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EEOC Rules Sexual Orientation-Based Discrimination is Sex Discrimination Under Title VII

Last Thursday, the EEOC issued a groundbreaking decision that held, in clear and unequivocal language, that claims of discrimination based on sexual orientation implicitly state a claim of sex discrimination under Title VII. See Complainant v. Foxx, EEOC DOC 0120133080, 2015 WL 4397641, at *10 (July 16, 2015). This decision comes on the heels of the Supreme Court's landmark decision granting same-sex couples the right to marry under the Fourteenth Amendment. Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015).

Yazdian v. ConMed Endoscopic Tech., Inc., No. 14-3745 (6th Cir. July 14, 2015)

How much credence must a district court give to an employer's argument in a Title VII retaliation case that the employee was terminated not for his protected activity, but because of his tone of voice, insubordination and "unprofessional behavior" in making his complaints. The Sixth Circuit reverses summary judgment (in part), holding that such generalized reasons so closely related to a protected activity cannot be resolved by a judge and must be evaluated by a jury.

Confidentiality Agreements and the Aleynikov Case: A Cautionary Tale

Employees, particularly those with access to sensitive company information, are typically required by their employers to maintain the confidentiality of such information. This requirement may be found in the employee handbook or may be contained in a restrictive covenant agreement, employment agreement, or severance agreement. Violating a confidentiality obligation can have serious consequences, including hefty monetary damages in a civil lawsuit. For one Goldman Sachs employee, however, the consequences were even more severe: Sergey Aleynikov was criminally prosecuted--twice--for taking confidential material with him when he resigned his position. His controversial second conviction was overturned earlier this week.

Outten & Golden LLP Honors Former Partner Carmelyn Malalis in Her New Role as NYC Human Rights Commissioner

On a stormy summer evening, attorneys, former clients and members of the LGBTQ community joined Outten & Golden to celebrate Pride Month and honor former O&G partner Carmelyn P. Malalis in her new role as Chair of the New York City Commission on Human Rights. While guests nibbled at hors d'oeurves, partner and LGBTQ Committee co-chair Katherine Blostein took the podium. With her committee co-chair Sally Abrahamson, O&G associate, Blostein explained the significance of the weather with a short story from the previous evening with her family.

Pryor v. United Air Lines, Inc., No. 14-1442 (4th Cir. July 1, 2015); Stewart v. Rise, Inc., No. 13-3579 (8th Cir. June 30, 2015)

Two decisions this week address racially-hostile work environment claims involving unusual circumstances. The Fourth Circuit addresses the employer's duty to address anonymous race harassment, here a death threat left in a company mailbox. The Eighth Circuit addresses harassment of an African-American supervisor by her Somali staff. Both result in reversals of summary judgment on Title VII and § 1981 harassment claims.

Obergefell v. Hodges and Its Potential Impact on Employment Law

Last Friday, the United States Supreme Court forever changed the political landscape of this country in a 5-4 decision that the Fourteenth Amendment protects same sex-couples' right to marry. Obergefell v. Hodges, 576 U.S. ___, No. 14-556, slip op., *12 (2015). The decision came exactly two years after the Court held the Defense of Marriage Act, a federal law defining marriage as between one woman and one man, to be unconstitutional in United States v. Windsor, 133 S. Ct. 2675, 2696 (2013), and exactly twelve years after the Court held that a Texas statute criminalizing same-sex sexual conduct was unconstitutional in Lawrence v. Texas, 539 U.S. 558, 579 (2003).

EEOC to Investigate Denial of Gender-Appropriate Restrooms in Private Sector as Sex Discrimination under Title VII Post-Lusardi

EEOC to Investigate Denial of Gender-Appropriate Restrooms in Private Sector as Sex Discrimination under Title VII Post-Lusardi

Tolbert v. Smith, No. 14-1012 (2d Cir. June 24, 2015)

The Second Circuit holds that racially-biased comments by a decisionmaker - even if not specifically concerning the adverse employment decision - may be circumstantial evidence of a biased motive if it is related in some way to the employee's performance. The panel also holds that denial of tenure to a public school teacher is an adverse employment action, even if the teacher is invited to continue to working.

Reyazuddin v. Montgomery County, Maryland, No 14-1299 (4th Cir. June 15, 2015)

New technology, if applied thoughtlessly, can leave disabled employees behind. The Fourth Circuit today reverses summary judgment in a Rehabilitation Act case where a public employer allegedly "opened a new, consolidated call center using software that was inaccessible to blind employees."

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