News

June Issue: Title VII, Ageism and the Loss of 2 Legal Icons

In case you missed it, the June Tennessee Bar Journal covers a lot of territory in its columns. Edward Phillips and Brandon Morrow explain "Title VII in Transition," and Monica Franklin and Susie Stiles write "Ageism: It's Time for an Attitude Adjustment." Bill Haltom writes about his dear friends and Tennessee legal icons Frank Drowota and John Waters, who each died in April. Waters was president of the Tennessee Bar Association in 1983-1984, and Drowota served on the Tennessee Supreme Court for 25 years. Haltom shares personal stories about them both, which you will not want to miss.

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Lawsuit Challenges Requirement for Barbers to Have High School Diploma

A lawsuit has been filed on behalf of an aspiring barber from Memphis who is unable to get a barber’s license because of his lack of a high school degree, NewsChannel5 reports. The Beacon Center is suing the Tennessee Board of Cosmetology and Barbers Examiners to challenge the law, noting that cosmetology licenses can be obtained without a diploma but not a barber’s license. The law was passed by the state legislature in 2015.
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Timeline for Joint Employment Rule-Making Set

According to Corporate Counsel, National Labor Relations Board (NLRB) chairman John Ring indicated this week that he wants to move quickly to craft joint-employment standards. Ring promised a rule-making process would begin as early as this summer. He also announced the NLRB would initiate a “comprehensive internal ethics and recusal review” to ensure the agency has “appropriate policies and procedures” concerning ethical obligations and recusal requirements.

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A Wellness Tip from the Attorney Well-Being Committee

When working at your desk, try to incorporate break periods of 10 minutes every 50-60 minutes. Even just getting up and stretching or walking a short distance periodically will better enable you to maintain focus and positive energy.
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Workers’ Comp Blog Ranks High in Competition

The Official Court Blog of the Tennessee Court of Workers’ Compensation Claims was recently named one of the best of its kind in the country. WorkersCompensation.com used an independent judging panel to review entries from across the country on the quality and frequency of posts among other criteria. Out of more than 200 blogs considered, the court’s blog ranked number 17.

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SCOTUS Rules Workers Can’t Band Together Against Employer

The U.S. Supreme Court ruled today that workers may not band together to challenge violations of federal labor laws, NPR reports. Justice Neil Gorsuch opined for the majority that the 1925 Federal Arbitration Act trumps the National Labor Relations Act and that employees who sign employment agreements to arbitrate claims must do so on an individual basis. In the dissenting opinion, Justice Ruth Bader Ginsburg said that the 1925 arbitration law was passed well before federal labor laws, and warned that without Congressional action, there will be under enforcement of federal and state laws designed to protect workers.
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Several States to Issue Waivers on Work Requirements for Medicaid Recipients

As more states impose mandatory work requirements on their Medicaid programs, some have come under fire for policies that would protect many rural residents from the impact of the new rules, Business Insider reports. In Kentucky, Michigan and Ohio, the waiver proposals would exempt the counties with the highest unemployment rates, which critics argue skew towards white, GOP-leaning residents. Some health law experts say the waivers — already approved for Kentucky, pending for Ohio, and advancing in Michigan — may violate Title 6 of Civil Rights Act of 1964, which prohibits race-based discrimination in federal assistance programs. The waiver in Kentucky, the first state to approve the work requirements, will exempt eight counties where the percentage of white residents is over 90 percent. Tennessee's work requirement bill for TennCare recipients, HB1551/SB1728, was signed into law on May 3.

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Construction of Uranium Processing Facility Brings Hundreds of Jobs to East Tennessee

About 400 skilled craft employees and professional services personnel will join the state's largest construction project, Y-12 National Security Complex's Uranium Processing Facility, Knox News reports. The complex was built to enrich uranium for atomic weapons as part of the top-secret Manhattan Project during World War II, and it remains the nation’s primary site for processing and storing highly enriched uranium used in nuclear weapons. The Y-12 facility has been the subject of controversy, with several environmental organizations filing suit alleging several old buildings at Y-12 could collapse during a natural disaster. The $6.5 billion construction project will continue hiring to a peak of around 900 skilled craft employees and 1,000 professional services personnel.

