On May 12, 2017, the Missouri legislature passed a bill banning cities from adopting minimum wage rates higher than the state’s current rate of $7.70/hour. By pushing this bill through the House right before the end of the legislative session, Republican lawmakers sought to reverse St. Louis city’s new $10/hour minimum wage increase, which has been in effect since May 5.

Proponents of the bill see a consistent statewide minimum wage as pertinent to intrastate competition. Challengers say it should be left to local officials who better understand the needs of their residents to decide the appropriate minimum wage. St. Louis Mayor Lyda Krewson said in a statement that she believes the bill to be “a setback for working families” and echoed opponents of the bill saying, “[e]very city and town in our state does not have the same issues, needs or economy.”

St. Louis is not the only city this bill would affect. Kansas City recently passed an ordinance scheduled to take effect Sept. 18, 2017, increasing its minimum wage to $8.50/hour. That ordinance is now on the chopping block. In addition, Kansas City’s plan to include—on a future ballot—a proposed minimum wage increase to $15/hour has been abandoned with news of this bill. Kansas City Mayor Sly James is a proponent of a higher minimum wage, but he expected the Missouri legislature’s move and, instead of championing Kansas City’s minimum wage increase ordinance, he is pushing for a petition to raise the minimum wage through a statewide vote.  

For now, St. Louis city’s $10/hour minimum wage is still in effect. If Missouri Gov. Eric Greitens signs the new bill within the 45 days allotted to bills passed at the close of a legislative session (by June 26, 2017), it will take effect in August. 

We will keep a close eye on the bill’s status and provide updates accordingly. In the meantime, if you have any questions about the bill or Missouri’s minimum wage laws, please contact one of the attorneys in our Employment & Labor Group.

This month, the House of Representatives passed by a vote of 229-197 the Republican-backed overtime bill titled the Working Families Flexibility Act. The act would enable employees to choose taking “comp time” or paid time off work instead of receiving overtime pay when they work more than 40 hours in a week. Proponents of the bill say this will provide increased flexibility for workers who want to spend more time with their families, but critics believe it will weaken federal overtime protections and make it easier for employers to delay paying earned overtime wages.

If enacted, the proposed legislation would enable employers to offer eligible employees the option to receive 1.5 hours of comp time for each hour worked over 40 in a week, and employees could accrue up to 160 hours of comp time in a year. Employees are eligible when they have worked at least 1,000 hours in a 12-month period, and each employee would have to agree in writing to participate in the comp time program. Because the program is voluntary, employers and employees both would be able to opt out of the program at any time with 30 days’ notice, and employees would receive cash for any unused time off. Additionally, unused comp time would not roll over from one year to the next; rather, participating employers would have to pay employees for all leftover time at the end of each year.

The act expressly prohibits employers from intimidating, threatening or coercing employees to choose the comp time program or forcing them to use all of the time off they accrued. Employees must also be permitted to use their comp time “within a reasonable period” after making a request. Employers who fail to adhere to these requirements could face penalties similar to those under the Fair Labor Standards Act, including double damages for unpaid amounts owed.

There is some speculation that the bill could face a Democratic filibuster if moved forward by the Senate. No Democrats voted in favor of the act in the House, and unlike House proposals, Senate bills can be filibustered — or kept from an up-or-down vote — by opponents. It takes 60 votes in the 100-member Senate to break a filibuster, and Republicans hold only 52 seats.

We will continue to watch the progression of the Working Families Flexibility Act and provide updates on any significant changes. In the meantime, if you have any questions about the bill, comp time in the private sector, or just want to discuss the implications if the legislation becomes law, please contact one of the attorneys in our Employment & Labor Group.

St. Louis city’s new minimum wage law increasing the minimum wage to $10 per hour takes effect May 5, 2017. This comes after a circuit court lifted its injunction that previously blocked the ordinance from taking effect.

Pursuant to the ordinance, the minimum wage will rise again on Jan. 1, 2018, to $11 per hour. The ordinance applies to any employee working a total of 20 hours or more within the city during the previous 12 months. The ordinance also requires that employers pay at least $5 per hour to tipped employees who earn more than $30 per month in tips.

The new minimum wage does not apply to:

• governmental entities other than the city of St. Louis;
• employers whose gross annual revenue was less than $500,000 in the previous calendar year;
• employers in operation for less than a year whose gross annual revenue is projected to be less than $500,000 in its first 12 months of business; and
• employers with 15 or fewer employees at all times in the current and previous calendar year, except franchises.

