Health Employment And Labor

labor and employment law for the healthcare industry

Trade Secrets Injunction Spawns Intrigue, Alleged Threats, And Malicious Prosecution Actions

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NuScience Corporation is a California corporation that researches, develops and distributes health and beauty products, including nutritional supplements. In 2009, NuScience obtained by default a permanent injunction in a California federal court against Robert and Michael Henkel, the nephew of a woman from whom NuScience purchased the formula for a nutritional supplement, prohibiting them from selling or marketing NuScience’s trade secrets.  Before the federal court injunction was entered, NuScience terminated the employment of David McKinney, NuScience Vice President of sales and marketing.  McKinney signed a separation agreement wherein he agreed to maintain the confidentiality of certain NuScience-related matters.  What followed might be good book material.

In June 2010, NuScience received an email from a third-party which included an email string between Robert Henkel and McKinney that caused NuScience to conclude Robert Henkel was violating the federal court injunction. Based on the emails, NuScience sued McKinney and Robert Henkel in California Superior Court for misappropriation of trade secrets, among other claims.  (“NuScience I”)  Robert Henkel again did not appear and the court entered a default against him in March 2011.

McKinney appeared in the state court action and was represented by Stephen E. Abraham.  McKinney filed a motion to compel further discovery responses from NuScience and a motion for sanctions against NuScience which NuScience initially opposed.  But before the motion was heard, NuScience filed a request for dismissal without prejudice. McKinney responded to the NuScience voluntary dismissal with a motion for attorney’s fees and costs under the Uniform Trade Secrets Act, California Civil Code Section 3426 et seq. (“UTSA”).  The trial court granted the motion for attorney’s fees, concluded the record showed subjective bad faith on NuScience’s part, and awarded McKinney the $32,842.81 he requested.

NuScience moved for reconsideration contending that after it took Henkel’s default, Henkel called NuScience’s attorney and said NuScience “better back off and leave [them] alone” and that Henkels thereafter began posting threats to publish NuScience’s trade secret formula on the Internet. NuScience’s attorney reported the threat to the FBI, which informed him that it had assigned an agent to investigate and the pending investigation should remain confidential.  NuScience asserted that Henkel then told NuScience’s attorney that he “would release NuScience’s formula to the world unless [NuScience] dismissed this lawsuit” and “cease all enforcement of the federal judgment against the Henkels.”  NuScience asserted that only later did the FBI “reluctantly acquiesce[ ]” and allowed NuScience to discuss the investigation.

The court denied the motion for reconsideration.

NuScience appealed the attorney’s fees award and the Court of Appeal reversed the decision of the lower court. The Appellate Court found that the email exchange between McKinney and Henkel on which NuScience I was premised was evidence that they were engaged in internal experimentation with NuScience’s trade secret formula and further stated McKinney had been using the samples. The court found this was sufficient evidence of actual or threatened misappropriation under the UTSA.  The court further found that the email exchange was evidence that McKinney intended to use the NuScience customer list to market to buyers in Asia and that since McKinney was unlikely to have derived information about customers interested in the formula other than through his employment with NuScience, a trier of fact could conclude McKinney intended to use the information he derived from NuScience’s customer list to compete.

The day after the trial court awarded fees under the UTSA in NuScience I, McKinney filed a malicious prosecution action against NuScience and was represented again by Stephen Abraham (“NuScience II”). NuScience filed a motion to strike under California’s Anti-SLAPP (Strategic Litigation Against Public Policy) statute.  The trial court granted the motion, and rejected McKinney’s claim that the dismissal prior to the hearing on the discovery motion was a favorable determination on the merits, noting “undisputed evidence… that the case was dismissed in response to extortionist threats.”  The court awarded NuScience attorney’s fees of $129,938.75.  The order was affirmed on appeal.

NuScience then filed an action against McKinney, Abraham and his law firm, and two other individuals in March 2014 alleging malicious prosecution and intentional interference with contractual relations against Abraham. Abraham responded with special motions to strike the causes of action.

Abraham attacked the intentional interference cause of action under the California Anti-SLAPP statute on the grounds that the conduct Abraham was alleged to have engaged in – the filing of declarations in federal and state court lawsuits that were signed by McKinney – is protected conduct. The trial court, and subsequently the Court of Appeal, concluded there could be no breach of contract absent a disclosure or public disparagement and the disclosure/disparagement NuScience alleged was Abraham’s public filing of McKinney’s declarations. As such, it was protected activity.

The trial court also granted Abraham’s SLAPP back action in the malicious prosecution claim. The Court of Appeal agreed, finding that NuScience had not demonstrated that the underlying malicious prosecution claim was initiated with malice because, in part, the malicious prosecution was alleged against a former adversary’s attorney, and not the former adversary.  The court held that malice harbored by an adversary may not be attributed to its attorney.  NuScience tried to identify additional evidence of Abraham’s own malice on appeal asserting, in part, that Abraham “told NuScience that he intends to destroy NuScience,” but the court pointed out that the actual evidence stated “NuScience will be out of business in six months” and “NuScience will be done in six months,” which the court stated suggested, at most, that Abraham believed that litigation would be successful and that NuScience’s demise was imminent, “not that he intended to cause its demise.”  The Court of Appeal affirmed the order dismissing the claims against Abraham and affirmed the award of Abraham’s attorney’s fees of $99,595.00.