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U.S. Department of Labor Cites Contractor, Staffing Agency Following Fatal Trench Collapse

OSHA has proposed penalties totaling $152,618 against a construction company and a staffing agency after a trench collapse killed a temporary employee installing sewer lines, according to a press release on the agency's website. Regulators issued willful and serious citations to All Power Construction Corp. for allowing employees to work in a trench without cave-in protection, failing to provide a safe means to enter and exit the trench, and not having a competent person inspect the trench to identify potential hazards. The temporary employer, Labor Finders of Tennessee, was cited for not ensuring that employees were trained on trenching and excavation hazards. The companies have 15 business days from receipt of their citations and proposed penalties to comply, request an informal conference with OSHA's area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

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Share Your Thoughts on Proposed Amendments to Tennessee Supreme Court Rule 6

The Supreme Court recently requested comment on proposed amendments to TSC Rule 6 that would require new attorneys to complete a Tennessee Law Course within one year of admission to the Tennessee bar. The Tennessee Bar Association has a working group on this issue and will be drafting comments in response to the court's Order for Comment. To ensure this comment best reflects members’ views and positions, the groups is looking for your feedback. Share your thoughts about the proposed amendments through this form by June 8.
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    Use of Sub-Subcontractors Makes it Hard to Fix Liability, Newspaper Reports

    In the booming city of Nashville, more construction workers have died in 2016 and 2017 than in any two-year stretch in the previous three decades, The Tennessean reports. Assigning liability in these and other accidents has also grown more difficult, as construction companies have moved to using more and more small “subs of subs” in the tight labor market. Many of those workers are sent onto scaffolding and roofs without safety equipment or training, The Tennessean says. Federal law places primary safety responsibility on the direct employer, so of the 16 fatalities reported in 2016 and 2017, only three resulted in the general contractor being held accountable.
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    Estate of Former Fox News CEO Seeks to Block Sexual Harassment Litigation

    The estate of Roger Ailes, former Chairman and CEO of Fox News, doesn't want to get dragged into ongoing sexual harassment litigation, The New York Daily News reports. On Tuesday, lawyers for Ailes' wife filed paperwork in Manhattan Supreme Court to prevent former Fox News anchor Andrea Tantaros pursuit of claims against his estate. A judge had ordered in March 2017 that Tantaros' allegations against Ailes and Fox News be handled in arbitration rather than court. The latest filing includes a request to stay arbitration. Ailes, who died on May 18, 2017, was involved in a number of sexual harassment lawsuits at the time of his death.
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    New Developments in Labor and Employment

    The Labor and Employment Forum will be held May 4 at the Tennessee Bar Center in Nashville. Topics include new developments at the U.S. Department of Labor's Wage and Hour Division, FLSA collective action basics, sexual harassment claims, case law updates, ethical considerations and more. 
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    Don’t Get Stumped By The 9-Month Bump

    A Discussion Of The Sixth Circuit’s Decision In Mosbey-Meachem V. Memphis Light

    Never go in against a pregnant labor and employment attorney when failing to consider a reasonable accommodation is on the line!

    -Vizzini (paraphrased), U.S. Court of Appeals for the Sixth Circuit (paraphrased)

    In its recent decision in Mosbey-Meachem v. Memphis Light, Gas & Water Division, 883 F.3d 595 (6th Cir. 2018), the Sixth Circuit Court of Appeals held that working from home was a reasonable accommodation for an employee on bedrest due to pregnancy complications. Distinguishing prior circuit precedent that in-person attendance is an essential function of most jobs, the case explains that in certain circumstances teleworking is a reasonable accommodation under the Americans with Disabilities Act (“ADA”). 

    Case Background

    The plaintiff, Andrea Mosbey-Meachem, was an in-house labor and employment attorney who had worked for Memphis Light for eight years. After several miscarriages, she became pregnant, but had surgery during her 23rd week of pregnancy after her doctors discovered a problem. Afterwards, her doctors placed her on bedrest for ten weeks. She requested that Memphis Light accommodate her disability by permitting her to work from bed remotely during this period.

    Mosbey-Meachem then worked remotely for the next three weeks without any issues. At that point, though, she received a letter from Memphis Light stating that it was denying her request because it had a policy against teleworking and physical presence was an essential function of her job. Thereafter, she received FMLA sick leave for four weeks and short-term disability for the remainder of the bedrest period. After the ten weeks, she returned to work until her baby was born.

