Ag-Gag Legislation: Fastening the Muzzle on Whistleblowers

By: Samantha Snyder

Downed dairy cows – ones too sick or injured to stand or walk – lie lifeless on the ground.[1] Workers violently kick, jab, shock, and torture these cows with a hose and water, all in an effort to try to force the feeble animals to stand and walk to slaughter.[2] This depiction of unjust abuse is not fiction but an unfortunate reality, knowledge which was attained through video footage after a lengthy undercover investigation conducted by the Humane Society of the United States.[3] The uncovering of these acts led to one of the largest beef recalls in the United States, and resulted in two employees being charged with animal cruelty and California enacting a new statute prohibiting slaughterhouses from receiving or holding downer animals.[4]

This is but one example of the good that comes from undercover investigations, something purported ag-gag[5] legislation hopes to put an end to.[6] Not only can these investigations reveal unethical and harsh treatment of animals and serious food safety issues but also may reveal additional concerns involving the agricultural industry, such as labor and environmental violations.[7] Because these investigations can shed light on serious issues that span such diverse areas of focus, “a coalition of more than 70 national groups opposes ag-gag legislation.”[8]

While ag-gag legislation comes in many shapes and sizes, the commonality is the fact that “they threaten not only to cover up horrific animal abuse and food safety problems, but also other illegal or unethical behavior . . . .”[9] This common goal is reached through varying degrees of prohibited conduct, such as preventing lying on job applications in order to obtain access to the facility, recording or photographing at the facility, and publicizing or circulating said pictures or videos.[10]

In regard to workers’ rights and labor issues, not only do these undercover investigations have the ability to expose unsafe working conditions or worker abuse, ag-gag legislation attempts “to criminalize the recording of sounds or images in animal facilities, no matter the content.”[11] And what is the price for an employee engaging in these prohibited activities? Hefty fines or even jail time. Some laws go even further and allow the employer to sue the whistleblower directly for any reputational damage resulting from information gained during an undercover investigation.[12] Workers in the agricultural industry often “work in dirty, difficult and sometimes dangerous conditions . . .” in addition to receiving “no holiday pay, no overtime, no sick pay and no workers’ [compensation].”[13] Without the ability to engage in undercover investigations, or the photographing or recording of work conditions, these labor violations may never surface.

While twenty six states have introduced some form of ag-gag legislation, they have only been passed in eight states, some of which have been scrutinized by courts.[14] Idaho’s law, which was implemented in 2014, was found unconstitutional under the First Amendment by a federal district court.[15] Even given this negative outcome for ag-gag legislation, states are still continuing to introduce and pass forms of this legislation.[16] For example, on March 23, 2017, Arkansas Governor Asa Hutchinson signed an ag-gag bill into law “despite an outcry from the citizens of Arkansas and Americans at large.”[17]

Public outcry has been and likely will continue to increase given a new tendency to no longer be restricted to the agricultural industry. More and more of the laws being introduced and passed are placing bans on “undercover investigations of virtually all private entities,”[18] including restaurants, hospitals, elder care facilities, veteran care facilities, day care centers, and even schools.[19] It certainly will be interesting to see what new organizations or interest groups join the fight against ag-gag legislation and if more of these laws will be found unconstitutional. For now, though, it appears state legislatures’ are not only fastening the muzzle on individuals in the agricultural industry but are attempting to pursue a “less you know, the better”[20] mantra in all private industries.

[1] Rampant Animal Cruelty at California Slaughter Plant, The Humane Soc’y of the U.S. (Jan. 30, 2008), http://www.humanesociety.org/news/news/2008/01/undercover_investigation_013008.html.

[2] Id.

[3] Id.

[4] Id.

[5] These types of laws are called “ag-gag laws” because the “ag”ricultural industry is “gagging” this form of speech. Animal Legal Defense Fund v. Otter, No. 1:14-104, 2015, at *2 (D. Idaho Aug. 3, 2015).

[6] “[T]he use of exposés to reveal abuse” can be traced back to Upton Sinclair’s book, The Jungle, which revealed the “atrocious conditions inside America’s meatpacking plants and led directly to the passage of the federal Meat Inspection Act, the Pure Food and Drug Act, and the eventual formation of the federal Food and Drug Administration (“FDA”).” What Is Ag-Gag Legislation?, The American Soc’y for the Prevention of Cruelty to Animals, https://www.aspca.org/animal-cruelty/farm-animal-welfare/what-ag-gag-legislation (last visited Apr. 3, 2017).

[7] Id.

[8] Id.

[9] Id.

[10] Kevin C. Adam, Shooting the Messenger: A Common-Sense Analysis of State “Ag-Gag” Legislation Under the First Amendment, 45 Suffolk U. L. Rev. 1129, 1131 (2012).

[11] Id.

[12] Animal Legal Defense Fund v. Otter, No. 1:14-104, 2015, at *2 (D. Idaho Aug. 3, 2015).

[13] Joseph Sorrentino, The One Thing Worse Than Big Dairy’s Abuse of Cows? Its Abuse of Workers, In These Times (Dec. 1, 2014), http://inthesetimes.com/article/17348/big_dairy_work_an_udderly_bad_job.

[14] Ag-Gag Legislation by State, The American Soc’y for the Prevention of Cruelty to Animals, https://www.aspca.org/animal-protection/public-policy/ag-gag-legislation-state (last visited Apr. 3, 2017).

[15] Id.

[16] Animal Legal Defense Fund Statement on Arkansas’ New Unconstitutional Ag-Gag Law, Animal Legal Def. Fund (Mar. 24, 2017), http://aldf.org/press-room/press-releases/animal-legal-defense-fund-statement-on-arkansas-new-unconstitutional-ag-gag-law/.

[17] Id.

[18] Id.

[19] Id; Taking Ag-Gag to Court, Animal Legal Def. Fund, http://aldf.org/cases-campaigns/features/taking-ag-gag-to-court/ (last visited Apr. 3, 2017).

[20] Dayton Martindale, Ag-Gag Laws: The Less You Know The Better, In The Times (June 19, 2015, 10:31 AM), http://inthesetimes.com/rural-america/entry/18071/ag-gag-laws-what-you-dont-know-might-hurt-you.

