooperative Fund; this fund comes from the SAG-AFTRA actors’ union and the Alliance of Motion Picture and Television Producers, which hold ties with SAG, the very organization’s productions the AHA monitors.[10]

These types of suspicions about dishonest and underhanded protection truly demonstrate the need for systematic labor laws enacted by a legislature, whether it is state or federal.  Just like humans, whether adults or children, animal actors must be sheltered from unsafe labor practices.[11]  As should be expected, “[n]o federal labor law covers all employment scenarios,[12]” but holes and gaps, such as this, are where state law or regulations promulgated by enacted agencies should step in to fill.  “Animals have been and will continue to be used in entertainment, often to the detriment of the animals,” and “[w]hile laws are helpful in banning and regulating certain practices, it is the demand for the entertainment that will always keep the business flourishing.”[13]

[1] The title of this blog post is based on the American Humane Association’s “No animals were harmed [in the making of this film]” disclaimer. “No Animals Were Harmed” Frequently Asked Questions, Am. Humane Ass’n. (updated on Aug. 26, 2016),

[2] Id.

[3] Casey v. American Humane Society, No. BC497991 at 3-5 (Cal. App. Dep’t Super. Ct. July 10, 2013) (second amended complaint), available at; Django Gold, ‘Luck’ Producers Hid Horse Abuse, Fired Worker Alleges (Jan. 3, 2013 4:07 pm est),

[4] Gold, supra note 3; Casey, supra note 3 at 6-11.

[5] Casey, supra note 3 at 6-11 (listing other abuse allegations and pictures of the alleged abuse).

[6] “No Animals Were Harmed” Frequently Asked Questions, supra note 1.

[7] Child Entertainment Laws As of January 1, 2016, Dep’t of Labor,; see also Jessica Krieg, There’s No Business Like Show Business: Child Entertainers and the Law, 6 U. PA. J. of Lab. & Emp. L. 429, 429 (Winter 2004) (noting that child actors are exempt from the Fair Labor Standards Act); “When minors sell T-shirts at the mall or flip burgers at a fast food restaurant, their employment falls under the federal Fair Labor Standards Act of 1938 for minimum wage, overtime, work hours and other conditions. But these provisions don’t apply to child performers and child farm workers because of the FLSA’s so-called “Shirley Temple Act” exemptions. States that want to protect young entertainers working in movies, television shows or commercials have to pass their own child entertainment laws, and 32 states have done so. The laws range from simply requiring a young performer to get consent from the state labor commissioner to setting maximum hours per day and week a child performer may work.”

Marsha Mercer, Few Protections for Child Actors Like Honey Boo Boo, The PEW Charitable Trusts, (Aug. 29, 2013),

[8] “No Animals Were Harmed” Frequently Asked Questions, supra note 1; Animal Actors, PETA (last visited Nov. 6, 2016),

[9] “No Animals Were Harmed” Frequently Asked Questions, supra note 1; Animal Actors, PETA (last visited Nov. 6, 2016),

[10] “No Animals Were Harmed” Frequently Asked Questions, supra note 1; Animal Actors, PETA (last visited Nov. 6, 2016),

[11] Denise Sullivan, Animal Labor Laws, Chron (last visited Nov. 6, 2016),

[12] Id.

[13] Jennifer Dragotta, Animals in Entertainment, Learning to Give (last visited Nov. 6, 2016),

Protecting Workers Rights: New York Proposes Legislation on the Misuse of Non-Competes

By: Jennifer Trinkwald

Whether a new opportunity arises or one is unhappy at their job, most employees have the ability to seek a new position at a different company; however, for those that sign non-compete agreements, this may not be an option.[1]  After conducting investigations and entering into settlement agreements with two large companies regarding their misuse of non-compete agreements this past spring, the New York State Attorney General, Eric T. Schneiderman, recently announced that he plans to introduce legislation next year focusing on reducing the misuse of non-compete agreements.[2]  Non-compete agreements, which prevent or restrict workers from accepting new employment based on the terms of the contract entered into between the employee and employer, may have negative effects on workers and the economy as a whole when misuesd.[3]  Not only does enforcement of non-compete agreements cause lower wages and decreased job mobility for workers, the depressed wages and limited mobility hinder the efficiency of the economy and curb innovation in the workforce.[4]