While the initial trade secret dispute between the parties here was relatively straightforward, this case is worth highlighting because of the extensive litigation that followed. Despite the company’s legitimate interest in protecting its threatened trade secrets, there were certainly unintended consequences as a result of the company’s vigorous advocacy to protect its interests.  NuScience became embroiled in litigation spanning the course of the next eight years, itself even becoming the defendant to a lawsuit.  This serves as a cautionary tale and a reminder of the inherent risk to engaging in litigation.

The case is NuScience Corp. v. Abraham, B264334 (Ca. Ct. of App. 2/1/17).

Do Companies Aid and Abet Discrimination by Conducting Background Checks on Independent Contractors?

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Our colleagues Patrick G. Brady and Julie Saker Schlegel, at Epstein Becker Green, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the health care industry: “Beyond Joint Employment: Do Companies Aid and Abet Discrimination by Conducting Background Checks on Independent Contractors?

Following is an excerpt:

Ever since the National Labor Relations Board (“NLRB”) issued its August 2015 decision in Browning-Ferris Industries of California, Inc., holding two entities may be joint employers if one exercises either direct or indirect control over the terms and conditions of the other’s employees or reserves the right to do so, the concept of joint employment has generated increased interest from plaintiffs’ attorneys, and increased concern from employers. Questions raised by the New York Court of Appeals in a recent oral argument, however, indicate that employers who engage another company’s workers on an independent contractor basis would be wise to guard against another potential form of liability, for aiding and abetting acts that violate various anti-discrimination statutes, including both the New York State (“NYSHRL”) and New York City Human Rights Laws (“NYCHRL”) and the New Jersey Law Against Discrimination (“NJLAD”).

Read the full post here.

Maryland General Assembly Passes Sick and Safe Leave Bill

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Paid Leave_shutterstock_371740363The state of Maryland appears poised to join seven other states and various local jurisdictions (including Montgomery County, Maryland) already requiring employers to provide paid sick and save leave. On April 5, 2017, the Maryland House of Delegates approved a bill previously passed by the Maryland Senate that would require most employers with at least 15 employees to provide up to five paid sick and safe leave days per year to their employees, and smaller employers to provide up to five unpaid sick and safe leave days. Although the bill contains an effective date of January 1, 2018, the actual effective date will depend on action by Governor Larry Hogan.

The following employees are not covered by the bill:

  • Employees who regularly work less than 12 hours a week;
  • Employees who are employed in the construction industry;
  • Employees who are covered by a collective-bargaining agreement that expressly waives the requirements of the law;
  • Certain “as-needed” employees in the health or human services industry.

Under the bill, an employer may not be required to allow an employee to:

(1) earn more than 40 hours of earned sick and safe leave in a year;
(2) use more than 64 hours of earned sick and safe leave in a year;
(3) accrue a total of more than 64 hours at any time;
(4) use earned sick and safe leave during the first 106 calendar days the employee works for the employer.

The bill also preempts local jurisdictions from enacting new sick and safe leave laws except for amending existing laws enacted before January 1, 2017, i.e. the existing law in Montgomery County.

The bill passed with enough support in both chambers to survive a promised veto by Governor Hogan, who favored an alternative that would require the benefit only for companies with at least 50 workers and make tax incentives available for smaller companies that offered the leave. However, if he still vetoes the bill, lawmakers will not have an opportunity to override the veto until next year’s legislative session beginning on January 10, 2018, which means the bill would not take effect until after January 1, 2018, and could possibly be subject to amendment in the next session.

*Marc-Joseph Gansah, a Law Clerk – Admission Pending in the firm’s New York office, contributed to the preparation of this blog post.

Seventh Circuit is First Federal Appeals Court to Hold Sexual Orientation Discrimination Covered by Title VII

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In a landmark decision, the U.S. Court of Appeals for the Seventh Circuit, sitting en banc, held that discrimination on the basis of sexual orientation is covered under Title VII of the Civil Rights Act’s protections against discrimination on the basis of sex.

In Hively v. Ivy Tech Community College of Indiana, Kimberly Hively, a lesbian part-time professor at Ivy Tech, applied for but was denied several full-time positions with the college. After her employment was later terminated, she filed a lawsuit alleging that she was denied promotion and then terminated because of her sexual orientation. The lower courts held that they were bound by Seventh Circuit precedent to rule that sexual orientation was not a protected category under Title VII. On July 28, 2016, a three-judge panel of the Seventh Circuit held that sexual orientation discrimination is not sex discrimination. The Seventh Circuit agreed to hear the case en banc with all 11 judges.

