“Misperception Discrimination”: What North Carolina Employers Need to Know

By Savannah Singletary

Assume that an employee is fired because her employer mistakenly believes she is of Middle Eastern descent. In fact, she is not. Should she be able to state a claim under Title VII? Courts are now divided about whether Title VII protects persons who are perceived to belong to a protected class, even if the employer is mistaken in that belief. While many jurisdictions allow misperception discrimination claims, others, like the Western District of North Carolina, do not.

Perceived Protected Traits in Title VII

Title VII purports to safeguard equality in seeking and retaining employment opportunities. Some courts conclude that to achieve that goal, an employer should face liability for discrimination based on a perception that an employee is a member of a protected class, although the employee is not actually in that class. However, unlike the ADA, which defines disability as being “perceived” to have an impairment, Title VII does not explicitly protect someone who is misperceived to be a member of a protected class. This apparent ambiguity has engendered disputes among jurisdictions.

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How to Make It Work While Working from Home

By Samantha E. Gordon

One word has been on everyone’s mind lately: Coronavirus. When will the stay-at-home orders be lifted? When can I go to the grocery store without worrying about whether I will find toilet paper? When can I go eat at my favorite restaurant again or will my favorite restaurant even be open after all of this is over?

These questions are on most Americans’ minds daily. The unknown of when this is all going to end is terrifying. There have been so many different occupations affected by this pandemic, lawyers included. Before Governor Cooper announced the statewide stay-at-home order in North Carolina, lawyers from the North Carolina State Bar and NCBA asked Governor Cooper to consider legal services “essential.” When the Order was issued on March 27, legal services were considered essential. Even so, many lawyers find themselves working at home. If you are not used to working from home, finding motivation and willpower to get work done can be challenging. There are plenty of distractions: dogs, children, outdoor projects, spring cleaning, Tiger King . . . the list goes on.

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A Message From the Chair

By Jenna Fruechtenicht Butler

As I look out the window from my home office, the waters on Masonboro Sound are soothingly calm. There is no hint of the worldwide pandemic raging around us, but then I think back to the email I received last Friday from the wife of a client I had last seen at the end of February. Her life has been turned upside down by her husband’s untimely passing from COVID-19. It’s a lot to digest, and as lawyers, we are dealing with our own situations as well as those of our clients.

Yesterday, I participated in a zoom call with NCBA President, LeAnn Nease Brown, NCBA Executive Director, Jason Hensley, and other bar leaders and section chairs. Our discussion centered on what the NCBA is and can be doing right now for you, its members. Toward that end, I encourage you to visit the NCBA website if you are in need of any COVID-19 resources or updates. The bar is doing an excellent job of staying on top of things, and there is a link that takes you to a lot of useful information.

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Exercise is an Essential Activity

By Lisa Arthur

YLD Division Director and avid runner

If you’re like me, you’re probably feeling a lot of things right now. Uncertainty is now the new normal, and lawyers are not the best with uncertainty. So how are you coping with the new normal?

Let me make a suggestion: exercise.

In the midst of a great respiratory pandemic, why not exercise your lungs? I don’t know if there is any science linking exercise to better chances at handling COVID-19, but I can tell you from personal experience that it has helped me to keep my sanity.

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U.S. International Education Response and Resilience Webinar Series

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The U.S. Commercial Service Global Education Team is offering the “U.S. International Education Response and Resilience Webinar Series” to address the COVID-19 health crisis affecting the U.S. international education industry.

The first webinar will be held the afternoon of April 15 at 3 p.m. EDT (2 p.m. CDT; 1 p.m. MDT; 12 p.m. PDT). Participation is free of charge. The topics addressed in this webinar include:

  • U.S. Education Industry Support for International Educators in Response to COVID-19 — Joann Ng Hartmann, Senior Director, IEM-ISS Services, NAFSA: Association of International Educators
  • Admissions Schedule and Requirement Changes — Mallik Sundharam, Associate Vice President, International Enrollment Management, Northeastern University and Eileen Tyson, Executive Director, TOEFL & GRE Global Client Relations, ETS
  • U.S. Commercial Service Virtual Programs — Gabriela Zelaya, Global Education Team Leader, U.S. Commercial Service, U.S. Department of Commerce
  • Small Business Administration Disaster Relief Program for U.S. Education Sector
  • Feedback Session

Register for the webinar here: https://emenuapps.ita.doc.gov/ePublic/event/editWebReg.do?SmartCode=0QHS

For questions, please contact Gabriela Zelaya at [email protected].

