2020 Title VII Descion

In a landmark ruling expanding Title VII anti-discrimination rights to gay and transgender workers, the United States Supreme Court ruled in favor of the plaintiffs in three companion cases.  The 30 page majority opinion (a 6-3 split) was written by Justice Neil Gorsuch and joined by Chief Justice John Roberts along with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. 

The Court considered three cases – one of a male Employee of Clayton County, Georgia, who was fired for “unbecoming” conduct after he joined a gay recreational softball league, the second was a skydiving instructor who was terminated days after mentioning he was gay, and the third being a transgender (male to female) employee of a funeral home who was fired after informing her employer that she planed to live and work as a female.  None of the employers disputed that they fired the employee for being gay or transgender.  They argued only that such status was not protected under Title VII.

The Court held, “An employer who fires an individual merely for being gay or transgender violates Title VII.”  As stated in the syllabus of the decision, “Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.” 

Ohio, as most states, does not specifically include sexual orientation or gender identity as protected classes in its anti-discrimination statute (ORC 4112).  However, Ohio courts have traditionally followed federal interpretation of Title VII, and would be likely to do so with this ruling if cases were brought in state courts. 

What does this mean for employers? 

Many employers have already specifically included sexual orientation and/or gender identity under their anti-discrimination policies.   Most EEO and anti-discrimination policies will also include language such as “other classifications protected by law”.   If your EEO and anti-discrimination policies do not have this language, they should be updated immediately.   All supervisors and managers should also be informed of this decision.  In Ohio, supervisors can be held individually liable for violations of Ohio’s anti-discrimination laws.   And all employees should receive updated harassment and discrimination training that reflects the current law.

If you have any questions regarding this decision, or need help with policy revisions or training, please contact Jennifer Corso.  jcorso@ps-law.com, 216-381-3400 x119. 

The United States Supreme Court decided Bostock v. Clayton County this morning, affirming the rights of LGBTQ workers under Title VII, protecting them from discrimination. The decision in favor of LGBTQ workers was decided 6-3 and written by Justice Neil Gorsuch who was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Title VII explicitly prohibits discrimination based on “race, color, religion, sex, or national origin,” but it doesn’t name sexual orientation or gender identity which are protected classes under the New York Human Rights Law. This decision formalizes federal protection for LGBTQ employees.

COVID 19 and the SMALL BUSINESS Part V: Families First Coronavirus Response Act (FCRRA)

On March 18, the Senate passed, and the President signed into law, the Families First Coronavirus Response Act (FFCRA).   The two provisions that are of key importance to employers are the Emergency Paid Sick Leave (EPSL) and the Emergency Family Medical Leave Act Expansion (EFMLA).

Emergency paid sick leave – this is for Coronavirus (cv) related absences only, not for general sick time.  Full time employees get 80 hours, and it is prorated for part time employees.  This applies to all employers under 500 employees, but gives the Sec. of Labor the authority to exempt employers with 50 or fewer employees.

Expanded FMLA – this leave is limited to employees who have to stay home to care for a child whose school or daycare is closed due to cv.  It provides for 10 weeks pay at 2/3 regular pay.  This applies to all employers under 500 employees, but employers with 50 or fewer employees may apply for an exemption with the Sec. of Labor.

This law will go into effect in 15 days. At this time, there are a lot of questions, especially as to the small business exemptions.  We hope to see some guidance issued on these in the days to come, and I will keep you all updated.

COVID 19 and the SMALL BUSINESS Part IV: Is Coronavirus an OSHA Violation? What about Workers’ Comp?

I’ve received a few questions from clients wondering if they are risking either OSHA violations or workers’ compensation claims if an employee contracts coronavirus and claims they got it from work.   Although this would all be very case-by-case, for most employers the answer would be that the risk of these claims is very low.

OSHA has issued Guidance on Preparing Workplaces for COVID 19, a 35 page booklet (link below).  This comprehensive report breaks down workplaces into 4 categories – Very High Risk, High Risk, Medium Risk and Low Risk.  Outside of hospitals, EMS workers or similar medical settings, most employers will fall in the Medium to Low Risk categories.  (Retail may be medium risk, an office setting low risk.)  The Guidance then explains what type of personal protective equipment (PPE), engineering controls and administrative controls are recommended for each risk category. 


As for workers’ comp, a coronavirus claim (if made) would be evaluated under the standards for occupational diseases.  To get this type of claim allowed, an employee would have to prove the disease was: (1) contracted in the course of employment; (2) that it was peculiar to the employment; and (3) that the employment created a risk of contracting the disease in a greater degree and in a different manner than in the public generally.  Needless to say, outside of a hospital environment this would be nearly, if not absolutely, impossible to prove. 

Again, each case would have to be evaluated on a case-by-case basis, but for most employers the risk of OSHA or BWC claims is very low. 

Recommended Action Steps for Employers:

Review the OSHA Guidance to determine what risk category your business falls in, and review the recommended “controls” and PPE that would apply to your workplace.  Listen to, and address, employee concerns about coronavirus risks in the workplace – whether that risk comes from within the workplace (from other employees) or externally through clients, customers, or the general public. If you have any questions regarding coronavirus related employment issues, please contact Jennifer Corso.  jcorso@ps-law.com, 216-381-3400.