Nissenbaum Law Blog

Court Expands Scope of Title VII to Protect Transgendered People

Employment Law: Pursuant to Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to discriminate in its hiring, firing and/or other employment practices against an individual on the basis the individual’s “race, color, religion, sex, or national origin.”

In Schroer v. Billington, the plaintiff, who was a male at the time, interviewed with the Library of Congress and was offered an analyst position. After plaintiff revealed to the hiring manager that he was transitioning from male to female and would commence his employment with the Library of Congress as a female, the Library of Congress rescinded its offer of employment. Plaintiff sued the Library of Congress alleging sex discrimination pursuant to Title VII. In Shroer, the District Court for the District of Columbia found in the plaintiff’s favor, finding that he was unlawfully discriminated against on the basis of his transgendered status.

This reflects the first time that a federal court has expanded the scope of Title VII to cover protection for transgendered people.

The Court’s decision relied, in part, upon recent caselaw history indicating that employers who engage in sexual stereotyping commit unlawful sex discrimination. The Court cited the United States Supreme Court’s opinion in PriceWaterhouse v. Hopkins, in which the Supreme Court held that “a female senior manager was denied partnership in a large accounting firm in part because she was perceived to be too “macho” for a woman,” and suggested that her promotion opportunities would be enhanced if she acted more feminine. In Schroer, the United States District Court for the District of Columbia specifically deviated from prior caselaw on transgender discrimination and found in the plaintiff’s favor. In doing so, it held that the employer refused “to hire Diane Schroer because her appearance and background did not comport with the decisionmaker's sex stereotypes about how men and women should act and appear, and in response to Schroer's decision to transition, legally, culturally, and physically, from male to female, the Library of Congress violated Title VII's prohibition on sex discrimination.”

Comments/Questions: ljm@gdnlaw.com

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New York State Worker Adjustment and Retraining Notification Act

Employment Law: The New York Legislature recently passed the New York State Worker Adjustment and Retraining Notification Act (“NY WARN”), which will require certain employers to provide advance notice of mass lay off, relocation, or employment loss. The law is effective as of February 1, 2009. It is essentially the New York analog to the Federal WARN Act, 29 USC § 2102 et seq. (the Worker Adjustment and Retraining Notification Act).

NY WARN specifically requires qualified employers to provide written notification to employees under certain circumstances of mass terminations or office closings. The law applies to employers with fifty or more full-time employees. The law provides that unless specific exceptions apply, a company must give advance, statutory notice to affected employees, the New York Department of Labor, and any local workforce investment boards in the event that it engages in a triggering event.

In general, statutory notice is required where there is:

1. A mass layoff consisting of a reduction in the workforce that does not result from a plant closing, but results in an “employment loss,” as defined by the statute, at a single work site. To trigger the statutory requirements, the “employment loss” generally must consist of a loss to 33% or more full-time employees, or 25 employees, whichever is less, within a 30 day period. In the alternative, an “employment loss” could likewise trigger the notice requirements if 250 or more full-time employees are affected.
2. A relocation consisting of the complete or substantial removal of the employer’s commercial operations to a location that is 50 miles or more away from the existing location.
3. An employment loss consisting of an employment termination (excluding discharge for cause, resignations or retirement) or a mass layoff in excess of six months or a reduction in work hours of more than 50% during each month of any consecutive 6 month period.

NY WARN requires that qualified employers provide the requisite notice at least 90 days prior to the triggering event. Important to note is that the NY WARN provides added requirements on employers, as compared to the Federal counterpart. Although, NY WARN does incorporate aspects of the Federal law, its reach is broader. For instance, the Federal WARN Act only applies to employers with 100 or more employees; NY WARN, as stated above, applies to employers with 50 or more employees. In addition, the Federal WARN Act requires that the requisite notice be provided within 60 days prior to the triggering event, whereas the New York analog requires 90 days advance notice.

Notably, there is a potential claim that might help a terminated employee in a way that may have been unintended, based on what appears to be a flaw in the statute. The statute states that the notice is required in the event of “a mass layoff, relocation, or employment loss,” and then defines “employment loss” as including application to “an employment termination, other than a discharge for cause, voluntary departure, or retirement.” Arguably therefore, the statute could be deemed to apply to a single instance of employee termination without cause. However, it is doubtful that the statute was meant to apply in such a situation and that a Court would agree with that interpretation absent some imaginative arguments.

In accordance with the NY WARN, where the employer violates the statutory notice requirement, assuming that a statutorily proscribed exception does not exist, the employer is generally required to compensate each employee with back pay through the period of the violation, up to 60 days. The back pay is calculated as the higher of (a) the employee’s average regular rate of compensation over the past three years; or (b) the final regular rate of compensation paid to the employee. In addition, the employer is generally required to compensate the employee the value of any other benefits to which that employee would have been entitled. This may include medical expenses that would have been covered by the employee’s health insurance plan obtained through employment. The Act does provide certain facts that would reduce the total amount owed to each employee by the employer’s failure to comply with the Act.

This becomes even more pertinent in light of the number of office and full-business operations, shut-downs that businesses are currently experiencing. However, when dealing with these already difficult circumstances, employers need to be sure that they are not further exacerbating problems by failing to comply with the law’s edicts. Accordingly, New York employers should consult with counsel at the outset with regard to any major corporate strategy change, including closing an office or engaging in any significant termination or layoff plan.
Comments/Questions: ljm@gdnlaw.com

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