Employers May Have Duty to Accommodate Employee's Medical Marijuana Use

The Massachusetts Supreme Judicial Court issued an important which may have national consequences with respect to the use of medical marijuana.  The court held that medical marijuana users may bring disability discrimination claims against their employers for failing to reasonably accommodate after-work medical marijuana use. The decision in Barbuto v.Advantage Sales and Marketing,____N.E. 3d____(July 17, 2017) makes clear that Massachusetts employers can no longer rely on federal law prohibiting marijuana use and possession in enforcing “zero tolerance” drug policies. As the court explained:

Under Massachusetts law, as a result of the act, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication. Where, in the opinion of the employee's physician, medical marijuana is the most effective medication for the employee's debilitating medical condition, and where any alternative medication whose use would be permitted by the employer's drug policy would be less effective, an exception to an employer's drug policy to permit its use is a facially reasonable accommodation. A qualified handicapped employee has a right under G. L. c. 151B, § 4 (16), not to be fired because of her handicap, and that right includes the right to require an employer to make a reasonable accommodation for her handicap to enable her to perform the essential functions of her job. 

Single Racial Slur May Be Enough To Establish Harassment

Castleberry v. STI Group, ___F.3d___(3d Cir. July 14, 2017), is an important case to be aware of. This case was brought by two against their staffing agency (STI) and the client company where they worked (Chesapeake). Plaintiff's allegations were as follows:

"Plaintiffs allege that, when they arrived at work on several occasions, someone had anonymously written 'don't be black on the right of way' on the sign-in sheets. They also assert that although they have significant experience working on pipelines (and more so than their non-African-American coworkers), they were only permitted to clean around the pipelines rather than work on them. They claim that, when working on a fence-removal project, a supervisor told Castleberry and his coworkers that if they had 'n[****]r-rigged' the fence, they would be fired. Seven coworkers confirmed that occurred. Following this last incident, Plaintiffs reported the offensive language to a superior and were fired two weeks later without explanation. They were rehired shortly thereafter, but then terminated again for 'lack of work.'"

The court then goes on to hold that a single slur can be actionable, reasoning:

"The Supreme Court's decision to adopt the 'severe or pervasive' standard-thereby abandoning a 'regular' requirement - lends support that an isolated incident of discrimination (if severe) can suffice to state a claim for harassment ... Otherwise, why create a disjunctive standard where alleged "severe" conduct - even if not at all 'pervasive' - can establish a plaintiff's harassment claim? Defendants would have us read that alternative element out of the standard. We may not do so."

Principal at Catholic School Cannot Bring a Claim Under Title VII

Fratello v. Archdiocese of New York, ____F.3d____(2d Cir. July 14, 2017), is an important decision concerning the "ministerial exception" under Title VII. The decision spans 48 pages and is very comprehensive.

Significantly, even though the Plaintiff's job was not "inherently religious", she held herself out as a spiritual leader and performed many religious functions. That was enough to conclude that the Plaintiff fell within the ministerial exception to Title VII. Therefore, her claim of sex discrimination was dismissed.

In theory, the ministerial exception exists to shield religious employers from discrimination claims that might compromise their freedom to choose religious leaders and teachers. Note that teachers of secular subjects at parochial schools are often allowed to bring Title VII claims if their job function is not essentially religious.

The court described the ministerial exception test as follows:

This is our first occasion to address the 8 doctrine since the Supreme Courtʹs unanimous decision in Hosanna‐Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171, 188 (2012) (recognizing a ministerial exception for employment‐discrimination claims).  In light of that decision, we conclude that in determining whether the ministerial exception bars an employment‐discrimination claim against a religious  organization, the only question is whether the employee qualifies as a ʺministerʺ  within the meaning of the exception.  See id. at 190‐91.  In this regard, Hosanna‐Tabor instructs us to assess a broad array of relevant ʺconsiderations,ʺ including but not limited to (1) the employeeʹs ʺformal title,ʺ (2) ʺthe substance reflected in 17 that title,ʺ (3) the employeeʹs ʺuse of th[e] title,ʺ and (4) ʺthe important religious 18 functions she performed.ʺ  Id. at 192.

Hensel v. City of Utica, ____F. Supp. 2d ____(N.D.N.Y. June 14, 2017) (NYLJ registration required), is an interesting decision decided under the Americans with Disabilities Act. The court holds that diabetes is a disability under the ADA and approved of the EEOC's position in that regard, reasoning:

According to the EEOC, "the individualized assessment of some types of impairments will, in virtually all cases, result in a determination of coverage [under the ADA]." 29 C.F.R. §1630.2(j)(3)(ii). As an example of such an impairment, the regulations point to "diabetes[, which] substantially limits endocrine function." Id. §1630.2(j)(3)(iii). Diabetes is the kind of impairment that, by the EEOC's lights, should "easily" be found to constitute an ADA-qualifying disability. Id. The reason is that the ADA now requires courts to evaluate whether an impairment "substantially limits a major life activity…without regard to the ameliorative effects of mitigating measures." 42 U.S.C. §12102(4)(E)(i); 

Transgender Employee States A Claim For Discrimination Under the ADA

Blatt v. Cabela Retail, ____F. Supp. 2d ____(E.D.Pa. May 18, 2017), is a major decision concerning the rights of transgender employees. The decision appears to be one of first impression.The Plaintiff alleged that she was terminated in violation of Title VII because of her sex and in violation of the ADA. We focus here on the ADA because the court refused to grant the employer's motion to dismiss and held that the Plaintiff plausibly stated a cause of action.