    Mosbey-Meachem sued Memphis Light and included a claim that it had violated the ADA by failing to accommodate her disability. The case went to trial, and the jury found in favor of Mosbey-Meachem on her ADA claim and awarded her $92,000 in compensatory damages. The district court later granted Mosbey-Meachem’s request for equitable relief, awarding her $18,184.32 in back pay and the reinstatement of her leave benefits. Memphis Light appealed the district court’s denial of its renewed motion for judgment as a matter of law to the Sixth Circuit. 

    Takeaway No. 1: Merely Including a Duty in a Job Description Does Not Mean It Is an Essential Function

    Mosbey-Meachem’s job description included taking depositions, conducting pretrial conferences, trying cases in court, but she had never tried a case in court or deposed a witness during her eight years of employment. Because the job description did not match her actual duties, the Sixth Circuit found that a reasonably jury could conclude that she could perform the essential functions of her job remotely for ten weeks. 

    One key point for employers from this case is that the job duties listed in a job description do not control what is an essential function; rather, the job duties the employee actually performs control. Employers should routinely update job descriptions so that they accurately list the employee’s duties. In many cases, a job description should list such basic requirements as regular in-person attendance and the ability to work extended hours. For Mosbey-Meachem, though, working at the office was not an essential function, and teleworking was a reasonable accommodation.

    Takeaway No. 2: Never Say Never

    Prior to Mosbey-Meachem, the Sixth Circuit had held in two other recent cases that in-person attendance is an essential function of most jobs. See Equal Employment Opportunity Comm’n v. Ford Motor Co., 782 F.3d 753, 763-66 (6th Cir. 2015) (“regular on-site attendance” was an essential function of the buyer’s job; technologies such as “email, computers, telephone, and limited video conferencing” were “equally available when courts around the country uniformly held that on-site attendance is essential for interactive jobs”); Williams v. AT&T Mobility Services LLC, 847 F.3d 384, 392 (6th Cir. 2017) (“Regular attendance is especially likely to qualify as an essential job function after this court’s recent en bancholding that ‘[r]egular, in-person attendance is an essential function . . . of most jobs, especially the interactive ones.’”). 

    The Sixth Circuit in Mosbey-Meachem distinguished the facts before it from those in Ford and Williams. In Ford, a plaintiff had a history of poor performance and absenteeism, some of which stemmed from irritable bowel syndrome. Williams involved a plaintiff who answered calls at a call center and who sought to work remotely due to anxiety. By contrast, Ms. Mosbey-Meachem had “performed her duties remotely in the past without any attendance issues or decline in work product,” and her job was “not tied to her office desk.” Further, her requested accommodation was only for a limited time, whereas the plaintiffs in Ford and Williams had requested to telework “indefinitely and on an indeterminate schedule.” 

    The Sixth Circuit stressed it is a “highly fact specific” exercise to determine what constitutes an essential function, and that although it had previously found that physical presence was an essential function of “most jobs,” it “expressly did not preclude teleworking in all cases.” The Sixth Circuit therefore held “because the Ford and Williams cases leave open the possibility of teleworking as a reasonable accommodation, particularly for a finite period of time, a jury could have reasonably concluded from the evidence presented at trial that Mosbey-Meachem could perform all the essential functions of her job remotely for ten weeks.” 

    Takeaway 3: Always Engage in the Interactive Process

    Memphis Light had instituted a policy prohibiting attorneys from telecommuting under any circumstances. An employer, however, cannot simply cite its policy to bypass the interactive process. 

    At trial, evidence was presented that Memphis’s Light’s president had stated “nobody can telecommute,” that he had “said no already,” and that the company’s ADA Committee “understood its orders as ‘staying firm on the telecommuting mandate from [the president]’ that ‘nobody can telecommute . . . no matter what the circumstances.’” From that evidence, the Sixth Circuit found that the jury could reasonably conclude that Memphis Light “did not actually engage in an interactive process and that its proposed accommodation was not reasonable.” 

    An employer who receives a request from an employee for an accommodation due to a disability mustengage in the interactive process with that employee and should not immediately rule out a request because it violates company policy. It is particularly important to consider temporary deviations from policies to accommodate pregnancy complications or other short-term health issues.  