As we have noted in prior posts, the ordinance was passed in 2015 but was challenged in the courts. The Missouri Supreme Court upheld the ordinance on Feb. 28, 2017, finding that it was not preempted by Missouri’s state minimum wage law and that it “simply raise[s] that floor for local employees based on local conditions.” The current Missouri minimum wage is $7.70 per hour, and the federal minimum wage is $7.25.

Employers must post a new City of St. Louis Minimum Wage poster and payroll notice, found here. Employers must also provide the payroll notice with the first paycheck reflecting the increase.

Employers who fail to comply with the ordinance are subject to prosecution in municipal court and also subject to revocation of business licenses and occupancy permits.

If you have any questions about how the new St. Louis city minimum wage law affects your business, please contact the attorneys in our Employment & Labor Practice Group.

In late March, the U.S. Court of Appeals for the Seventh Circuit revived a lawsuit brought against Home Depot by the mother of a pregnant employee who was killed by her supervisor at a non-work event. Reversing the district court’s decision to dismiss the lawsuit as not stating a viable claim under Illinois law, the Court of Appeals found that Home Depot had a duty to protect its employees from the criminal acts of the supervisor, a known sexual harasser.

The deceased employee, Alisha Bromfield, had worked for supervisor Brian Cooper since she was a teenager. Cooper had a history of sexually harassing young, female coworkers, and Home Depot was well aware of this behavior, according to the Seventh Circuit opinion. Cooper had taken a romantic interest in Bromfield, which soured when she rejected his advances. Cooper then began making inappropriate comments to Bromfield and subjected her to verbal abuse. His behavior eventually escalated into violent outbursts, throwing and slamming objects, and attempting to monitor and control Bromfield outside of work. As Bromfield’s supervisor, Cooper also forced her to go on business trips with him and would often deny her requests for breaks. Bromfield complained of this treatment to Home Depot, and the company ordered Cooper to take anger management classes, but the company did not enforce this requirement or remove him from his supervisory responsibilities. Eventually, Cooper invited Bromfield to attend a wedding with him and threatened that he would fire her or reduce her hours if she refused. She agreed. After the wedding, Cooper took Bromfield to a motel room and asked her to enter a relationship with him; when she refused, he murdered and raped her.

Before the district court, Home Depot argued that it had no duty to protect Bromfield from the criminal acts of Cooper since they were committed outside the workplace. However, the Seventh Circuit concluded that under Illinois law, it is clear that employers have a duty to act reasonably in hiring, supervising and retaining employees. The court found that the fact that the murder occurred outside working hours and off work property did not defeat the negligence claim against Home Depot since Cooper had exercised his supervisory authority to coerce Bromfield to attend the wedding with him. But for the company’s granting him this authority, Cooper would not have been able to force Bromfield to attend. Additionally, the court viewed the claim as consistent with federal anti-discrimination laws, explaining that an employer may be vicariously liable for the off-duty violent conduct of a supervisor it knows or should have known was harassing the victim.

This tragic case is a reminder to employers to carefully investigate all complaints of sexual harassment and take meaningful steps to remediate any substantiated claims. If you have questions about the sexual harassment and anti-discrimination laws in your state or any other employment-related matters, please contact any of the attorneys in our Employment & Labor group.

In a landmark decision released April 4, 2017, the Seventh Circuit Court of Appeals ruled that Title VII protection extends to sexual orientation. The Seventh Circuit has become the first appeals court to rule in such a manner, directly contradicting the recent decisions of the Eleventh and Second Circuits.

The circuit split created by this ruling may prompt the U.S. Supreme Court to grant certiorari to resolve the issue. For a complete summary of this issue’s legal landscape, see our related blog article.

The Seventh Circuit en banc panel used Supreme Court rulings over the past two decades to take a fresh look at whether Title VII prohibits discrimination on the basis of a person’s sexual orientation. Acknowledging other circuits’ decisions and years of decisions to the contrary, the court instead looked at Supreme Court decisions, not only in the employment discrimination realm but also in the broader area of sex discrimination.