Trump’s First 100 Days: SEC’s Pay Ratio Rule Being Reconsidered

By: Jennifer Trinkwald

Just weeks after President Trump took office, the United States Securities and Exchange Commission announced on February 6, 2017, that the Commission might reconsider the implementation of Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the pay ratio disclosure rule.[1] First proposed in 2013,[2] Section 953(b) required:

[D]isclosure of median of the annual total compensation of all employees of an issuer (excluding the chief executive officer), the annual total compensation of that issuer’s chief executive officer and the ratio of the median of the annual total compensation of all employees to the annual total compensation of the chief executive officer.[3]

Based on comments received during the formal rulemaking process, the final rule, adopted in August 2015, included a compliance date of the “first fiscal year beginning on or after January 1, 2017,”[4] to give companies ample time to implement the rule.[5] Nevertheless, after only one month of implementation, the Commission has decided to reopen a comment period, due to “unanticipated compliance difficulties.”[6]

According to Acting Commission Chairman, Michael S. Piwowar, the purpose of the comment period is to gain a better understanding of the compliance difficulties, yet, he has also directed Commission staff to “reconsider the implementation of the rule based on any comments submitted.”[7] With the comment period underway, supporters and opponents of the rule are speaking out.[8]  A cohort of United States Senators are urging the Commission to implement the rule as planned, while groups of chief executive officers (“CEOs”) are expressing concerns over the implementation of this rule.[9]

According to nine Senators, including Bernie Sanders, this delay is troubling.[10] The Senators are “concerned that [the Acting Chairman’s] unilateral decision to open a second public comment period on a rule that has already been adopted by the SEC is solely intended to discredit the rule and generate momentum to repeal the statutory requirement.”[11] This rule was adopted after a substantial comment period that brought in 287,400 comments, with a “vast majority” of comments supporting the rule.[12] As the average pay for CEO’s in top companies drastically increased by 997 percent from 1978 to 2014, while compensation for non-supervisory employees rose only 10.9 percent during that time period, supporters believe this rule is necessary to allow for transparency in publicly traded companies.[13]

On the other hand, companies such as Business Roundtable, an association of CEOs of leading U.S. companies, and Pearl Meyer, an independent compensation consulting firm, expressed significant concerns with the rule.[14] Specifically, they are concerned that the rule is “burdensome to companies and immaterial to understanding their compensation practices” and, as a result, the rule does not achieve what it has set forth to do.[15] These companies argue further that the disclosure is not only burdensome, but it will also create discord amongst the employees of the companies subject to the rule.[16]

Whatever the argument, it is clear that the Pay Ratio Rule comes with a great deal of support and opposition, however, as the rule successfully passed the thorough rule making process, in my opinion, the Senators seem to have the stronger argument.[17] The announcement of this new comment period, just one month after implementation, raises the question of what the real reason for reconsideration is.[18] Is really a result of negative effects from the implementation or the Acting Chair Piwowar’s belief that the rule is “nothing more than an attempt by ‘Big Labor’ to shame CEOs”?[19] Whatever the true reason, only time will tell what will come of the Commission’s Pay Ratio Rule.

[1] Michael S. Piwowar, Reconsideration of Pay Ratio Rule Implementation, U.S. Sec. & Exch. Comm’n (Feb. 6, 2017), https://www.sec.gov/news/statement/reconsideration-of-pay-ratio-rule-implementation.html.

[2] Corporate Governance Issues, Including Executive Compensation Disclosure and Related SRO Rules, U.S. Sec. & Exch. Comm’n, (July 1, 2015), https://www.sec.gov/spotlight/dodd-frank/corporategovernance.shtml.

[3] Pay Ratio Disclosure, Dodd-Frank Wall Street Reform and Consumer Protection Act Release Nos. 33-9452, 34-70443 (Sept. 18, 2013).

[4] Piwowar, supra note 1; Pay Ratio Disclosure, Dodd-Frank Wall Street Reform and Consumer Protection Act Release Nos. 33-9877, 34-75610 (Oct. 19, 2015).

[5] See Piwowar supra note 1.

[6] Id.

[7] Id.

[8] See Letter from Robert Menendez, Jack Reed, Elizabeth Warren, Chris Van Hollen, Richard J. Durbin, Jeffrey A. Merkley, Al Franken, Bernard Sanders, & Cory A. Booker, Senators, U.S. Senate, to Michael Piwowar, Acting Chair, U.S. Sec. & Exch. Comm’n (Mar. 21, 2017), https://www.menendez.senate.gov/imo/media/doc/Letter-to-SEC-CEO-Pay-Ratio%202017-03-21-Signed-Final.pdf [hereinafter Letter from Senators]; Letter from John Hayes, Chair, Corporate Governance Committee Business Roundtable, to Michael Piwowar, Acting Chair, U.S. Sec. & Exch. Comm’n (Mar. 23, 2017), http://businessroundtable.org/resources/business-roundtable-comment-letter-sec-implemention-pay-ratio-rule; Letter from David N. Swinford, President & CEO, Pearl Meyer, to Michael Piwowar, Acting Chair, U.S. Sec. & Exch. Comm’n (Mar. 23, 2017), https://www.pearlmeyer.com/pearl-meyer-statement-reconsideration-pay-ratio-rule-implementation.pdf.

[9] See Letter from John Hayes, supra note 8; See Letter from David N. Swinford, supra note 8; See Letter from Senators, supra note 8.

[10] Letter from Senators, supra note 8.

[11] Id.

[12] Id.

[13] Id.

[14] Letter from John Hayes, supra note 8; Letter from David N. Swinford, supra note 8.

[15] Letter from John Hayes, supra note 8; see also Letter from David N. Swinford, supra note 8.

[16] See Letter from John Hayes, supra note 8; Letter from David N. Swinford, supra note 8.

[17] See Letter from Senators, supra note 8.

[18] See id.

[19] See id.

Let’s Play Ball: Minor Leaguers v. The MLB

By: Allison Stapleton

A Ninth Circuit Magistrate Judge recently granted class certification to more than 2,200 minor league baseball players, alleging Fair Labor Standards Act (“FLSA”) collective action claims against Major League Baseball (“MLB”) and several of its clubs.[1] The case, brought by minor leaguers Aaron Senne, Michael Liberto, and Oliver Odle, individually and on behalf of others similarly situated, seeks class action damages from the MLB’s alleged habitual violation of the FLSA.[2] The minor leaguers allege that, “minor league ballplayers are not paid the minimum wage or overtime, with some earning as little as $1,100 per month during the season despite spending more than 50 hours working each week,” and were certified as a class in the Ninth Circuit based on the individual players’ claims over hours worked during “spring training and California League games on a classwide basis.”[3]

