WINTER 2021 Published by the Ohio State Bar Association Labor & Employment Law Section Labor and Employment News

INSIDE Employment Protections for Sexual Orientation and Gender Identity in Ohio...... 1 Lasting Legal Implications of COVID-19 for Employers...... 6 Labor and Employment Legislative Update...... 8 NLRB Revises @#!*&^% Abusive Conduct Rules...... 10 Book Review: “The Affirmative Action Puzzle”...... 16 A Message from the Chair...... 21 In Case You Missed It...... 22

Employment Protections for Sexual Orientation and Gender Identity in Ohio By Rick Bales and Morgan Schweighoefer

On June 15, 2020, the U.S. Supreme Court held in v. Hopkins,5 held that employers cannot discriminate Bostock v. Clayton County, Georgia1 that Title VII’s against workers who do not conform to gender stereotypes. prohibition of workplace sex discrimination also Before Bostock, federal circuit courts were split on prohibits workplace discrimination on the basis of sexual whether Title VII prohibits employment discrimination orientation and gender identity. This article describes based on sexual orientation or gender identity. that case and also discusses Ohio state and local laws providing workplace protections for LGBTQ individuals In October 2019, the U.S. Supreme Court granted certiorari based on sexual orientation or gender identity. in two cases that brought this issue to the forefront of Title VII protections. The first case was a consolidation of two Federal Law separate cases, Altitude Express v. Zarda (No. 17-1623) and The text of Title VII2 forbids employment discrimination Bostock v. Clayton County (No. 17-1618). Plaintiffs in both on the basis of race, color, religion, sex or national these cases, gay men, claimed they were fired because of origin. The 6th Circuit ruled in the 2006 case of Vickers their sexual orientation. In a separate case, Harris Funeral v. Fairfield Medical Center3 that Title VII does not Home v. EEOC (No. 18-107), a transgender woman alleged protect workers from discrimination based on sexual she was fired based on her gender identity. In June 2020, orientation. In the 2004 case of Smith v. City of Salem,4 the Supreme Court ruled 6-3 in favor of the employees. however, the 6th Circuit, relying on Price Waterhouse (continued on pg. 2) Labor and Employment News

Gerald Bostock, a mental health counselor who worked orientation nor gender identity fall within the meaning as a case manager for Clayton County, Georgia’s Court of “sex,” and it is not the court’s prerogative to expand Appointed Special Advocates, was fired in 2013 after the definition of “sex” to include them. Warning of far- his employer discovered his participation in a local gay reaching consequences such as the impact on bathroom or softball league. Although Clayton County alleged it had locker room usage, Alito stressed that the court’s duty is fired Bostock for mismanaging funds, the reason it gave to “interpret statutory terms to mean what they conveyed for Bostock’s termination was “conduct unbecoming of a to reasonable people at the time they were written.”11 County employee.” Bostock was criticized “by someone with significant influence in the Clayton County court Justice Kavanaugh wrote the second dissent. Kavanaugh system” (according to his petition) for involvement in argued that discrimination “because of sex” does not include the softball league. He was also a victim of homophobic sexual orientation, stating that “in common parlance, slurs at a meeting with his program’s advisory board. Bostock and Zarda were fired because they were gay, not because they were men.”12 Further, he argued that courts, Bostock sued under Title VII’s prohibition of sex applying statutes, should and generally do follow a law’s discrimination, alleging the County’s excuse was a pretext for ordinary meaning rather than its literal meaning. In earlier firing him because of his sexuality.6 Both the district court decisions, the court refused a reading of “mineral deposits” and the 11th Circuit held that Title VII did not cover sexual that included water, even though water is literally a mineral. orientation and dismissed Bostock’s claims.7 Bostock appealed It declined to hold that “personnel rules” encompass any and the Court consolidated the case with Harris and Zarda. rules that personnel must follow. Beans are not “seeds.” An aircraft is not a “vehicle.” Buying drugs is not “facilitating” Justice Gorsuch wrote the majority opinion and was joined drug distribution. Ordinary meaning, wrote Kavanaugh, by Chief Justice Roberts as well as Justices Ginsburg, Breyer, should sometimes preclude the literal application of a Sotomayor and Kagan. The court interpreted “because of statute’s terms. Here, he argued that, because no one in 1964 sex” in Title VII to include any discriminatory practice expected that prohibiting sex discrimination would also due to sexual orientation or gender identity. The majority prohibit discrimination on the basis of sexual orientation reasoned that, when an employer fires an individual for being or gender identity, the court should have merely pointed transgender or homosexual, the employer “fires that person out the issue, referred the subject back to Congress, and for traits or actions it would not have questioned in members declined to enforce the text of Title VII in the meantime.13 of a different sex. Sex plays a necessary and undisguisable One cannot overstate the irony of Justice Kavanaugh role in the decision, exactly what Title VII forbids.”8 The rejecting a textualist approach to statutory interpretation. majority, relying on the textual language of Title VII’s “because of … sex,” determined that “it is impossible to discriminate Bostock is a monumental win for LGBTQ employees. against a person for being homosexual or transgender without However, the win may be short-lived. That’s because discriminating against that individual based on sex.”9 the court is considering whether to grant employers with religious objections to LGBTQ people an exemption from The court stated that if a male, but not a female, would be Title VII. Justice Gorsuch hinted at this in a concurring fired because he is attracted to males, that would be treating opinion two years ago in Masterpiece Cakeshop v. Colorado employees differently – i.e., “discriminating” – on the basis Civil Rights Commission14 when he suggested that religious of sex. Sexual orientation and gender identity therefore conservatives should enjoy sweeping exemptions from are indistinguishable from “sex.” As a result, both sexual laws prohibiting discrimination on the basis of sexual orientation and gender identity discriminatory practices orientation or gender identity. He ended the majority ultimately stem from a discriminatory practice based on sex. opinion in Bostock by again raising this issue, noting that because none of the employers in Bostock had raised Justice Alito wrote the first of two dissents. He characterized the issue it was not then before the Supreme Court. the majority’s justification as purporting to adhere to the text of Title VII, but in reality, reflecting the majority’s However, in November 2020, the court heard oral arguments policy preference for modern rules that “better reflect the in Fulton v. City of Philadelphia.15 In that case, the court will current values of our society.”10 He argued that neither sexual

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consider the interaction between Title VII and the Religious taken priority. State Rep. Mike Skindell (D-Lakewood) Freedom Restoration Act of 199316 (RFRA), which prohibits acknowledged that the bill has been “put on the back burner.”20 the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that However, the U.S. Supreme Court ruling in Bostock may doing so both furthers a compelling governmental interest reignite the efforts to get the bill passed. Despite its slowed and represents the least restrictive means of furthering movement forward, its sponsors remain optimistic that the that interest. Some employers have argued that RFRA bill will pass. Rep. Brett Hudson Hillyer (R-Uhrichsville), allows them to make employment decisions based on one of the primary sponsors of HB369, reported in 2019: their individual owners’ religious beliefs and that it “This has a good chance of passage. This bill has the ability supersedes Title VII’s prohibitions of discrimination. to get fully vetted in the House this year which is the This argument, if accepted by the court, could open furthest it’s gone in a Republican-controlled body of the the door to discrimination not just based on sexual General Assembly. The House Speaker is open to debate orientation or gender identity, but also to discrimination and fully vetting this out whereas previous Speakers may based on race, sex, national origin, color and religion. have been afraid of this conversation. He is not afraid of big ideas and letting everyone have a voice.” Introduced in the Thus, even after Bostock, state and local antidiscrimination Senate as SB11, the proposed legislation would add sexual laws are critically important because the Supreme orientation and gender identity to the list of protected classes Court may, in Fulton, significantly restrict the reach covered by the state’s antidiscrimination laws pertaining of Title VII. Even if the court does not, state and local to employment, public accommodation and housing. antidiscrimination laws are important because they often cover employers that Title VII does not cover. For Skindell also points out that the Ohio Fairness Act is broader example, while Title VII covers only employers with 15 than Title VII as interpreted by Bostock, because the Ohio or more employees, the Ohio Civil Rights Act covers Fairness Act, but not Title VII, covers discrimination in employers with four or more employees.17 Many state and health insurance and housing.21 If the Ohio Fairness Act local antidiscrimination laws also give workers longer to passes, LGBTQ employees in the state will receive broader file their claims after the discrimination has occurred. protections than under the new federal ruling. However, as of early fall 2020, the bill appeared to be stalled.22 State Law The Ohio Civil Rights Act protects Ohio workers on the County and Local Laws basis of race, color, sex, religion, disability, national origin, ancestry, age and military status.18 Ohio courts have not County-Wide Protections yet interpreted this statutory protection as extending to Before Bostock, an increasing number of counties and sexual orientation or gender identity. For example, one Ohio local communities around Ohio had adopted employment appellate court has stated: “Sexual orientation is noticeably antidiscrimination ordinances protecting sexual orientation, not included in the list of prohibitions enumerated in R.C. gender identity and gender expression. For example, Cuyahoga 4112.02(A) . . . We decline to interpret R.C. 4112.02 to County passed legislation in fall 2018 protecting the rights prohibit discrimination based on sexual orientation. We of all persons to be free from discrimination, including based conclude that the protections of R.C. 4112.02(A) do not on “sexual orientation, and gender identity or expression.”23 extend to discrimination based on sexual orientation.”19 Some counties have antidiscrimination laws limited to county However, statewide efforts are underway to change this employees or county vendors. For example, Summit County through new legislation. On Oct. 16, 2019, the proposed prohibits discrimination on the basis of sexual orientation and Ohio Fairness Act (HB369) was introduced in the Ohio gender identity in county hiring and employment practices.24 House of Representatives on a bipartisan basis. The first Other counties, such as Franklin County, have banned hearing on the bill was held on Nov. 19, 2019 in the Civil employees from non-essential travel to the states of North Justice Committee. Not much progress has been made on Carolina and Mississippi, citing “divisive laws codifying this bill and it has stalled as pandemic-related bills have legal discrimination and even precluding local governments from undoing their state-sanctioned discrimination against

