Fort Lauderdale Employment Law Blog

In 2016, a three-judge panel of the Sixth Circuit Court of Appeals ruled unanimously in favor of a transgender woman who was fired from her funeral home job after announcing her transition. The appellate panel said that "discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender or transitioning status, is illegal under Title VII" of the Civil Rights Act of 1964. Title VII, one of our main civil rights laws, prohibits employment discrimination because of race, color, national origin, religion or sex.

Now, the U.S. Department of Justice has decided to appeal that ruling to the U.S. Supreme Court. Its two main arguments are that the term "sex" does not imply gender identity, and that the funeral home would have been within its rights to fire the woman for religious reasons.

According to the Equal Employment Opportunity Commission, the number of sexual harassment complaints rose 12 percent during its last fiscal year, the first rise in complaint levels in 10 years. The number of sexual harassment lawsuits the agency filed was also up by 50 percent over the previous fiscal year. The timing of these increases suggests that the #MeToo movement has had an influence.

It has been a year since the first #MeToo complaints about movie mogul Harvey Weinstein became public. Since that time, powerful men in the media, politics and other fields have faced credible accusations of sexual harassment and misconduct by women, many of whom had kept silent about the allegations in the past. In many cases, men have been forced out of their jobs or faced other career repercussions. Some have faced criminal charges.

When it comes to the "gig economy," one of the more controversial issues is how Uber, Lyft, Amazon and other companies save money by classifying their workers as independent contractors rather than employees. Contract workers aren't eligible for many standard workplace benefits and protections, such as employer-paid payroll taxes, access to workers' compensation and unemployment insurance, and the right to be paid the overtime premium rate. They're not even guaranteed the minimum wage.

As we've discussed before, the federal Fair Labor Standards Act (FLSA) governs the classification of employees, absent more protective state laws. At least one competitor has sued Uber claiming that its alleged misclassification of its employees amounts to unfair competition, as law-abiding companies can't afford to offer prices as low as Uber's.

"What our investigation indicated is that Walmart had a robust light duty program that allowed workers with lifting restrictions to be accommodated," the Equal Employment Opportunity Commission said in a statement. "But Walmart deprived pregnant workers of the opportunity to participate in its light duty program. This amounted to pregnancy discrimination, which violates federal law."

That is the basis for a lawsuit the EEOC has just brought against a division of Walmart. The suit was brought on behalf of a worker at a Walmart Distribution Center in another state. She became pregnant in 2015 and, in order to avoid heavy lifting during her pregnancy, she requested either light duty or a transfer to a job with fewer physical demands.