The court revisited all decisions where sexuality was an issue, such as Romer v. Evans, 517 U.S. 620 (1996) (finding law forbidding state action designed to help homosexual persons violated the Equal Protection Clause); Lawrence v. Texas, 539 U.S. 558 (2003) (finding Texas statute criminalizing homosexual intimacy violated the Due Process Clause); and United States v. Windsor, 133 S.Ct. 2675 (2013) (finding same-sex couples have the right to marry). In the wake of these types of Supreme Court decisions, the panel found it hard to reconcile the unparalleled outcomes created by the current legal backdrop rejecting sexual orientation as a form of sex discrimination under Title VII. In light of these decisions, the court “took advantage of what the last half century has taught” in finding that sexual orientation discrimination is prohibited by Title VII.  

Only time will tell if the Supreme Court or Congress will take action to resolve the circuit split on this issue. Until then, employers should check local and state laws for guidance. Several jurisdictions, such as the state of Illinois and the city of St. Louis, have already provided protection against sexual orientation discrimination.

If you have questions regarding the anti-discrimination laws in your state or any other employment-related matters, please contact any of the attorneys in our Employment & Labor group.

The 11^th Circuit Court of Appeals created a likely split in federal courts of appeals this week when it upheld a district court’s dismissal of a complaint alleging harassment on the basis of sexual orientation.

The 11^th Circuit’s decision in Jameka Evans v. Georgia Regional Hospital rested on the ground that discrimination on the basis of an employee’s sexual orientation is not prohibited under Title VII of the Civil Rights Act (Case No. 15-15234). The plaintiff in this case, a former hospital security guard, alleged that she was harassed because she is a lesbian and because she did not conform to gender norms. As precedent for its decision, the 11^th Circuit cited to a 1979 case out of the 5^th Circuit (Blum v. Gulf Oil Corp., 597 F.2d 926).

With other U.S. Circuit Courts of Appeals considering — and in the case of the 7^th Circuit, reconsidering — similar cases, the 11^th Circuit’s decision in Evans has primed the legal landscape for a possible circuit split on whether Title VII protects homosexuality. Thus, this issue may soon be ripe for clarification by Congress or the Supreme Court, and we expect it will be addressed in some form in the not-so-distant future.

Where the issue stands now

The current legal landscape on the issue of discrimination based on sexual orientation merits a brief summary:

• The U.S. Supreme Court has approached this issue on two occasions, while not directly deciding whether sexual orientation is within the scope of Title VII. The Supreme Court recognized in Price Waterhouse v. Hopkins, 490 U.S. 228 (1998), that employment discrimination on the basis of sex stereotypes (i.e. perceptions or expectations regarding how an individual should behave or dress in accordance with sex) qualifies as sex discrimination. In Oncale v. Sundowner Offshore Services,523 U.S. 75 (1998), the Supreme Court held that same-sex harassment is sex discrimination and therefore prohibited by Title VII.
• The Equal Employment Opportunity Commission (EEOC) has repeatedly demonstrated its support for extending the scope of Title VII to protect individuals from discrimination on the basis of sexual orientation. For example, in a 2015 decision letter for a case called Ballwin v. Foxx (EEOC Doc No. 0120133080), the EEOC took the position that discrimination on the basis of sexual orientation qualifies as sex discrimination because sexual orientation is inextricably linked to sex. Additionally, in March 2016 the EEOC filed two lawsuits alleging that employees were subject to hostile work environments based on sex when they were harassed because of their sexual orientation. The EEOC’s general counsel stated that, in filing these suits, “EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation.” Under the Trump presidency, the EEOC has affirmed its commitment to its most recent strategic enforcement plan, which includes prioritizing the emerging issues of LGBT protections. Commissioner Chai Feldblum opined that we “might see some modifications in terms of focus, but these priorities are the same.” With over 5,000 charges filed over the past four years pertaining to LGBT discrimination issues, it is not surprising that the EEOC has focused on this area of law.
• The U.S. Circuit Courts of Appeals have begun to dig into whether Title VII prohibits discrimination on the basis of sexual orientation and, in doing so, have created room for a circuit split. The 2^nd Circuit held arguments in early January 2017 on an appeal for dismissal of a claim alleging discrimination based on sexual orientation, and it should render its decision soon. See Christiansen v. Omnicom, 167 F.Supp.3d 598 (S.D.N.Y. 2016). The 7^th Circuit recently held in Hively v. Ivy Tech Community College, 830 F.3d 698 (7^th 2016), albeit reluctantly, that Title VII does not protect employees from discrimination on the basis of sexual orientation. The 7^th Circuit then granted a petition for a rehearing, and in doing so vacated its prior judgment. Oral arguments took place in late November, and commentators believe it is likely that the 7^th Circuit will hold that sexual orientation discrimination is prohibited under Title VII. It is also worth noting that multiple federal district courts have read Title VII’s prohibition on sex discrimination to include claims of sexual orientation discrimination.
• At the state level, employers should note that the Illinois Human Rights Act expressly prohibits discrimination on the basis of sexual orientation. Further, sexual orientation is defined to include gender identity. The Missouri Human Rights Act, on the other hand, has not been extended to cover sexual orientation or gender identity. Additionally, on March 1, 2017, the Missouri Senate voted down a bill that would have prohibited discrimination on the basis of sexual identity and orientation in the areas of employment, housing and discrimination. Several Missouri municipalities, including St. Louis city, prohibit discrimination on the basis of sexual orientation.

