POSTED BY RICHARD D. TUSCHMAN ON AUGUST 22, 2012

Time magazine ran a story last week on a company called 23andMe that is seeking FDA approval for a panel of genetic tests that will cost consumers only $299. According to 23andMe's website, all that's required to complete the tests is for the consumer to order a kit, spit in a test tube, and mail the test tube back to the company.  Two to three weeks later, the consumer gets the results, which include an assessment of inherited traits, genealogy and possible congenital risk factors for certain diseases.  The company appears to be for real –Google, Genentech, and other major players are among its investors. 

So what will happen in the workplace when genetic testing becomes commonplace? Title II of the Genetic Information Nondiscrimination Act (GINA) restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information.  Presumably, the vast majority of employers will attempt to comply with Title II of GINA.   

But GINA does not prevent employees from freely sharing their genetic information with co-workers and supervisors.  Suppose a perfectly healthy employee discloses to her supervisor that she has a genetic mutation that makes it likely she will contract Parkinson's Disease.  That employee is now in a "protected class"; GINA prohibits discrimination against the employee based on her genetic information.  Suppose the supervisor takes an adverse employment action against the employee after the employee's disclosure.  The question can be raised, was the decision taken for legitimate, nondiscriminatory reasons, or was the supervisor concerned about the employee's contracting Parkinson's and becoming disabled?  In much the same way that employment actions taken after complaints of discrimination are now subject to scrutiny under Title VII, employment actions taken after an employee's voluntary disclosure of genetic information will be subject to scrutiny under GINA.  And because of that, it can be expected that some employees will voluntarily disclose their genetic information in an attempt to protect their jobs.  If that happens, GINA may be very popular indeed.

POSTED BY ARLENE KLINE ON AUGUST 16, 2012

Arlene Kline recently spoke on the Age Discrimination in Employment Act ("ADEA") at the American Conference Institute's 3rd Annual Forum on Defending and Managing Employment Discrimination Litigation in New York City.  The most common question asked of her was what application the U.S. Supreme Court's Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) has had on litigating age discrimination cases.  

Gross provides a clear distinction between ADEA and Title VII cases.  For age discrimination cases, a plaintiff must now prove "but for" causation.  Age must be the reason for the adverse employment action (termination, refusal to hire, etc.).  It is no longer enough to show that age is a "motivating factor."  Gross renders inapplicable the mixed-motives analysis under Title VII.  As such, a plaintiff must prove through either direct or circumstantial evidence that "but for" the Plaintiff’s age, discrimination would not have occurred. The McDonnell Douglas burden shifting framework still applies in our 11th Circuit and courts have continued to utilize same.  Additionally, cases brought under the Florida Civil Rights Act for age discrimination apply the same standard as under the ADEA.

POSTED BY SCOTT T. SILVERMAN ON AUGUST 10, 2012

POSTED BY SCOTT T. SILVERMAN ON AUGUST 10, 2012

On July 27, 2012, Judge Boasberg of the U.S. District Court for the District of Columbia denied the National Labor Relations Board’s ("Board") motion to reconsider his holding that that the Board's expedited representation election rule was invalid due to lack of a statutorily-mandated quorum when the Board approved the rule in December 2011.  In his earlier decision,  Judge Boasberg had agreed that the agency did not have the authority to adopt the election rule, as only two members actually cast votes in the rule's favor. Member Brian Hayes had voted against an earlier version of the rule, but declined to participate in the December vote.  Thus, according to the D.C. Court, only two members participated in the vote, which was not a quorum.

In its effort to persuade the  D.C. Court to revisit its decision, the Board presented new evidence to support its position that Member Hayes was present in the electronic voting room the day of the election rule vote, and in fact cast his vote on other matters.  Judge Boasberg held, however, that this information was "offered too little too late." In denying the NLRB's motion, Judge Boasberg emphasized that "the Board has neither adequately explained why it could not have presented this evidence at the summary-judgment stage nor established that the Court’s contrary finding was 'clear error.'" In conclusion, Judge Boasberg found no "manifest injustice" in denying the motion for reconsideration and upholding his earlier decision.

The Board already suspended the election rule's implementation, so the rule will continue to not apply to pending election proceedings. It is expected that the Board will appeal the decision, and the matter will ultimately be resolved by appellate courts.