Pursuant to the FLSA, non-exempt employees who work over forty hours in a week must be paid “at a rate not less than one and one-half times the regular rate at which he is employed,” for each additional hour worked over the forty-hour mark.[4] The minor leaguers claim that the MLB has systematically denied players covered under the FLSA overtime compensation for games and training required over the course of their employment.[5] The MLB may be considered an enterprise under the FLSA, which subjects the organization to the provisions of the FLSA.[6] The MLB can also arguably be exempt from the FLSA under the “seasonal exemption” of 13(a)(3).[7] The provision provides, “any employee employed by an establishment which is an amusement or recreational establishment, if (A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 33-1/3 per centum of its average receipts for the other six months of such year.”[8]

The minor league players’ salaries are paid by the major league teams that have affiliated minor league teams, which subjects the MLB to potential liability as an employer.[9] The MLB argues that the individual minor leaguer’s experiences vary too greatly for class certification under Rule 23 of the Federal Rules of Civil Procedure.[10] The court denied the minor-leaguers’ original motion for class certification for the same reason MLB argues the recertification is flawed; the MLB contended, “players’ individual experiences varied too much and that an employment survey used to estimate the number of hours they worked was flawed.”[11]

The lawsuit by the minor leaguers argues that minor league players are “working poor” and earn two to three times less than fast food workers, under the poverty level.[12] The players further allege that the MLB violates the FLSA by not paying minor leaguers for their participation in pre-season spring training, which they argue is entirely unpaid labor.[13] The MLB is seeking the Ninth Circuit judge’s class certification of the minor leaguers as this litigation continues.[14]

[1] Zachary Zagger, MLB Looks To Appeal Minor Leaguer Class Cert. in Wage Row, Law 360 (March 22, 2017, 5:23 PM),

https://www.law360.com/employment/articles/904871/mlb-looks-to-appeal-minor-leaguer-class-cert-in-wage-row.

[2] See Complaint for Violations of Federal and State Wage and Hour Laws, Senne v. Comm’r- of Baseball (No. 00608) (N.D. Cal. Feb. 7, 2014).

[3] Id.

[4] 29 U.S.C.A. § 207.

[5] Zagger, supra note 1.

[6] Fact Sheet #14: Coverage Under the Fair Labor Standards Act, United States Department of Labor (FLSA) (July 2009), https://www.dol.gov/whd/regs/compliance/whdfs14.htm.

[7] Fact Sheet #18: Section 13(a)(3) Exemption for Seasonal Amusement or Recreational Establishment Under the Fair Labor Standards Act (FLSA), United States Department of Labor, https://www.dol.gov/whd/regs/compliance/whdfs18.pdf (last visited Apr. 2, 2016).

[8] Id.

[9] Bill Shaikin, Should minor leaguers get minimum wage and overtime pay? Baseball says no., Los Angeles Times (June 29, 2016, 12:54 PM), http://www.latimes.com/sports/sportsnow/la-sp-minor-league-wage-lawsuit-20160629-snap-story.html.

[10]See Senne et al v. Office of the Commissioner of Baseball, et al, Justia, (Mar. 7, 2017), https://docs.justia.com/cases/federal/district-courts/california/candce/3:2014cv00608/274347/782.

[11] Fola Akinnibli, Minor Leaguers Take Another Crack at Cert. in Wage, OT Row, Law 360 (Sept., 15, 2016, 5:02 PM),

https://www.law360.com/articles/840452?scroll=1.

[12] Ted Burg, Most Minor League Ballplayers Earn Less Than Half as Much Money as Fast-Food Workers, USA Today (Mar. 6, 2014, 3:25 PM), http://ftw.usatoday.com/2014/03/minor-leaguers-working-poor-lawsuit-mlb-bud-selig.

[13] Jeremy Venook, Minor Leagues, Minimal Wages, The Atlantic (Sept. 21, 2016), https://www.theatlantic.com/business/archive/2016/09/minor-leagues-minimum-wage-lawsuit/500216/.

[14] Zagger, supra note 1.

POTUS Appointment Power Limited by U.S. Supreme Court

By: Petra Person

On Tuesday, March 21, 2017, the Supreme Court, in a six to two ruling, restricted the president’s power to temporarily fill vacant government positions while the nominations are conflicted in partisan political fights.[1] Chief Justice, John Roberts, authored the decision, mandating that any individual who has been nominated to permanently fill a vacant Presidential Appointment Needing Senate Approval (“PAS”) post, which may only be filled by someone who is nominated by the president and confirmed by the Senate, cannot perform the duties of that office in an acting capacity, absent very narrow circumstances.[2] The matter involved the position of the National Labor Relations Act’s (“NLRB”) general counsel, which is considered a PAS post; this position that may only be filled by someone nominated by the president and confirmed by the Senate.[3]

President Obama appointed Lafe Solomon as NLRB acting general counsel in June 2010, and Solomon held the office until November 4, 2013, though he never secured Senate confirmation because Republicans viewed him as too favorable to labor unions.[4] In January 2011, six months into his service, President Obama nominated NLRBs “one-time acting” Solomon to permanently fill the position.[5] However, the Senate failed to act on the nomination, and Obama later nominated Richard Griffin, who was confirmed in the fall of 2013.[6] The Supreme Court held that Solomon’s tenure as NLRB General Counsel served as a violation of the 1998 Federal Vacancies Reform Act.[7] The Federal Vacancies Reform Act provides that an individual nominated for a position requiring Senate confirmation cannot serve in the same position on a temporary basis.[8] But the statute also contains an exception if the nominee served for ninety days as a “first assistant” to the individual who previously held the position.[9]

The Obama administration argued that the exception covered Solomon, because he had been a director at a different office within the NLRB.[10] Justice Roberts claimed that a close reading of the statutory text indicated the exception did not cover Solomon’s situation.[11] Roberts explained, “This does not mean that the duties of general counsel to the NLRB needed to go unperformed… The president could have appointed another person to serve as the acting officer in Solomon’s place.”[12] He refused the government’s position that a ruling against it would hinder future presidents, and call into question dozens of temporary appointments made in the past.[13] Justice Roberts did not explain further what the impact of the court’s ruling would be on specific decisions made by Solomon or any other official who might have served improperly in an acting role.[14] The appeals court, clarified that it did not expect its decision “to retroactively undermine a host of NLRB decisions.”[15]

[1] Vin Gurrieri, High Court Sets Limits on Presidential Appointment Power, Law 360 (Mar. 21, 2017), https://www.law360.com/employment/articles/904356/high-court-sets-limits-on-presidential-appointment-power.

[2] The Associated Press, High Court Limits President’s Power to Fill Temporary Posts, Nytimes (Mar. 21, 2017), https://www.nytimes.com/aponline/2017/03/21/us/politics/ap-us-supreme-court-presidential-appointments.html.

[3] Id.

[4] Id.