The first of the two agreements entered into by Schneiderman was with Law360, a top legal news website, who required the majority of their employees to sign non-compete agreements.[5]  The non-compete agreement prohibited employees from working for another legal news media outlet for one year.[6]  The problem with Law360’s non-compete agreement was that many of the employees required to sign the agreement did not have “highly unique skills or access to trade secrets,” a necessary element required by non-competes. To the contrary, many of the employees were recent graduates taking on their first job out of college.[7]

The second settlement agreement, announced just days after the Law360 announcement, was entered into with Jimmy John’s sandwich chain, which had franchises in New York.[8]  Under Jimmy John’s non-compete agreements, restaurant workers and delivery drivers could not get a job at any establishment that made more than ten percent of its revenue from sandwiches for two years within a two-mile radius.[9]  Non-compete agreements are generally used for purposes of “protect[ing] trade secrets, reduc[ing] labor turnover, impos[ing] costs on competing firms, and improv[ing] employer leverage in future negotiations with workers” and are generally used in companies which may have high training and turnover costs.[10]  In this case, it seems safe to say that Jimmy John’s is not in the industry that non-compete agreements are intended for, and additionally, low-wage workers are not the types of workers that non-compete agreements are aimed at.[11]  In Attorney General Schneiderman’s words, the use of non-compete agreements under these circumstances is “unconscionable.”[12]

Schneiderman’s announcement of this proposed legislation seems to be an outgrowth of these settlement agreements as well as a result of the White House’s “Call to Action” on non-competes, which urges states to “ban unnecessary non-compete agreements.”[13]  Schneiderman’s New York proposal will include a number of protections to protect workers rights including, but not limited to, “a ban on all non-competes for low-wage workers; a requirement that employers offer extra compensation to employees who sign non-competes; and a first-of-its-kind provision granting employees the right to seek liquidated damages when subjected to unlawful non-competes.”[14]  Similar efforts are being seen throughout the country in what seems to be a positive step forward in protecting workers rights.[15]  It will be interesting to see how the New York proposal will pan out.

[1] See Office of Economic Policy, U.S. Dep’t of the Treasury, Non-compete Contracts: Economic Effects and Policy Implications 3 (2016), (reporting that “eighteen percent of all workers” are working under a non-compete agreement).

[2] See Press Release, N.Y. State Attorney Gen., A.G. Schneiderman Proposes Nation’s Most Comprehensive Bill To Curb Widespread Misuse Of Non-Compete Agreements (Oct. 25, 2016) (on file with author), [hereinafter Press Release Bill]; Press Release, N.Y. State Attorney Gen., A.G. Schneiderman Announces Settlement With Major Legal News Website Law360 To Stop Using Non-Compete Agreements For Its Reporters (June 15, 2016) (on file with author), [hereinafter Press Release Law360]; Press Release, N.Y. Attorney Gen., A.G. Schneiderman Announces Settlement With Jimmy John’s To Stop Including Non-Compete Agreements In Hiring Packets (June 22, 2016) (on file with author), [hereinafter Press Release Jimmy John’s].

[3] Office of Economic Policy, supra note 1, at 3, 6.

[4] See id. at 18-21; The White House, Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses 5 (2016),; See also Press Release Bill, supra note 2.

[5] Press Release Law 360, supra note 2.

[6] Id.

[7] Id.

[8] See Press Release Jimmy John’s, supra note 2.

[9] Id.

[10] Office of Economic Policy, supra note 1, at 3.

[11] See Press Release Jimmy John’s, supra note 2.

[12] Id.

[13] See Press Release Bill, supra note 1; Ellyn Fortino, White House Encourages States To Ban Non-Compete Agreements, Illinois Attorney General Agrees, Progress Ill. (Oct. 27, 2016),

[14] See Press Release Bill, supra note 1 (listing provisions within the proposed bill).

[15] See Fortino, supra note 13.

Pay-While Voting: When A Civic Duty Clashes With the Need to Profit

By: Christopher Theodorou

It’s that time of the year again: election season. With November 8th imminently approaching, it remains evident that there are some major points of contention between one’s civic right to vote and the protections afforded to employees through labor law.[1] Karen Michael, special correspondent for the Richmond Times-Dispatch, notes that “[a]lthough federal law protects citizens’ right to vote, there is no federal law or state law mandating that employers give employees a specific amount of time off to vote, nor do the laws require that employers pay employees for the time they spend voting.”[2] Here lies the great discrepancy among the states.

