Below is a review of the posts on Facebook and LinkedIn from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 1/19/2025 told us the EEOC sued Equinox Holdings, Inc. for disability and sex discrimination. Ugh is right. Equinox owns and operates fitness facilities and gyms nationwide, allegedly illegally discriminated against a woman who suffers from endometriosis on the basis of disability and sex when it failed to hire her as a front desk associate at its sports club because of her “monthly cycle” and potential need for a reasonable accommodation. The EEOC also alleged in its suit that Equinox failed to accommodate her disability during the job application process.
The EEOC’s suit alleges that the woman had previously worked in similar positions for other gyms and asked that her second-round interview be delayed by a few days because she experiences painful menstrual cramps and was anticipating being in that situation imminently. What Equinox then did, and its reason, are in the post. The EEOC also alleged that Equinox subsequently hired a male applicant with no prior experience working in gyms for that front desk associate position. The suit, filed in federal court in DC, alleges violations of the ADA and Title VII. What occurred prior to the suit being filed is noted in the post. Of course the EEOC seeks relief for the woman – what it is looking for is also in the post. The EEOC said that, “Stigma surrounding menstruation remains far too prevalent in society and the workplace” and “Federal law prevents such stigma and misconceptions regarding reproductive disorders, like endometriosis, from causing an otherwise well-qualified woman not to be hired simply because she may need an accommodation.” How the EEOC Field Office Director characterized Equinox’s actions (and which formed part of the basis for suit) is in the post.
TAKEAWAY: As an employer, make sure you know your obligation under the ADA (and Title VII) and that you fulfill that obligation. Contact an employment lawyer for assistance if needed.
The post on Monday 1/20/2025 alerted us that the US Court of Appeals for the Third Circuit (which governs matters in PA and NJ) concludes a job applicant cannot file a discrimination claim under cannabis law. Who is covered by a certain law is so important. Here, in a split decision issued December 9, 2024, the Third Circuit held that employees do not have a private right of action under New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), the first judicial analysis of the Act’s employment protections since passage almost four years ago. And yes, you employers in PA also care because of the interpretation, so read on.
CREAMMA was enacted in February 2021. It deals with the legal manufacture, distribution, sale, and use of cannabis throughout NJ. As relevant here, it prohibits employers from taking adverse employment action against: (1) a prospective or current employee based on the use or non-use of cannabis, or (2) a current employee based solely on a positive cannabis drug test. But the Act does not include an express enforcement mechanism against employers who violate those provisions.
The case is Zanetich v. Wal-Mart Stores E., Inc., filed in 2024. The plaintiff filed a complaint in federal court in NJ against Walmart, alleging that Walmart violated CREAMMA by rescinding his conditional offer of employment after he tested positive for cannabis. The question was whether CREAMMA created a private right of action for employees. The district (federal trial) court concluded that it did not and granted Walmart’s motion to dismiss. Erick Zanetich appealed to the Third Circuit.
The Third Circuit affirmed. The majority first looked to the separation of powers between the judicial and legislative branches (see the post) and then looked at the substantive test under NJ law (the steps for which are listed in the post). The Third Circuit concluded that all three substantive factors weighed against implying a private right of action under CREAMMA. The majority first noted that CREAMMA’s employment protections broadly apply to both users and non-users of cannabis, or current employees, but does not confer special rights on job applicants (like Zanetich). The Court then looked at the other factors (with its reasoning detailed in the post) and in the end found there was no private right of action under CREAMMA. The dissent found to the contrary on the factors – that analysis is also in the post.
New Jersey is not alone in trying to reconcile the intersection between new cannabis regulations and employment laws. New York passed a law in March 2021 (which is detailed in the post), but it explicitly provides a private right of action to employees who allege a violation of the statute’s employment protections. Similarly, even though Pennsylvania has not yet legalized recreational marijuana use, it has enacted its Medical Marijuana Act. How that impacts employment decisions is in the post (and something PA employers must know).
TAKEAWAY: As in all areas, employers must know how their state’s law relative to the use of cannabis by applicants or employees, outside or during work, applies and what they can and cannot do. Again, contact am employment lawyer for assistance.
The post on Tuesday 1/21/2025 noted that HOA has rule on lawn ornaments and decorations, so homeowner came up with way to get around it (and annoy the HOA too). We can agree that some HOAs have really ridiculous rules (but if they are legal, they are enforceable). The post shares a story about a woman’s friend who lives in a community where the HOA prohibits the use of flamingos as lawn ornaments. But she figured out a way her friend could put flamingos in her yard without the HOA telling her to remove them. So what happened?