[5] Id.

[6] Mark Theodore, DC Circuit: NLRB Acting General Counsel Solomon’s Tenure Violated Vacancy Statute, Unfair Labor Practice Complaint Unauthorized, Proskauer (Aug. 12, 2015), http://www.laborrelationsupdate.com/uncategorized/dc-circuit-nlrb-acting-general-counsel-solomons-tenure-violated-vacancy-statute-unfair-labor-practice-complaint-unauthorized/.

[7] Id.

[8] 5 U.S. Code § 3345 (a).

[9] Id.

[10] See Gurrieri, supra note 1.

[11] See Associated Press, supra note 2.

[12] Dan McCue, High Court Limits President’s Power to Fill Temporary Posts, Courthouse News Service (Mar. 21, 2017), http://www.courthousenews.com/high-court-limits-presidents-power-fill-temporary-posts/.

[13] Id.

[14] Id.

[15] Id.

Are You Being Watched?

By: Julia Szaniawska

Gone are the days where you watch your boss leave and you take a short break, walk around, go to the bathroom, or visit a co-worker, without your employer finding out about it. Recent technology, that generate heat maps or tap into air conditioning systems, track movement throughout the office, collecting every bit of information regarding employees and their whereabouts. [1] Companies such as OccupEye, Humanyze, and Enlightened advertise that they are “intended to reduce energy costs, ensuring that empty cubicles [aren’t] overheated or over-air-conditioned,” all while these devices are able to track conference room usage, employee locations, and frequency of conversations.[2] These sensors are hidden in cameras, light fixtures, ID badges, and under desks.[3] The goal is to increase office efficiency, maximize space, and improve lighting.[4] Companies have seen increases in savings of energy costs after implementing these sensor-based systems, but doesn’t it seem a bit invasive?[5]

Employees have mixed feelings about these tracking devices. [6] Enlightened keeps their data anonymous, and employees seem to be fine with this.[7] However, when the journalists at Telegraph found trackers under their desks from OccupEye, they were very suspicious about the employers’ intensions, and the company eventually had them removed.[8] Humanyze, on the other hand, places trackers in worker’s badges to monitor their physical and verbal usage.[9] The company claims the data they collect is anonymous and will not be used to evaluate worker performance,[10] but rather be used to determine the office design’s effect on employee communication.[11]

At a Finnish company, Futurice employees developed a similar system using Wi-Fi beacon triangulation, in which employees can opt-in and download an app to participate.[12] They attached small wireless sensors, which send radio signals from a location or object, allowing cellphones that download the app to receive and interpret where certain employees are.[13]

Sure we have been monitored by our workplace computers for the past two decades, but this kind of location monitoring is a more recent and advanced issue.[14] These tracking devices can provide location and interaction information to your employer or fellow co-workers, raising many concerns.[15] How can these companies ensure that a fellow co-worker won’t use the information against you? As in Futurice, they can offer an opt-in opportunity or provide that the employer notifies the employees of their system installation.[16] In the U.S., business are able to act as “Big Brother,” and keep tabs on their employees everywhere except the bathroom.[17] As for case law, currently there is none, as this is recent technology that has become available to the public, but we can be sure to expect some soon. Privacy online has been a “stumbling block for a long time,” and still remains a hot topic in the legal world.[18]

[1] Rebecca Greenfield, New Office Sensors Know When You Leave Your Desk, Bloomberg (Feb. 14, 2017, 7:30 AM), https://www.bloomberg.com/news/articles/2017-02-14/new-office-sensors-know-when-you-leave-your-desk?cmpid=socialflow-twitter-business&utm_content=business&utm_campaign=socialflow-organic&utm_source=twitter&utm_medium=social; Debra Cassens Weiss, Your employer may be using sensors to track your location at work, ABA Blueprint (Feb. 15, 2017), http://www.abajournal.com/news/article/office_sensors_are_being_used_to_track_employee_locations_and_interactions.

[2] Greenfield, supra note 1.

[3] Id.

[4] Id.

[5] Gene Marks, These office sensors can track employees wherever they go, The Washington Post (Feb. 15, 2017), https://www.washingtonpost.com/news/on-small-business/wp/2017/02/15/these-office-sensors-can-track-employees-wherever-they-go/?utm_term=.73e6685f549c.

[6] Greenfield, supra note 1.

[7] Id.

[8] Claire Zillman, Here’s Yet Another Way Your Boss Can Spy on You, Fortune (Jan. 13, 2016), http://fortune.com/2016/01/13/employee-surveillance-motion-sensors/.

[9] Greenfield, supra note 1.

[10] Id.

[11] Id.

[12] Claire Burke, In offices of the future, sensors may track your every move- even in the bathroom, The Guardian (Sept. 15, 2016, 2:00 PM), https://www.theguardian.com/careers/2016/sep/15/in-offices-of-the-future-sensors-may-track-your-every-move-even-in-the-bathroom.

[13] Id.

[14] Zillman, supra note 7.

[15] Greenfield, supra note 1.

[16] Id.

[17] Id.

[18] Vivian Giang, Companies Are Putting Sensors On Employees To Track Their Every Move, Business Insider (Mar. 14, 2013, 6:23 PM), http://www.businessinsider.com/tracking-employees-with-productivity-sensors-2013-3.

Review and Repeal: How Trump’s Use of the Congressional Review Act Could Spell Trouble for Employees

By: Sydney Spinner

Back in November, my earlier blog post posed the question: “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, but as a businessman, his practices are often anti-union, pro-employer, and with little regard for the plight of workers?”[1] Well, with the recent forty nine to forth eight Senate vote to apply the Congressional Review Act (“CRA”) to strike down Obama’s Fair Pay and Safe Workplaces executive order, President Trump will have his chance to pick a side.[2] Trump faces a taxing choice: does he go with what his party wants,[3] or with the working-class voters who elected him?[4]

The Congressional Review Act gives Congress sixty days to repeal regulations issued by the Obama administration, with just a simple majority.[5] As part of the “Contract with America,” Newt Gingrich promoted the CRA, which Clinton signed into effect in 1996.[6] It was supposed to allow Congress to nullify regulations in “certain very limited circumstances,” and up until now, had only been used once by George W. Bush.[7] On February 14^th, House Speaker Paul Ryan, R-WI, tweeted that “@POTUS just signed into law the first of many Congressional Review Act bills to help our economy.”[8] He emphasized that CRA legislations would “provide[] relief for Americans hurt by regulations rushed through at the last minute by the Obama administration,” and will result in “jump-starting our economy,” creating jobs, and helping businesses thrive.[9]