*Future topics will become available in the coming weeks. Additional topic suggestions are welcome.

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Message from the Chair of the NCBA Business Law Section

By Ben Baldwin

Dear Members of the Business Law Section:

Yesterday (Tuesday, April 7, 2020) the office of the North Carolina Secretary of State advised registered agents of entities organized in North Carolina as follows:

“By law, most Annual Reports and fees are due April 15 for corporations, LLCs, and other business entities. Like many other state agencies, we do not have the statutory authority to extend an Annual Report filing date or associate fees. However, any Annual Reports and fees due on April 15, 2020 will not be considered delinquent until after June 15 (emphasis added). (This applies to corporate and some partnership entities with a fiscal year ending Dec. 31, 2019, and all LLCs).”

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MacCord’s List: IP News & Notices From Art MacCord

By Art MacCord

Art MacCord is a patent attorney with 40 years of experience. He keeps an eye on the U.S. Patent and Trademark Office and the U.S. Copyright Office for new rules and practice tips of interest to intellectual property attorneys. Find his latest updates here:

NCBA IPL Section Blog News Blasts for April 7, 2020

Relief Available to Patent and Trademark Applicants, Patentees and Trademark Owners Affected by the Coronavirus Outbreak
https://www.uspto.gov/sites/default/files/documents/coronavirus_relief_ognotice_03162020.pdf
https://www.uspto.gov/coronavirus

Clarification of the Practice for Requiring Additional Information in Petitions Filed in Patent Applications and Patents Based on Unintentional Delay
https://www.govinfo.gov/content/pkg/FR-2020-03-02/pdf/2020-03715.pdf

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After-Acquired Evidence Could Limit State Employees’ Relief in Contested Cases

By Trey Ferguson 

Since the U.S. Supreme Court adopted the after-acquired evidence rule in McKennon v. Nashville Banner Publishing Co., employers have relied on this doctrine to limit former employees’ remedies in wrongful termination cases.

Suppose an employer terminates an employee because he is 60 years old. That discharge would clearly violate the federal Age Discrimination in Employment Act and many state fair employment practices laws. However, suppose the employer discovers six months after the termination that the 60-year-old employee embezzled $100,000 from the company. Embezzlement would be a legitimate reason for an employer to terminate an employee. Three years after the discovery of the embezzlement, the employee’s age discrimination case goes to trial. The employee argues that he is entitled to a full recovery because, after all, he was terminated because of his age. The employer argues that the employee is entitled to nothing because he is a criminal who deserved to be fired, even though the employer didn’t realize it at the time.

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Wednesday Wellness Sessions: Transforming the Way Attorneys Treat Themselves, Their Clients and the Law

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By Alicia Journey

In the face of a world-wide crisis and unprecedented uncertainty, panic and fear are the true pandemic. And as advisors we are asked to put our own problems on the back burner and focus on those of our clients. However, we must ask certain crucial questions before we become a casualty of an unforeseen warfare, that of the health and well-being of those in our profession.

As attorneys, are we allowed to feel as if we are on the front lines when a crisis hits, even though we are not on the ground as first responders? Are we given permission to feel the weight of the trauma that we see, hear and feel daily from our clients when tragedy strikes? Who gives us this permission? Our profession? Society? Ourselves?

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IRS Response to COVID-19: Installment Agreements, Offers in Compromise, and IRS Collection Actions

By John G. Hodnette

The novel coronavirus known as COVID-19 has changed the world as a global pandemic disrupts the day-to-day business operations of almost every country. The IRS has responded to ease the strain on taxpayers during this difficult time by modifying its procedures for collecting assessed federal tax liabilities.

First, those with existing IRS installment agreements have been granted a temporary pause on all payments from April 1 to July 15. Additionally, the IRS has made it clear it will not treat as a default nonpayment or similar events under any installment agreements during this period for any reason. Interest will continue to accrue on these balances. Although this pause also applies to direct debit agreements, the IRS will not automatically stop direct debit withdrawals from taxpayers’ bank accounts. Therefore, any taxpayer who has a direct debit installment agreement will need to request its bank to halt payments during this period. If the taxpayer has a traditional agreement (i.e., the installment payments are sent in by check or manually paid online every month), the only thing the taxpayer needs to do is stop payment during this period.

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