Bass, Berry & Sims attorney David Thornton offers guidance on the recent Supreme Court decision in Obergefell v. Hodges, and how public and private sector employers are struggling with its legal and financial implications. As David explains, “‘[t]hey’re worried that if they keep the same-sex partner benefits, there’s a pretty good argument that opposite-sex

On June 18, 2014, we reported that President Obama would sign an Executive Order prohibiting federal contractors from discriminating against LGBT individuals on the basis of their sexual orientation or gender identity.  As promised, on July 21, Obama issued the Executive Order.  This presidential action amended existing Executive Order 11,246, which applies to federal contractors, by adding sexual orientation and gender identity to the list of classes protected from employment discrimination.  This move also amended existing Executive Order 11,478 by explicitly prohibiting gender identity discrimination by federal government agencies for the first time.  
Continue Reading UPDATE: President Obama Poised to Sign Executive Order Barring Discrimination Based on Sexual Orientation

On Tuesday April 8, 2014, what is now known as National Equal Pay Day, President Obama took two executive actions aimed at narrowing the wage gap between men and women.

Noting that women are the primary breadwinners in 40% of U.S. Households, while bringing home 23% less than their male counterparts, the President signed a Presidential Memorandum which instructs the Secretary of Labor to propose regulations, within 120 days of the Memorandum, requiring federal contractors to submit summary data on employee compensation paid to their employees, including data by sex and race, to the Department of Labor.   Those regulations would then require the Department of Labor to use that data in a way that would encourage an employers’ voluntary compliance with current equal pay laws, effectively focusing the Department’s efforts toward reducing discrepancies.
Continue Reading Executive Actions Aimed at Equal Pay for Women

Some recent court rulings have referred to the “cat’s paw theory” of liability for discrimination. Employers should be aware of these recent decisions because:

  • Employers can be held liable under this theory, even if there is no evidence that the ultimate decision-maker acted in a discriminatory manner;
  • Supervisors who wrongly influence a termination decision can be personally liable in a race case under Section 1981; and
  • This is a terminated employee’s answer to the employer-friendly “honest belief” rule.


Continue Reading Cat’s Paw Theory: What Is It? Why Should I Care?

A Tennessee federal judge recently ruled that a termination notice referring to an employee’s “long-term disability” was direct evidence of discrimination and retaliation.  The Court granted the employee judgment as a matter of law under the ADA.

The employee, Coffman, had been off work on an extended medical leave.  She had exhausted her FMLA leave and remained off work due to restrictions.  Coffman refused a job offer of a sedentary job.  Notes from Coffman’s physician indicated that the refusal was unreasonable, but the employer did not obtain those notes until after it had fired Coffman.  At the time, the Company accepted her refusal of the sedentary job and kept her on leave. 
Continue Reading Termination Notice Referring to Disability Considered Direct Evidence of Discrimination

Some employers use last chance agreements (“LCA”), particularly in union settings, to allow hourly employees “one last chance” to improve performance.  In return, the employee waives the right to use the union’s grievance and arbitration process if later termination is due to continued failure to improve performance or due to another policy violation.  Employers will explain that the employee otherwise would be terminated, but can remain employed in return for signing this “one last chance” agreement; if the employee fails to sign the LCA, the employee will be terminated for the underlying violation which led the employer to offer the LCA.

Some employers also require employees to release statutory civil rights in an LCA.  As an employer recently learned, this practice is hazardous and can lead to significant liability.


Continue Reading Last Chance Agreements – Asking for Waiver of Discrimination Claims Perilous

The EEOC recently ruled that Title VII’s prohibition of discrimination “because of . . . sex” now includes protection for any transgender individual. With this ruling, the EEOC expressly overturns earlier EEOC decisions to the contrary dating back to 1984, 1994 and 1996. Employers should be aware that, according to the EEOC’s current interpretation, any transgender applicant or employee enjoys all of Title VII’s protections against discrimination or harassment.

The complainant had applied for a job with the ATF while a male and believed she was going to be hired given certain promises made in the application process. Later, when the ATF learned she was transitioning from male to female, she was told that funding for the job was no longer available; that information, she later learned, was not accurate.


Continue Reading Transgender Status Now Protected Under Title VII

A Cautionary Reminder for Employers

A Texas Federal Court recently ruled that terminating an employee because she wanted to pump breast milk at work is not sex discrimination.  The Equal Employment Opportunity Commission sued on behalf of an individual employee who had mentioned her need to pump breast milk at work and soon thereafter was fired for job abandonment.  The employer claimed that the employee had not kept the employer informed during her leave or about her desire to return to work.  The employer explained that its decision to terminate the employee for job abandonment already had been made before the employee’s request.

The Washington Post reported on this ruling last week.
Continue Reading Texas Court Rules Against EEOC – “Lactation Discrimination” Is Not Unlawful Sex Discrimination But …