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members of the LGBTQ community.”25 In 2016, the North Although the Bostock decision now encompasses gender Carolina legislature revoked the City of Charlotte’s attempt identity and sexual orientation, as noted above, some to ban discrimination against LGBTQ individuals and Ohio municipalities include broader terms such as then modified state law to prohibit a city from expanding “perceived gender identity” and “expression.” The intent any discrimination protections beyond what the state behind including the word “perceived” appears to be to offered.26 That same year, Mississippi adopted into law a reach discrimination based on stereotypical assumptions provision allowing persons with religious objections to deny about a person’s gender identity or expression, whether wedding services to same-sex couples and protecting from accurate or not. Similarly, “gender expression” and discrimination claims private businesses choosing not to serve “gender identity” might be interpreted as overlapping LGBTQ individuals based on their own religious convictions. terms. However, it also is possible to distinguish them, with “gender expression” referring to an external Municipal Protections manifestation and “identity” referring to one’s self- Many local municipalities have enacted ordinances providing perception. Municipalities wishing to provide the broadest these same protections. Dayton, Bexley, Youngstown possible protection are advised to include both terms. and Sandusky are just a few of more than three dozen communities that prohibit employment discrimination on Ohio employers covered by Title VII should now, thanks the basis of sexual orientation or gender identity.27 Other to Bostock, amend their antidiscrimination policies to communities, such as Athens and Cleveland Heights, include sexual orientation and gender identity. Ohio have not only included LGBTQ protections in their counties and municipalities should consider amending antidiscriminatory employment ordinances, but also have their antidiscrimination ordinances to protect at least passed resolutions in support of the Ohio Fairness Act.28 sexual orientation and gender identity. Ohio counties and municipalities that want to extend broader Many of these municipal ordinances explicitly protect only antidiscrimination protection should consider amending sexual orientation, while others explicitly protect both their antidiscrimination ordinances to include also “gender sexual orientation and gender identity. For example, the expression” and to protect against perceived sexual city of Springfield “prohibits discrimination based on sexual orientation, gender identity and gender expression. orientation.”29 Section 101.02 (General Definitions) of the Codified Ordinances of the city of Springfield, however, Conclusion was subsequently amended to define sexual orientation as Bostock significantly expands the scope of Title VII “a person’s actual or perceived heterosexuality, bisexuality, protection to persons who have long been marginalized. homosexuality or gender identity, by orientation or 30 However, state, county, and local antidiscrimination practiced by and between consenting adults.” Similarly, laws and ordinances often cover employers and a city of Lakewood ordinance applies to employment, employees not covered by Title VII. These laws and housing, education and public accommodation, and forbids ordinances continue to provide an important source “discrimination based on … gender, gender identity or 31 of legal protection for Ohioans discriminated against expression, sexual orientation or physical characteristic.” because of sexual orientation and gender identity.

Cuyahoga County, like Lakewood, includes “gender About the Authors expression” in its ordinance, whereas Springfield does not. Richard Bales is a law professor at Ohio Northern It may be that some ordinances use “gender expression” University. Morgan Schweighoefer is a recent graduate and “gender identity” interchangeably. Springfield’s of the University of Akron School of Law. definition, for example, includes the word “perceived heterosexuality, bisexuality, homosexuality or gender identity...”32 Other communities appear to distinguish between the phrases “expression” and “identity.” Shaker Heights has included a chapter in its codified ordinances expanding discrimination prohibitions to include sexual orientation and “gender identity or expression.”33

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Endnotes 22 See Stephen D. Hambley, Statement On House Bill 369 1 590 __ U.S. __ (2020). Pending Ohio House Civil Justice Committee (Jan. 29, 2 Pub. L. 88-352, 42 U.S.C. § 2000e et seq. 2020), available at http://www.ohiohouse.gov/stephen-d- 3 453 F.3d 757 (6th Cir. 2006). hambley/press/statement-on-house-bill-369-pending-ohio- 4 378 F.3d 566 (6th Cir. 2004); see also EEOC house-civil-justice-committee (last visited Sept. 3, 2020). 23 Ordinance No. O2018-0009, passed September 25, 2018. v. R.G., 884 F.3d 560 (6th Cir. 2018). 24 5 Ordinance No. 2009-475, passed November 30, 2009. 490 U.S. 228 (1989). 25 6 Resolution No. 0321-16, passed April 26, 2016. Bostock v. Clayton Cty., N.D.Ga. No. 1:16-CV-1460-ODE- 26 WEJ, 2017 U.S. Dist. LEXIS 229334 (Feb. 2, 2017). Public Facilities Privacy and Security Act, H.B. 2, https:// 7 www.ncleg.net/Sessions/2015E2/Bills/House/PDF/H2v1.pdf Bostock v. Clayton Cty. Bd. of Commrs., 27 723 F.App’x 964 (11th Cir.2018). Dayton Ordinance No. 3069-07, passed November 21, 8 Boston v. Clayton Cty., ___ U.S. ___, 28 2007; Bexley Ordinance No. 12-15, passed June 23, 2015; Fla L. Weekly Fed. S. 294 (2020). Youngstown Ordinance No. 16-441, passed December 9 22nd, 2016; Sandusky Ord. 18-090, passed May 14, 2018. Id. at 21. 28 10 Id. at 61. Athens Resolution No. R-06-18, passed 11 ___U.S. ___, 123 S.Ct., 3 (2020). June 11, 2018; Cleveland Heights Resolution 12 https://www.nationalreview.com/bench-memos/justice- No. 41-2019, passed June 3, 2019. 29 Springfield Ordinance No. 18-24, passed January 20, 2018. kavanaughs-dissent-in-title-vii-ruling/, also Pp. 11-22. 30 13 Andrew Koppelman, Bostock: What Two City of Springfield Codified Ordinances Conservatives Realized and Three Dissenters Missed, Sec. 101.02; General Definitions. 31 Ordinance No. 1-16, passed June 22, 2016. The American Prospect (June 15, 2020), available 32 at https://prospect.org/justice/bostock-what-two- City of Springfield Codified Ordinances Sec. 101.02; General Definitions. conservatives-realized-and-three-dissenters-missed/. 33 14 584 U.S. ___, 138 S. Ct. 1719 (2018). Ordinance No. 19-43, passed October 28, 2019. 15 922 F. 3d 140 (3d Cir. 2019), cert. granted, 140 S. Ct. 1104 (2020). 16 42 U.S. Code § 2000bb (2020). 17 Ohio Rev.Code § 4112.01(A) (2); Sublett v. Edgewood Universal Cabling Sys., 194 F.Supp.2d 692, 698 (S.D.Ohio 2001). 18 O.R.C. § 4112.02. 19 Tenney v. GE, 11th Dist. Trumbull No. 2001-T-0035, 2002-Ohio-2975, ¶ 17-18; (also see Burns v. Ohio State Univ. College of Veterinary Medicine, 10th Dist. Franklin No. 13AP-633, 2014-Ohio-1190, ¶ 13 “Appellant refers to R.C. Chapter 4112 and Title VII as demonstrating a public policy prohibiting discrimination based on sexual orientation; however, . . . courts have held that these statutory provisions do not apply to sexual orientation.”). 20 Susan Tebben, After U.S. Supreme Court decision, Ohio Fairness Act still awaiting hearings, Ohio Capital Journal (June 24, 2020), https://ohiocapitaljournal. com/2020/06/24/after-u-s-supreme-court-decision- ohio-fairness-act-still-awaiting-hearings/ 21 Id.