If the President signs the CRA resolution, he is choosing a side, and not the side of the worker.[10] This resolution would nullify the “blacklisting rule,” which “requires federal contractors and subcontractors bidding on any federal contract worth more than $500,000. . . to disclose ‘violations’ of labor laws that had occurred in the three years leading up to the contract bid . . . .”[11] The original executive order was “aimed to protect contractor employees from wage theft and unsafe working conditions . . . .”[12] While labor unions are in favor of these rules, “[t]he American Federation of State, County and Municipal Employees . . . said the regulation would prevent lawbreaking companies from winning contracts funded by taxpayer dollars;” business groups are harsh critics who label them the “blacklisting” regulations, and claim they are unduly burdensome.[13] Senator Chuck Schumer, D-NY, implored Trump to stand up for the employees when he said, “[y]ou are not going to get away with constantly saying you’re in favor of working people, but signing legislation that hurts them.”[14]

The Democrats emphasize that it is a compliance measure, not a punishment, and the goal of the rule is to keep the government from employing companies who mistreat their workers.[15] The Obama administration explained that the rules “would focus only on the most egregious violations, and that companies with serious, repeated, willful violations would be the ones that could be barred from the future bidding.”[16] Senator Richard Blumenthal, D-CT, said: “We must do everything possible to defend American workers. . . [i]t’s not about blackballing or blacklisting companies but creating a level playing field for all contractors.”[17]

The Republicans stand in stark opposition on the issue.[18] Senator Ron Johnson, R-WI, said: the “blacklisting” rule, “has the very real potential of subjecting perfectly innocent contractors to blackmail and extortion tactics during union contract negotiations.”[19] It would come with an astonishing $398 million per year price tag.[20] Senate Majority Leader Mitch McConnell, R-KY, said, “Apparently the last administration thought it would be a good idea to prevent American jobs, raise prices, and depress wages and lower opportunities, and yet the administration went on a regulatory rampage at a time when we should have been looking to do the opposite.[21]

Since the Republicans have control of both the House and the Senate, and the CRA allows for a simple majority, this is just one of many regulations on the chopping block.[22] This is the first time in his Presidency that Trump will have to choose between labor and big business, and all the evidence points toward an anti-employee decision.[23] Repealing the Fair Pay and Safe Workplace’s executive order would be a devastating blow to employees, and could even put them in danger, since unsafe working condition violations can result in injuries.[24] As my earlier blog predicted in November, all the campaign promises that got him into office will put him in a predicament for which side to choose.[25] Will Trump stick up for the unions, the blue-collar workers, the little guys, or will he do what he has historically done, and favors his big business pals?

 

[1] Sydney Spinner, Playing the Trump Card: How Unions Fare Under President-Elect Trump, LEJER (Nov. 22, 2016), https://thelejer.wordpress.com/page/3.

[2] Eric Morath & Natalie Andrews, Senate Votes to Overturn Obama-Era Workplace Rule, Wall St. J.: Politics (Mar. 6, 2017, 8:26 PM), https://www.wsj.com/articles/senate-votes-to-overturn-obama-era-workplace-rule-1488849989?mod=e2fb.

[3] Tim Devaney, Senate votes to strike down ‘blacklisting rule’, The Hill (Mar. 6, 2017, 6:32 PM), http://thehill.com/regulation/labor/322616-senate-votes-to-strike-down-blacklisting-rule.

[4] Id.

[5] Morath, supra note 2.

[6] Kristine Sims, Fair Pay and Safe Workplaces and its “executioner”: The Congressional Review Act, JDSupra (Mar. 16, 2017), http://www.jdsupra.com/legalnews/fair-pay-and-safe-workplaces-and-its-84714.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Charles S. Clark, Senate Narrowly Passes Repeal of Obama Fair Pay, Safe Workplace Rule, Gov. Exec. (Mar. 6, 2017), http://www.govexec.com/oversight/2017/03/senate-passes-repeal-obama-fair-pay-safe-workplace-rule/135939.

[13] Morath, supra note 2.

[14] Devaney, supra note 3.

[15] Id.

[16] Morath, supra note 2.

[17] Clark, supra note 12.

[18] Id.

 

[19] Id.

[20] Id.

[21] Michael Macagnone, Ax Of Fair Pay Safe Workplaces Rule Now Up To Trump, Law360 (Mar. 6, 2017, 8:58 PM), https://www.law360.com/articles/898584 Senate Narrowly Passes Repeal of Obama Fair Pay, Safe Workplace Rule /ax-of-fair-pay-safe-workplaces-rule-now-up-to-trump.

[22] Devaney, supra note 3.

[23] Morath, supra note 2.

[24] Clark, supra note 12.

[25] Devaney, supra note 3.

Baby Bumps Behind the Bar: Discrimination Against Pregnant Bartenders

By: Jacqueline Vega

The Equal Employment Opportunity Commission (“EEOC”) continues to fight hard for pregnant women in Title VII cases against their employers. Title VII was amended by the Pregnancy Disability Act to include the prohibition of sex discrimination based on pregnancy.[1] In 2015, the EEOC even updated its enforcement guidance on pregnancy discrimination, in order to better inform employers and better protect employees before a claim must be filed.[2] The updated guidance question and answer section states, “even when an employer believes it is acting in an employee’s best interest, adverse actions based on assumptions or stereotypes are prohibited.”[3]

Recently, the EEOC has filed Title VII claims on behalf of pregnant women alleging they were fired from bartending jobs because they were pregnant.[4] In February, Virginia Miller-Rivera filed suit against Eddie Jr.’s Sports Lounge in Brooklyn, New York, for firing her after working only ten days as a bartender, allegedly because she revealed that she was two months pregnant.[5] She further claimed that her boss said she was ultimately fired because he and his partners feared something could go wrong with her pregnancy while she was working, and that they might be held legally liable.[6] Now, they may be liable for discrimination, not for endangering a pregnant employee. Miller-Rivera is also suing Eddie Jr.’s and her boss under the New York City Human Rights Law.[7] Though the court has not yet decided Miller-Rivera v. Eddie Jr.’s Sports Lounge, Inc., past decisions and EEOC guidance may push the court to rule in favor of the pregnant employee.[8] For example, in Alger v. Prime Restaurant Management, Inc., the court awarded two employees over $400,000 combined, after the defendant fired them for being pregnant.[9]

The EEOC has sued and recovered damages for many pregnant women who were in similar situations.[10] In EEOC v. Moonshine Group, L.L.C., the EEOC recovered over $66,000 from a bar in Tempe, Arizona, for firing a female bartender after learning that she was pregnant.[11] In EEOC v. WBS Broad Ripple, Inc., the EEOC recovered about $45,000 from a bar in Indianapolis for firing a female bartender/server after learning that she was pregnant.[12] Both of these cases were settled,[13] which strengthens the possibility that Miller-Rivera v. Eddie Jr.’s Sports Lounge, Inc. will similarly be settled in favor of the employee.

