House Republican leaders were forced to withdraw the proposed American Health Care Act after failing to gather a single Democratic vote and lacking support from the conservative GOP Freedom Caucus.  Although talk persists, there appears to be little likelihood of any immediate efforts to reintroduce the ObamaCare alternative.  ObamaCare thus currently remains the law, although there may be a few incremental changes. 

President Trump issued an executive order in January urging agency heads to make regulatory adjustments to ObamaCare to the extent possible under the existing law.  In late March, 43 Senate Democrats and Sen. Bernie Sanders signed a letter to the White House saying that before they would even consider a bipartisan effort, the President must rescind his January executive order.  Some flexibility is built into ObamaCare, as much of its implementation was delegated to the agencies.  Potential modifications include a delay in imposing penalties, more hardship exemptions, and possibly even changing the rules redefining essential health benefits that must be covered.  In the past there has been significant bipartisan support to postpone or eliminate the so-called "Cadillac tax" on expensive employer plans, while it generally defined as employer-sponsored health plans exceeding $10,200 for individuals and $27,500 for family coverage.  This excise tax is scheduled to take effect in January 2020.  An incremental change was proposed by the two Tennessee Republican Senators, in late March, which would modify the ObamaCare requirement that tax credits be used only for plans sold on healthcare exchanges, as an increasing number of areas have few or no insurers willing to sell through the current healthcare exchanges.  Meanwhile, those employers with 50 or more full-time employees or their equivalent must continue complying with ObamaCare’s wide ranging mandates.

A couple of recent federal rulings have given encouragement to employers facing overbroad and often unreasonable federal agency subpoena demands for a broad array of employment information.  In a recent federal appeals court ruling, the court affirmed a district court judge’s ruling that the EEOC was not entitled to enforce its subpoena requesting information.  EEOC v. TriCore Reference Labs, 129 FEP Cases 1741 (C.A. 10, 2/27/17).  The law provides that when investigating charges of discrimination, the EEOC may obtain evidence that "relates to unlawful employment practices covered by Title VII and is relevant to the charge under investigation."  In the course of the case, the employee claimed alleged violations of the Pregnancy Discrimination Act, and the Americans’ with Disabilities Act, for failing to accommodate the claimant’s work schedule and responsibilities.  The charging party claimed both disability and pregnancy discrimination in denying her request for accommodation.  The EEOC informed the employer in a letter that it was expanding the scope of its investigation to include the "failure to accommodate persons with disabilities and/or failure to accommodate women with disabilities due to pregnancy."  It sought from the employer a complete list of employees who requested an accommodation for disability and a complete list of employees who had been pregnant and whether they sought or were granted any accommodations, for a four-year time frame.  The employer petitioned the EEOC to revoke the subpoena arguing it was unduly burdensome and a "fishing expedition."

The lower court judge denied the EEOC’s subpoena application finding that the EEOC’s real intent in requesting the information was difficult to pin down.  On appeal, the EEOC argued two purposes: (1) to determine whether the employer had a pattern or practice of violating the ADA; and (2) to determine whether the employer treated the claimant less favorably than other comparable employees.  The EEOC said these purposes correlated to the two subpoena requests - with the disability request relating to the pattern-or-pattern rationale and the pregnancy request relating to the comparator-evidence rationale. 

The appeals court found that the lower court did not abuse its discretion in denying the broad subpoena request.  Among other things, the court cited an earlier precedent that the EEOC was entitled only to evidence "relevant to the charges under investigation," rejecting a notion that an individual charge of discrimination could be part of a pattern or practice discrimination charge and stating that such a rationale would stretch the relevance requirement so broadly as to render it a nullity.  As to the argument pertaining to seeking information for comparative analysis, the court found the EEOC’s paltry explanation of how the pregnancy request was relevant before the district court lacking. 

In another related development, an administrative law judge at the Department of Labor ruled in March that Google does not have to give the OFCCP pay information dating back to the company’s formation and the names and contract information for some 20,000 workers at its California headquarters requested as part of a random government audit.  Of particular interest is the fact that Google apparently had only a  $600,000 federal contract, and the company estimated that compiling the requested information would cost several million dollars.  The judge denied the request for summary judgment in the DOL lawsuit seeking to force Google to turn over the information, saying the DOL request - which included job and salary histories among 38 categories of data - was not reasonable.  Later, the judge granted Google’s request for a protective order on the salary data.  OFCCP v. Google, Inc., Dep’t of Labor A.L.J., No. 217-OFC-0004.

Also in April, the U.S. Supreme Court made a ruling in a subpoena enforcement case as to what standard an appeals court should use in reviewing lower court decisions to enforce or quash an EEOC subpoena.  In addressing the issue, the Supreme Court mentioned that if the charge is proper and the material requested is relevant, the court should enforce the subpoena unless the employer establishes that the subpoena is "too indefinite," has been issued for an "illegitimate purpose" or is unduly burdensome.  McLane Co. v. EEOC, 129 FEP Cases 1825 (U.S., 4/3/17).

Editor’s Note - It is common for employers to receive broad information request demands from plaintiffs in lawsuits as well as governmental agency investigations.  These current rulings provide encouragement for employers to resist overbroad and unreasonable information demands.