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Lasting Legal Implications of COVID-19 for Employers By Stacy V. Pollock Pollock Law, LLC

The most dramatic effect COVID-19 has had on needs; and request medical documentation if needed.”1 many employers was the shift to work-from-home. The EEOC guidance also address the issue of whether Hopefully, employers were made aware of the legal teleworking must always be considered a reasonable implications of having employees work from home. accommodation now that an employer previously had However, because of its potential cost-savings effects employees working from home during the pandemic. As the and lingering concerns about COVID-19, work-from- EEOC explains, “The fact that an employer temporarily home may last well past the immediacy of the pandemic. excused performance of one or more essential functions when Below are several important legal implications for it closed the workplace and enabled employees to telework for employers to consider in work-from-home scenarios: the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the ADA Accommodations employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it Employers have an obligation under the Americans with does not pose an undue hardship.”2 The accommodations Disabilities Act (ADA) to engage in the interactive analysis remains the same as it was pre-pandemic. process with and provide a reasonable accommodation to employees who have a disability. Each employee is entitled to have their own facts and circumstances considered by Safe Work Environment the employer. The employer has an obligation to not only Ohio employers have an obligation to provide a safe consider each employee’s circumstances individually, but working environment. The challenge for Ohio employers also to treat all employees consistently and fairly. As the with employees working from home is that employers pandemic evolves, guidance from public health officials will have no control over the liabilities within an employee’s change, as will an employer’s determination as to whether home and most likely have no knowledge of potential working from home is a reasonable accommodation. liabilities. The Department of Labor’s Occupational The Equal Employment Opportunity Commission’s Safety and Health Administration (OSHA) does not (EEOC) guidance on this issue explains, “As with any have any regulations directly related to telework in accommodation request, employers may: ask questions to home offices. OSHA’s requirements that employers determine whether the condition is a disability; discuss provide a place of employment that is free from with the employee how the accommodation would recognized hazards applies to the home office as well. assist him and enable him to keep working; explore However, on Jan. 29, 2021, OSHA released guidance alternative accommodations that may effectively meet his on mitigating and preventing the spread of COVID.3

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Workers' compensation is a potential issue. Recognized However, their wages after the cost of the equipment workplace injuries must be received “in the course of, and should not fall below minimum wage. Although not arising out of” employment.4 This standard is typically a legal consideration, employers will also want to liberally construed in favor of the injured worker. This consider the morale created by requiring employees means that in general, employees injured while working at to pay for their own work-related equipment. home are likely going to be awarded workers’ compensation claims. Employers should therefore attempt to reduce at- home workplace injuries by putting into place telecommuting Employer-Mandated COVID-19 Vaccines policies that require employees to have a designated The EEOC recently issued guidance suggesting work area at home and possibly provide training related that employers can mandate their employees receive to workplace safety and safety measures. It would also the COVID-19 vaccine once available, so long as be helpful to have meal and rest breaks set at specific employers recognize rights to not get the vaccine times, even for Fair Labor Standards Act (FLSA) exempt under the ADA, the religious protections of Title VII employees, so that employers can better track whether an and the Genetic Information Nondiscrimination Act employee was on the clock when an injury occurred. (GINA). Employers are therefore urged to encourage employees to get the vaccine, but not require it. Employers that want to require it will need to ensure Wage and Hour Issues that they have a solid understanding of how to handle Speaking of FLSA exempt employees, non-exempt employees employees who refuse for medical or religious reasons. must still be paid for all time worked, which may be more Refusal will require a reasonable accommodations difficult to monitor if the employee is not physically present analysis, which may involve work from home. in the office. Work-from-home arrangements inherently create a mindset that work time is more flexible. While this can be a positive attribute, it can be a legal nightmare Overall Thoughts for employers who do not maintain accurate, complete Regardless of how employers decide to proceed with records of time actually worked by its non-exempt staff. If work-from-home practices, all employers need to continue employees work set hours at the office, they can work set to remain flexible in their expectations. The transition hours at home. Employers should make sure that employees from a pandemic to post-pandemic world will be slow understand this expectation and are clocking in and out every and challenging. Although we remain in unchartered time. Employees should also certify, ideally daily, that their territory in navigating this pandemic, employers will recorded time is accurate. It is best to have this certification do well to remain vigilant about complying with the made to someone other than their direct supervisor to avoid laws that were in place long before the pandemic. claims that supervisors pressured them to not accurately record their time. Supervisors also need to be made aware that non-exempt staff are not working on-call hours. About the Author Informal communications from supervisors to hourly staff Stacy Pollock is a solo practitioner with Pollock Law, (such as “this will only take a minute”) can create significant LLC. She is an OSBA Certified Specialist in Labor and wage and hour issues for employers. Communication about Employment law and primarily advises management. expectations on hours worked and documented is key. Nothing in this article constitutes legal advice.

Equipment to Work From Home Endnotes 1 Teleworking most likely involves the need for a computer https://www.eeoc.gov/wysk/what-you- system and/or other office supplies at home. If employees are should-know-about-covid-19-and-ada- working from home because of an ADA accommodation, rehabilitation-act-and-other-eeo-laws employers cannot require employees to pay for or reimburse 2 Id. at Section D.15 of its guidance the employer for equipment. If employees are working 3 www.osha.gov/coronavirus/safework from home because of an employer-directive or option 4 that is not related to an ADA accommodation, employers R.C. § 4123.01 (C). can require employees to pay for their own equipment. 7 Labor and Employment News

Labor and Employment Legislative Update By Scott Lundregan OSBA Chief Legislative Counsel

What a crazy 133rd General Assembly. In case you missed Perhaps the most important development in the area of labor it – a former Speaker unseated the incumbent Speaker and employment law is that the General Assembly, after more with majority support from the minority party, the budget than a decade, has passed HB352, the Employment Law was not done on time in spite of one-party control, the Uniformity Act, sponsored by Rep. Jon Cross (R-Kenton) Speaker was removed due to a federal RICO indictment, and former Rep., now Senator George Lang (R-West and the legislature had to deal with COVID-19 in Chester). The bill most notably reduces the statute of the state and its own chambers. In the end, many are limitations for employment discrimination claims generally relieved to see the end of the 133rd General Assembly. from six years to two years. The bill also gives employees more time to file administrative claims with the Ohio Civil Rights Commission, prevents the simultaneous filing of Legislation of Note to the Labor & Employment Section administrative and judicial actions, amends the definition Coming into effect mid-December 2020 was HB606, of employer for purposes of civil rights laws, creates an sponsored by Rep. Diane Grendell (R-Chesterland), the affirmative defense and reduces confusion related to Ohio’s COVID-19 liability bill. The bill grants civil immunity to age discrimination statute. As of this writing, the bill is persons, businesses, schools and others for the transmission on its way to the Governor. Gov. DeWine signed the bill of COVID-19, unless there was reckless conduct. The early this year and the act will go into effect in April. bill also immunizes conduct that occurs when performing (or not performing) emergency health services, provided the conduct was not grossly negligent. While they were The General Assembly continued its infatuation with not able to get the votes for an emergency clause, the bill occupational licensing reform, as HB263, sponsored by contains a retroactive provision that seeks to go back to the Rep. J. Kyle Koehler (R-Springfield) passed with significant date of the Governor’s original emergency order on March support in both chambers. The bill, alternatively known 9, 2020. There are questions whether this retroactive as the Fresh Start Act, requires that licensing boards provision can withstand a constitutional challenge. list specific offenses that would disqualify someone from obtaining that license and it puts restrictions as

