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.
NOTE: there is continued instability and fluctuation (and, ok, chaos) with the changes in federal labor and employment-law, so check with us or another employment lawyer before taking any action based on something in our posts.
The post on Sunday 3/9/2025 was about preparing HR for Title VII claims beyond the filing table. A recent federal court decision highlights the need for employers to stay current on legal developments. In this decision, the Fifth Circuit opened the door for claims that had not previously been actionable. Let’s take a closer look at the decision and its implications for employers relative to workplace policies and decisions.
In Hamilton v. Dallas County, the defendant-employer admitted that it employed a sex-based policy that treated females differently than males, but it argued that its policy did not amount to an “ultimate employment decision” such that the employee-plaintiffs could not state a claim under Title VII. The Court rejected the employer’s claim; what is said a plaintiff need plead for a disparate-treatment claim under Title VII is in the post. But the court also said that Title VII liability does not arise for “de minimis workplace trifles.” Taken together, the court’s decision changed the standard for what must be pleaded to state a Title VII claim but did not provide any guidance (much less bright-line rules) as to what is and is not actionable under Title VII. How one of the dissents characterized this decision is noted in the post.
So what can employers do to assess and mitigate risks under the expanded Title VII standards in this decision? Regularly review policies to ensure that they are up to date with legal developments. An example of how this decision changes the basis for a claim under Title VII (in the Fifth Circuit at least) is in the post. But what about workplace policies that have not traditionally been challenged? It matters not if there has been a prior challenge if the policy runs afoul of any existing law (or applicable court’s interpretation of the law). Update the policy. What that would entail under this decision – both minimally and best practices – is noted in the post.
And how does this decision affect or impact employers in conjunction with the Supreme Court’s holding in Muldrow (a quick summary of which is in the post as a reminder). In Muldrow the Court noted that the harm need not be significant. Muldrow applies to all employers, whereas the Hamilton decision only applies to employers in the Fifth Circuit.
In light of the similarity of both decisions, and one being from the Supreme Court, employers should regularly review their policies to ensure they comply with current legal interpretations. Some examples of what employers might also want to do regarding transfers are in the post.
Employers should carefully scrutinize policies to ensure that they are not just facially nondiscriminatory, but also that they do not have the (perhaps unintended) consequence of treating employees differently based on a protected characteristic. Two other things employers should do are described in the post.
TAKEAWAY: Employers must always know the law that is applicable to their workplace and how courts are interpreting that law. There is fairly new Supreme Court case law relative to transfers, so talk to your employment lawyer when dealing with that scenario.
The post on Monday 3/10/2025 asked: can coughing cook fired during leave assert FMLA interference claim? The question is how serious does an illness have to be for an employee to seek FMLA leave.
Ok, facts. Around Oct. 29, 2023, the cook asked permission to leave work because he felt sick. It was not his own cooking tha5 did it. On October 30, he asked for time off because his condition had worsened. He argued that was when his employer knew (or should have) that he was requesting FMLA leave. The restaurant granted him time off but never mentioned FMLA rights. The cook was incapacitated for “a period of more than three days” and required “ongoing medical attention,” according to his suit. He finally saw a doctor on November 8 – which is when he was diagnosed with early stage bronchitis. That same day, he told the restaurant of the diagnosis and that he intended to return to work November 11 after some additional recovery. But instead of waiting for him to return, the restaurant told him on November 8 that it had replaced him and he was fired. He sued for FMLA interference.
To state a claim for interference with FMLA rights, a plaintiff must establish: 1) that he is an eligible employee under the FMLA; 2) that the defendant is an employer as defined by the FMLA; 3) that he was entitled to take leave under the FMLA; and the other two things listed in the post. To be qualified for FMLA leave, an employee must have a “serious health condition” which is an illness, injury, impairment, or physical or mental health condition that involves inpatient care or continuing treatment by a health care provider. Continuing treatment (a key here) is defined in the post.
So was the cook entitled to take FMLA leave?
A. No. He only had one doctor appointment prior to Nov. 30 and he wasn’t under a continuing treatment regimen.
B. Yes. His employer fired him after he told the employer he was sick.
If you selected A, you agreed with the court in Guevara v. A&P Restaurant Corp. (a decision out of NY in late Jan. 2025), which held that the cook had no right to FMLA leave for his bronchitis. The court said that the employee’s condition did not fit either of the FMLA’s possible definitions of a serious health condition. Its analysis of the facts under the statutory definition is in the post. The court then dismissed the cook’s suit.
TAKEAWAY: Every illness does not give rise to FMLA rights; know the law (and consult your employment lawyer if necessary).