    Conclusion and Ultimate Takeaway: Always Be Nice to Pregnant Women – A Rule to Live and Employ By

    Perhaps the biggest takeaways from this case are mere common sense: employers should be kind and considerate to all of their employees, but it looks especially bad (to judge and jury, as well as potentially the media) when an employer refuses to accommodate a pregnant woman who has not only been placed on bedrest, but who had just undergone emergency surgery and had previously experienced several miscarriages. A more sympathetic plaintiff may not exist. 

    Finally, it should be obvious to all employers that they should not refuse to accommodate the disabilities of their in-house lawyers—particularly their in-house labor and employment lawyers—without very careful review. Had Memphis Light merely permitted Mosbey-Meachem to work from home for the full ten weeks (as she had done without incident for the first three weeks of her bedrest, and as she had previously done for two weeks after a neck surgery), it would have avoided the award of damages and the guilt of having, no doubt, made an already stressful situation for Mosbey-Meachem that much more stressful.


    Bradford Harvey is a member of Miller & Martin at its Chattanooga office. Brad received his J.D., Order of the Coif, from Vanderbilt University School of Law in 1995. He concentrates his practice in labor and employment law and class and collective action defense. Brad may be reached at 423-785-8210 or brad.harvey@millermartin.com.

    Megan Welton is an associate of Miller & Martin at its Chattanooga office. She focuses her area of practice on Labor & Employment law. Megan received her J.D. from University of Memphis Cecil C. Humphreys School of Law in 2015. She may be reached at 423-785-4326 or megan.welton@millermartin.com.

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    U.S. Supreme Court Rules Car Dealership Service Advisors are Exempt from Overtime-Pay Requirements

    On April 2, the U.S. Supreme Court, in a 5-4 decision delivered by Justice Thomas (in which Justices Roberts, Kennedy, Alito and Gorsuch joined), held in Encino Motorcars, LLC v. Navarro that car dealership service advisors are exempt from the overtime-pay requirements under the Fair Labor Standards Act (FLSA). [[i]], [[ii]]

    Encino Motorcars involves an exception to the FLSA (which requires employers to pay overtime to covered employees who work more than 40 hours in a week) involving employees at car dealerships.[[iii]] Congress initially exempted all employees at car dealerships from the overtime-pay requirement of the FLSA, but subsequently narrowed that exemption to cover “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trailers, trucks, farm implements, or aircraft.”[[iv]]  The exact wording of the exception provides:

    (10)(A) - any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks or farm implements, if he is employed by a non-manufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers. [[v]]

    The case was filed by current and former service advisors of Encino Motorcars, alleging they were owed backpay because their employer violated the FLSA by failing to pay them overtime.  Encino Motorcars moved to dismiss the case arguing that service advisors are exempt from the FLSA’s overtime-pay requirement under 29 U.S.C. § 213(b)(10)(A), which applies to “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements.” The district court agreed and dismissed the suit. However, on appeal, the Court of Appeals for the Ninth Circuit reversed. In its ruling, the Ninth Circuit found thesection of the FLSA at issue was ambiguous and the legislative history inconclusive; as a result, the court deferred to a 2011 Department of Labor rule that interpreted “salesman” to exclude service advisors.

    In this cases’ first appearance before the U.S. Supreme Court, the court vacated the Ninth Circuit’s judgment, holding courts could not defer to the procedurally defective 2011 rule. [[vi]]  However, the court did not decide whether the FLSA exemption covers service advisors.[[vii]] On remand, the Ninth Circuit again held the exemption does not include service advisors.

    In reaching its decision, the Ninth Circuit stated:

    (c) … invoked the distributive canon—matching “salesman” with “selling” and “partsman [and] mechanic” with “[servicing]”—to conclude that the exemption simply does not apply to “salesm[e]n ... primarily engaged in ... servicing automobiles. [[viii]

    The Supreme Court in its decision disagreed with the Ninth Circuit and stated:

    But the word “or,” which connects all of the exemption’s nouns and gerunds, is “almost always disjunctive.” United States v. Woods, 571 U.S. 31, 45, 134 S.Ct. 557, 187 L.Ed.2d 472.  Using “or” to join “selling” and “servicing” thus suggests that the exemption covers a salesman primarily engaged in either activity. [[ix]]

    In explaining its reasoning, the Supreme Court, in a discussion sure to give some readers a flashback to the chalkboard nightmares of diagramming sentences, stated:

    Statutory context supports this reading. First, the distributive canon has the most force when one-to-one matching is present, but here, the statute would require matching some of three nouns with one of two gerunds. Second, the distributive canon has the most force when an ordinary, disjunctive reading is linguistically impossible. But here, “salesman ... primarily engaged in ... servicing automobiles” is an apt description of a service advisor. Third, a narrow distributive phrasing is an unnatural fit here because the entire exemption bespeaks breadth, starting with “any” and using the disjunctive “or” three times. Pp. 1140 – 1142.

