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. 

Off-duty issues and activities, and their impact at the workplace, seem to be growing today.  Social media protests have increased since the Black Lives Matter movement has intensified, and pandemic issues are not abating.  Often, both as a practical and legal matter, these issues cannot be kept out of the workplace.Off-duty issues and activities, and their impact at the workplace, seem to be growing today.  Social media protests have increased since the Black Lives Matter movement has intensified, and pandemic issues are not abating.  Often, both as a practical and legal matter, these issues cannot be kept out of the workplace.

A trilogy of U.S. Supreme Court rulings have expanded religious rights, with one of the rulings pertaining to most private employers.  In Little Sisters of the Poor v. Pennsylvania, the Court ruled that the Trump Administration had the right to exempt employers that raised religious or moral objections to the Affordable Care Act (ACA) prior requirements that health-insurance plans cover contraceptives.  Justice Thomas wrote for the Court that the ACA gives administrators "broad exception" to carve out religious and moral exemptions, under a law that expressly deals with requiring cost-free "preventive care and screenings" and leaving it to the federal agency to determine what is included.  Justice Thomas wrote that: "It was Congress, not the Department, that declined to expressly require that contraceptive coverage in the ACA itself." 

The issue of undocumented immigrants brought into this country as children has long been a controversial one.  Although technically unauthorized, President Obama during his term implemented the Deferred Action for Childhood Arrivals Program (DACA), which in essence indicated that the government would not enforce laws against persons brought into this country illegally as children.  The Trump Administration rescinded the non-enforcement policy of the Obama Administration, and the subsequent litigation went all the way to the U.S. Supreme Court.  Department of Homeland Security v. Regents of the University of California, 18-587. 

We all know (or learn) that not everything in life can be carefully planned.  For example, some weeks an employer may need a worker for just 30 hours, but in another week may need them to put in 50 hours.  The Fair Labor Standards Act (FLSA) has long provided employers with the option to pay nonexempt employees whose hours vary on a salary basis, but at times has offered inconsistent guidance on the impact of bonuses and commissions, or how to calculate overtime.  When courts got involved, sometimes there were conflicting rulings.

According to the Sixth Circuit Court of Appeals, the U.S. Army's decision to fire a civilian employee because it found her repeated complaints of harassment baseless, does not violate the federal discrimination laws.  Carrethers v. McCarthy, 2020 BL 198271 (5/28/20).  The employer had assigned an investigator, who concluded that it was "extremely clear" that the plaintiff was fabricating her complaints.  All of the 14 witnesses the plaintiff identified to the investigator contradicted her claims.  Thus, the employer had reason to believe the harassment complaints were not made in good faith.  Also, even if they were, the employer still had a legitimate basis for firing the employee.  The judge cited published rulings by the Fourth, Fifth, Eighth and Eleventh Circuits in support of the conclusion.

Editor's Note:  It is extremely controversial, even if legitimate, to fire an employee for making baseless harassment complaints.  Such actions should only be taken with advice of counsel.

Employers, along with other establishments all across the country, fear operating under circumstances where employees may claim they became sick with COVID-19 by contracting the Coronavirus at work.  In most states, outside of certain healthcare workers, the federal and state executive orders do not grant any immunity to employers from such claims. 

On May 7, 2020, the Equal Employment Opportunity Commission (EEOC) announced that it was postponing the collection of EEO-1 data due to the Coronavirus.  The EEO-1 report, which normally applies to employers with at least 100 employees, would have been required to be filed by March 2020, for the 2019 report.  The 2019 report is now not due until March of 2021.

Whether American employers are reducing their workforces in response to the pandemic, or re-opening and/or expanding their workforce, numerous liability issues exist.  This article discusses the types of liability issues most likely to result in litigation against employers.

Many employers limit light duty jobs to workers who have suffered work-related injuries.  However, a new case out of the Eleventh Circuit tells us that the employer that fails to offer these light duty jobs to pregnant employees with medical restrictions risks being liable for discrimination.  Durham v. Rural/Metro Corp., 18-14687 (11^th Cir., 4/17/20).