Virginia has failed to elucidate upon its statutory provisions that protect an individual’s right to vote.[3] The lines are largely greyed; Virginia law requires that an employee be afforded protection from facing an adverse employment action as a result of their time voting, but only offers true protection to employees on salary-based pay. Wage-an-hour employees are afforded no monetary compensation despite the fact that they are the class that is in the direst need of protection. Wage-an-hour employees may be granted time off from work, but none of this time will be compensated by the employer under Virginia law; most states follow this line of thought.[4]

Despite these small shortcomings, labor law has come a considerably long way considering “pay-while-voting” statutes do in fact eliminate against the risk of a penalty being levied against an employee during the course of their voting break.[5] This voting break is frequently characterized as being two hours long.[6] “Pay-while-voting” statutes have been deemed constitutional by the Supreme Court of the United States, but have progressed little beyond that.[7]

Of the fifty states and the District of Columbia, only twenty three have enacted true “pay-while-voting” statutes.[8] Some states like Florida have no specific statutory provision at all,[9] while other states like North Dakota merely “encourage” employers to grant unpaid voting breaks.[10] In Georgia, private sector employees are not afforded paid time off; however some private sector employers have notably taken a stand against the statutory absence and granted their employees paid time to vote.[11] Some employers have even gone a step further and granted their employees a paid day off.[12] “Leaders say the paid holiday leaves workers no excuses for not voting, even if the company loses some business.”[13] Solutions like holding elections on the weekend or designating election day as a national holiday have been proposed by President Barak Obama and Vermont Senator Bernie Sanders, respectively.[14] At the moment, there seems to be popular swelling towards changing the current election labor laws. As to how that plays in the future, stay tuned.

[1] Karen Michael, Do Employees Get Time Off For Voting?, Richmond Times-Dispatch (Oct. 23, 2016),

[2] Id.

[3] Id.

[4] Id.

[5] James Buchwalter et al., Violation of “Pay-While-Voting” Statute, 29 Corpus Juris Secundum Elections § 582 (2016).

[6] See Benane v. International Harvest Co., 142 Cal. App .2d Supp. 874, 879 (App. Dep’t Super. Ct. 1956); see also Honer v. General Motors Corp., 138 N.Y.S.2d 799, 804 (Mun. Ct. 1955).

[7] See Day-Brite Lighting, Inc. v. State of Missouri, 72 S. Ct. 405, 408 (1952).

[8] State-by-State Time Off to Vote Laws, FindLaw (2008)

[9] Id.

[10] Do Employees Get Time Off to Vote?, 9 No. 9 N.D. Emp. L. Letter 3 (October, 2004).

[11] Jennifer Leslie, Atlanta Staffing Firm to Offer Paid Time Off to Vote, WXIA (Oct. 17, 2016).

[12] Rachel Feintzeig, Should You Get a Day Off On Election Day? Some Employers Think So, Wall Street J, Oct. 18, 2016,

[13] Id.

[14] Id.

ADEA Ambiguity Allows For Tribal Immunity

By: Jacqueline Vega

This month, the Eleventh Circuit held that Native American tribes enjoy sovereign immunity from claims[1] under the Age Discrimination in Employment Act (“ADEA”).[2] Native American tribes have considered sovereign immunity to be crucial for the effective protection of tribal resources and the promotion of tribal economic and social interests.[3]  But has the concept of sovereign immunity been taken too far when employer liability for employment discrimination escapes through its cracks?

In Williams v. Poarch Band of Creek Indians,[4] the plaintiff, a health department employee of the Poarch Band of Creek Indians, asserted that she was terminated because of her age.  She was over fifty-five years old and was replaced by a twenty-eight year old whom she alleged did not have as much relevant experience as she did.[5] A unanimous three-judge panel later affirmed a district court’s dismissal of the plaintiff’s ADEA claim against the Alabama Native American tribe.  The court stated that there was “no evidence” that the tribe waived its sovereign immunity to the suit and that the whole case rested on whether Congress intended to revoke tribal sovereign immunity when enacting the ADEA.[6]

The plaintiff argued that the ADEA’s ambiguity as to sovereign immunity could be inferred to mean that Congress intended to abrogate tribal sovereign immunity, because Congress had specified tribes on a list of employers under the Civil Rights Act.[7]  However, the court did not find the plaintiff’s argument persuasive because the phrase “an Indian tribe” was not included in the ADEA’s employer list.[8]  The court also held that the ambiguity of the ADEA could also be construed to mean that it doesn’t “delete” tribal sovereign immunity and therefore it could not be strictly interpreted to mean the opposite.[9]