The HOA has a very strict rule on lawn ornaments and decorating which has banned pink flamingos. The woman suggested a theme for her friend. That is important because the HOA requires there to be a theme for Christmas decorations. The theme chosen for the friend was “Christmas in Paradise.” The description included bright colors to offset the dreary winter. The HOA approved the theme, so the friend started decorating. He found some plastic palm trees, borrowed nine pink flamingos from another friend, and built a sled for Santa. The post has more details on the decorations. There were lights on the house, fake palm trees, and a sign that said “Christmas in Paradise.” And the HOA couldn’t do anything about the flamingos.
TAKEAWAY: Condo and homeowner association boards should be careful when approving something; they need know what they are approving so that it does not get away from them (as it did here).
The post on Wednesday 1/22/2025 reminded us that some things are not limited to discussions at family gatherings … navigating politics in the workplace. Parents often say that politics isn’t dinner table talk. And often it also is not something you want to discuss at a cocktail party. But can a private employer prohibit political comments or expression in the workplace? The answer is (as you probably guessed), “it depends” (or “maybe”). We know that private employers can neither dictate nor control the political opinions or affiliations of their employees. And employees often assert “I have the right to free speech” when they make political comments or expressions in the workplace. But they are usually incorrect when they say that – see the post.
But other state or federal laws might apply. One example is the National Labor Relations Act (NLRA); it protects employees who engage in concerted activity involving the terms of their employment. How could this cover a political discussion? See the post (especially given the broader definitions recently espoused by the NLRB).
So what can employers do in the workplace related to politics? They generally have the right to prohibit employees from using company equipment and resources for non-work-related purposes and from posting any non-work related written or printed materials in the workplace (within reasonable limits). How those restrictions must be adopted and enforced to stay within legal bounds is in the post.
Finally, there might be laws restricting or prohibiting employers from attempting to influence employees’ votes or political activities. An example is in the post. And some states prohibit employers from disciplining employees for refusing to attend an employer-sponsored meeting concerning political matters.
Just as some family members try to keep politics away from holiday and other family diners, so too it might be tempting for employers to eliminate all political speech in the workplace. But that might not be the best approach. See the post for another suggestion.
TAKEAWAY: Whether related to holidays or something else, employers must know the law and how it applies to their workplace. Once again, get assistance from an employment lawyer (before you think you will need it).
In the post on Thursday 1/23/2025, we read that a mother sues Marriott alleging pregnancy discrimination under state law and PWFA. While the PWFA is relatively new, it is garnering a lot of attention and suits. The story is actually in the embedded VID. The hospitality industry is not the only one seeing PWFA complaints and suits. Taylor Lee had worked in hospitality for Marriott for 20 years and brought them a lot of money (how much? See the post), but that slowly ended after she told Marriott she was pregnant with twins. She says she was discriminated against during her pregnancy and not reinstated after she returned to work.
In 2022 Lee was working remotely. She already had a child at that time. Lee got pregnant with twins. Since it was high-risk, she notified her employer early on. Her manager’s response is in the post (yes, you might be surprised) as well as what her manager started to do at that time. The person hired by Marriot while Lee was out on leave remained there after she returned. In March 2023 Lee needed emergency medical procedures related to the pregnancy. Lee alleges that Marriott did not live up to its policies regarding parental leave (and pay during the leave) and that its actions “felt like an interview” See the post for details on all of that. It came to a head when Lee got a text from a direct report (that was meant for the interim replacement); the content of the text is in the post. Lee further alleges that Marriott violated the law by its actions (yes, those are in the post) after she returned to work. Lee eventually resigned (but the interim replacement stayed on).
TAKEAWAY: Employers must train managers on how to act and what to say when told of a pregnancy, during the pregnancy, and after the employee returns to work. Missteps can be costly (to the purse and in the court of public opinion).
The post on Friday 1/24/2025 asked: do residents in condominium or homeowners’ associations have a right to Ring doorbell cameras? Courts are weighing in on the answer. As doorbell cameras have evolved from being considered luxuries to becoming essential, the question has become more common – and the answer more important. There are many video doorbell camera companies out there, but Ring owned by Amazon) is probably the best-known. These doorbell cameras record audio and video after the motion sensor is triggered; the owner can hear and watch the events at their door on their smart device. There are many reasons doorbell cameras have become popular (see the post), but that prevalence has raised privacy concerns (including the ability to post clips of footage to show others in the community).
HOAs try to regulate community harmony through their governing documents (declaration of covenants, rules and restrictions, bylaws, and rules/regulations). Courts often must look at those restrictions under the dictates of the federal Fair Housing Act; the questions then are whether the HOA’s rules are facially neutral and if they have an adverse or disproportionate impact on one group of residents. There are also other things a court will look at such as those described in the post.
