The COVID-19 pandemic has been a fertile source of new litigation: challenges to mask mandates, challenges to vaccine mandates, construction of child custody visitation agreements in light of COVID-19, assertion of the defense of impossibility in response to attempted enforcement of a contract, etc. Recently, a federal district court in Virginia addressed whether an individual…
EMPLOYMENT: LGBTQ Employees Are Protected by Federal Antidiscrimination Statute, Supreme Court Holds
An employer that discharges an individual for being LGBTQ violates Title VII of the Civil Rights Act of 1964, the Supreme Court held 6-3 in one of the last decisions of its October 2019 term. Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 207 L. Ed. 2d 218 (2020). Title VII contains the well-known…
RECENT LEGISLATION PROVIDES CORONAVIRUS RELIEF FOR THE AMERICAN WORKFORCE
On March 18, 2020, the federal Families First Coronavirus Response Act of 2020 (Families First Act) [Pub. L. No. 116-127] was signed into law. The measure is the second in a series of recent legislative attempts to ameliorate the adverse health and economic effects of the novel coronavirus COVID-19 in the United States. The Act…
Disability Discrimination in Employment: Health Care Employer Could Condition Employment on Health Screening and Vaccination
The Americans with Disabilities Act (“ADA”) prohibits covered employers from discriminating against qualified individuals on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). This prohibition against discrimination can apply to…
Employment: Arbitration – ‘Gateway Issues’
When an arbitration agreement is in effect, who decides whether an employment dispute, or any dispute for that matter, is arbitrable? The Supreme Court recently released a pair of decisions that address this issue under the Federal Arbitration Act (FAA), Henry Schein, Inc. v. Archer & White Sales, Inc.,_ S. Ct._, 202 L. Ed. 2d…
Employment: Age Discrimination – Breach of Fiduciary Duty and Unfair Competition
An employer may proceed with its unfair competition suit asserting contract and tort claims against a former employee and the employee’s current employer, a federal district court sitting in Pennsylvania has held. The employer adequately stated claims of common law breach of fiduciary duty and unfair competition against the employee, and of aiding and abetting…
Employment: Age Discrimination – Public Employers
The Age Discrimination in Employment Act (“ADEA” ) applies to all public employers, including those with fewer than 20 employees, a unanimous Supreme Court held in its first merits decision of the October 2018 term. Thus, the 20-employee minimum that applies to private employers does not apply to a state or its subdivisions. The 8-0…
Causation in an Equal Pay Act Retaliation Case – January 2017
As with most forms of employment discrimination, an employer’s retaliation against an employee for asserting discrimination under the Equal Pay Act (“EPA”) gives rise to an additional and distinct cause of action for the employee. To state a claim for retaliation under the EPA (as incorporated into the Fair Labor Standards Act), a plaintiff must…