In this issue…

Three LGBT Cases Taken Up By The U.S. Supreme Court

Michigan Court of Appeals Rules in Favor of Employers in Medical Marihuana Act Case

EEOC Announces Covered Employers Will Be Required To Report 2017 And 2018 Salary Data By September 30, 2019

Court of Appeals Rules Sexual Assault Claim Brought Under Elliott-Larsen Does Not Arise Out Of Employment

Three LGBT Cases Taken Up By the U.S. Supreme Court
By: Terence P. Durkin

The United States Supreme Court has agreed to take up three cases to determine whether lesbian, gay, bisexual and transgender (LGBT) employees are protected by Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex, race, religion, and national origin.

Two of the three cases have been consolidated because they deal with sexual orientation where two employees were fired for being gay. In Zarda v Altitude Express, Inc., 883 F3d 100 (CA 2, 2018), the plaintiff alleged that he was fired after informing his client that he was gay. The court held that Title VII prohibited discrimination on the basis of sexual orientation because sexual orientation is a subset of sex discrimination. However, the 11th Circuit in Bostock v Clayton Cty. Bd. Of Comm’rs, 723 Fed. Appx. 964 (CA 11, 2018) held that the district court did not err in dismissing plaintiff’s complaint for sexual orientation discrimination under Title VII. The court relied on Blum v Gulf Oil Corp., 597 F2d 936 (CA 5, 1979) and Evans v. Ga. Reg’l Hosp., 850 F3d 1248 (CA 11, 2017) cert. denied, 138 S.Ct. 557, 199 L.Ed. 2d 446 (2017) which ruled that Title VII did not protect sexual orientation.

The third case involves a transgender employee who was fired for violating the employees’ dress code. In EEOC v R.G. & G.R. Harris Funeral Homes, Inc., 884 F3d 560 (CA 6, 2018), a transgender employee (born biologically male) was fired from her position as a funeral director after she informed her employer that she intended to transition from male to female and would represent herself and dress as a woman at work. The court held that transgender and transitioning individuals are protected from discrimination under Title VII on the basis of sex because the discrimination would not occur but for the individual’s sex.

With the U.S. Supreme Court taking up these three cases, it may expand protection to an individual’s sexual orientation and/or transgender status under Title VII of the Civil Rights Act which prohibits discrimination on the basis of sex. Should this occur, an individual’s sexual orientation and/or transgender status may not be taken into account when making employment decisions.

Michigan Court of Appeals Rules in Favor of Employers in Medical Marihuana Act Case
By: Zeth D. Hearld

On February 21, 2019, the Michigan Court of Appeals ruled in an unpublished case that the Michigan Medical Marihuana Act (“MMMA”) did not prevent an employer from rescinding a job offer after the prospective employee tested positive for marihuana. On April 23, 2019, the decision was changed from an unpublished opinion to a published opinion.

In Eplee v. City of Lansing, the job applicant was a qualifying patient with a valid medical marihuana card. During the application process for an at-will position with the City of Lansing, the applicant informed the City that she used medical marihuana prior to her drug screening. After the City received the positive drug test, it rescinded the offer of employment. The applicant filed a lawsuit alleging the job offer was rescinded because “she tested positive for THC in violation of” the MMMA. In other words, the applicant argued that but for her positive test, she would have been hired, and that the employer violated the MMMA by rescinding the job offer.

The Court of Appeals ruled that the MMMA does not provide a private cause of action nor does it protect the medical use of marihuana in all circumstances. Thus, the employer was not prohibited from rescinding the job offer after the applicant tested positive, despite the fact that she was a qualifying patient under the MMMA. Notably, the Court distinguished Eplee from the Court’s prior decision in Braska, which held that employees terminated for testing positive for medical marihuana still had the right to state unemployment benefits. The Court distinguished the cases because the applicant in Eplee did not have the right to at-will employment with the City.

Impact on Employers

Moving forward, employers should be aware that they will not be penalized for rescinding a job offer to an applicant for an at-will position for testing positive for medical marihuana, even if the prospective employee has a valid medical marihuana card. However, current employees that are terminated solely due to the use of medical marihuana will not be precluded from obtaining unemployment benefits. It remains unclear whether medical marihuana is a reasonable accommodation under the Michigan Persons with Disabilities Civil Rights Act, and whether an employer must accommodate an employee that uses medical marihuana outside of work.

Notably, under both the MMMA and the recent recreational marihuana bill, employers are not prohibited from disciplining employees for violations of any current or future work place drug policies, and are not prohibited from testing prospective or current employees for marihuana. That said, employers should still consult with counsel when drafting or implementing any workplace drug policies to ensure compliance with the MMMA, the recreational bill, and federal law.

EEOC Announces Covered Employers Will Be Required to Report 2017 and 2018 Salary Data by September 30, 2019
By: Zeth D. Hearld

On May 2, 2019, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that employers will be required to submit “Component 2” data for the calendar years of 2017 and 2018 no later than September 30, 2019. “Component 2” data refers to employee data related to compensation and employee hours, sorted by position (i.e. management, laborers, sales, technicians, etc.), and identifying employee race, national origin, and gender. Generally, employers with 100 or more employees will be required to report their Component 2 data.

The EEOC announcement was in response to an April 25, 2019 Order from the U.S. District Court of Columbia. Notably, the Order gave the EEOC the option to collection 2018 data, as well as 2017 or 2019 data by September 30, 2019. The EEOC made the decision to collect 2017 data and 2018 data at this time.

Impact on Employers

Employers with 100 or more employees should prepare to file their Component 2 data from 2017 and 2018 no later than September 30, 2019.

Moreover, the deadline for filing “Component 1” data remains May 31, 2019. Component 1 data refers to the race, ethnicity, and gender of employees, but excludes pay data. Component 1 data can be filed on the EEO-1 Portal on the EEOC website.

Court of Appeals Rules Sexual Assault Claim Brought Under Elliott-Larsen Does Not Arise Out of Employment
By: Karen B. Berkery

On March 14, 2019 the Michigan Court of Appeals reversed a trial court’s grant of summary disposition, dismissing the case and requiring plaintiffs’ claims of sexual assault and harassment had to go to arbitration pursuant to an arbitration agreement between the parties. Two female employees of the Michael Morse law firm sued Michael Morse and his firm alleging Morse had sexually assaulted them physically with unwanted touching and made unwelcome comments of a sexual nature.

The former employees had signed an agreement to arbitrate any claims they had arising out of their employment with the law firm. In a 2 to 1 published decision, the Court of Appeals held that despite the fact that the sexual assaults may not have happened but for the plaintiffs’ employment with the Morse firm, they concluded that claims of sexual assault cannot be related to their employment as a receptionist or paralegal and under no circumstances could sexual assault be a foreseeable consequence of employment in a law firm. The Court went on to rule that there is a strong public policy that no individual should be forced to arbitrate a claim of sexual assault.

The Court also held that the 6 month shortened statute of limitations contained in the employee handbook that said any claim or lawsuit relating to my employment must be filed within 6 months did not apply because the claims of assault are not related to the plaintiffs’ employment.

Judge O’Brien wrote in her dissent that the plaintiffs’ claims of sexual assault clearly fall within the definition of sexual harassment under ELCRA and that it is for the Legislature to address this policy matter.

It will be interesting to see if the Michigan Supreme Court upholds the ruling which could have wide impact on sexual harassment claims in Michigan well beyond the arbitration issue.

May Employment and Labor Kitch Report

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