Title VII Now Covers Discrimination Based on Sexual Orientation

By:  Kristofor L. Hanson

The Seventh Circuit Court of Appeals has determined that Title VII of the Civil Rights Act bars discrimination on the basis of sexual orientation.  On April 4, 2017, the Chicago-based court, which presides over federal matters in the states of Wisconsin, Illinois and Indiana, became the first federal court of appeals to determine that the protections of Title VII extend to sexual orientation.

The case, Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2017), was brought by Kimberly Hively, a lesbian and a part-time adjunct instructor at Ivy Tech, a public institution in Indiana with thirty campuses statewide. She alleged that the college refused to hire her for six full-time positions she sought over five years and then refused to renew her part-time contract because of her sexual orientation.

In its decision, the court held that consideration of sexual orientation centers on the issue of gender and sexual stereotypes, meaning that an employer who takes an adverse action against a homosexual employee is taking an action based upon that employee’s gender or sex, which are covered by Title VII, and the employee’s failure to conform to a particular gender stereotype.  Hively argued, and the court agreed, that had Hively been a man married to, dating, or cohabitating with a woman, Ivy Tech would not have taken the actions it did.  The court stated that while this decision may appear to write into the law the term sexual orientation, it actually does no such thing as the law already protects an individual from discrimination on the basis of sex, which cannot be separated from sexual orientation.

This decision, issued following oral argument before the full panel of Seventh Circuit judges, overruled the Circuit’s previous decision in the same case and the lower court’s decision which granted Ivy Tech’s motion to dismiss, both of which held that Title VII did not cover sexual orientation.  This decision means that Hively now has the opportunity to litigate her claims in the district court.  Whether she ultimately will prevail is to be determined, but now, in the Seventh Circuit at least, it is clear that she has a viable claim to litigate under federal law.

Twenty-two states have laws that bar discrimination based on sexual orientation, including Wisconsin, Illinois and Minnesota.  Employers in these states, therefore, have already been prohibited from discriminating against employees on the basis of sexual orientation.  The Seventh Circuit’s extension of federal protection to sexual orientation creates additional means for employees claiming such discrimination to seek remedies before the Equal Employment Opportunity Commission and in federal court.  In federal court, compensatory (i.e. emotional distress) and punitive damages may be available to plaintiffs where before state agencies such damages are generally unavailable.  Therefore, if this decision changes anything for those in states already prohibiting discrimination, it potentially increases the risk for employers who run afoul of the law.

Even though many employers have known that sexual orientation is a protected class in their states, this decision serves as a reminder that employers should make sure their handbooks, policies, and employee and supervisor training include reference to this protected class.

Register Now! Annual Compliance/Best Practices Seminar

WHEN: May 11, 2017

8:00 a.m. – 12:00 p.m.

WHERE: Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road

Brookfield, WI

Registration and a continental breakfast will be served beginning at 7:30 a.m.  Click here to register.

This COMPLIMENTARY half-day event will address the latest labor and employment topics impacting employers including:

  • Annual Employment Law Update (including recent developments in immigration, the Affordable Care Act and white collar overtime regulations)
  • Social Media Pitfalls and Best Practices
  • FMLA Update – A Best Practices Review
  • Drafting, Enforcing and Litigating Confidentiality, Non-Solicitation and Non-Competition Agreements
  • Navigating the ADA, FMLA and Worker’s Compensation

LINDNER & MARSACK, S.C. NAMES DANIEL FINERTY AS EQUITY PARTNER

Daniel-FinertyWe are pleased to announce the advancement of Daniel Finerty to Equity Partner.

Finerty joined Lindner & Marsack in 2012 and concentrates his legal practice on representing and counseling clients – including Wisconsin counties, cities, school districts, Native American tribes, tribally-owned businesses and private sector employers – in labor and employment litigation and compliance matters in front of administrative agencies; in federal, state and tribal courts; and in labor arbitration. He works across a broad spectrum of industries including senior living, healthcare, manufacturing, food manufacturing, hospitality, retail, transportation, construction, commercial laundry, dry cleaning and others.

“Since Dan joined our team, he has consistently and determinedly worked to provide an outstanding, cost-effective platform for both new and existing clients and their insurance partners to address their toughest legal challenges,” said Thomas Mackenzie, Firm President. “Clients trust and appreciate his commitment to helping manage their workforce and continued growth while always keeping an eye on costs.”