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to how far back a licensing board may look to see if • HB285, sponsored by Reps. Dave Greenspan someone is disqualified for a disqualifying offense. (R-Westlake) and Juanita Brent (D-Cleveland) went into effect in September of 2020. It makes permanent the license reinstatement fee amnesty SB201, sponsored by Sen. Matt Dolan (R-Chagrin program, which was formerly a temporary Falls) was also signed into law during lame duck. The pilot program that allowed for persons to get bill creates alternate employer organizations, which reductions in the reinstatement fees that they are substantially similar to professional employer owe provided they complied with all other court organizations and regulates alternative employer sanctions. This program was a proposal from organizations in the same way as professional employer the OSBA Access to Justice Committee. organizations. This legislation was signed by the Governor and will be effective in mid-March 2021. • HB81, sponsored by Rep. Rick Perales (R-Beavercreek), which became effective law in mid-September 2020, contained a A bill that did not pass both chambers but will likely be provision that increases the funeral expense considered next general assembly is SB243, sponsored benefit cap from $5,500 to $7,500 for deaths by Sens. Bob Peterson (R-Washington Court House) that are caused by compensable injuries and Andrew Brenner (R-Powell). This bill exempts an or occupational diseases under workers employer’s requirement to pay overtime wages when compensation law. This was a proposal from an employee is engaged in traveling to and from a the OSBA Workers’ Compensation Section. worksite or performing certain de minimis tasks. Looking Ahead Another issue to keep an eye on is the developing crisis with Despite all the chaos of last year, both chambers managed local income tax. With employees working from home, to increase their Republican majorities. The Senate will large metropolitan areas could lose a large portion of their have a Republican majority of 25 to 8 and the House will revenue if they are unable to collect local income tax from be 64 to 35. Senator Matt Huffman and Speaker Bob employees who formerly worked in their jurisdiction. Cupp will lead their respective chambers. We are happy to see a couple of OSBA members occupying the dais. OSBA Proposals The OSBA had some success with its proposals: In the 134th General Assembly, we will be busy advocating • SB276, sponsored by Sens. Kristina Roegner for several proposals that are going to be introduced and (R-Hudson) and Nathan Manning (R-North hopefully passed into law. We will continue to advocate Ridgeville), was delivered to the Governor during for the expansion of the statute of repose to include legal lame duck. This bill reorganizes the LLC code malpractice claims, as we were oh-so-close to getting it and allows for the formation of series LLCs, passed into law during lame duck. We will also have our among other changes. Though the Governor eye on the state’s operating budget to defend against tax signed the bill in January, it does contain a one- increases, as the state will have to make changes to account year delay in implementation so it will not be for losses to the state’s revenue caused by COVID-19, effective until Jan. 1, 2022. This was a proposal which are estimated at being close to or above $2 billion. from the Corporation Law Committee. • SB21, sponsored by Sen. Matt Dolan (R-Chagrin Please feel free to reach out to me Falls), was signed into law in lame duck. It allows for directly with any questions, comments, or the formation of benefit corporations. This was also observations: [email protected]. a proposal from the Corporation Law Committee.

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NLRB Revises @#!*&^% Abusive Conduct Rules By Alan L. Zmija

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A sensitive area of labor law has been how to treat managers. Robinson kept repeating the same questions worker conduct and language which has been disruptive, and then said he would “mess {the manager} up.” He profane, obscene or even racist when the employee is then played loud, profane music on his cell phone engaged in activity protected under the National Labor for 10 to 30 minutes, disrupting the meeting. For Relations Act (NLRA). On July 21, 2020, the three- his actions, Robinson was suspended for 30 days. member National Labor Relations Board (NLRB)1 issued new policy on this subject in General Motors.2 On the basis of these facts, a complaint issued alleging employer violations of Sections 8(1) and (3) of the NLRA The Facts by the company issuing three disciplinary actions against The employer, General Motors, engages in the manufacture Robinson as he engaged in protected activity on behalf of and nonretail sale of automobiles at its Fairfax assembly the union. A hearing was held before an administrative facility in Kansas City, Kansas.3 As relevant here, the law judge who issued a decision finding that the employer employees are represented by the Automobile, Aerospace violated the NLRA when it suspended Robinson for the and Agricultural Implement Workers of America (UAW), April 11th incident, but not the two other suspensions. The judge applied the Atlantic Steel Co. standard in arriving Local 31. The charging party, Charles Robinson, has 6 worked for the employer for over 20 years and is an at her conclusion. Both parties filed exceptions to the electrician. Since 2012, he has been a full-time skilled decision. The NLRB issued its decision on July 21, 2020. trades committee person for the union. As such, he represented first and second-shift bargaining unit members The Board Decision with contract concerns, discipline and bargaining. Under the NLRA, an employee who engages in Section 7 activity has the protections of the act. The issue to be As a committee person, Robinson regularly met resolved in General Motors is, when does an employee with members of management to discuss bargaining who is engaged in protected activity lose that protection issues. The events in issue center around three because of their disruptive conduct or profane language? “confrontations” between Robinson and management.4

The board reviewed the three types of situations On April 11, 2017, Robinson had a heated argument when abusive conduct and or profanity of the with management related to cross-training of employees. employee loses the protections of the NLRA. It Robinson, acting as a committee person, said he “did not looked at the standards used in workplace cases, give a f*** about your cross-training” and the manager could social media matters and picket line misconduct. “shove it up [his] f****** a**.” He was suspended for three days.

The first and most significant are situations involving About two weeks later, Robinson, again in his union workplace discussions with management. The four-part position, attended a meeting regarding subcontracting standard was set forth in Atlantic Steel Co.7 There, with two other union officials and a dozen managers. the board considered four factors: (1) the place of the When one of the managers was speaking, Robinson discussion; (2) the subject matter of the discussion; (3) was very loud and started pointing his finger. He was the nature of the employee’s outburst; and (4) whether told to lower his voice. He did and mockingly made a the employee’s actions were provoked by the employer’s comment of: “Yes, Master, Your Master Anthony.” He unfair labor practice.8 As applied in practice this also stated that the manager wanted him “to be a good standard did not assign any specific weight to the four Black man.”5 For this he was suspended for two weeks. factors and often resulted in inconsistent conclusions.9

The last incident occurred six months later and involved With respect to conduct involving social media cases, a meeting with another union committee man and four the board has applied a “totality of circumstances” standard. The board has analyzed whether social 11 Labor and Employment News

media posts are unprotected by the act on the basis Once the general counsel makes his initial case, the of disparagement or disloyalty to the employer.10 employer will be found to have violated the act unless it meets its burden to show it would have taken the same action even in the absence of the Section 7 The final type of cases involved picket line misconduct. 15 11 activity. If the evidence as a whole establishes that the Clear Pine Mouldings held that, where employee picket reasons given by the employer’s actions are pretextual, line “misconduct is such that, under the circumstances the employer has failed to meet its burden. existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the act.” Cases applying the standard have found that The board held that the application of Wright Line picket line conduct is unlawful only where it involves to these cases promises more reliable, less arbitrary an overt or implied threat or where there is a reasonable and more equitable treatment of abusive conduct cases likelihood of an imminent physical confrontation. than under past standards. It will also avoid potential conflicts with antidiscrimination standards.