What’s next?

What can we expect in terms of a clarification on the issue of Title VII’s prohibition against discrimination on the basis of sexual orientation? It is possible that the Supreme Court could grant certiorari to decide a case involving a Title VII sexual orientation claim, as it has historically resolved circuit splits in this manner.

Alternatively, Congress might take legislative action to amend Title VII. Multiple bills have been proposed over the past few decades that would extend Title VII’s coverage to LGBT individuals, but legislative efforts have stopped short of becoming law. Perhaps if a circuit split does result, lawmakers will be motivated to expand Title VII’s coverage. Amending Title VII to include this additional protection would put federal law on par with many state and local laws and clear up the ongoing debate about what “sex” means under Title VII.  Notably, 7^th Circuit Judge Richard Posner rhetorically asked during oral arguments in the Hively case, “Who’s going to be hurt by giving lesbians and homosexuals a little more job protection?”

We are closely monitoring legal updates pertaining to workplace discrimination and will keep readers up to date on developments. In the meantime, if you have questions regarding the anti-discrimination laws in your state or any other employment-related matters, please contact any of the attorneys in our Employment & Labor group.

The Missouri Supreme Court on Feb. 28, 2017, upheld St. Louis’ minimum wage ordinance, over the arguments of business groups who claimed the ordinance was preempted by Missouri state law. The decision means the minimum wage in St. Louis will increase to $10 per hour this year and $11 in 2018.

In a decision by Judge Laura Denvir Stith, the court said the city ordinance does not conflict with the Missouri statute establishing a floor for employee wages, but “simply raise[s] that floor for local employees based on local conditions.” The current Missouri minimum wage is $7.70 per hour, and the federal minimum wage is $7.25.

Not long after St. Louis Mayor Francis Slay signed the ordinance on Aug. 28, 2015, businesses and organizations including the Missouri Chamber of Commerce and Industry, the Missouri Restaurant Association and the Missouri Retailers Association sued the city over the new law. The challengers argued the city government didn’t have the authority to override state law on minimum wages. The Missouri Supreme Court disagreed and held that while the purpose of the state statute is to set a floor for minimum wages, “nothing in the law suggests the state also wanted to protect employers by setting a maximum minimum wage.”

The court further stated that there is no conflict preemption when a local law simply supplements state law and found that the challengers were misguided in thinking Missouri’s minimum wage law directs everyone to pay no more than the state minimum wage.

After the ruling, St. Louis city officials said in a statement that while businesses will be provided “a reasonable grace period to adjust to the new minimum wage rate,” they could have their business licenses or occupancy permits revoked in the event of noncompliance.

If you have questions about the ordinance or how your business may be affected, please contact the attorneys in our Employment & Labor Practice Group.

With a new year and a new presidential administration, the restroom access debate is a hot topic again.

On Feb. 22, 2017, the Trump administration withdrew the Obama-era directive to public schools that instructed schools to permit transgender students access to restrooms and locker rooms that correspond with their expressed gender identity or risk violating Title IX’s prohibition on sex discrimination. The Trump administration clarified that its action in rescinding President Obama’s guidance was not an attack on the LGBTQ community, but an action taken on the premise that this is a state’s rights issue. Education Secretary Betsy DeVos explained in a statement: “We have a responsibility to protect every student in America and ensure that they have the freedom to learn and thrive in a safe and trusted environment…This is an issue best solved at the state and local level. Schools, communities, and families can find — and in many cases have found — solutions that protect all students.”