Of significance is that the ADA EXCLUDES from protection under the statute, "gender identity disorder" and that was the basis of the employer's motion to dismiss. The court, however, read this term narrowly and stated that it refers to condition of identifying with a different gender and that Congress did not intend to exclude from coverage disabling conditions that persons who identify with a different gender may have that substantially limits major life activities of interacting with others, reproducing and occupational functioning.

A New York Law Journal article about this decision is available here.

NYS Divsion of Human Rights Cannot Investigate Broad Policies Without Providing Notice

Matter of MTA Bus Co. v. NYSDHR, ____A.D.3d ____(3rd Dept. May 16, 2017), is an interesting case to be aware of. While investigating an individual case of employment discrimination, the NYSDHR went on to examine certain employer policies which it found to be discriminatory. The problem is that NYSDHR did not give the employer the opportunity to be heard with respect to those employment policies. As the court stated:

The record demonstrates, and respondent determined, that the complainant, a bus operator, was placed on restricted duty for reasons unrelated to his alleged disability of bipolar disorder, namely, his reckless driving record, and that petitioner was justified in terminating him based on his conduct in vandalizing three buses in passenger service. Respondent awarded the complainant no damages. However, rather than dismissing the complaint, it proceeded to conclude that "[b]ecause [petitioner] has a blanket policy disqualifying all employees with bipolar disorder from being appointed to, or remaining in, the Bus Operator position and passenger service, and because [petitioner] does not individually assess the ability of those with bipolar disorder to perform the essential functions of the job, [petitioner's] policy violates the Human Rights Law." In making this determination without notice to petitioner that its policies were going to be reviewed, respondent denied petitioner its right to due process. While, upon its own motion, respondent may investigate and file a complaint alleging discriminatory practices (Executive Law §§ 295[6][b]; 297[1]), it did not do so here. It could not, while investigating the bus operator's complaint, which was filed solely on his behalf, find that he had not been discriminated against "and at the same time, make broad findings and impose broad sanctions pertaining to petitioner['s] over-all operations"

Court of Appeals Defines Employer For Purposes of State Anti-Discrimination Law

Griffin v. Sirva, Inc., ____N.Y3d____(May 4, 2017), is an important decision to be aware of.
In this case, the Court addressed several certified questions from the 2d Circuit, including who is an employer under the Executive Law. The Court adopted the common law right to control test which it described as follows:

Decades before Gulino, our lower courts applied New York common law to make that determination. In State Div. of Human Rights v GTE Corp., the Appellate Division identified four relevant factors: "'(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant's conduct'" (109 AD2d 1082, 1083 [4th Dept 1985], quoting 36 NY Jur, Master and Servant, § 2). As with the Reid test (endorsed in Darden and Gulino), "'[t]he really essential element of the relationship is the right of control, that is, the right of one person, the master, to order and control another, the servant, in the performance of work by the latter'" (id.).
In light of the foregoing, we answer the second certified question, as reformulated, as follows: common-law principles, as discussed in GTE, determine who may be liable as an employer under section 296 (15) of the Human Rights Law, with greatest emphasis placed on the alleged employer's power "to order and control" the employee in his or her performance of work

2d Circuit Continues To Hold That Title VII Does Not Outlaw Sexual Orientation Discrimination

Zarda v. Moore, Jr., ____F.3d____(2d Cir. April 18, 2017), is an important decision to be aware of because the Court continues to hold that Title VII does not outlaw discrimination on the basis of sexual orientation. The Court reasoned in part:

[There is a] longstanding tension in Title VII caselaw. While this Court has stated that Title VII does not prohibit discrimination based on sexual orientation, Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000), the Supreme Court has held that Title VII does forbid discrimination based on a failure to conform to “sex stereotypes,” Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). See also Dawson v. Bumble & Bumble, 398 F.3d 211, 217-19 (2d Cir. 2005) (reaffirming Simonton). In light of these precedents, Zarda premised his Title VII cause of action on the ground that he had been terminated for failing to conform to sex stereotypes. Specifically, Zarda alleged that his employer “criticized [Zarda’s] wearing of the color pink at work” and his practice of painting his toenails pink, notwithstanding Zarda’s “typically masculine demeanor.” 

*      *     *

During these proceedings, the Equal Employment Opportunity Commission (“EEOC”) issued a decision setting forth the agency’s view that discrimination based on sexual orientation constitutes sex discrimination in violation of Title VII. See Baldwin v. Foxx, E.E.O.C. Decision No. 0120133080, 2015 WL 4397641, at *5 (July 16, 2015). 

*     *     *

 Nonetheless, we decline Zarda’s invitation to revisit our precedent. A separate panel of this Court recently held that Simonton can only be overturned by the entire Court sitting in banc, see Christiansen v. Omnicom Grp., No. 16-478, 2017 WL 1130183, at *2 (2d Cir. Mar. 27, 2017), and the same is true in the case at bar,

I predict that eventually the 2d Circuit will overrule itself. Perhaps, it may even happen in this case if the Court grants an en banc hearing.