On October 8, 2019, the US Supreme Court heard oral arguments on three significant, employment-related discrimination cases involving what protections employers must afford, if any, under Title VII of the Civil Rights in 1964. Title VII prohibits discrimination in employment on the basis of a set of multiple factors, including sex. The question is whether the word “sex” in the Civil Rights Act of 1964 would also prohibit discrimination on the basis of sexual orientation and gender identity.

The Job Accommodation Network (JAN), an entity funded by the United States Department of Labor’s Office of Disability Employment Policy, has produced an online “Workplace Accommodation Toolkit” that many employers may find useful in determining reasonable accommodations for employees under the Americans with Disabilities Act (ADA). According to JAN, the Toolkit “provides guidance and resources for developing or updating accommodation policies and processes while leveraging the best-proven practices available to date.” The Toolkit can be accessed here.

On the topic of accommodations, employers should pay attention to a recent case decided in the US District Court for the District of Maryland. The case, EEOC v. M&T Bank, centered on the question of whether an employee coming back from an extended The Family and Medical Leave Act (FMLA) absence following the birth of her child was automatically entitled to an open position. The bank argued that the employee who was returning had to essentially compete with others for that position and be deemed to be the most qualified. District Judge Ellen Hollander disagreed, ruling that the employee coming back from an extended absence was entitled to job protection and should have been granted the open position, assuming that she was qualified to perform the essential functions of the job—even if she were deemed to be not the most qualified for that position.

A recent article by Michael Cohen, an employment attorney at DuaneMorris, is a must-read for employers. The article, entitled “Successful Harassment Prevention Programs in the #MeToo Era,” lists ten goals for harassment prevention training. Read it here.

Employers should be aware that a more expansive reading of the Maryland Fair Employment Practices Act went into effect on October 1st. Under the new version of the law, the term “employee” has been modified for all purposes to include “an individual working as an independent contractor for an employer.” Second, the Act now covers employers of all sizes, not just those with 15 or more employees. Third, the Act essentially eliminates the opportunity for an affirmative defense for those actions which are deemed to be workplace harassment committed by a supervisor or manager. Finally, the statute of limitations within which charges can be filed has been extended from six months to two years.

Questions about labor and employment law or other topics from this week’s Telebrief^®?

Contact Howard Kurman at hkurman@offitkurman.com or 410-209-6417.