Author: Kent Mannis

EEOC Evolves on Orientation
Posted by On Wednesday, August 5, 2015

The Equal Employment Opportunity Commission (EEOC) ruled that Title VII was violated when an employee was denied a promotion because of his sexual orientation. The case involved an air traffic control supervisor in Florida, who accused the Federal Aviation Administration (FAA) of not selecting him for a permanent position because he is gay.

Traditionally, Title VII has been interpreted not to cover sexual orientation bias for gays, lesbians, and heterosexuals. This was true unless there was sex-based “gender stereotyping.”

However, in addition to prohibiting gender stereotyping, the EEOC now says Title VII implicitly forbids sexual orientation discrimination.

“[T]he question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not,” the EEOC wrote. “Rather, the question … is the same as any other Title VII case involving allegations of sex discrimination — whether the [employer] has relied on sex-based considerations or taken gender into account when taking the challenged employment action.”

“[W]e conclude that sexual orientation is inherently a sex-based consideration, and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII,” the EEOC stated. “[An employee] alleging that an [employer] took his or her sexual orientation into account in an employment action necessarily alleges that the [employer] took his or her sex into account.”

“Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex,” the EEOC explained. “Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.”

Noting that the EEOC’s “own understanding of Title VII’s application to sexual orientation discrimination has developed over time,” the EEOC ordered the case to proceed to determine the FAA’s liability for violating Title VII. [Baldwin v. Foxx (EEOC 2015) no. 2012-24738]

Note: In 2012, the EEOC applied Title VII’s rule against sex bias in a case involving discrimination against a transgender employee.

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Cui Bono? New Ruling on Unpaid Internships
Posted by On Wednesday, July 15, 2015

When do companies have to pay their interns?

During the production of the film Black Swan, Eric Glatt and Alexander Footman worked as unpaid interns, running errands, doing office chores, and making deliveries.

Later, Glatt and Footman sued Fox Searchlight, claiming they’d been misclassified and were legally entitled to pay as “employees” under the federal Fair Labor Standards Act (FLSA).

“At its core, this [case] raises the broad question of under what circumstances an unpaid intern must be deemed an ‘employee’ under the FLSA and therefore compensated,” the Court wrote.

“An employee cannot waive his right to the minimum wage and overtime pay,” the Court stated. “In 1947, however, the [Supreme] Court recognized that [certain] trainees should not be treated as employees, and thus that they were beyond the reach of the FLSA’s minimum wage provision.”

“When properly designed, unpaid internship programs can greatly benefit interns,” the Court observed. “However, employers can also exploit unpaid interns by using their free labor without providing them with an appreciable benefit in education or experience.”

“In sum, … the proper question is whether the intern or the employer is the primary beneficiary of the relationship,” the Court concluded.

Thus, the Court ordered the case to proceed so a jury could decide whether the educational benefits gained by Glatt and Footman outweighed the value of their services to Fox (in which case they’d be “interns”), or whether Fox had been overcompensated (in which case they’d be “employees” and entitled to pay). [Glatt v. Fox Searchlight (2nd Cir. 2015) no. 13-4478]

Note: The Court also reviewed the US Labor Department’s six-part test for determining whether an intern is an employee (see Fact Sheet #71), and found it lacking, writing: “[W]e do not find it persuasive, and we will not defer to it.”

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