Wednesday, September 28, 2016

Battle over Protection for Transgender Status Expands into Healthcare Arena

The issue of whether transgender employees, whether they are employed in the public or private sectors, are protected from discrimination based on sex is playing out in courts across the country.  The battlefront expanded again this week when a transgender employee at a Cincinnati public library sued her employer and its healthcare provider, Anthem Blue Cross and Blue Shield, alleging that the denial of insurance coverage for her sex reassignment surgery is a violation of both Title VII and the Affordable Care Act.  See Dovel v. The Public Library of Cincinnati and Hamilton County and Community Insurance Co., Case No. 16-cv-00955, filed in the United States District Court for the Southern District of Ohio.  This lawsuit follows on the heels of a similar suit filed in June 2016 by the American Civil Liberties Union against Dignity Health. 
In August 2016, the United States Supreme Court granted an emergency order to block a transgender male student in Virginia from using the boys' restroom until the Court can consider the matter when it reconvenes.  It remains unclear whether the Court, absent one Justice, will decide the substantive issue underlying all of disputes, which is whether discrimination based on gender identity is sex discrimination under Title VII and Title IX.

New California Law Restricts Choice of Law and Forum Provisions in Employment Contracts

On Sunday, September 25th, California Governor Jerry Brown approved Senate Bill 1241 as an amendment to the California Labor Code.  The new law makes voidable, upon the request of the employee, any provision of a contract that requires an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would require the employee to adjudicate outside of California a claim arising in California, or deprive the employee of the substantive protections of California law with respect to a controversy arising in California.  The law specifically requires that if a provision is rendered void, the matter shall be adjudicated in California, and California law shall govern.
For purposes of the new law, the term "adjudication" includes litigation and arbitration, and in addition to injunctive relief and any other available remedies, a court may award reasonable attorneys' fees to an employee who is enforcing his or her rights.  Notably, the new legislation does not apply to a contract with an employee who is individually represented by legal counsel in negotiating the terms of an agreement to designate either the venue or forum in which a controversy arising from the employment contract may be adjudicated, or the choice of law to be applied.
Employers with operations in  California should review any existing employment-related agreements to ensure compliance with the new law, which applies to a contract entered into, modified, or extended on or after January 1, 2017.  A copy of SB 1241 can be found here:

Wednesday, September 21, 2016

21 States File Lawsuit to Block New Overtime Regulations

Late yesterday afternoon, twenty-one states, led by State of Nevada, and including Texas, filed a lawsuit in the United States District Court for the Eastern District of Texas, Sherman Division, asking the Court to declare that the new overtime rules and regulations are: (1) substantively unlawful under the Constitution; (2) in excess of statutory jurisdiction, authority, or limitations under the Administrative Procedure Act (APA); (3) taken without observance of procedure required by law under the APA; (4) arbitrary and capricious under the APA; and (5) unlawful as applied to states under the APA. They also seek an injunction preventing the government from implementing, applying, and enforcing the regulations. A copy of the Complaint can be found here:

Notably, although the lawsuit allegations focus primarily on the adverse impact the new regulations are expected to have on the plaintiffs, they also include a contention that private employers in the plaintiffs' states will suffer the same ill-effects of the new regulations.  

This litigation follows closely on the heels of the federal lawsuit filed several weeks ago by (and in) the State of Texas, wherein several states successfully blocked the government's attempt to enforce its interpretation of Title IX regulations that would require schools accepting public funding to allow transgender students to use the bathrooms of the sex with which they identify.  That lawsuit was filed in the Northern District of Texas.

Employers can expect the government to mount a vigorous defense.