    For these reasons, the court found that the language should be read to include an “and” and, therefore, salesmen are included in the exemption.

    Encino Motors cars can be considered a “win” for all employers, and not just car dealerships. The broader interpretation of the FLSA which should stem from this case may result in fewer conditional certifications of FLSA class actions.  It will remain to be seen if this case is but one in a line of cases which will limit the broad interpretations put forward by the previous administration by way of administrative interpretations.


    John R. LaBar is a named member at Henry, McCord, Bean, Miller, Gabriel & LaBar, P.L.L.C. in its Tullahoma office, where he represents employers and management throughout the Southeast on labor and employment law related matters. He has served as an Adjunct Professor at the Univ. of Tennessee College of Law.  He received his J.D. from the University of Tennessee College of Law and an LL.M. from the University of Miami School of Law. He can be reached at jlabar@henry-mccord.com or (931) 455-9301.


    [[i]]         Encino Motorcars, LLC v. Navarro, 138 S.Ct. 1134 (2018).

    [[ii]]         Fair Labor Standards Act of 1938, as amended 29 U.S.C. 201, et. seq.

    [[iii]]        29 U.S.C. § 213. 

    [[iv]]        SeeFair Labor Standards Amendments of 1961, § 9, 75 Stat. 73.  

    [[v]]        29 U.S.C. § 213(b)(10)(A).

    [[vi]]        Encino Motorcars, LLC v. Navarro,136 S.Ct. 2117, 2125–2127 (Encino I).

    [[vii]]       Id.

    [[viii]]       Encino Motorcars, 138 S.Ct. at 1137.

    [[ix]]        Id.

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    NLRB’s Division of Advice Says Unlawful to Threaten Deportation to Graduate Assistants

    In a case where immigration law and labor law overlapped, the National Labor Relations Board’s (NLRB) Division of Advice issued an Advice Memorandum finding on one occasion that Washington University unlawfully threatened its graduate assistants who were involved in a union organizing campaign.

    The dispute began when SEIU, Local 1 (Union) began an organizing campaign among graduate students (graduate assistants) at Washington University, many of which were foreign students. During the campaign, the university sent an email to all graduate assistants. One of the university’s statements was:

    "Foreign students...I have been told that if a graduate student union is formed, and this union goes on strike...all foreign students will lose their visas and have to leave the country. In my opinion, this would be terrible for our students and our program."

    The next day, a union organizer stated unionization would not have any effect on the graduate assistant’s visa status and there was no possibility of them being deported. Due to the contradicting information, the graduate assistants requested another meeting with the university. At this meeting, the university stated that they did not know what would happen, but information provided by the Department of Homeland Security indicated that if the union were to strike, student-visa holders “could lose their status and be asked to leave the country.” 

    Later in the campaign, the university emailed a FAQ document addressing the foreign student visa issue. The university stated:

    Question: Could a strike potentially have an impact on my F-1 visa status? To obtain an answer, the university contacted an outside immigration attorney and ICE. The information provided to the University is set out below. 

    Answer: If graduate students are required as part of their academic program to “work” as graduate assistants teaching classes or conducting research, then continuing to serve in that capacity is required in order for the student to maintain a “full course of study” and thus to maintain their F-1 status.

    As 8 CFR §214.2(f)(14) states: Any employment authorization, whether or not part of an academic program, is automatically suspended upon certification by the Secretary of Labor … or the Commissioner of the Immigration and Naturalization Service …, that a strike or other labor dispute involving a work stoppage of workers is in progress in the occupation at the place of employment.

    Under such circumstances, F-1 visa students could be subject to deportation whether they continued to “work” or not. If students honored the strike and caused the suspension of their work status under 8 CFR §214.2(f)(14), they could be deemed out of status for having failed to maintain a “full course of study.”

