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June 2015 Archives

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 Lawarence 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 decision maker - 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.

Wooten v. McDonald Transit Assoc, Inc., No. 13-11035 (5th Cir. June 10, 2015)

The Fifth Circuit reverses its beginning-of-the-year, 2-1 decision in Wooten, now holding (3-0) that the plaintiff's complaint - while "admittedly light on factual details" - was sufficient under Federal Rule of Civil Procedure 8 to state a claim of discrimination and retaliation under the ADEA. Thus, the complaint was sufficient to support entry of default judgment against a non-appearing employer.

NYC City Council Gives All New Yorkers a Fair Chance at Employment

On June 10th, the New York City Council voted with near unanimity to break down a barrier faced by job seekers with criminal histories by passing the Fair Chance Act. At its core, this legislation prevents a person's criminal record from acting as an arbitrary ban to employment by forbidding employers from discussing criminal convictions during the application and interview process.

Mohamed v. Uber Technologies, No. C-14-5200 (N.D. Cal. June 9, 2015)

A federal district court judge in San Francisco issues a blockbuster opinion holding Uber's arbitration policy with its drivers unenforceable under California law. The court holds that the policy - imposed by way of a cell-phone clickbox screen - created a one-sided forum for resolution of legal disputes.

NYSBA event recap: Outten & Golden Partner Wendi Lazar presents workshop on "sweat equity" in start-ups

On behalf of the New York State Bar Association, Wendi Lazar, Partner and co-chair of the Outten & Golden Executives and Professionals Practice Group, presented a discussion panel at Manhattan's CUNY Graduate Center on 34th Street as part of a 4-hour MCLE workshop titled "'Sweat Equity' in Start-Ups and Early-Stage Businesses: Legal, Tax and Employment Issues for Founders, Key Executives and Independent Contractors." In her lecture, Lazar focused primarily on company founders' obligations to There employees, recruiting talent, wage and hour concerns (wages vs. equity), misclassifying employees as independent contractors, and preparing for a sale (workplace issues, avoiding tax problems, potential litigation, and the value of the business).

EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86 (U.S. S. Ct. June 1, 2015)

The epic EEOC challenge to Abercrombie & Fitch's "Look Policy" for its retail stores turns another page, as the Supreme Court holds 8-1 that the Tenth Circuit erred in granting judgment as a matter of law to the employer on the agency's religious discrimination case. Seven justices, in an opinion signed by Justice Scalia, hold that There is no "knowledge" requirement for Title VII discrimination claims. Thus, the company's argument that it did not "know" about the applicant's Muslim religious faith - even though she was wearing a headscarf - did not avoid liability. Justice Alito concurs only in the judgment; Justice Thomas dissents.

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