The post on Tuesday 3/11/2025 told us EEOC rolls back LGBTQ+ protections, raising concerns over civil rights enforcement. Another waiting situation … Acting Chair Andrea Lucas announced that the agency is refocusing on what she describes as “protecting women from sexual harassment and sex-based discrimination in the workplace.” The changes, which include the things noted in the post, have sparked concern among civil rights advocates who warn they could undermine LGBTQ+ protections. According to the EEOC’s official statement, the agency is aligning itself with Executive Order 14168 (discussed in our post of March 6, 2025). As part of this shift, the EEOC has eliminated gender-neutral identifiers by removing the “X” gender marker from its intake forms, revoked the option for employees to display pronouns in Microsoft 365 profiles, and the other three (3) things listed in the post. What the EEOC claims is the reason for the changes is also in the post.
The changes raise critical questions about the EEOC’s enforcement of Title VII including, as decided by the Supreme Court in Bostock v. Clayton County (2020), discrimination based on sexual orientation and gender identity. While the EEOC has not said it will stop processing LGBTQ+ discrimination claims, the removal of gender identity references from its materials suggests a deprioritization of enforcement in that area. The potential result of that is in the post.
In addition to its policy changes, the EEOC’s ability to enforce its new approach is also in question. President Trump dismissed the two Democratic commissioners so the EEOC now lacks a quorum (and can take no action).
While Lucas has removed gender identity materials from EEOC guidance, she cannot unilaterally overturn certain policies, meaning that all of it, including the EEOC’s 2024 Harassment Guidance (described in the post) is still effective as of now. The new stance put in place by Lucas also contradicts past rulings as noted in the post.
So is any of this a change for employers? Not yet. Employers still must comply with Title VII and Bostock. For any workers who believe they have been discriminated against based on gender identity or sexual orientation, see the post. The removal of gender identity materials from EEOC resources may lead to confusion, so there might be a move to more state-level enforcement.
The changes Lucas intends to make will likely face legal challenges from civil rights organizations (on the bases noted in the post). And appointments to the EEOC could change things – especially if the administration changes again.
TAKEAWAY: Given the expressed intent but current confusion, employers should consult legal counsel for guidance on defending against discrimination claims, monitor developments in EEOC enforcement and state-level protections, and understand that Title VII is still good law at this time.
The post on Wednesday 3/12/2025 provided a timeline details half-century history and problems of condos – an evacuation order 20 years in the making. Let’s look at the Dockside condominium tower and how it got to the recent urgent order for evacuation.
City officials came close to an evacuation order two years ago, but this time additional details and a better understanding of structural issues forced their hand. Over 40 years ago, the condo association sued the developers for more than $50 million over claims of shoddy construction and materials. About 20 years ago, residents balked at paying $6 million for repairs and renovations (on the basis noted in the post). But then an engineering firm made a key finding a month or so ago; that is noted in the post. Residents were given until 5pm on Feb. 28 to evacuate and take whatever they could, except furniture. It was not yet known what would be required to make the building structurally safe (or if that is possible).
Let’s look at some of the history leading up to this point in time:
–In July 1974, the Dockside project, a $12.5 million luxury condominium complex, is revealed. Who is involved is listed in the post.
-By December 1974, construction had begun. At that time, the 18-story building exceeded standards for flood and earthquake protection. Townhomes were planned to be built next to the condo building.
-Construction was complete by March 1976. One of the first residents was a former developer. Content from the original advertisements for units is in the post.
-In April 1981, a nearby undeveloped tract was pursued for development. A federal grant was sought to help construction – what was to be built is described in the post. A new City ordinance (described in the post) also is adopted related to that entire area.
–In January 1982, owners sued the developers, claiming improper construction. The post contains details. The owners sought $52 million. The case went all the way to the state supreme court three years later. The court’s holding is in the post.
–June 1982 brought several related issues, including the potential relocation of a boat tour company to near the Dockside property and the Association appeal of a city zoning decision allowing a ship repair business next door.
–In February 1984, the city tells developers to revise their plan for a new condo complex (the details of which are in the post) to be built within 12.2 feet south of the Dockside building. That is not a typo. What happened is in the post.
-In November 1985, approval is given for construction of the new state aquarium just north of Dockside. And the tour bot company finally gets approval for its relocation. The timing of those 2 projects is in the post.
-November 1996 brought negotiations between the city and Dockside to repair a bulkhead along the property, the consideration for which is detailed in the post.
-In March 2002, residents filed suit after being assessed for repairs to the building for a $21 million project (how much each owner was assessed is in the post). The suit alleged that the association board failed to maintain the building the directors denied the claim. Shortly after, owners voted against a $6 million repair and renovation plan.
-By January 2013, when he was looking for an office for a congressional bid, former Governor Mark Sanford (whose political history is recounted in the post) was living in Dockside.
-In February 2023, the city is considering ordering Dockside residents to act if the association does not come up with a plan to stabilize damaged support columns. The next month residents get a 3-week reprieve to provide to the city what is listed in the post.