    Based upon this evidence, the Division of Advice concluded “the Employer violated Section 8(a)(1) of the act by threatening that, in the event of a strike, “all foreign students will lose their visas and have to leave the country.” Furthermore, the advice memo stated: “While a strike could potentially lead to such consequences for at least some graduate student employees, the employer’s statement overstated the requirements of the applicable regulations and the potential effects of those regulations on the affected graduate student employees. In many strike situations, graduate student employees in fact would not lose their visas, given the time that it takes the Secretary of Labor to certify the strike after being notified by the relevant school officials. Moreover, even where the Secretary of Labor does certify a graduate student employee strike, and foreign graduate student employees do lose their student visas, individual graduate student employees may well have some basis other than their student status for lawfully remaining in the United States, despite the employer’s blanket statement that they all would ‘have to leave the country.’”

    However, the employer’s other statements were lawful, as they either set forth the exact language of the applicable federal regulations or accurately conveyed the possibility that a strike “could” lead to the loss of student visas.

    Issues involving graduate students organizing and its impact on international graduate assistants continue to swirl at other universities, including most recently at Penn State University.

    For answers to many other questions related to immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind.

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    Sixth Circuit Finds Title Vii Protects Transgender Or Transitioning Status

    On March 7, a three-judge panel of the 6th Circuit Court of Appeals unanimously determined Title VII protects transgender and transitioning employees. See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018). In this case, Aimee Stephens, a Michigan funeral director who formerly went by the name “William Stephens,” was fired after informing the funeral home owner of a “gender identity disorder”, plans to have sex reassignment surgery and to “live and work full-time as a woman.”  
     
    In addition to finding that Stephens was unlawfully fired due to her failure to conform to sex stereotypes in violation of Title VII, the 6th Circuit found Title VII also allowed Stephens to “pursue a claim that she was discriminated against on the basis of her transgender and transitioning status.” The court reasoned that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” It also noted “discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping,” because a transgender person is someone who is “inherently gender non-conforming.”
     
    The 6th Circuit also rejected the funeral home’s argument that its termination decision was protected by the federal Religious Freedom Restoration Act, which forbids the government from enforcing a religiously neutral law if that law substantially burdens an individual’s genuine religious exercise and is not the least restrictive way to promote a compelling governmental interest. In addition to noting that the funeral home “has virtually no religious characteristics,” the court concluded “the funeral home’s religious exercise would not be substantially burdened by continuing to employ Stephens without discriminating against her on the basis of sex stereotypes; the EEOC has established that it has a compelling interest in ensuring the funeral home complies with Title VII; and enforcement of Title VII is necessarily the least restrictive way to achieve that compelling interest.” Is it a defense to the funeral home that it was fearful that it would lose business if it employed a transgender funeral director? The answer is no.
     
    The 6th Circuit’s decision followed earlier decisions of the 2nd and 7th Circuit Court of Appeals. The 7th Circuit issued its decision in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. Apr. 2017). The Hively court determined Title VII of the Civil Rights Act of 1964 prevents employers from discriminating on the basis of sexual orientation.  
     
    Within the last few months, the 2nd Circuit additionally issued a similar groundbreaking decision. Specifically, on February 26, 2018, in Zarda v. Altitude Express, 855 F.3d 76 (2nd Cir. 2017), the court followed the 7th Circuit’s lead and concluded that Title VII’s prohibition of discrimination based on “sex” should be interpreted as forbidding discrimination on the basis of sexual orientation. In an en banc decision, the 2d Circuit concluded a skydiver could pursue claims that he was fired because he is gay.
     
    It’s very possible that the funeral home in EEOC v. R.G. & G.R. Harris Funeral Homes, will request an en banc reconsideration of the 6th Circuit panel’s ruling. If other 6th Circuit judges follow this panel’s lead, the 6th Circuit likely would follow the 2d and 7th Circuits in concluding that Title VII also bans discrimination on the basis of sexual orientation. Other courts, including the 11th Circuit in Evans v. Georgia Regional Hospital (11th Cir. Mar. 2017), have found that Title VII does not extend to sexual orientation. Because of these split decisions and the increasing national attention to these issues, it seems increasingly likely that the U.S. Supreme Court will consider these issues and offer more clear guidance on the breadth of Title VII.  