Finerty has a great deal of experience defending senior living providers in Wisconsin Health Care Worker Protection Act retaliation claims; Wisconsin Fair Employment Act discrimination, retaliation and harassment claims; unreasonable refusal to rehire worker’s compensation claims; and other claims that follow termination of an employee for a violation of resident rights’ policies and other misconduct. He has also handled hundreds of employment claims involving Employment Practice Liability Insurance (EPLI) as panel counsel as well as at his clients’ request with a carrier’s permission and has defended Native American communities facing employment-related claims by current and former employees in tribal courts.

Rated AV Preeminent by Martindale Hubbell and recognized among the Best Lawyers in America in Appellate Practice since 2010, Finerty has also been regularly recognized by Wisconsin Super Lawyers magazine as a five-time “Rising Star” earlier in his career and as a “Super Lawyer” each year since 2014.

“I’m proud to be an integral member of this team and also to play an important role in the continued success of my clients, to whom I owe a debt of gratitude for their ongoing support, collaboration and confidence,” said Finerty.

GOVERNOR WALKER PROPOSES TO ELIMINATE THE LABOR AND INDUSTRY REVIEW COMMISSION

By:  Jonathan T. Swain

February 13, 2017

In his recently published proposed biennial budget for fiscal years 2018 and 2019, Governor Walker has proposed to eliminate the Wisconsin Labor and Industry Review Commission (LIRC).  LIRC is an independent three member commission appointed by the Governor that currently handles all appeals of Administrative Law Judge (ALJ) decisions for unemployment compensation cases, worker compensation claims, as well as state fair labor standards cases and fair employment cases in the Equal Rights Division and public accommodation cases.  LIRC would be phased out over the next three fiscal years.

Presently, LIRC has the authority to affirm, overturn and remand ALJ decision in these areas.  LIRC decisions are appealable to the State’s circuit courts.

Under Governor Walker’s proposal, Worker Compensation ALJ decisions will be reviewable by the State Department of Administration, while jobless claims and Equal Right Division decisions will be Agency administrators.  In his budget statement, Governor Walker stated that the proposed elimination of LIRC will eliminate “an unnecessary layer of government” and will make this second layer of review decisions occur much more quickly.

Of course, this is a proposed budget and, as such, is subject to negotiation with the legislature and subsequent amendment.  Further, stakeholders in the business, labor and legal community have yet to weigh-in on the Governor’s proposal.  As this issue advances, we will keep you up to date and informed.

Employers Must Now Use New Form I-9

NEW I-9 FORM AVAILABLE: As of January 22, 2017, employers must use the NEW version of the Form I-9 — whether for new employees or for the reverification of expiring authorizations for existing employees. Prior versions of the Form I-9 should no longer be used. Employers who do not use the new Form I-9 are considered to be in technical violation of the law and can expose themselves to penalties for each occasion they have failed to use the new form.

If you have questions or concerns about I-9 compliance or need assistance in conducting an I-9 compliance audit, please contact Sally Piefer at spiefer@lindner-marsack.com or at 414.226.4818, or any other attorney you have been working with here at Lindner & Marsack, S.C.

2017 Worker’s Compensation Gamble

Lindner & Marsack’s worker’s compensation defense practice is well recognized as an industry leader in providing work injury defense services to many of Wisconsin’s largest employers and insurance carriers.

Doug Feldman heads the Firm’s highly regarded work injury defense team and is a founding Board Member and current President of Kids’ Chance of Wisconsin.  Kids’ Chance is a non-profit organization that provides college scholarships to children of seriously injured workers in Wisconsin.

Kids’ Chance of Wisconsin is presenting a complimentary half-day worker’s compensation seminar on March 9, 2017 at Potawatomi Hotel and Casino, followed by a networking cocktail hour and raffle.  This year’s presenters include many of the top administrators from the Worker’s Compensation Division and Labor & Industry Review Commission.  Funds raised at the event will directly support the Kids’ Chance mission of providing financial support, in the form of scholarships, to children of parents who have been seriously injured at work.

If you are interested in attending this event, click Kids’ Chance of WI – Here’s The Deal Seminar – March 9, 2017 for more information.

Lindner & Marsack owes much of its success to its good friends and clients in Wisconsin and is proud to support this worthy endeavor and give back to the community in such a meaningful way. We hope you will consider joining us for this educational opportunity.

2016 Super Lawyers

Lindner & Marsack, S.C. proudly announces that seven of its attorneys have been acknowledged as 2016 Super Lawyers or Rising Stars by Super Lawyers Magazine.  “We appreciate the support of the legal community and our clients in acknowledging the quality of the legal services we provide,” said Thomas W. Mackenzie, President of the firm.  He added, “the Super Lawyers designation is a way to recognize the accomplishments of attorneys who work hard every day to find solutions to the problems confronting employers.  We have a great team.”