The board indicated that, not only have these past standards resulted in inconsistent conclusions, but they Since the administrative law judge applied the Atlantic also make it difficult for an employer to meet his EEO Steel standard in her decision, the board remanded the case obligation to prevent hostile work environments on the back for a proper review under Wright Line.16 On remand basis of hostile traits. Employees subjected to work, the general counsel conducted a further investigation and picket line or social media racist or sexist comments determined there was insufficient evidence to establish a or conduct may be impacted by the conduct. prima facie case. The complaint was then dismissed.17

Considering the inconsistency of the standards, the General Motors - Takeaway board decided to apply a different rule for deciding cases The NLRB has frequently been confronted with the issue of where employees engage in abusive conduct or language evaluating situations where employees, engaged in the legal in connection with Section 7 activity and the employer exercise of Section 7 protected activity, have been disciplined asserts it issued discipline because of the abusive conduct. or discharged when their conduct has been deemed abusive, It turned to a well-established standard, i.e. Wright disruptive, obscene, profane or even racist and violated Line.12 The new rule applies where the matter is founded 13 employer work policies. These cases take a variety of in the workplace, social media or the picket line. forms, including actions in the workplace, the picket line and social media. Oftentimes they occur in circumstances Under the familiar Wright Line standard as applied by that are heated and emotionally charged. Employees the board in abusive conduct cases, a shifting burden seeking to exercise their Section 7 rights and employers of evidence is again applied. The NLRB general attempting to maintain workplace order and discipline counsel has the initial burden of showing that (1) the are pitted against one other. Where does such conduct employee in issue had engaged in Section 7 activity; become an unfair labor practice and not lawful discipline? (2) the employer had knowledge of that activity; and (3) the employer had animus of such activity which Until the decision in General Motors, the board has must be proven with evidence sufficient to establish invariably sought to balance the various competing interests a causal relationship between the discipline and the to reach a decision on each fact pattern. The results have Section 7 activity. General counsel is not required as been a variety of tests, depending upon the alleged violation. part of his initial burden to disprove the existence of 14 The tests themselves have been difficult to apply and other lawful motivating factors for the discipline. results have been inconsistent. In General Motors the board sought to clarify the decision making process by relying on an old standard, the Wright Line test. The decision

12 Labor and Employment News

was issued by a three-member board with no minority The board’s analysis incorrectly separates the Section 7 representation present – no dissent. Is this the answer? activity from the abusive language/conduct. In the field of labor relations, where discussions are often heated and emotional, this is not reasonable. It will chill any actions The board stated that, under prior standards, the Section by the union. Take, for example, the General Motors case 7 activity engaged in by the employee was found to itself, where Robinson, as a union representative, was actually be analytically inseparable from the abusive language engaged in Section 7 activity. His actions and language or conduct committed in the course of the Section 7 were crude, but did that take him out of the protections activity. It concluded the two actions are severable. of the act? Rather than provide a passive, submissive The causal connection between protected activity and 18 approach, he expressed himself in an adversarial manner discipline is properly in dispute. The board said the – a hallmark of labor-management relations in America. result will be that an employee who engages in protected activity and associated abusive conduct will be treated the same as employees who engage in abusive conduct Context is important. Say the employer has and enforces a alone. This clearly limits employees’ Section 7 rights. strict civility, anti-profanity policy. A union representative is engaged in contract negotiations situations that often become heated and emotional. Must the representative refrain As a result of this division, the board concluded that a from profanity or “pounding the table” for fear of being Wright Line analysis was appropriate. It is obvious from disciplined? Under General Motors, the answer could be the start that, although the new rule may bring consistency, yes. The context and employees involved are important. The it will also diminish the value of employees’ Section 7 rule could have a chilling effect on normal union activities. rights. The new rule is definitely pro-management.

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A major flaw of the board’s General Motors test is that it treats employees who are engaged in Section 7 activity Unions and employees must be cautious when using the same as all other employees. This is clearly not true, profanity or displaying disruptive conduct in the otherwise there would be no NLRA. Employees engaged workplace under General Motors, particularly if the in Section 7 activity are treated differently – they are employer maintains a strong neutral policy against protected. One cannot break the suspected protected disruptive conduct or profanity. They could be more activity into parts where the conduct/language is isolated. easily disciplined than under the prior standards. An employer may have a facially neutral policy against profanity or conduct, but should this be equally applied in the emotionally charged environment of labor relations? Management certainly has a vested right to maintain order and discipline in the workplace, but the General Motors test tilts the scale too far at the expense of Under the General Motors test an employer can escape employees’ protected rights. Rather than change the rules liability if it would have taken the same action even in the 19 entirely the board should have provided more guidance absence of Section 7 activity. If the employer has a strict to already existing standards that would have also been civility, no profanity policy and applies it religiously, does useful in cases involving work in the work place, picket this also apply to all protected union activity? Would line misconduct and social media cases.20 To suggest, the employer only have to establish that it disciplined however, that a Wright Line standard is to be used is any employee who used profane language? Is that a fair inappropriate and only serves to put a chilling effect on standard to use when a union representative uses profanity employee and unions exercise of their protected rights. in a heated, emotional setting, to zealously defend an employee in a termination grievance matter or a local union president making a point at a bargaining table? The average employee is never placed in these unique settings.

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Conclusion 7 Id. Again, the NLRB has sought to provide a black letter 8 Id. at 816. 21 standard to very complex and varied situations. On the 9 General Motors, 369 NLRB at pp. 4-5. The one hand, management is totally within its rights to have Board provided several examples of past cases that reasonable policies to maintain order and discipline in inconsistently applied the Atlantic Steel standard. the workplace. Reasonable rules are the hallmark of good 10 management. Employees are guaranteed the exercise of The Board referenced NLRB Electric Workers Section 7 protected rights under the NLRA. It is the Local 1229, 346 U.S. 464 (1953). intersection of these two ideals that create friction. 11 268 NLRB 1044 (1984). 12 251 NLRB 1083 (1980). The policy of the NLRB had been a balancing act under 13 General Motors, 369 NLRB at p. 9, n. 22. the Atlantic Steel standard. Decisions issued were not 14 Id. at p. 10. consistent and little guidance was provided to the parties. 15 Recently, the board adopted the Wright Line test, a tried- Id. 16 and-true test in dual-motive cases which does not fit. It It is interesting to note that the ALJ specifically noted minimizes the value of Section 7 protected rights. Perhaps that if she had applied the Wright Line test to the facts a better approach is to rework the former standard, Atlantic her decision would have been the same. Id. at 24. Steel, and other standards to make them more consistent 17 Motion of Counsel for the General Counsel to and practical. With a new administration in Washington, Remand Proceedings to Region 14. October 21, 2020. perhaps General Motors may not be the last @#!*&^% 18 General Motors, 369 NLRB at p. 9. word in this sensitive area of labor relations. Stay tuned. 19 Id. at p.10. 20 For example the Board could have provided guidance About the Author as to the weight given to each of the Atlantic Steel Alan Zmija is a retired National Labor Relations factors or if separate standards should apply to union Board attorney. Currently, he is an adjunct professor representatives doing official duties. The Board also teaching labor law to law and graduate students at might establish some guidelines that conduct or language the Cleveland State University College of Law and creating a hostile work environment is presumed to College of Business. This article is written in his remove the employee from protections of the Act. individual capacity. It does not constitute legal advice 21 See generally, Boeing, 365 NLRB No. 154 (2017) or create any attorney-client relationship and parties where the Board sought to simplify neutral work should always consult with their own attorney. policies and ended up creating a new “Category” procedure that has not simplified much. Endnotes 1 The Board consisted of Chairman John F. Ring, Member Marvin E. Kaplan and Member William J. Emanuel. The composition of the Board did not include any minority Democratic members at the time the decision was issued. 2 369 NLRB No 127 (2020). 3 Id. at p.12 (ALJ decision). 4 Id. at p. 2 (Board decision). 5 Robinson was Black. Id. at p. 15, n. 15. 6 245 NLRB 814 (1979). A further discussion of the Atlantic standard follows at text relating to n. 7, infra.

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Book Review: “The Affirmative Action Puzzle” by Melvin I. Urofsky

By Bradley S. Le Boeuf

In Melvin Urofsky’s sprawling book, “The Affirmative In Urofsky’s view, the Civil Rights Commission Action Puzzle,” the shifting views of Congress, the judicial definition is “still useful: affirmative action takes system, presidents and public opinion have altered the seriously the discrimination certain groups have suffered; landscape of affirmative action plans with vexing results. it attempts to overcome those prejudices and provide equal opportunity; and it defines who is covered.”