On March 6, 2017, Congress gave final approval to legislation invalidating President Obama’s Fair Pay and Safe Workplaces Executive Order, and various implementing rules.  This order has been commonly called the "blacklisting" order, as it would require federal contractors to report recent violations of labor and employment laws when bidding on new or renewed federal contracts.  It also would have required certain federal contractors to provide reports to employees on hours, paycheck deductions, and 1099 status.  In October, a federal judge in Texas had issued a temporary injunction preventing most of the Executive Order from ever being implemented.  Many employers have objected to the Executive Order on the grounds that it called for companies to report mere allegations that had not been fully adjudicated and as also being unnecessary and inconsistent with existing federal procurement procedures. 

This is only the second time that Congress has ever passed legislation under the Congressional Review Act invalidating federal regulations and/or executive orders.  There is great significance to such Congressional action since the Congressional Review Act provides that passage of such a law prevents any "substantially similar" rule from being issued in the future, unless Congress grants specific approval.

Employers are well familiar with the concept that they may be sued for negligence for maintaining the employment of a sexual or other type harasser, particularly where another employee is adversely affected.  One case involves a recent Seventh U.S. Circuit Court of Appeals ruling in the Home Depot case, in which a supervisor murdered an employee while they attended a wedding hundreds of miles away from their worksite.  The mother of the deceased employee sued Home Depot alleging it knew of the supervisor’s history of verbal abuse and should have terminated him long before.  This case raises issues pertaining to supervisors using their authority to harm co-workers far away from work. 

A recent lawsuit in Florida attempts to expand this concept , the employer of the gunman that engaged in the  shooting rampage at a nightclub in Orlando, FL (Clon v. G.4S PLC, S.D. Fla. No. 2: 17-cv-14100, complaint filed 3/22/17.  The lawsuit claims that the gunman told coworkers at his employment site that he associated with terrorists and /or would have a terrorist organization engage in violent acts, so that the employer should have moved to revoke the employee’s security guards’ firearm license and taken other steps.  This development presents another concern to employers receiving information alleging violent tendencies on the part of one or more of its employees.  

Mixed signals are developing from several regulatory and judicial pronouncements on transgender and other LGBT issues.  On January 31, 2017, President Trump indicated that he intended to maintain an Obama-era Executive Order signed to protect gay, lesbian, bi-sexual and transgender federal workers and contractors from workplace discrimination.  Later, however, the Justice and Education Departments on February 22, 2017 withdrew Obama Administration guidance that said public schools must allow transgender students to use the bathrooms and locker rooms consistent with their gender identities.  Attorney General Jeff Sessions said in a statement that the prior guidance did not "contain sufficient legal analysis" to the interpretation under Title IX of the Education Amendments of 1972.  During this same time frame, a case was pending before the U.S. Supreme Court dealing with whether a Virginia school board was required to let a transgender boy use the boys’ bathroom.  After the Trump Administration withdrew the guidance on which the lower court ruling was based, the Supreme Court directed the lower court to confront directly the unresolved issue of whether and how the 1972 federal law prohibiting sex discrimination in education applies to transgender individuals. 

Thus, the current status of the federal regulations is that while there is no certainty how the 1972 education amendments will be interpreted as to bathroom access for transgender students, the rules of the Office of Federal Contract Compliance Programs (OFCCP), as supplemented by an Obama Administration executive order, consider sexual orientation and transgender status discrimination to be prohibited.  The OFCCP’s anti-discrimination rules apply to only those institutions that have federal contracts of $10,000 or more.

Meanwhile, the Equal Employment Opportunity Commission (EEOC) continues to prosecute a number of Title VII lawsuits on behalf of transgender workers.  As recently as February 10, 2017, the EEOC filed a brief reaffirming the EEOC’s view that Title VII's sex bias ban applies to discrimination based on transgender status.  It remains to be seen whether a new Trump-nominated EEOC General Counsel and/or new appointments to the EEOC by the new Administration will affect the EEOC position.

The courts are likewise struggling with the issue of the LGBT rights, including transgender issues.  On March 10, 2017, the Eleventh Circuit Court of Appeals in Atlanta ruled that federal civil rights law does not prohibit employment discrimination against gay and lesbian workers.  Evans v. Georgia Regional Hospital, No. 15, 15234 (3/10/17).  Other federal appeals courts currently also are considering whether Title VII's ban on sex bias prohibits discrimination against lesbian and gay workers.  On April 5, the Seventh Circuit Court of Appeals became the first federal appeals court to rule that Title VII prohibits bias based on sexual orientation.  Hively v. Ivey Tech. Community College of Indiana, No. 15-1720 (4/4/17).  Further, the courts consistently enforce a 1989 U.S. Supreme Court decision that bias based on gender stereotyping can violate Title VII and thus can apply to protect LGBT workers.  Thus, cases currently support the concept that workers can prove an employer discriminated because they didn’t conform to gender norms about how a man or woman should speak, act, dress or otherwise behave.  It is not a large jump from this background to take the further step and find all LGBT rights protected from discrimination.  The distinction in the current Eleventh Circuit ruling is that the sexual stereotyping theory involves whether a person’s behavior conforms to an employer’s general norms, not a person’s "status" as heterosexual or homosexual. 

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