The U.S. Court of Appeals for the Fourth Circuit has joined the Eleventh Circuit in ruling that prohibiting a transgender student's ability to use bathrooms that match his gender identity violate Title IX and equal protection under the U.S. Constitution.  Grimm v. Gloucester Cty. Sch. Bd., No. 19-01952 (4th Cir., 8/26/20).  The U.S. Supreme Court ruled earlier this year for LGBTQ protections in the workplace, and later the Eleventh Circuit supported a high school student who challenged the transgender bathroom ban. 

The controversial subject of professional football players "taking a knee" during the National Anthem has now expanded to the workplace.  In a recent case, an employer was confronted with an African-American employee protesting his employer's alleged racial mistreatment by taking a knee during a meeting.  A supervisor asked the plaintiff to step into his office following the kneeling incident.  The discussion in the supervisor's office "escalated" when the supervisor issued the plaintiff an  "official discussion," and the supervisor felt threatened and asked the plaintiff to leave, and local police were called when the plaintiff refused to leave.  The plaintiff was placed on leave without pay pending an investigation.

A decision from a divided U.S. Court of Appeals for the Ninth Circuit will end protection for about 300,000 persons who have been living in the U.S. with a Temporary Protected Status (TPS), as to immigrants from Haiti, Sudan, Nicaragua, and El Salvador.  Ramos et al. v. Wolf et al., No. 18-16981 (C.A. 9, 9/14/20). 

In the absence of a Congressional compromise on additional pandemic federal funding, in August President Trump extended an extra $300.00 per week from the federal government to most unemployment compensation recipients, but the funding has now run out and will not extend beyond the week that ended September 5, 2020.  The Administration is supposedly looking at ways to extend the program even absent Congressional approval. 

Almost every employer of substantial size deals with contractors of some type, with the most common application being temporary staffing, janitorial services, franchisee-franchisor arrangements, and others.  Under the Department of Labor (DOL) enforcement guidance during the Obama Administration, the guidance expanded the application of the "joint employer" concept so that the immediate employer and any alleged joint employer often were deemed liable for workplace violations, such as minimum wages and overtime to workers.  During the current administration, DOL issued a regulation updating the joint-employer rule whereby joint employment would only be found when a business hires and fires employees; supervises and controls employees' work schedules or conditions of employment to a substantial degree; determines employees' rate and method of payment; or maintains employment records.  The result of the new regulation was to reject joint employer status of companies that stay out of the day-to-day employment decisions of their contractors.  

Some reports indicate that employees have filed almost 600 COVID-19-related lawsuits against their employers.  As a result, about a dozen states, including Georgia, have passed laws attempting to provide some liability protection from COVID-19 liability.  Georgia's law provides that an employer or other business entities may post a warning at its premises to protect itself from liability due to Coronavirus claims.  The warning states as follows:

Warning: Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19.  You are assuming this risk by entering these premises.

On June 11, 2020, the EEOC commissioners voted 2-1 to move forward with a Notice of Proposed Rulemaking (NPRM) for wellness programs.  The EEOC did not actually publish the NPRM and adoption of a final rule is a long way off, in terms of time and procedural steps that must be completed along the way, but the discussion at the June 11 public hearing provided some insight into where the Commission seems to be headed.  Before looking at what we understand from the June 11 meeting, a brief review of where we are may be helpful.

Employers have long sought to limit adverse comments about the employer, its management, and coworkers, with limitations in handbook and social media policies.  Many of these restrictions have been successfully challenged by employees or unions on the grounds they restrict legitimate "protected or concerted" activities under the National Labor Relations Act (NLRA).  In other words, the Labor Act grants workers broad rights to criticize their employer. 

The State of Georgia has joined several other states in legislation protecting employers from liability related to the Coronavirus.  The Governor is expected to sign the law, thus adding Georgia to Louisiana, North Carolina, Oklahoma, Utah and Wyoming having such protection.  The Georgia law would shield employers, healthcare providers and other entities from liability related to the virus except in cases where the entity is found to have committed "gross negligence, willful or wanton misconduct, reckless infliction of harm, or intentional infliction of harm."  The State of Georgia has joined several other states in legislation protecting employers from liability related to the Coronavirus.  The Governor is expected to sign the law, thus adding Georgia to Louisiana, North Carolina, Oklahoma, Utah and Wyoming having such protection.  The Georgia law would shield employers, healthcare providers and other entities from liability related to the virus except in cases where the entity is found to have committed "gross negligence, willful or wanton misconduct, reckless infliction of harm, or intentional infliction of harm."  

While many oppose the concept of "political correctness," in some senses it is now a legal necessity.  And what is deemed culturally sensitive seems to be changing, sometimes in controversial ways. While many oppose the concept of "political correctness," in some senses it is now a legal necessity.  And what is deemed culturally sensitive seems to be changing, sometimes in controversial ways.