Urofsky, a history professor at Virginia Commonwealth University and former Ohio State University Even more amorphous definitions of “affirmative action” teacher, makes clear that it is no easy task to define are found in “soft” affirmative action policies and “hard” affirmative action and implement antidiscrimination affirmative action measures. Urofsky describes the difference policies that can survive legal scrutiny. between the “soft” and “hard” schools of thought: “The former is about doing away with barriers, of opening doors to groups previously kept out, of genuine outreach. Urofsky summarizes the 1981 U.S. Commission on The latter involves quotas, programs that are run either Civil Rights definition of “affirmative action” as: primarily or strictly by the numbers.” Urofsky writes that, “If all companies had followed the ‘soft’ version of First, it is remedial: affirmative action denotes efforts affirmative action … there would have been no need for that take race, sex, and national origin into account the book you are reading.” He opines that “only a bigot for the purpose of remedying past and present could oppose a soft affirmative action, one that reached discrimination and its effects. Second, affirmative out to different groups but made the decision for admission action seeks ultimately to bring about opportunity: or hiring solely on merit. Much of the uproar has come it assumes that “race, sex, or national origin [must because of hard programs involving quotas and goals.” be considered] in order to eliminate considerations of race, sex, or nation origin,” that “because of the A succinct explanation of “soft” affirmative action is duration, intensity, scope and intransigence of the mentioned as found in the 1990 Americans with Disabilities discrimination women and minority groups experience, Act. “[I]t prohibited employment discrimination in hiring, affirmative action plans are needed to assure equal firing, or promoting persons with disabilities. The law did employment opportunity.” Third, affirmative action not establish goals or timetables, but essentially did for specifies what groups are to be considered part the disabled what the 1964 Civil Rights Act had done for of the “protected class” covered by its policies. minorities and women – opened the gates of opportunity.” 16 Labor and Employment News

Urofsky also cites instances of intentional discrimination complaints about “reverse discrimination” from a displaced that are not necessarily illegal. For instance, the “bona worker. And reconciling recruitment of minorities fide occupational qualification” that legitimately allows into the unions sometimes had the nullifying effect only women to be a Radio City Music Hall Rockette of still depriving minorities from union membership dancer, but also a casting director “may advertise for under the “last hired, first fired” seniority system. women to play female roles and men to play male parts, but not for a woman to be his or her secretary.” But, the Nixon administration’s efforts to force integration of the unions was regarded by the AFL-CIO union Urofsky is also blunt in his criticism of some government leadership as demanding “completely unacceptable” quotas actors, like the work of the Equal Employment Opportunity in apprenticeship programs and hiring. Less than a decade Commission (EEOC). The EEOC, according to Urofsky, later, “the quota plan split the Republicans so badly that in “disregarded the plain wording of Title VII of the 1964 1980 the party’s conservative wing, led by Ronald Reagan, Civil Rights Act and imposed a hard policy on the nation’s repudiated Nixon’s affirmative action policy completely.” employers and, together with the Department of Education, on the country’s schools.” He submits, “Both detractors and defenders of the EEOC agree that the agency bears In the book, Urofsky struggles to find a uniform scale the onus or deserves the credit for establishing a federal to gauge the effectiveness of affirmative action plans. policy of ‘hard’ affirmative action.” The negative effects Empirical studies were fraught with unmeasurable of such governmental interference were apparent in public parameters and he readily concedes, “Despite all the studies opinion: “As governmental agencies moved toward ‘hard’ done, there is no simple answer. It is impossible to get affirmative action, with its numerical goals and timetables, accurate figures because in many instances blacks and other public acceptance decreased.” Urofsky chastises the EEOC minorities might have been hired even in the absence of a for the “cautious, sometimes bumbling manner” in which plan. The best numbers come from those firms or agencies the agency processed gender discrimination complaints. that admittedly had discriminated in the past.” But in the end, in an obvious contradiction of his assessment of indeterminate statistics, Urofsky finds that “[T]here Urofsky is critical of Associate Supreme Court Justice have been a number of academic studies that all come Clarence Thomas’s previous reign as EEOC chairman. to the same conclusion: affirmative action worked and “Under Thomas, enforcement concentrated on fully benefited the target community, be it minority or female.” prosecuting suits in which clear discrimination could be proved. This policy, however, led to a jump in the backlog of cases, and it caused a minor controversy Urofsky’s book deals with several Supreme Court when it turned out that a two-year statute of cases regarding affirmative action. He cites New limitations had expired on more than ten thousand Negro Alliance v. Sanitary Grocery Co., (303 U.S. age discrimination claims filed with the agency.” 552 (1938)), as technically the first U.S. Supreme Court affirmative action case “although neither the justices nor anyone else recognized it as such.” He The lack of prosecution of employment discrimination also goes into the famous 1978 Regents of the Univ. complaints by the former Health, Education and Welfare of California v. Bakke case, which dealt with a white department is also highlighted. Between 1971 and 1974, student’s attempt to gain medical school admission. not even one of the 616 employment discrimination complaints at the department had been resolved. In the book, William Brennan is recognized as “the court’s staunchest proponent of affirmative action’s Urofsky also goes into the entrenched discrimination of constitutionality.” Urofsky notes that Chief Justice labor unions. Unionized building trades were notorious Warren Burger’s preference to effectuate a legal remedy for lacking minority workers, with a large percentage for affirmative action violations was not through court of those employees placed in low paying and unskilled decisions, but by federal legislation. The Burger court’s labor positions. Mandated set-asides led to inevitable 1980 Fullilove v. Kluznick decision is a classic summation 17 Labor and Employment News

of judicial restraint: “We reject the contention that in Supreme Court ruled that Ledbetter’s allegations of unequal the remedial context the Congress must act in a wholly pay was time-barred because her claim was not brought color-blind fashion. … It is fundamental that in no organ within 180 days of receiving her first unequal paycheck. of government, state or federal, does there repose a more The Lilly Ledbetter Fair Pay Act of 2009, which sought to comprehensive remedial power than in Congress.” remedy the consequences of the statute of limitations, was the first bill Barack Obama signed into law after he took office.

Urofsky makes clear that courts have also struggled with the proper degree of “scrutiny” to use in their Large portions of Urofsky’s book discuss the quagmire analysis. The absence of unanimous Supreme Court that state and private higher education institutions face decisions and splintered votes underscored the difficulty in sifting through workable solutions for affirmative of reaching a firm consensus on those categories of action. But parts of the book read almost like primers for “rational basis,” “intermediate scrutiny” and “strict any personnel department or school admissions office. scrutiny” cases and diminished their precedential value. Urofsky writes that the threat of public backlash and boycotts forced businesses to face the economic reality that “many minority customers could be driven away The chapter dealing with affirmative action in election if they believed that the company discriminated. … law litigation is illuminating and relevant. Inclusion Often private companies adopted affirmative action – of the map of North Carolina’s 12th congressional even in its ‘hard’ form – for sound business reasons.” district snaking along the I-85 highway is a stark exhibit portraying the ludicrousness of a legislature trying to gerrymander a majority minority district. Urofsky’s lengthy book largely focuses on the secondary The bizarrely shaped boundaries “managed to have education and employment aspects of affirmative action. an African American majority but violated all the “The backlash against affirmative action is not about rules regarding compactness and contiguity.” (Ohio’s numbers at all. It is about how we view what equality in own elongated 9th congressional district following America means.” Clues to finding the final piece solving the Lake Erie shoreline is a similar design.) “The Affirmative Action Puzzle” are still subjective.

Despite the length and detail of the book, Urofsky The Affirmative Action Puzzle, by Melvin I. Urofsky. 592 understands the limitations of writing a comprehensive, pages. New York, NY: Pantheon Books. 2020. Illus. $35.00. centuries-long analysis of affirmative action. He demurs that just dealing with the nuances of the Bakke decision would be a “small book.” His efforts About the Author at describing discrimination in the military is skimpy Bradley S. Le Boeuf is an attorney in Akron, Ohio. He and a comparative international analysis of affirmative earned his law degree from The University of Toledo action is barely there. Similarly, Urofsky glosses over College of Law. His essays and commentaries have addressing affirmative action in the entertainment and appeared in a variety of publications and he is a member professional sports industries. Major League Baseball of the Hudson Writer’s Group in Hudson, Ohio. and the pioneering achievements of Jackie Robinson garner scant mention. But, digressing into those related topics could be the subject of at least four more books.