POSTED BY SCOTT T. SILVERMAN ON AUGUST 9, 2012

On July 30, 2012,  in Banner Health System d/b/a Banner Estrella Medical Center and James Navarro, Case No. 28-CA-023438 (2012), the Board held that it was unlawful to maintain a blanket policy forbidding employees who make a workplace complaint from discussing the matter with co-workers during the employer’s investigation. In Banner, the employee made an internal complaint regarding a direction that he received to alter his normal duties when his equipment malfunctioned. The employee refused to follow his supervisor’s instructions, on the basis of health and safety concerns, and thereafter received a “coaching” for insubordination.

In connection with the "coaching," the employee met with the employer’s human relations consultant. During the interview, the employee was requested to not discuss the matter with co-workers while the investigation was ongoing. The Board noted that the representative used an "Interview of Complainant Form” that contained the confidentiality instruction for all interviews. 

In a 2-1 decision, the Board held that a “blanket” rule of providing confidentiality directives in connection with internal complaint interviews violates employees’ rights to engage in protected concerted activity under Section 7 of the NLRA. The Board determined that the employer’s “generalized concern with protecting the integrity of its investigation” was too broad to satisfy a legitimate business interest that would outweigh employees’ Section 7 rights. The Board rejected the argument that the consultant's request was a “mere suggestion” to not  discuss the internal investigation, because it “had a reasonable tendency to coerce employees,” and a rule need not contain a direct or specific threat of discipline to be found a violation of the NLRA.  

An employer's policy must be more narrowly tailored to prohibit employee discussion about an ongoing investigation.  An employer may do so only if it has a specific legitimate business justification for confidentiality tied to the individual investigation. This must be determined on a case-by-case basis, which might include, but is not limited to: witness protection; evidence is in danger of being destroyed, testimony is in danger of being fabricated, or a cover-up needs to be prevented.

In light of the Board's decision, employers should review their internal complaint procedures to ensure confidentiality directives are provided only as necessary on a specific, individual basis.  In a broader context, however, this is the latest example of the Board's invalidation of non-union employer policies under Section 7 of the NLRA, including social media, "at-will" employment disclaimers and arbitration. The Board has even launched a webpage advising employees of their Section 7 rights.   Employers can therefore expect to see a rise in unfair labor practice charges and are advised to examine all of their current procedures to assure compliance with the NLRA.

POSTED BY RICHARD D. TUSCHMAN ON AUGUST 6, 2012

Florida’s Third District Court of Appeal is the latest appellate court in Florida to rule that the Florida Civil Rights Act (“FCRA”) does not prohibit pregnancy discrimination.  

In Delva v. The Continental Group, Inc., the court ruled that the plaintiff’s claim of pregnancy discrimination under the FCRA failed to state a cause of action.  The court agreed with the First District Court of Appeal’s decision in O’Loughlin v. Pinchback, 579 So.2d 788, 790 (Fla. 1st DCA 1991), opining that O’Loughlin was “by far [a] better reasoned decision” than Carsillo v. City of Lake Worth, 995 So.2d 1118, 1119 (Fla. 4th DCA 2008), rev. denied, 20 So.3d 348 (Fla. 2009).  In Carsillo, the Fourth DCA held that the FCRA prohibits pregnancy discrimination.

We explained the reasoning behind O’Loughlin and similar cases on this blog in March of this year after a federal court held that the FCRA does not prohibit pregnancy discrimination.  The gist of these rulings is that the FCRA was patterned after Title VII, which, although it always prohibited sex discrimination, was not interpreted to prohibit pregnancy discrimination until it was amended by the Pregnancy Discrimination Act in 1978.  The FCRA was never amended to prohibit pregnancy discrimination.  Therefore, according to the O’Loughlin rationale, courts must apply the original, pre-PDA meaning of sex discrimination under the FCRA, which does not include pregnancy discrimination.

To be clear, pregnant employees in Florida still enjoy the protections of the PDA.  But the issue of whether the FCRA prohibits pregnancy discrimination continues to surface for at least two reasons.  First, many plaintiff’s lawyers prefer to litigate discrimination claims in state court under the FCRA rather than in federal court under Title VII.  In addition, regardless of the court in which a pregnancy discrimination claim is litigated, the FCRA offers an advantage to plaintiffs because it does not cap compensatory damages, whereas Title VII has caps that vary based on the size of the employer.  

The issue may soon be resolved definitively, however.  In Delva, the Third DCA certified a conflict with Carsillo, which means that the Florida Supreme Court may decide the issue once and for all – or at least until the Florida legislature amends the FCRA.