Other circuits have agreed with the outcome of this case and refuse to assume that Congress abrogated tribal sovereign immunity under the ADEA.[10]  The Eighth Circuit, in particular, has continuously held that no evidence of congressional intent to abrogate tribal sovereign immunity can be drawn from a comparison to the Title VII list of employers.[11]  Thus, the weight of authority from federal court decisions only affirms the Eleventh Circuit’s ruling and the protection of the Poarch Band of Creek Indians’ right of sovereign immunity under ADEA.[12]

But where does this leave the plaintiff?  The plaintiff has no way of recovering for the alleged age discrimination that she suffered when her employer terminated her.  Due to the fact that the plaintiff’s employer was a Native American tribe, the plaintiff has no right to bring a claim under the ADEA.  How is that fair?  Though the court stated that Native American tribes are still subject to the law, there is a possibility that they may never be held liable under the ADEA.

[1] Williams v. Poarch Band of Creek Indians, 2016 U.S. App. LEXIS 18717 (11th Cir. 2016).

[2] 29 U.S.C. § 621-634 (2012).

[3] Sue Woodrow, Tribal Sovereign Immunity: An Obstacle For Non-Indians Doing Business In Indian Country?, Fed. Res. Bank of Minneapolis, (last visited Oct. 30, 2016).

[4] Williams, 2016 U.S. App. LEXIS 18717.

[5] See id.

[6] Christine Powell, 11th Circ. Finds Tribe Immune To Ex-Workers Age Bias Suit, Law 360,, (last visited Oct. 30, 2016).

[7] See id.

[8] See id.

[9] Williams, 2016 U.S. App. LEXIS 18717.

[10] Id.

[11] Id.

[12] Id.

Seventh Circuit will rehear en banc Hively v. Ivy Tech Community College on November 30, 2016 to determine if sexual orientation discrimination is prohibited by Title VII

By: Samantha Hudler

Will the Seventh Circuit finally put an end to the prolonged legal debate over sexual orientation discrimination in employment that many individuals in the legal and Lesbian, Gay Bisexual, and Transgender (“LGBT”) communities are waiting to hear?[1]  Just three years ago, sixty nine percent of Americans mistakenly assumed that firing an employee due to the fact that she is gay was already prohibited by law.[2]  However, to date, the federal government and a majority of the states still do not have anti-discrimination laws which makes it entirely legal to fire an employee on the basis of his or her sexual orientation.[3]

Title VII of the Civil Rights Act of 1964 protects employees from discrimination in employment based on race, color, religion, sex, and national origin.[4]  Clearly absent from this list of protected classes is sexual orientation.[5]  Despite numerous efforts to add sexual orientation protection such as the Employment Non-Discrimination Act (“EDNA”) and the Equality Act, Congress has repeatedly rejected legislation to extend Title VII protections to cover sexual orientation.[6]

On July 28, 2016, the Seventh Circuit decided in Hively v. Ivy Tech Community College that it was bound by circuit precedent and held that sexual orientation is not protected by Title VII.[7] The decision was rendered just one year after the Equal Employment Opportunity Commission held that sexual orientation is an allegation of sex discrimination which is protected by Title VII.[8]  Kimberly Hively alleged her employer failed to promote her from part-time to full-time employment due to her sexual orientation and ultimately terminated her based on her sexual orientation.[9]

When the Seventh Circuit initially denied her claim, the majority panel otherwise observed “it seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry.”[10]  Moreover the panel discussed the Obergefell decision which allows same-sex couples the right to marry in every state and expressed the “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”[11]  Despite the fact that the panel does not agree with the existing law, it nonetheless concluded Title VII does not cover sexual orientation discrimination until new legislation or the Supreme Court declares otherwise.[12]

On October 13, 2016, the Seventh Circuit unpredictably vacated its opinion from July 28, 2016 and granted a rehearing en banc which is presently scheduled for November 30, 2016.[13]  The decision is attracting people’s attention and resulting in speculation as to whether the Seventh Circuit will finally answer the question on whether sexual orientation discrimination is protected by Title VII.[14]  The Seventh Circuit is not the only Circuit which holds that Title VII does not address sexual orientation discrimination, the First, Second, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth Circuits, as well as the D.C. Circuit wholly agree.[15]  Thus, it will be interesting to see if the Seventh Circuit, sitting en banc, decides on November 30, 2016 that it will yet again reject Ms. Hively’s claim citing unequivocal precedent or if the panel will ultimately provide the LGBT community the protection that it so justly deserves.[16]

[1] See Jay-Anne B. Casuga, Lesbian Professor’s Bias Case Gets Full 7th Cir. Hearing, Bloomberg BNA (Oct. 12, 2016),

[2] Lauren Godles, What’s Going on With LGBT Discrimination in the Workplace?, OnLabor (Apr. 6, 2016), (showing that a poll conducted found that sixty nine percent of Americans falsely believed it was illegal to fire an employee for being gay).