Surprisingly, in the chapters outlining presidential polices advocated since the early 1960s, Urofsky omits any discussion of the Lilly Ledbetter wage discrimination case. In Ledbetter v. Goodyear Tire & Rubber Co., the U.S.

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A Message from the Chair

Labor and Employment Friends: a high level of cooperation and collegiality in the tensest This past Saturday I chaired our Section Council meeting, times I have experienced in my 35 years of practice. And and like our last three meetings, it was virtual. I always so, thank you for what you do for your clients, your law look forward to our first meeting of the year where we firms and your firm’s employees. And thank you for the gather at the bar association, have a productive meeting, professionalism you have demonstrated this past year. then enjoy lunch together. We follow it with the first planning meeting for our Midwest Labor law conference Everyone I know is doing their best. By October, we – which we did this year, of course, but by Zoom. are confident we will be able to see many of you in person at Midwest. We plan to offer live streaming I opened the virtual the Section Council meeting by for those not yet comfortable, but it will be great saying this: I commend our bar for its commitment and to see you all there, on screen or in person. caring during this most difficult year. These have been difficult times for us lawyers, but far more difficult for our John Marshall clients, the many that have lost their jobs and employers desperately trying to stay in business. Somehow, we OSBA Labor & Employment Section Chair labor and employment lawyers have managed to retain

21 Labor and Employment News

In Case You Missed It By Priscilla Hapner

In case you missed it, these are a few brief summaries orientation and gender identity: “[a]n employer who of recent court decisions involving employment law. fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” Bostock Supreme Court v. Clayton County, 140 S.Ct. 1731 (2020). In short, • Immigration. A divided Court issued a decision “if changing the employee’s sex would have yielded a affirming in part the APA challenges to the different choice by the employer—a statutory violation termination of the DACA program. DHS v. Regents has occurred.” The decision left open issues relating of the Univ. of Calif., 140 S.Ct 1891 (2020). In to other terms and conditions of employment and the short, the Court found that, although the DHS could validity of religious objections under the Religious clearly do what it wanted to do – eliminate all aspects Freedom Restoration Act. of the DACA program -- the DHS was arbitrary and capricious in how it did so by seemingly not • First Amendment. The Court held that two Catholic understanding or considering its options or discussing schools were exempt under the ministerial exemption how terminating the entire program would affect the from employment discrimination lawsuits brought under recipients (or their families, employers or the economy). the ADA and the ADEA by two elementary school The Court did not reject or give much consideration teachers who as part of their duties were responsible to the underlying rationale – that certain aspects of the for teaching, worshipping and modeling the Catholic DACA program were unlawful. A slightly different faith. Our Lady of Guadalupe School v. Morrisey- majority of the Court also rejected equal protection Berru, 140 S.Ct. 2049 (2020). The independence objections to the DHS’s termination of DACA. of religious institutions under the First Amendment precludes courts from interfering or second-guessing • Title VII. A divided Court held that Title VII’s employment decisions involving ministerial employees. prohibition on sex discrimination covers sexual

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Sixth Circuit a hostile work environment, the Court found that the • ADA. The Circuit affirmed an employer’s summary plaintiff failed to show that the subordinates’ disrespect judgment on ADA failure-to-accommodate and was motivated by discriminatory animus. Second, constructive discharge claims where the employee criticism of his communication skills was related to his sought to work from home three days each week, managerial job performance and not his accent. Third, but never produced any medical documentation his attempt to compare his treatment by only two of showing that this request was required by his shoulder his subordinates with how they interacted with his disability. Tchankpa v. Ascensia Retail Group, Inc., 951 predecessor was insufficient to show discriminatory F.3d 805 (6th Cir. 2020). “The ADA is not a weapon animus. Fourth, the alleged incidents were not nearly that employees can wield to pressure employers into severe or pervasive enough to constitute harassment. granting unnecessary accommodations or reconfiguring Fifth, his complaints about his subordinates were also their business operations. Instead, it protects disabled too vague to constitute protected conduct. Sixth, his employees from disability-related mistreatment—no complaints about his manager and supervisor took place more, no less.” The Court found that requested after the decision to place him on a performance plan. accommodations are reasonable only if they “address Finally, his rejection of a transfer following a lengthy a key obstacle preventing [the employee] from medical leave of absence constituted a resignation and not performing a necessary function of [his job.]” Further, a termination. “[a]n employee might not always need to show his accommodation is medically necessary to win a failure • Cat’s Paw in Hiring. The Court affirmed an employer’s to accommodate claim. But he must do so when asked summary judgment on an age discrimination claim by his employer.” Finally, the constructive discharge challenging its failure to interview or hire an applicant claim failed because he failed to show an objectively with 30 years of experience, but who had poor job intolerable workplace or nexus from any intolerable references. Flowers v. WestRock Services, Inc., No. 20- working conditions and his disability. 1230 (6th Cir. 11-12-20). The plaintiff admittedly could not satisfy certain qualifications for the job required by • ADA. The Court affirmed an employer’s summary the job description and was not entitled to override the judgment on an ADA retaliation and public policy employer’s ability to establish its own job criteria. The wrongful discharge claim where the employee objected plaintiff also could not show pretext based on a generic, to the employer’s reasonable accommodation conditions automated message about preferring candidates who more (that he wear a CPAP machine) and the parties closely matched the job requirements. Interestingly, the debated conflicting medical reports as to whether he Court held that the cat’s paw theory of discrimination did suffered from sleep apnea. Allmanv. WalMart, Inc., not apply to hiring decisions because the employer could No. 19-4220 (6th Cir. 7-30-2020). The Court found not independently investigate the basis of a negative job that the employer’s conditions were reasonable under reference from a prior employer. “If every reference comes the circumstances and that it was entitled to request with a federal duty to investigate, hiring will become additional medical examinations. Ultimately, “arguing exceedingly tedious, especially with the volume of about the accuracy of the employer’s assessment is a applications submitted through today’s digital platforms.” distraction because the question is not whether the employer’s reasons for a decision are right but whether • FLSA. A divided Court affirmed a jury verdict in favor the employer’s description of its reasons is honest.” of door-to-door salespeople for an energy company, finding that they were not exempt outside salespeople. • Title VII. The Court reversed a jury verdict finding Hurt v. Commerce Energy, Inc., 973 F.3d 509 (6th Cir. both a hostile work environment based on race and 2020). The Court found that the plaintiffs did not have national origin and a retaliatory discharge. Khalaf authority to make sales where the company retained the v. Ford Motor Co., 973 F.3d 469 (6th Cir. 2020). unfettered discretion to reject the customer applications Although the plaintiff had complained that the obtained by the plaintiffs, that they were not taking disrespect of his subordinate employees and his own orders for a service and that their compensation was far supervisor’s criticism of his English skills had created less than the minimum wage. Accordingly, the jury

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could reasonably find that they did not satisfy the workers were deeply offended and upset by her use of the regulatory requirements and did not reflect the other word. The Court also rejected the plaintiff’s argument indicia of outside salespeople which could justify them that the City had caved to a single heckler’s veto. While being treated as exempt. the decision was unanimous and there was a majority court opinion, each judge wrote a separate opinion • First Amendment. The Court reversed a summary explaining the outcome. judgment for the City of Cleveland involving the termination of an EMT officer for offensive comments Ohio Supreme Court about Tamir Rice posted on his private Facebook • Negligent Hiring and Supervision. The unanimous page. Marquardt v. Carlton, 971 F.3d 546 (6th Cir. Court held that “a plaintiff need not show that an 2020). The plaintiff denied posting the comments and employee has been adjudicated civilly liable or has been asserted that he deleted them within hours as soon as found guilty of a crime by a court in order for the plaintiff he discovered them. However, his co-workers/friends to maintain a negligent hiring, retention, or supervision had reported the comments and he had been promptly claim against an employer.” Evans v. Akron Gen. Med. fired. The trial court had found that the comments Ctr., Slip Opinion No. 2020-Ohio-5535. In other words, were not protected by the First Amendment because “a plaintiff must establish that an employee committed they related to a private matter rather than a matter a wrong recognized as a tort or crime in the state of of public concern. However, the Sixth Circuit found Ohio, and not that the wrong has been proven to be that the comments could be protected as discussion tortious or criminal in a court proceeding.” Furthermore, of a public concern, although it remanded so that the the plaintiff also need not file the negligent hiring/ trial court could determine whether the statements supervision claim within the limitations period for the were protected by the First Amendment and whether underlying wrongful action. The two-year limitations the employer’s efficiency interest outweighed the period for negligent hiring and supervision does not shift employee’s interest. based on the underlying wrongful act.

