Increasingly, employers are considering offering paid parental leave benefits due to pressures from a changing workforce (Millennials, state and local governments, and even, surprisingly, the current Administration). One policy option is to provide paid maternity leave for new mothers to recuperate from childbirth. Numerous discussions on the legality of maternity-only leave policies have led to the consensus that maternity leave linked to the mother’s recovery does not violate Title VII. See, e.g.,EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues (June 25, 2015). But do such policies raise the possibility of paid leave as a reasonable accommodation for a qualified individual with a disability under the Americans with Disabilities Act, as amended (ADA)?
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On June 7, 2017, Judges Traxler, Motz and Agee on the U.S. 4th Circuit Court of Appeals issued a decision which could make employees think twice before they report other individuals’ complaints of sexual harassment in the workplace. The facts of the case, Villa v. CavaMezze Grill, LLC, No. 15-2543, 2017 WL 2453254 (4th Cir. Jun. 7, 2017), are alleged as follows:
In October of 2013, Judy Bonilla, a former employee at Cava Mezze Grill in Merrifield, Va., told Patricia Villa, a low-level manager at Cava Mezze, that the restaurant’s General Manager had offered her a raise in exchange for sex. Villa then approached Rob Gresham, the restaurant chain’s Director of Operations, to report the conversation with Bonilla and convey her suspicions that the same quid pro quo offer had been made to another former employee. Gresham is close friends with the General Manager who was accused of sexual harassment. In investigating Villa’s report, Gresham interviewed Bonilla and the other individual Villa suspected had been offered a raise in exchange for sex. Sergio Valdiva, Area Manager, accompanied Gresham in the interview with Bonilla to serve as a translator. In their interviews with Gresham and Valdiva, both employees denied the allegations and denied having ever said anything to Villa. At the close of the investigation, Gresham fired Villa, telling her that he concluded that she fabricated the story.
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According to Revelation, the wild beast will seduce mankind to follow its evil ways and will cause everyone, small and great, wealthy and poor, free and servant, to have the Mark of the Beast imprinted on their right hand or on their foreheads. Revelation 13:11-18. According to the 4th Circuit, career coal miner Beverly Butcher Jr. had the right to opt out of a new biometric hand scanner policy implemented by Consol Energy, Inc. in light of his sincerely held religious belief that placing his hand in this scanner would mark him as a follower of the antichrist, to be tormented with fire and brimstone for all eternity. U.S. EEOC v. Consol Energy, Inc., No. 16-1230 (4th Cir. June 12, 2017).
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The regulations implementing Section 1557 of the Affordable Care Act (“ACA”) prohibit covered health insurance providers from discriminating against individuals based on gender identity (which is defined as sex discrimination) and require covered entities to treat individuals in accordance with their gender identity. 42 U.S.C. § 18116 & 45 C.F.R. § 92 et seq. Based on these requirements, covered health benefit plans cannot limit or exclude medical services related to gender dysphoria and gender transition. Employees and their covered dependents can directly sue employers and benefit plans to enforce the Section 1557 non-discrimination provisions.[1]
But what if Section 1557 does not apply to an employee’s health benefit plan? Can employees use association discrimination claims to require their employers’ health benefit plans to cover gender transition surgery and related medical treatments for the employees’ dependents?[2] In a recent case, the 8th Circuit Court of Appeals upheld the dismissal of an employee’s Title VII association discrimination claim since such claims are based on the employee’s own protected status.
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On May 16, 2017, the 4th Circuit issued an opinion in Waag v. Sotera Def. Solutions, Inc., 2017 U.S. App. LEXIS 8587, providing further guidance regarding an employer’s responsibilities to return an employee to work following FMLA leave.
Mr. Waag brought the action against his former employer, Sotera Defense Solutions, Inc., a federal defense contractor, alleging a violation of the Family Medical Leave Act by not restoring him to his position when he returned from a medical leave; by placing him in a job that was not equivalent to the one he held before the leave; and by terminating him from the new job because he took medical leave. The District Court for the Eastern District of Virginia granted summary judgment to the employer. The 4th Circuit affirmed.
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What does a case involving a city council’s refusal to go forward with an economic development loan have to do with employment law? Plenty! In Woods v. City of Greensboro, ___ F.3d ___, 2017 WL 174898 (4th Cir. May 5, 2017), a 4th Circuit panel relied heavily on employment law and again indicated that weighing facts has no place in a Rule 12(b)(6) determination.
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In the Eastern District of North Carolina, U.S. District Judge Terrance W. Boyle recently granted conditional class certification to call center employees in their FLSA dispute against BB&T. In that case, Sheffield v. BB&T et al. (case number 7:16-cv-00332) plaintiff and the conditionally certified class allege that BB&T failed to pay overtime.
Things have calmed down significantly since the crossover deadline on April 27, and there haven’t been a lot of status changes to the bills that survived. The Regulatory Reform Act (declaring franchisors NOT employers) is now law (S.L. 2017-10), but that’s the only significant change to the bills we’re following. Here’s the updated spreadsheet of legislation.
There likely won’t be another flurry of activity until the General Assembly starts to smell the end of the session looming sometime in June or July, but we will continue to update.
“Crossover” day is over, and so far roughly 39 employment-related bills are still in play at the General Assembly, as listed in this spreadsheet, updated April 27, 2017. We will continue to update throughout the remaining 3-plus months of this long session, but you can also check bill status by clicking on a bill’s number on the spreadsheet, or by running a search here. Please let us know if you have any questions, or if we’ve missed a bill that would be of interest to the section.
Does a pre-litigation, unsworn statement constitute “testimony” sufficient to invoke the sham affidavit rule when a party subsequently testifies in an inconsistent manner? Instead of addressing this important question, both the majority and dissent in Wilson v. Gaston County, No. 15-2522 (4th Cir. April 13, 2017) (unpublished), assume that prior written statements of the plaintiff can be considered “testimony” for purposes of invoking the sham affidavit rule. By failing to make this initial inquiry, the court used the sham affidavit rule to sweep away a party’s deposition testimony in favor of two written statements that were not given under oath.
The 4th Circuit first invoked the sham affidavit rule[1] when it stated “[a] genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the [party’s] testimony is correct.” Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (emphasis added). The use of the word “testimony” is not by accident and has a specific meaning: “evidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition.” Black’s Law Dictionary 1485 (7th ed. 1999). In fact, the 4th Circuit has specifically stated that statements not given under oath and not subject to cross-examination are not equivalent to deposition testimony, and as such, that applying the sham affidavit rule in such contexts is inappropriate. Shockley v. City of Newport News, 997 F.2d 18 (4th Cir. 1993); see also Leslie v. Grupo ICA, 198 F.3d 1152 (9th Cir. 1999). Heeding these principles, virtually all courts have required both versions of the facts to take the form of “testimony,” such as depositions versus affidavits[2], contradictions within sworn statements[3], testimony versus sworn EEOC charge[4], and affidavit versus verified document[5]. But see McDevitt & St. Co. v. Seaboard Sur. Co., 1995 U.S. App. LEXIS 15076 (4th Cir. June 19, 1995) (misquoting Barwick while invoking sham affidavit rule when an affidavit directly contradicted the language in letters between the parties); Williams v. Genex Servs., LLC, 809 F.3d 103 (4th Cir. 2015) (sham affidavit rule invoked when plaintiff’s testimony conflicted with her resume).
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