    H. Rowan Leathers III is a partner at Butler Snow in Nashville, Tennessee. Rowan is a graduate of Emory University School of Law. He may be reached at rowan.leathers@butlersnow.com or (615) 651-6718.
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    Letter from the Editor

    Here’s the latest newsletter from TBA’s Labor and Employment Section. I want to thank this issue's authors, all who have written multiple articles for this newsletter, for their wonderful articles: Rowan Leathers, John LaBar, Bradford Harvey and Megan Welton. If you have an article or an idea for an article, I invite you to e-mail me at bbuchanan@sblimmigration.com. I look forward to seeing many of you at the annual Labor and Employment Law forum on May 4.

    Bruce E. Buchanan is a partner at Sebelist Buchanan Law PLLC, where he primarily represents employers in all aspects of immigration law, with a special emphasis on employer immigration compliance
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    Tennessee’s ‘Fresh Start Act’ Signed into Law

    Last Friday, Gov. Bill Haslam signed Tennessee SB2465, relative to occupational licenses, into law. The bill, known as the "Fresh Start Act," creates a uniform process that all licensing authorities must follow and requires that denials and refusals to renew occupational and professional licenses based on a criminal conviction must only occur when the offense relates to the offender's ability to perform the occupation or profession. This bill Amends TCA Title 62, Chapter 76, Part 1 and Title 63, Chapter 1.

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    Protecting Your Company From a Social Media Mishap

    In today's social media climate the opportunity for mishaps are everywhere. Erin S. Hennessy, Annie Allison and Salsabil Ahmed of the Law.com discuss steps your company can take to avoid these embarrassing mishaps. Click here to read more.

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    Supreme Court Case to Determine Constitutionality of Administrative Law Judge Appointments

    The U.S. Supreme Court on April 23 will hear arguments in Lucia v. Securities and Exchange Commission (SEC), a case that could potentially have a big impact on administrative agencies, The National Law Review reports. In this case, the court will consider arguments – including those from the U.S. Solicitor General – that the way that the SEC’s administrative law judges (ALJs) are appointed violates the U.S. Constitution’s Appointments Clause
     
    SEC ALJs are hired through the government’s civil service process and are not treated as “inferior officers” who are appointed pursuant to the Appointments Clause. Lucia asks whether hiring ALJs this way violates the Appointments Clause, because they have all the hallmarks of an “inferior officer” under Supreme Court precedent, an argument that failed to convince the D.C. Circuit Court. There the SEC argued successfully that its ALJs were not “inferior officers” because they did not issue “final” decisions and did not exercise “significant authority” under federal law.
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    Teacher Fired for Out-of-Wedlock Pregnancy Files Lawsuit

    A Knox County private school teacher is suing the school that fired her when administrators discovered she was pregnant but unmarried, Knoxnews reports. The school’s attorney says that Concord Christian School had the right to fire Tabatha Hutson under a 2012 U.S. Supreme Court ruling that recognized a “ministerial exception” to employment discrimination laws. Hutson’s attorney claims that since Hutson, a Catholic, was hired at a Baptist school for her expertise in the curriculum and not because of a ministerial calling, the exception does not apply. 
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    Recent Ruling by Sixth Circuit Court of Appeals Gives Transgender Workers New Protection Under Title VII

    Employers are moving to adopt or strengthen policies to prevent bias against transgender people after the latest in a series of court rulings that have extended protections for an increasingly diverse workforce, The New York Times reports. A recent opinion by the Sixth Circuit Court of Appeals maintains that transgender people are protected by the civil rights law that bans workplace discrimination based on sex, rejecting the position taken by Attorney General Jeff Sessions in October 2017.
     
    The case was brought by the Equal Employment Opportunity Commission (E.E.O.C.) on behalf of a funeral director fired by a Michigan funeral home after informing the owner that she intended to transition from male to female and would dress as a woman while at work. Scott Rabe, an expert on employment law at the firm Seyfarth Shaw, said that the ruling was important because “it addresses two hot-button topics in employment law: the scope of the definition of ‘sex discrimination’ under Title VII and the impact of laws protecting the free exercise of religion in the workplace.”
     
    The funeral home maintained that it did not violate federal law by requiring the employee to comply with a sex-specific dress code. Additionally, the owner of the home, Thomas Rost, said that forcing him to employ the transgender worker would impose a substantial burden on his sincerely held religious beliefs, violating the Religious Freedom Restoration Act of 1993. In court papers, Rost said he wanted to run his business in keeping with his religious belief that “a person’s sex (whether male or female) is an immutable God-given gift and that people should not deny or attempt to change their sex.”
     