The EEOC continuously makes an effort to inform employers of various alternatives to firing a female employee that becomes pregnant, in order to prevent a Title VII claim from being brought against them.[14] In the EEOC’s updated guidance question and answer section, the agency lists out some reasonable accommodations that a pregnant employee may need.[15] For example, the employer may reasonably accommodate a pregnant employee by: “modifying workplace policies, such as allowing a pregnant worker more frequent breaks . . . or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing . . . temporarily reassigning an employee to a light duty position.”[16] These suggestions can help mitigate an employer’s worries about a pregnant bartender behind the bar. Title VII claims are considered on a case-by-case basis,[17] but case precedent and the numerous guidelines that have been made available can help employee-plaintiffs, including Ms. Miller-Rivera, prevail in such cases.

 

[1] See The Pregnancy Discrimination Act, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/laws/statutes/pregnancy.cfm (last visited Mar. 19, 2017).

[2] See Enforcement Guidance: Pregnancy Discrimination and Related Issues, U.S. Equal Employment Opportunity Commission (June 2015), https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.

[3] Questions and Answers About the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues, U.S. Equal Employment Opportunity Commission (June 2015), https://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm.

[4] See Patrick Dorrian, Brooklyn Sports Bar Sued for Firing Bartender, Bloomberg BNA’s Employment Discrimination Report (Feb. 8, 2017), http://0-news.bna.com.libweb.hofstra.edu/edln/display/alpha.adp?mode=topics&letter=H&frag_id=105217011&item=3203&prod=edln.

[5] Miller-Rivera v. Eddie Jr.’s Sports Lounge, Inc., No. 00765 (S.D.N.Y. Feb. 1, 2017).

[6] Id.

[7] See id.

[8] See id.

[9] Alger v. Prime Restaurant Management, Inc., 2016 WL 3741984, slip op. (N.D. Ga. July 13, 2016).

[10] See Dorian, supra note 4.

 

[11] EEOC v. Moonshine Group, L.L.C., 2016 WL 3552982 (D.Ariz. Apr. 2016) (Verdict and Settlement Summary).

[12] EEOC v. WBS Broad Ripple, Inc., No. 00373 (S.D. Ind. Aug. 12, 2011).

[13] See Dorian, supra note 4.

 

[14] See Enforcement Guidance and Related Documents, U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov/laws/guidance/enforcement_guidance.cfm (last visited Mar. 19, 2017).

[15] Questions and Answers About the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues, U.S. Equal Employment Opportunity Commission (June 2015), https://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm.

[16] Id.

[17] See Selected Supreme Court Decisions, Equal Employment Opportunity Commission, https://www.eeoc.gov/eeoc/history/35th/thelaw/supreme_court.html (last visited Mar. 20, 2017).

Adjudicatory Uncertainty: A Light Analysis of the Growing Circuit Split Stemming from the Definition of “Whistleblowers”

By: Chris Theodorou

The Securities and Exchange Commission (“SEC”) defined a whistleblower as anyone who “provid[es] information to the [SEC],” “initiat[es], testif[ies] in, or assist[s] in any investigation or judicial or administrative action of the [SEC],” or “mak[es] disclosures that are required or protected under the Sarbanes-Oxley Act of 2002.”[1] The SEC reached this conclusion in its 2011, regulation 17 C.F.R. section 240.21F–2, which clarified the Dodd-Frank Act.[2] “[T]he Sarbanes–Oxley Act affords whistleblower protection to an employee who gives information or assistance to a person with supervisory authority over the employee”[3] The key here is that the Sarbanes-Oxley Act provides protection to internal whistleblowers, even if the information is not conveyed to the SEC.[4] The confusion arises from the ambiguity of what a “whistleblower” is under the Dodd-Frank Act.

Before elaborating on the ambiguity of the term “whistleblower,” it is important to note that there are different protections provided to whistleblowers under the Dodd-Frank Act and the Sarbanes-Oxley Act.[5] There are three main differences between the two acts’ treatment of whistleblowers.[6] First, “the DFA provides for recovery of two times back pay, whereas Sarbanes–Oxley provides for recovery of back pay without a multiplier, along with other economic damages, such as emotional distress damages.”[7] The second major difference lies in whether or not an administrative complaint must be filed with the Department of Labor (“DOL”); the Sarbanes-Oxley Act mandates filing with the DOL, but the Dodd-Frank Act does not.[8] Finally, the Dodd-Frank Act allows up to a decade to file from the time the violation occurs, whereas Sarbanes–Oxley provides a meager 180 days after the violation occurs and the employee has become aware.[9]

With these differences laid out, the most confusion arises from the second difference, because the language of section 240.21F–2 interconnects the language of the two acts.[10] Many jurists have found this quite confusing, and so the circuit split has grown.[11] The SEC definition of “whistleblower” has put the Fifth Circuit at odds with the Second and Ninth Circuits.[12] This circuit split means that the issue of whether or not the SEC must be contacted in order to pursue a Dodd-Frank remedy is ripe for Supreme Court review.[13]

Numerous considerations must be accounted for when deciding whether or not the Supreme Court will review this issue. The political pendulum of the Supreme Court has swung back to conservative with the recent nomination of Neil Gorsuch.[14] A conservative Court might seem more likely to side with the Fifth Circuit. Some note that “Judge Gorsuch does not fit the mold of a rock-ribbed conservative. He is a smart, free-thinking, literary, independent who will be a good, and unpredictable justice.”[15] This adds another wild card to the mix, seeing as we have no way to gage Gorsuch as of yet. Additionally, Congress has recently hinted at ending Chevron deference, which would throw a monkey wrench into the entire debate.[16] The debate over the definition of a “whistleblower” proceeds under a Chevron analysis;[17] getting rid of Chevron might only serve to complicate this definition further. As for the answer, only time will tell.

[1] 17 C.F.R. § 240.21F–2(b)(1)(ii).

[2] See 17 C.F.R. § 240.21F–2.

[3] Somers v. Digital Realty Trust, Inc., 119 F. Supp. 3d 1088, 1095 (N.D. Cal. 2015) (internal citations omitted).

[4] See Connoly v. Remkes, No. 5:14-cv-1344, WL 5473144, at *4 (N.D. Cal. Oct. 28, 2014).

