Employment Discrimination

In its recent decision in David Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the EEOC ruled that discrimination based on sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964, despite the fact that Title VII does not explicitly include sexual orientation or gender identity in its list of protected bases.
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The Supreme Court recently held in EEOC v. Abercrombie & Fitch Stores, Inc. that Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship, even where the applicant has not informed the employer of his need for an accommodation.
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The Texas Supreme Court is considering a case that could have important implications to disparate impact analysis, including on criminal background checks. The case also foreshadows further challenges from the Texas Attorney General to aggressive positions taken by federal enforcement agencies in regard to disparate impact.
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Integrity Staffing Solutions v. Busk. Oral argument was heard on October 8, 2014. This case will resolve a circuit split on whether time spent by warehouse workers going through security is paid time. The Fair Labor Standards Act, as amended by the Portal to Portal Act, does not require an employer to compensate for activities that are preliminary or postliminary to their principle work.
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Less than two months ago, on July 29, 2014, the National Labor Relations (NLRB) made an announcement that it intends to hold franchisors legally responsible for unfair labor practices committed by its franchisees.  A recent Fifth Circuit opinion follows this trend by potentially expanding the number of discrimination and harassment suits corporate parent franchisors may face for discrimination and harassment committed by franchisees. EEOC v. Simbaki, Ltd.

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Executive Order 13672 went into effect on July 21, 2014 and amended Executive Order 11246 by adding sexual orientation and gender identity to the list of protected classes. Executive Order 13672, however, applies only to contracts entered on or after July 21, 2014.
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