    In a memorandum to Justice Department lawyers, Sessions said that “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.” The court disagreed, saying that employees may not be discriminated against because they fail to conform to “stereotypical gender norms” — in this case, an employer’s notion of “how biologically male persons should dress, appear, behave and identify… Job discrimination based on a person’s transgender status violates Title VII of the Civil Rights Act of 1964” the court ruled. “Discrimination based on transgender status is a form of sex discrimination,” said the decision, written by Judge Karen Nelson Moore for a unanimous three-judge panel, because “an employer cannot discriminate against an employee for being transgender without considering that employee’s biological sex.”
     
    “The ruling is a big win for the Equal Employment Opportunity Commission and for transgender people,” said Rabe. “The court sent a strong message that the Religious Freedom Restoration Act has minimal impact on the E.E.O.C.’s authority to enforce the anti-discrimination laws under Title VII of the Civil Rights Act.” The court decision is binding in states covered by the Sixth Circuit: Kentucky, Michigan, Ohio and Tennessee, but its reasoning could certainly influence future decisions. The funeral home has not said whether it will appeal the ruling. You can read the court's opinion using this link.
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    Bill Could Define How Tennessee Addresses 'Gig Economy Workers'

    The House Consumer and Human Resources Committee advanced legislation that is drawing criticism from national workers' rights advocates reports The Nashville Post. HB 1978 proposes amendment to Tennessee Code Annotated, Title 50; Title 56 and Title 62, relative to employment relationships and has already passed the Senate and is likely to pass the House, given the Republican supermajority.
     
    This would further most gig workers, ‘marketplace contractors,’  as independent contractors and not benefit eligible employees. Currently, the distinction between a contractor and an employee hinges on the idea of control. Telling a worker when and how to perform a job, providing training or supplies, monitoring their activity and determining the rate of pay are all factors that would support a finding that the worker is an employee, freeing them from having to pay workers' compensation premiums and unemployment taxes or obeying state anti-discrimination and minimum wage laws.
     
    The bills have provoked a response from the National Domestic Workers Alliance, a national nonprofit advocacy group. Palak Shah, the organization's director of social innovations, recently went to Tennessee to caution lawmakers that the bill would permanently carve many workers out of rights to which they would be entitled as employees. "It's just such a sorry excuse for a business model to make vulnerable workers more vulnerable just so you can tell your investors that one day you might be solvent," Shah said. "This legislation basically ensures that domestic workers online will never have protection."
     
    House sponsor Rep. Pat Marsh (R-Shelbyville) said most people working for gig economy platforms are doing so part-time and aren't expecting and don't need the protections offered to standard full-time employees. "We already have people who go out and do yard work on their own," said Marsh. "If they get on a platform it gives them access to more customers." Others point out that these platforms take a cut from their workers, along with possible additional fees, while the individual has to cover their own costs like equipment, transportation, insurance and self-employment taxes.
     
    Critics have said they fear the laxer regulations will drive down wages, ultimately forcing them to subcontract to compete. Rep. Dwayne Thompson (D-Cordova) voiced similar concerns, comparing some platforms to Walmart's effect on businesses in a small town. Thompson was the only vote against the legislation. One of the other platforms with an interest in the legislation passing is Brentwood-based Takl, which counts Senate Commerce Committee Chairman Jack Johnson (R-Franklin) as an executive. Johnson co-sponsored the bill in the Senate.
     
    Gov. Bill Haslam's administration was opposed to the version that passed the Senate, but a state Department of Labor official told the House committee that the amended version has addressed some of their concerns. Haslam spokesperson Jennifer Donnals said the governor "is deferring to the will of the legislature on this bill as amended." The main Senate sponsor, Sen. Bo Watson (R-Hixson), has not seen the amended wording, said his aide Tres Whittum, but is fine in "principle" with the changes.
     
    The house will vote on these amendments today. You can track the progress of this legislation using this link.
     
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    10 Essential Documents for Your Practice

    Instructions and rules for client file retention, list of current curse and copy of bank’s form for IOLTA access are three of the top 10 documents attorneys need for succession planning and practice management. Learn more in this 3-hour dual credit workshop with attorney Timothy Takacs.

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