-April 2023 brought a new engineering report (se ethe post for details). Residents were allowed to remain.
-Feb. 26, 2025, the chickens came home to roost. The city told residents to evacuate within 48 hours due to the unsafe structure. What had happened prior to that order is listed in the post.
TAKEAWAY: make sure all maintenance that should be done in your association, especially structural, is actually done. There will be a cost. Pay it (or face losing property, maybe your house, in the future).
In the post on Thursday 3/13/2025, we learned it causes big problems: goldfish removal only leads to fish fiasco at HOA pond. This is an ongoing fish tale without an end in sight. But what is in sight is hundreds if not thousands of goldfish currently taking over a pond after the HOA tried to remove them last year.
Alex Harper is a biologist and resident in the area; he explained why pet store fish can damage the pond when they’re dumped. See the post (and embedded video). Harper also explained why the problem won’t just go away. The goldfish have no predators in the pond; they will probably stay (and keep reproducing) unless the pond is drained. What the HOA said is happening is in the post. The HOA calls the goldfish a nuisance. But Harper believes the real problem is the design of the pond itself since turtles have no place to get out. See the post for more details. What the HOA is asking people to do about the goldfish in the pond is in the post.
TAKEAWAY: Before putting anything in a pond, your association should talk with experts to see what its maintenance obligations will be and how to control the pond and any animals or plants that will be put in it.
The post on Friday 3/14/2025 told us about a federal court decision: temporary disabilities protected under ADA. The First Circuit Court of Appeals (which is not precedential in PA but still holds sway) reversed a lower court’s ruling, finding that an oil service technician provided sufficient evidence to survive summary judgment on his disability-related claims. Let’s take a closer look.
Jesse Sutherland is a service technician who suffered a knee injury two months into his employment with Peterson’s Oil Service. After tearing his meniscus and damaging his patella, Sutherland requested that his work schedule be reduced to 40 hours a week. He received no answer. Sutherland eventually took a 12-week medical leave for surgery. When he attempted to return to work in April 2020, he found out that he had been terminated (for the reason noted in the post).
The Court emphasized that the ADA Amendments Act (ADAAA) fundamentally changed how temporary disabilities are treated under the law. What the court said is in the post. What the court said is in the post; it held that an injury need not be permanent or long-term to qualify as a disability under the ADA. The court’s decision also serves as a roadmap for employers on their obligations relative to accommodation requests. The court dealt with Sutherland’s text messages describing his “excruciating pain” and torn meniscus and how that dell within the ADA – see the post. Notably, the court emphasized that employers have an affirmative duty to engage in an interactive process when addressing accommodation requests. What that meant for Peterson given the facts is in the post.
So what are some of the things to be noted by employers? As we saw above, (and at least in that circuit), temporary conditions can qualify as protected disabilities. Two other things are detailed in the post. And COVID-19 related business slowdowns do not shield employers from discrimination claims.
One of the keys for the court was the timing of Sutherland’s termination — see the post. The case was remanded to the district court for further proceedings. What Peterson’s needs to demonstrate after remand is noted in the post.
TAKEAWAY: The ADA requires that upon being put on notice of a request for accommodation, the employer must engage in the interactive accommodation process. What is deemed notice may be subjective; discuss with an employment lawyer if you are unsure – and then jump into the interactive process.
Finally, in the post yesterday 3/15/2025, we had a workplace law update: 10 essential items on your TO DO list. Not to do tomorrow, but to do ASAP.
We know it is hard to keep up with all of the recent changes to labor and employment law, so the post provides an action plan for compliance by way of review of some critical developments in the first month of the new administration (and things you should consider doing as a result).
First, track changes from workplace watchdogs (i.e., EEOC, NLRB, and others). The NLRB General Counsels and a Board member were summarily fired. Two Democratic members of the EEOC were also fired and a Republican appointed as Acting Chair. And an anti-LGBTQ+ Executive Order was issued (again, see our post of March 6, 2025).
Next, assess DEI programs. This too falls under the auspices of that same Executive Order. Work closely with your employment lawyer.
Look at your policies relative to workers from other countries – again, consult with your lawyer for the reasons noted in the post.
Know how AI affects your workplace – and how it is evolving, sometimes even daily, at both the federal and state levels. See the post for more details.
Keep up with what’s happening in the labor law arena. Not just unionized employers, but ALL employers since Section 7 of the National Labor Relations Act covers ALL employees. See the post for more details here, including a bill introduced by a Republican senator.
Other things employers should do are listed and described in the post, including dealing with state pay transparency laws and being familiar with Supreme Court decisions (including the one listed and detailed in the post).
TAKEAWAY: keep your eyes and ears open and know what your statutory obligations are. Keep in close contact with your labor and employment lawyer while this see-saw continues.
York, Pennsylvania 17403