President Trump’s action comes at a time when LGBTQ restroom issues are an active topic. Earlier this month, the Trump administration reaffirmed its commitment to enforcing an Obama-era executive order protecting the rights of the LGBTQ employees employed by federal contractors. A DOL Fact Sheet interpreting the order explains, among other things, that federal contractors must allow employees and applicants to use restrooms consistent with their gender identity. In late March, the Supreme Court will hear arguments on Glouchester County School Bd. v. Grimm, a case that also addresses restroom access for transgender students.

Thus far, the Trump administration has not discussed the federal agency guidance issued over the past two years with respect to private employers. Provided below is a summary of the relevant guidance and some practical tips for approaching your own restroom access issues.

To start with the basics, the EEOC defines the word transgender as referring to people whose gender identity and/or expression is different from the sex assigned to them at birth. A person does not need to undergo any medical procedure to be considered transgender and need not provide any medical or legal documentation to establish gender identity.

In May 2016, the EEOC published its Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964. For the past several years, the EEOC has been enforcing Title VII to include sex discrimination based on transgender status. With respect to restroom access, the agency explained in the EEOC appeal of Lusardi v. Department of the Army, that

• denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
• an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and
• an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (although the employer can make a single-user restroom available to all employees who may choose to use it).

While the EEOC’s Lusardi opinion is not necessarily binding on private employers, it is instructive of how the EEOC will approach restroom access issues. Importantly, the EEOC clarified that contrary state law is not a defense to Title VII claims of sex discrimination based on transgender status. The EEOC asserted that it is not expanding the identified protected classes under Title VII, but merely using Supreme Court and federal case law to support the agency’s interpretation.

Similarly, in 2015, OSHA published A Guide to Restroom Access for Transgender Workers, which explained that restroom access is a health and safety matter, reasoning that restricting employees’ access to a restroom that is not consistent with their gender identity or requiring individuals to use specific gender-neutral restrooms singles out transgender employees and “may make them fear for their physical safety” and cause injury or illness if the employee avoids the restroom. Under OSHA’s guidance, employees should determine which restroom is the most appropriate and safest option for them and should be permitted to use the restroom that corresponds with their gender identity.

Proponents of LGBTQ rights have been struggling to amend Title VII to include sexual orientation and gender identity as protected classes for the past 20 years, but it has yet to come to fruition. The Illinois Human Rights Act was amended in 2006 to prohibit discrimination in employment based on sexual orientation, which includes gender identity. To date, Missouri has not expanded the Missouri Human Rights Act to include sexual orientation or gender identity. However, several municipalities in Missouri, including St. Louis City, prohibit discrimination on the basis of sexual orientation. But restroom access is an entirely new arena and a touchier subject in practical application.

Employers that provide public accommodations should also be aware that while there is no federal law, many states and municipalities have laws prohibiting discrimination on the basis of sexual orientation and/or gender identity in public accommodations, which includes restroom access. However, many of the state and local agencies that enforce these laws are mum on their application to public restrooms. 

With so much uncertainty in the law, what should employers know?

Even though Title VII has not been formally amended, expect that the EEOC and courts will continue to treat transgender status as a basis for sex discrimination regarding employee restroom access. Here are five practical tips for handling the restroom access for transgender employees.

1. Employers should not ask a transgender employee to use an individual unisex restroom, but should allow access to the restroom that corresponds with the employee’s gender identity. Employers can provide unisex restrooms for use by any employee who so chooses.
2. Employers should not ask transgender employees for any documentation regarding their gender identity. Remember that changing government-issued documentation is often hard for transgender individuals and some individuals may not elect medical procedures.
3. Do not be afraid to talk with transgender employees about the safest and most appropriate restroom options for their individual situations. Every situation will be different, and every person is going to present themselves differently. Be open to creative solutions that accommodate all employees.
4. Recognize that some employees who are not transgender may feel uncomfortable. Be prepared to respond to employee inquiries about restroom use. This can be as simple as explaining that an uncomfortable employee can use an available unisex restroom or wait until the gender-specific restroom is vacant.
5. Recognize that this is an ever-changing realm of the law and that employers should give thought to plans for future construction projects. Per OSHA’s guidance, the best practice is to provide single gender-neutral restrooms or multi-occupant gender-neutral restrooms with lockable single-occupancy stalls.

Regardless of the status of local, state and federal law, employers should approach these issues with an understanding of all employee feelings, safety and concerns. An expanded analysis of these issues can be found here. For more information regarding employee restroom access, contact the attorneys in our Employment & Labor Practice Group.