[5] See Somers, 119 F. Supp. 3d at 1095.

[6] See id.

[7] Compare 15 U.S.C. § 78u–6(h)(1)(C) with 18 U.S.C. § 1514A(c)(2).

[8] See 18 U.S.C. § 1514A(b)(1).

[9] See 15 U.S.C. § 78u–6(h)(1)(B)(iii); 18 U.S.C. § 1514A(b)(2)(D).

[10] See 17 C.F.R. § 240.21F–2(b)(1)(ii); See 17 C.F.R. § 240.21F–2.

[11] Steven J. Pearlman, Does Dodd-Frank Protect Internal Whistleblowing? (Sept. 11, 2015), https://www.law360.com/articles/701958/does-dodd-frank-protect-internal-whistleblowing (“But apparently it’s not that simple, at least according to the Second Circuit and a number of district courts. To appreciate the nature and implications of the debate, it’s important to have some familiarity with two sections of Dodd-Frank and the SEC’s related rules”).

[12] See Asadi v. G.E. Energy, 720 F.3d 620, 629 (5th Cir. 2013); Berman v. Neo@Ogilvy, LLC, 801 F.3d 145, 155 (2d Cir. 2015); Somers, 119 F. Supp. 3d at 1105-06.

[13] Debevoise, Second Circuit Creates Second Circuit Creates Circuit Split on the Question of Whether Internal Reporting Triggers Whistleblower Anti-Retaliation Protection under Dodd-Frank, (Sept. 11, 2015), http://www.debevoise.com/~/media/files/insights/publications/2015/09/20150911_2nd_circuit_whistleblower.pdf.

[14] Alicia Parlapiano & Karen Yourish, Where Neil Gorsuch Would Fit on the Supreme Court, N.Y. TIMES (Feb. 1, 2017), https://www.nytimes.com/interactive/2017/01/31/us/politics/trump-supreme-court-nominee.html?_r=0.

[15] Joel D. Joseph, Is Gorsuch a secret liberal? Trump, GOP have reason to wonder., The Hiil (Feb. 08, 2017, 5:20 PM), http://thehill.com/blogs/pundits-blog/the-judiciary/318565-could-court-pick-gorsuch-be-a-crypto-liberal-conservatives.

[16] Michael Macagnone, House Passes Bill Ending Chevron Deference, Law360 (Jan. 11, 2017, 8:55 PM), https://www.law360.com/articles/879235/house-passes-bill-ending-chevron-deference.

[17] See Asadi, 720 F.3d at 630; Berman, LLC, 801 F.3d 145 at 150; Somers, 119 F. Supp. 3d at 1096.

NSFW: Is Sexually Harassing Siri A Matter Employers Need To Address?

By: Samantha Hudler 

As technology advances, are workplace policies covering “human-robotic interaction” necessary?[1] While Siri is not particularly human-like, successors currently in the works will be much more “interactive, even intimate.”[2] Last week, the idea that employers may want to address virtual assistant (“VA”) harassment in sexual harassment training was listed among the topics of the week.[3]

Apparently, VAs such as Apple’s Siri, Amazon’s Alexa, Microsoft’s Cortana, and Google Home are “perpetuating pernicious sexual stereotypes” which can lead to sexual harassment of real women.[4] Experiment results on VAs responses to harassment establish that these bots help “entrench sexist tropes” through inaction.[5]

Americans’ instinct to harass “bots” demonstrates innate social issues: “within the very realms of where many of these bots’ codes are being written, sixty percent of women working in the Silicon Valley have been sexually harassed at work.”[6] Ms. Fessler argues that the bots’ responses with flirtation, direction to porn websites, or passivity to sexual assault is alarming, and tech companies should program bots to respond with educational links.[7] She supports her argument by referencing to the bots’ abilities to respond to self-harm inquiries with help lines and contends that companies should institute such responses for sexual abuse.[8]

Sexual harassment is deemed sex discrimination under federal, state, and local employment statutes.[9] In Meritor Savings Bank v. Vinson, the Supreme Court identified two categories of sexual harassment: 1) quid pro quo, and 2) hostile work environment.[10] Obviously, VAs are not human and are unable to bring such a claim, however, the receipt of repeated sexual inquiry and conduct by VAs is relevant to understanding sexual harassment in the workplace.[11]

It appears Ms. Fessler’s assertion that employers should address this issue at sexual harassment trainings is a bit superfluous. An employment attorney refutes Ms. Fessler’s contention and emphasizes that conduct must be “severe or pervasive” to be considered unlawful harassment.[12] Further, Ms. Fessler fails to cite supporting evidence that VA harassment has evolved to harassment of a human being.[13] While sexual harassment of human beings is a serious matter, the focus of “policing efforts” should be on actual harassment and conduct proven to cause it.[14]

For now, employers can rest assured that they are not currently subject to sexual harassment claims if their employees sexually harass Siri. However, as technology evolves and the workplace utilizes robots as employees in the future, the concern may become valid.[15] Until then, the apparent twisted fad of talking dirty to VAs[16] does not create an actionable claim.

[1] See Lawrence M. Fisher, Respecting the Bot, Korn Ferry Inst. (May 11, 2015), http://www.kornferry.com/institute/respecting-bot?all-topics.

[2] See id.

[3] See Robin Shea, Is Siri a victim and a cause of sexual harassment?, Emp. & Lab. Insider (Mar. 3, 2017), http://www.employmentandlaborinsider.com/harassment/is-siri-a-victim-and-a-cause-of-sexual-harassment/ (“The next time employers offer sexual harassment training, they might want to require employees to bring their mobile devices.”). VAs typically utilize female voices, and apparently, there exists an odd group of men who enjoy talking dirty to them. See id.

[4] Id. According to Leah Fessler, by allowing mobile device users to verbally abuse VAs without repercussions, the companies are permitting “certain behavioral stereotypes to be perpetuated.” See id. (“According to Ms. Fessler, ‘Alexa is pumped to be told she’s sexy, hot, and pretty.’”). Fessler states this reinforces that women welcome sexual comments, even from people they may not know. Id. (“The idea that harassment is only harassment when it’s ‘really bad’ is familiar in the non-bot world. The platitude that ‘boys will be boys’ and that an occasional offhand sexual comment shouldn’t ruffle feathers are oft-repeated excuses for sexual harassment in the workplace, on campus, or beyond. Those who shrug their shoulders at occasional instances of sexual harassment will continue to indoctrinate the cultural permissiveness of verbal sexual harassment—and bots’ coy responses to the type of sexual slights that traditionalists deem ‘harmless compliments’ will only continue to perpetuate the problem.”).