To date it seems that courts are allowing rules restricting or limiting doorbell cameras to be enforced. In a recent case out of NC, the plaintiff alleged that the condo association was racially discriminating against her by fining her for installing a Ring camera on her condominium door based on the rules regarding exterior door modifications. The court dismissed the claims for breach of fiduciary duty and intentional infliction of emotional distress, but found questions of fact relative to the federal Section 1981 claim (see the post). The case was tried on June 20, 2024, and the jury found in favor of the defendants (more details on the verdict are in the post).
In another 2024 case, this time in Texas, the claim of disability discrimination focused on the alleged declination by the property management company of the plaintiff’s request, among other things, for a specific model of Ring camera. The court’s September 2024 decision addressed various issues under the ADA – its findings are in the post. The court there has not yet ruled as to whether the denial of the request for a specific type of Ring camera was discriminatory. That case is set for trial in June 2025.
A case filed in November 2023 in California (under the state’s fair housing act) stems from the board’s denial of a request to install a Ring camera. The basis of the board’s denial and the plaintiff’s argument as to why it should have been allowed are all in the post. This case was recently settled (and dismissed by the court on November 15, 2024.) Another California case, still pending, involving the use of Ring doorbells is discussed in the post.
TAKEAWAY: Neighbors’ desires for privacy versus owners’ desire for security. Rules and restrictions are probably a good thing, but they must be applied evenly. Get a community association lawyer to review any rules/restrictions and work with you on enforcement.
Finally, in the post yesterday 1/25/2025, we learned that reverse bias, wage law exemptions top US Supreme Court 2025 labor & employment law docket. Whatever they will be, the Supreme Court’s forthcoming decisions in this area will have major impacts on workplace bias, wage and hour, and employee benefits litigation. Let’s look more closely at a few key cases.
The justices are scheduled to hear arguments next month over whether it should be more difficult for workers from “majority backgrounds,” such as white or heterosexual people, to prove workplace discrimination claims. The decision will impact the many suits pending and to be filed around the country. The appeal accepted by the Court is by Marlean Ames, a heterosexual woman who says she lost her job at the Ohio Department of Youth Services to a gay man and was passed over for a promotion in favor of a gay woman in violation of Title VII. The department denied any discrimination and said its decisions were based on Ames’ performance. How the appellate court ruled, and its rationale, is in the post. In the past 40-50 years, four other appeals courts have ruled similarly in cases involving white men. Why did those courts all justify setting the bar higher? See the post. But there have been some courts ruling that Title VII does not distinguish between bias against minority and majority groups. That sets the stage for a circuit split and decision by SCOTUS. A Supreme Court ruling in favor of Ames would provide a boost to sits by white and straight workers claiming discrimination under company DEI policies (which policies may be facing other hurdles under the new Administration).
And the Supreme Court will also decide whether retirees can sue their former employers for disability discrimination after they leave their jobs, another issue which has split the appellate courts. Here Karyn Stanley, a retired firefighter in Florida, is appealing an 11th Circuit ruling that said she could not sue over a city policy curbing benefits for some disabled retirees because she was no longer employed. One (sub)issue is whether retirees are still “qualified” for their old jobs, a requirement to sue an employer under the ADA. What the 11th Circuit (mirroring 3 other appeals courts) said on that is in the post. But other appellate courts have held to the contrary – see the post for that rationale. This case was argued January 13th.
The Supreme Court heard argument in November over how difficult it should be for employers to prove that workers are exempt from overtime pay and other legal protections. The appeal was brought by grocery distributor EMD Sales from a 4th Circuit decision that said the company had failed to show by “clear and convincing evidence” that its sales representatives were eligible for an exemption from overtime pay. How the 4th Circuit’s ruling differed from all other Circuit Courts to have ruled on the issue is in the post.
Another circuit split comes in a case where the Supreme Court is asked to decide how difficult it should be for plaintiffs to show that the administrators of employee benefit plans engaged in unlawful transactions with other companies, such as recordkeepers. This comes on appeal from a decision from the 2nd Circuit in which oral arguments were held January 22nd. Details on the case (one of roughly two dozen that were filed beginning in 2016 accusing colleges and universities of violating ERISA) are in the post. Several of the defendant schools have agreed to multimillion-dollar settlements.
TAKEAWAY: Even cases that seem to decide one issue can affect other work-related areas – employers must stay abreast of changes to (or affirmations of) existing law.
York, Pennsylvania 17403