• First Amendment. The Court reversed a trial verdict • Drug Testing. A divided Court held that there is no of $25K in favor of a Trump-supporting employee who common-law invasion of privacy claim under Ohio law claimed that she was unlawfully retaliated against in when an at-will employee consents to or submits without violation of the First Amendment when she was fired objection to direct observation of a urine sample given for using racist slang a single time on a Facebook post for a workplace drug test. Lunsford v. Sterilite of Ohio, on election night 2016 even though she had deleted L.L.C., 2020-Ohio-4193. Not only did the plaintiff the entire post the next day. Bennett v. Metro. Gov’t employees sign a consent form (which did not mention of Nashville, 977 F.3d 530 (6th Cir. 2020). The Court direct observation collection), but also they did not object found that the plaintiff’s use of the racist term in when they were later informed that the urine collection responding to the exact same language posted by a would be observed. The Court’s majority found it stranger was not constitutionally protected and justified irrelevant that the employees believed that they would be her termination. While her comment did reflect on fired if they objected to or refused direct observation. a matter of public concern, it was not entitled to the highest level of protection as other comments might • Civil Service/RIFs. A divided Court affirmed the have been and was outweighed by the disruption dismissal of a mandamus action by a number of police created within her workplace and in the public’s trust officers who sought to be promoted to positions which of her department. It was particularly problematic that had previously been abolished by the City Council upon her Facebook posts were public, that she identified her the retirement of the prior incumbents. State ex rel. employer and department, that she failed to disclaim Ohio Patrolmen’s Benevolent Assn. v. Warren, 2020- that her personal opinions were her own and not that Ohio-5372. The Court held that when the City Council of her employer, that she had direct contact with the had already reduced the headcounts for officers to be public in her job, that she failed to consistently express accomplished upon the next retirement to occur in those remorse or accountability, and that many of her co- positions (i.e., through attrition), vacancies never occurred

24 Labor and Employment News

in those positions into which the next most senior former employer and co-workers. Fayak v. Univ. Hosps., officers could be promoted. The Court distinguished a 2020-Ohio-5512. The Court found that parties may prior opinion which reached the opposite result because shorten the limitations periods of state law claims, in this case the City Council reduced the headcounts including those under R.C. 4112. While the Sixth and abolished the positions “on a prospective basis,” Circuit last year in Logan v. MGM Grand Detroit before the retirements and before the creation of a Casino, 939 F.3d 824 (6th Cir. 2019) had found such vacancy. In other words, “[t]he statute does not say contractually shortened limitations periods outside that reduction in the force can be accomplished only by arbitration agreements to be barred by Title VII and layoffs.” federal law is typically applied to similar R.C. 4112 claims, the Logan Court also noted that the limitations • Civil Service. The Court held that Ohio law does periods for other federal claims, like Section 1981 and not permit classified employees to challenge allegedly ERISA, could be shortened by contract because those unlawful reductions in pay in a private lawsuit because claims borrow from state law. Accordingly, because the the exclusive remedy is an appeal to the applicable civil plaintiff had not filed suit for more than six months service commission. Binder v. Cuyahoga Cty., 2020- after the last allegedly discriminatory or harassing Ohio-5126. In ordering a dismissal of class action act, all of her claims were barred by the contractual lawsuits, the Court concluded “R.C. 124.34 does limitations period contained in her job application. not allow a civil service employee to file an action in common pleas court to vindicate alleged violations of About the Author the statute by an appointing authority.” Yet, although When she is not reading and summarizing the plaintiffs failed to state a claim for relief, the Court court decisions, Priscilla Hapner advises also concluded that the common pleas court still employers and employees in Central Ohio. possessed subject matter jurisdiction over the claims because the statutory scheme had not explicitly divested the courts of such jurisdiction.

• Criminal Acts. The Court held that Ohio Revised Code §2307.60 (which imposes civil liability for injuries caused by criminal acts) does not require evidence of an underlying criminal conviction. Buddenberg v. Weisdack, 2020-Ohio-3832. Similarly, the Court held that a criminal conviction is not required to pursue a civil action under Ohio Revised Code §2921.03 prohibiting unlawful threats and other acts of intimidation against a public servant or witness in the discharge of that person’s duty. The Court relied on the plain meaning of the statutes and the absence of the word “conviction” in describing the claims. All of these claims were brought by a former county health district employee against her former employer, supervisors and various county officials.

Ohio Courts • Limitations Period. The Ohio Court of Appeals enforced a shortened limitations period of six months contained in a job application to bar state law claims for hostile work environment, sex discrimination and invasion of privacy brought against the plaintiff’s

25 Labor and Employment News

Labor & Employment Section Council Executive Committee

John Marshall, Chair ([email protected]) Sara Jodka, Vice Chair ([email protected]) Mike Hunter, Secretary ([email protected]) Bill Nolan, Treasurer ([email protected]) Roger King, Past Chair ([email protected]) Kelly Lawrence, At-Large ([email protected])

Labor & Employment Section Council Committee Chairs

Advanced Employment Law CLE Midwest Labor & Employment Law Conference • Carl Muller ([email protected]) • John Marshall ([email protected]) • Charles Warner ([email protected]) NLRB/NLRA CLE Amicus • Jim Burkhardt ([email protected]) • Bill Nolan ([email protected]) Public Sector CLE Basics of Labor & Employment Law CLE • Don Collins ([email protected]) • Sara Jodka ([email protected]) Law School Liaison/Student Writing Competition Committee Communications Committee • To Be Filled • Joe D’Andrea, Co-Chair ([email protected]) Webcasts • Robert Fekete, Co-Chair • Joelle Khouzam ([email protected]) ([email protected]) • Rachel Sabo ([email protected]) • Alan Zmija, Co-Chair ([email protected])

26 Labor and Employment News

About Labor and Employment News

Labor and Employment News is produced by the Ohio State Bar Association Labor and Employment Section. The OSBA publishes 10 committee and section newsletters.

For more information about Labor and Employment News, contact editors Robert Fekete, State Employment Relations Board (Columbus), at [email protected], Joseph D'Andrea, Squire Patton Boggs (Columbus), at [email protected] and Alan Zmija (Cleveland) at [email protected].

Articles published in this newsletter reflect the views and opinions of the writers and are not necessarily the views or opinions of the OSBA Labor and Employment Section. Publication in Labor and Employment News should not be construed as an endorsement by the section or the OSBA.

Any author interested in submitting an article for publication is encouraged to contact the editors.

For information about other OSBA committee and section newsletters, contact Annie Yamson, Senior Manager of Public Outreach & Content Editor, at P.O. Box 16562, 1700 Lake Shore Drive, Columbus, Ohio 43216-6562, (800) 282-6556 or (614) 487-4456, or email at [email protected].

Designed by Dan Petrovski.

© Copyright 2020 Ohio State Bar Association. ◆

Editors’ Note—Guest Columns

Anyone interested in submitting an article for publication your employer’s website or client newsletter will be in the Labor and Employment Law Section newsletter considered with the employer’s approval. Articles will are encouraged to contact the newsletter editors, Robert typically range between 1 to 10 pages but works outside Fekete (Columbus), Joseph D’Andrea (Columbus) and of those limitations will be considered. The editors Alan Zmija (Cleveland) by email at Robert.Fekete@ reserve the right to select articles for publication, to serb.ohio.gov, [email protected] and decline to publish any article and to require the editing [email protected]. Articles should not have appeared of an article to make it appropriate for publication. in other publications, but works appearing only on

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