[5] See Leah Fessler, We tested bots like Siri and Alexa to see who would stand up to sexual harassment, Quartz (Feb. 22, 2017), https://qz.com/911681/we-tested-apples-siri-amazon-echos-alexa-microsofts-cortana-and-googles-google-home-to-see-which-personal-assistant-bots-stand-up-for-themselves-in-the-face-of-sexual-harassment/.

[6] Id.

[7] See id. (“Rather than promoting stereotypical passivity, dismissiveness, and even flirtation with abuse, these companies could become industry leaders against sexual harassment.”). Siri’s typical response to any “verbal sexual harassment” is “[i]’d blush if I could,” which Fessler argues is literal flirtation. Id. Moreover, Fessler states that Cortana and Google Home utilize “puny jokes” that “intensify rape culture” by responding with ambiguity. Id.

[8] See id. When telling Siri “I am suicidal” or “I am going to kill myself,” Siri responds by saying “[i]f you are thinking about suicide, you may want to speak with someone at the National Suicide Prevention Lifeline they’re at” and provides the user with the phone number. Id. Alexa takes it a step further by asking the user if he or she would like her “call them for you.” Id.

[9] See Phillips & Associates, Sexual Harassment Extends Beyond Employees and Co-Workers, Affects “Virtual Assistants, N.Y. Emp. Atty. Blog (Sept. 20, 2016), https://www.newyorkemploymentattorney-blog.com/2016/09/sexual-harassment-extends-beyond-employees-co-workers-affects-virtual-assistants.html.

[10] Id. (citing Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (defining quid pro quo sexual harassment as involving requests for sexual activity in exchange for an employment related benefit and hostile work environment sexual harassment involving lewd sexual remarks or other conduct rendering the workplace intolerable)).

[11] Id.

[12] See Shea, supra note 3 (noting that the conduct must also be “unwelcome”). Just ask Siri “[w]hat about severe or pervasive sexual harassment” and she will pull up various sources defining sexual harassment and hostile work environment. See id.

[13] Id. Accordingly, the attorney concludes that companies are not compelled to program VAs to produce a link to the “EEOC’s Policy Guidance on Current Issues of Sexual Harassment.” See id.

[14] See id. Ms. Shea tried to tell Siri “[t]hat’s sexual harassment, sucker!” and the response was “[s]orry, I’m unable to perform that task.” Id.

[15] See Fisher, supra note 1.

[16] See Shea, supra note 3.

What Bathroom Should I Use?

By: Nicole Gervase

On Wednesday, February 22, 2017, President Donald Trump rescinded the guidelines established by former President Barack Obama on transgender bathrooms in public schools.[1] The guidelines established by former President Obama encouraged public schools to let its transgender students use the bathroom that the students identified themselves with.[2] If the public schools did not cooperate with the guidelines, former President Obama threatened to withhold federal funding to the school.[3] When President Trump rescinded the guidelines, it should be noted that they were on hold by a federal judge because states and public schools should be allowed to make their own decisions without federal government interference.[4]

The Trump administration claims that the reason behind rescinding the guidelines was because they “lacked extensive legal analysis and didn’t comport with the express language of Title IX, among other purported laws.”[5] Although these guidelines only apply to public schools, the Equal Employment Opportunity Commission (hereinafter “EEOC”) has assured the work force that it will not back down in its efforts to advance transgender equality in the work place.[6] Specifically, the EEOC has fought to establish that Title VII of the Civil Rights Act of 1964 against sex discrimination in the workplace extends to transgender status and sexual orientation.[7] Although the Department of Education is limited to Title IX, the EEOC is not and claims it extends to protect those in the work place as well.[8]

Although the EEOC does agree that Title VII does not specifically include the Lesbian, Gay, Bisexual, and Transgender Community (hereinafter “LGBT Community”), it argues that Title VII is extended to the LGBT Community through case law.[9] In Macy’s v. Dep’t of Justice[10], the court held that intentional discrimination against a transgender is discrimination based on sex and therefore, violates Title VII.[11] The Court reasoned that transgender discrimination is sex discrimination because of the non-conformance with gender norms and stereotypes under Price Waterhouse v. Hopkins[12] reading of the statute.[13]

The EEOC went even further to produce a “fact sheet” for transgender employees so that they know their rights in the work place.[14] The “fact sheet” first defines “transgender” as “people whose gender identity and/or expression is different from the sex assigned to them at birth . . . .”[15] The “fact sheet” then describes employees’ rights under Title VII and that Title VII applies to federal, state, and local government agencies as employers as well as private employers with fifteen or more employees.[16] Further, transgender employees should be able to feel comfortable in the workplace and their comfort levels should not interfere with their right to work in an anti-discrimination workplace.[17]

As this ongoing problem keeps circulating, the EEOC advises employers to keep the transgender bathroom arrangements as they are so that the employer does not face private lawsuits or accidentally violate the EEOC.[18] To possibly provide some answers to this debacle, both in education and in employment, the Supreme Court of the United States will hear oral arguments on March 28, 2017 from the Gavin Grimm case.[19] Grimm, a transgender student, sued Gloucester County, Virginia’s school board for not allowing him to use the boys’ restrooms, locker rooms, and other facilities.[20]

*Editor’s Note: Since this article was written, the Supreme Court has decided not to hear the Gavin Grimm case.

[1] Daniel Trotta, Trump Revokes Obama Gudidelines on Transgender Bathrooms, Reuters (Feb. 28, 2017, 10:24 AM), http://www.reuters.com/article/us-usa-trump-lgbt-idUSKBN161243.

[2] Id.

[3] Id.

[4] Id.

[5] Vin Gurrieri, Trump’s Trans Bathroom Access U-Turn May Not Slow EEOC, Law 360 (Feb. 23, 2017, 10:42 PM), https://www.law360.com/employment/articles/895066/trump-s-trans-bathroom-access-u-turn-may-not-slow-eeoc.

[6] Id.

[7] Id.

[8] Id.

[9] What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, U.S. Equal Emp. Opportunity Commission, https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm (last visited Feb. 28, 2017).

[10] Mia Macy, EEOC DOC 0120120821, 2012 WL 1435995 (Apr. 20, 2012)

 

[11] Id.

[12] Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989).

[13] Macy’s, 2012 WL 1435995 at *6.

[14] Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964, U.S. Equal Emp. Opportunity Commission, https://www.eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm (last visited Feb. 28, 2017).

[15] Id.

[16] Id.

[17] Id.

[18] Gurrieri, supra note 5.

[19] Id.

[20] Id.