[3] See id.

[4] 42 U.S.C. § 2000(d) et. seq.

[5] See id.

[6] See Godles, supra note 2. See also Lisa Milam-Perez & Cynthia L. Hackerott, Perhaps seeing ‘writing on the wall,’ 7th circuit vacates panel decision that Title VII doesn’t cover sexual orientation, Emp. L. Daily (Oct. 13, 2016),  In 1994, EDNA was introduced in almost every Congress, however, it did not make it through the House and has not been reintroduced since 2013. Godles, supra note 2.  The Equality Act was introduced in 2015 which aims to amend Title VII to cover sexual orientation and gender identity discrimination in employment and other areas, however, it is currently stuck in committee and is unlikely that the Republican Congress will approve it.  Id.

[7] See Milam-Perez & Hackerott, supra note 6. See also Hively v. Ivy Tech Cmty. Coll., S. Bend, 830 F.3d 698 (7th Cir. 2016), amended, No. 15-1720, 2016 WL 5921763 (7th Cir. Aug. 3, 2016), reh’g en banc granted, opinion vacated (Oct. 11, 2016).

[8] See id. See also Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4398651, at *5, *10 (July 16, 2015) (concluding that “sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex” and that “sexual orientation discrimination is also sex discrimination because it is associational discrimination of the basis of sex,” in which an employer discriminates against LGBT employees due to who they date or marry).  In March 2016, the EEOC filed its first lawsuits alleging sexual orientation discrimination under unlawful sex discrimination. Trudy Ring, EEOC Files First Suits Challenging Sexual Orientation Discrimination, The Advoc. (Mar. 1, 2016), business/ 2016/3/01/eeoc-files-first-suits-challenging-sexual-orientation-discrimination (quoting EEOC General Counsel David Lopez “we are hopeful that federal judges across the country will give strong deference to the EEOC’s strongly reasoned legal decisions in Baldwin vs. Foxx and Macy vs. Holder”).

[9] See Dawn Geske, Seventh Circuit to decide whether discrimination based on sexual orientation violates Title VII, Cook County Record (Oct. 19, 2016).  See also Hively v. Ivy Tech Cmty. Coll., S. Bend, 830 F.3d 698 (7th Cir. 2016), amended, No. 15-1720, 2016 WL 5921763 (7th Cir. Aug. 3, 2016), reh’g en banc granted, opinion vacated (Oct. 11, 2016).

[10] See id.  The court went on to say “the agency tasked with enforcing Title VII does not condone it, many of the Federal Courts to consider the matter have stated that they do not condone it, and this could undoubtedly does not condone it.”  See id.

[11] See id.  In addition, the court states that many citizens would be shocked to discover that any private employer under federal law can call an employee into his office and tell that individual he is fired because he is gay and that employee would have no remedy unless he is located in a state or locality that has a law protecting employees against sexual orientation discrimination.  See id.

[12] See Milam-Perez & Hackerott, supra note 5.  Despite the fact that an abundance of judicial opinions are in accord with the idea that sexual orientation in employment is no longer acceptable, Congress has made no effort to modify Title VII.  See Hively v. Ivy Tech Cmty. Coll., S. Bend, No. 15-1720, 2016 WL 4039703 (7th Cir. July 28, 2016).  See, e.g., Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001); Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Hopkins v. Balt. Gas & Elec. Co., 77 F.3d 745, 751-52 (4th Cir. 1996).

[13] See id.

[14] See Geske, supra note 8 (quoting Damon Suden, Partner at Kelly Drye who stated “it’s pretty rare to get an en banc review in general…so I think that it should raise people’s interest in the case” and “I think it means the en banc court wants to address this issue…if I was the plaintiff I’d be pretty optimistic about my chances here” and finally “If they wanted to leave things with the status quo they could have denied the en banc review”).

[15] See Milam-Perez & Hackerott, supra note 5.

[16] See id.