The individual attorneys recognized as Super Lawyers in 2016 included Douglas Feldman, Daniel Finerty, Thomas Mackenzie, Gary Marsack, Jonathan Swain and Oyvind Wistrom.  The list of Rising Stars (under 40 years old or less than ten years of practice) included Chelsie Springstead.

TEXAS COURT ISSUES NATIONWIDE INJUNCTION, BARRING THE DEPARTMENT OF LABOR’S PERSUADER RULE

By: Thomas W. Mackenzie

Yesterday (November 16, 2016), the U.S. District Court for the Northern District of Texas issued a permanent injunction barring enforcement of the U.S. Department of Labor’s “Persuader Advice Exemption Rule.”  As we have reported in previous E-Alerts, this rule would have required employers and their attorneys to report expenditures incurred in resisting union organizing efforts.  Historically, reporting was only required when a law firm engaged in active persuader activity such as giving a speech to the employer’s employees in a union organizing drive.  Under the new rules, an attorney would be required to report if he or she engaged in speech writing, letter drafting or supervisor training. The rule was unquestionably designed to discourage law firms from representing employers in union organizing campaigns.

In arguing that the law was unlawful, the plaintiffs claimed, in part, that the reporting requirements invaded the attorney-client privilege.  The Texas judge issued a preliminary injunction on June 27, 2016.  The injunction was made permanent by the decision issued yesterday.  The decision will unquestionably be appealed.  However, it is unlikely that a decision at the appellate level will be issued before President Elect Trump takes office and a new Secretary of Labor is appointed.

The new requirement was challenged in multiple court cases by business groups and, in a case currently pending in Minnesota, by the Worklaw Network, an association of management-side labor and employment law firms of which Lindner & Marsack is the Wisconsin representative.

Although it is impossible these days to predict anything with certainty, the so-called “Persuader Rule” would appear to be in critical condition and unlikely to be enforced in the foreseeable future, if ever.

EMPLOYERS TO BEGIN USING REVISED FORM I-9

November 14, 2016

By:  Laurie A. Petersen and Samantha J. Wood

Today, U.S. Citizenship and Immigration Services (USCIS) published a revised version of the Employment Eligibility Verification Form I-9.  While this revised form is available now for use, employers may continue using the March 2013 version until January 21, 2017.  After January 21, 2017, employers MUST use the revised form, available at: https://www.uscis.gov/i-9

The revised Form I-9 is much more user-friendly, containing the following changes:

  • Electronic buttons that allow users to: access the full instructions, print the form, and clear the form to start over.
  • Electronic buttons that provide drop down instructions.
  • Prompts and validations to ensure information is entered correctly.
  • Drop down lists and calendars.
  • Section 1 asks for “other last names used” rather than “other names used.”
  • Additional space to allow the entry of multiple preparers and translators and an additional box labeled “I did not use a preparer or translator.”
  • A supplemental page for the preparer/translator.
  • A dedicated area for including additional information rather than having to add it in the margins.
  • The removal of the requirement that immigrants authorized to work provide both their Form I-94 number and foreign passport information.
  • A new “Citizenship/Immigration Status” field.
  • A quick response (QR) code, which is automatically generated when the employer prints the form.

If you have questions about this material, please contact Laurie A. Petersen or Samantha J. Wood by email at lpetersen@lindner-marsack.com or swood@lindner-marsack.com, or any other attorney you have been working with here at Lindner & Marsack, S.C.

Governor Walker Officially Proclaims November 14-18 Kids’ Chance Awareness Week

Kids’ Chance of Wisconsin, a non-profit organization that provides scholarships to children of seriously injured workers in Wisconsin, got a nod from Governor Scott Walker’s office with the official proclamation of November 14-18 as Kids’ Chance Awareness Week in Wisconsin.

Lindner & Marsack, S.C., along with other partners, helped establish Kids’ Chance in Wisconsin in 2013. Lindner & Marsack shareholder Douglas Feldman is a founding board member and Kids’ Chance of Wisconsin president. “When the family of a child in Wisconsin is affected by a serious workplace injury, we work to ensure that child is still able to pursue and achieve their educational goals,” Feldman says.

Kids’ Chance Wisconsin is the statewide affiliate of the national Kids’ Chance organization. Kids’ Chance Awareness Week is designed to increase visibility through special outreach events that help spread the word about Kids’ Chance scholarship opportunities. For more information about Kids’ Chance Wisconsin visit http://kidschanceofwi.org/.