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. 

Law School Enrollment Declined 25% Since 2010

Law Schools are Losing Smart Applicants is an interesting July 19, 2017 New York Law Journal article. In this brief article, the author explains that law school enrollments are down 25% since 2010 and this is largely because of the difficulty in finding lawyer employment:

Law school has lost its allure. Enrollment at American Bar Association-accredited law schools has plummeted 25 percent since 2010 and several law schools have or soon will close up shop for lack of demand.

Why? It’s a combination of factors including rising tuition, a stagnant job market and the perception that better options exist elsewhere.

So what’s it going to take to lure back would-be lawyers—especially those with the high Law School Admission Test scores that schools covet? (Applicants with LSAT scores of 160 or above are down a whopping 45 percent over the past six years.)

My own take on this is that the two primary factors are the cost of law school and the difficulty in obtaining lawyer jobs. With lower enrollment, it should become easier for new lawyers to find jobs. But something needs to be done drastically about the sky high tuition and expenses most law schools charge.

Most, if not all, law schools spend too much on faculty research. Tenure decisions are often based upon the number of law review articles and which journals those articles were published in. Today with the internet and computer assisted research, law review publication is much less important. Law schools would do themselves a favor if they put this money into teaching and into smaller classes.

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.

SDNY Holds Sexual Orientation Claim is Protected Under Title VII

Philpott v. New York, ___F. Supp. 2d___,2017 US Dist. Lexis 6751 (SDNY 2017), is an important. decision. The court holds that sexual orientation discrimination is protected under Title VII. As the court explained:

The fact that plaintiff has framed his complaint in terms of sexual orientation discrimination and not gender stereotyping discrimination is immaterial. I decline to embrace an "illogical" and artificial [*7] distinction between gender stereotyping discrimination and sexual orientation discrimination, and in so doing, I join several other courts throughout the country. See Videckis v. Pepperdine Univ., 150 F.Supp.3d 1151, 1159 (C.D. Cal. 2015) (collecting cases) ("Simply put, the line between sex discrimination and sexual orientation discrimination is 'difficult to draw' because that line does not exist, save as a lingering and faulty judicial construct."). For these reasons, and in light of the evolving state of the law on this question, I hold that plaintiff's sexual orientation discrimination claim is cognizable under Title VII.

Though this is certainly where the law is going, I believe that this very issue is pending before the 2d Circuit.

EEOC Sues Adult Club For Failing To Hire Male Bartender

EEOC Sues Adult Club Over Refusal To Hire Male Bartender, NYLJ, July 3, 2017, is an interesting article from the New York Law Journal.
While the article correctly indicates that Title VII protects both male and females from discrimination on account of sex, what is missing from the article is a discussion of the bona fide occupational qualification or BFOQ defense. Is being female, a BFOQ for being a bartender at an adult club? I could not imagine that it is. I guess we will have to wait and see.

President Trump Nominates Marvin Kaplan to the NLRB

On or about June 20, 2017, President Trump nominated Marvin Kaplan, a Republican as a Member of the NLRB. Kaplan is currently an attorney with the Occupational Safety and Health Review Commission. If confirmed, the NLRB would be composed of two Democrats and two Republicans. President Trump is expected the fill the 5th seat with a Republican which would give the Republicans a majority vote-the first since 2007. A Washington Post article about this appointment is available here.

As students of labor law all know, NLRB law often changes when the composition of the Board changes. Presidential elections matter- and they really matter in labor law.

Interesting Article on the "Gig Economy"

As the title implies,  Lazar,  The Gig Economy: A Threat to Basic Employment Rights, NYLJ (May 1, 2017) (registration required), is an interesting article about the "gig economy." The gig economy is defined by the author as a "work model in which individuals provide services, supposedly at their own direction, for corporations and small businesses which serve as online marketplaces that connect these service providers with clientele." The classic example is Uber. 

Traditional employment law only protects employees and there is significant litigation addressing whether such individuals are employees or independent contractors. But, even non-employees need workplace protections. As the article states:

Worker advocates are in a precarious position wherein they not only are protecting workers from misclassification and the evasion of employer's obligations, they must also protect existing jobs from being replaced by outsourcing or robots. Having jobs is critical, and in fact this sentiment has prevented many Americans from enforcing their rights and calling upon their legislators to pass stricter laws in the workplace. However, that is the same mentality that caused the Triangle Shirtwaist Factory Fire in 1911, the deadliest industrial disaster in U.S. history, which killed 146 workers, mostly women and children. These horrendous working conditions were allowed to flourish in New York factories because of the desperate need for the unemployed and disenfranchised to earn a dollar, irrespective of their safety and workplace rights.
This and other workplace tragedies ushered in reforms that tempered the unbounding desire for growth by the companies of the Industrial Revolution with the need to protect their workers. The gig economy's recent boom requires us to revisit the same questions. . .

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); 

NYC Teacher Awarded Tenure By Estoppel Even Though She Was In Rubber Room

Wilson v. Board of Education, ___Misc. 3d____(N.Y. Co. June 12, 2017), is an important decision to be aware of which addresses tenure by estoppel. Tenure by estoppel, aka by operation of law, occurs when a teacher or other public employee works past their probationary period and the public employer does not act to either grant tenure, terminate the employee or extend the employee's probation with what is known as a Juul agreement.
But, what if the Board continues to employ the teacher and simply assigns her to a rubber room and she does not work. This decision holds that the teacher is entitled to tenure by estoppel because the Board could have taken action and didn't.