Deviating from almost every other circuit court, the Seventh Circuit voted 8-3 that discrimination on the basis of sexual orientation is a form of sex discrimination. In March, the Eleventh Circuit held in Evans v. Georgia Regional Hospital, et al. that it was bound by precedent that concluded that Title VII does not extend protections on the basis of sexual orientation. Later in the month, the Second Circuit reached a similar conclusion in Christiansen v. Omnicom Group, et al. While that court found that the plaintiff had no viable claim for sexual orientation discrimination, it remanded the case to the Southern District of New York to address whether the plaintiff’s claims could be considered sex stereotyping discrimination.

The court acknowledged that the three-member panel in 2016 “described the line between gender nonconformity claim and one based on sexual orientation as gossamer-thin;” the majority now concludes that such a line “does not exist at all.”

Citing to the Supreme Court’s decisions in Meritor Sav. Bank, FSB v. Vinson (sexual harassment is discrimination on the basis of sex), Price Waterhouse v. Hopkins (sex stereotyping is discrimination on the basis of sex), and Onacle v. Sundowner Offshore Servs., Inc. (same sex harassment is discrimination on the basis of sex), the court held that sex discrimination has been understood to “cover far more than the simple decision of an employer not to hire a woman for Job A or a man for Job B.”

The majority addressed Hively’s two legal theories – (1) the comparative method, whether a woman and a man would be treated differently under the same facts, and (2) the associational theory, whether discrimination occurs against an individual because of the protected characteristic of one with whom the individual associates. Under each theory, the court reduced each inquiry to a simple question – if the employee in question were male instead of female, would it matter that the employee was in a relationship with a woman? Answering that if the sex of a plaintiff such as Hively in a lesbian relationship was changed, then the outcome would be different, the Court held that discrimination on the basis of sexual orientation necessarily is discrimination on the basis of sex.

The court acknowledged the long-standing critique of the judiciary with respect to civil rights issues – that the court was attempting to “legislate from the bench.” Writing for the majority, Chief Judge Diane P. Wood wrote that the decision to “amend” Title VII to add sexual orientation as a new protected category “lies beyond our power.” She further wrote: “We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. This is a pure question of statutory interpretation and thus well within the judiciary’s competence.” In response to the dissent’s reliance upon legislative intent, the Court noted that the definition of sex discrimination has expanded in numerous ways since the passage of Title VII, and that the Congress that enacted Title VII likely would be surprised as to the extent of expansion.

In an expectedly colorful concurrence, Judge Posner acknowledged that the Court is, in fact, re-writing Title VII because society’s definition of “sex” has changed over the past 50 years. Instead of relying solely upon stereotyping claims, as the majority writes, Judge Posner instead recognized that the judiciary has long been interpreting statutory language in the context of society’s new and changing understanding of terms. And here, Posner writes, that we should not rely upon the 88th Congress’ “failure” to divine how society’s interpretation of the term would change. Rather, he writes: “We understand the words of Title VII differently not because we’re smarter than the statute’s framers and ratifiers but because we live in a different era, a different culture.”

With a Circuit split, the question of whether sexual orientation is a protected characteristic under Title VII is ripe for review by the Supreme Court, although this case likely will not be the vehicle. Ivy Tech has released a statement that it does not intend to appeal. The decision in this case, however, may affect the Eleventh Circuit’s decision to rehear the Evans case en banc. When this issue does reach the Supreme Court, the soon-to-be-confirmed Supreme Court justice Neil Gorsuch could render an impactful vote should this reach the highest court.

Texas District Court Upholds Hospital’s Policy That Disabled Employees Compete for Vacant Positions

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Dallas, TexasIn a decision impacting the interactive process, the Northern District of Texas held in EEOC v. Methodist Hospitals of Dallas, No. 3:2015-cv-03104 (N.D. Tex. Mar. 9, 2017), that employers do not violate the Americans with Disabilities Act (“ADA”) by requiring individuals with disabilities that need reassignment as a reasonable accommodation to compete for vacant positions.

Plaintiff, a former patient care technician, requested an accommodation after an on-the-job injury precluded her from performing the required duties of lifting and transporting patients. Though she met the minimum qualifications for two vacant positions, she was not chosen for the positions and was terminated. The EEOC alleged that the Hospital maintained an unlawful policy by requiring individuals with disabilities to compete for vacant positions where the individual was qualified for the position. The Hospital argued that the EEOC was attempting to mandate additional affirmative action not required by the ADA by asserting that the employer could not choose the most qualified applicant for a vacant position.

Central to the issue in this case, the ADA lists reassignment to a vacant position as a form of reasonable accommodation. 42 U.S.C. § 12111(9). The EEOC guidance on reasonable accommodation also states that an employee does not need to be the best qualified individual for the position in order to be reassigned to a vacant position. However, the circuits have split regarding whether an employer violates the ADA by requiring individuals with disabilities to compete with other candidates for reassignment to a vacant position. Although the Fifth Circuit has not directly addressed this issue, the court reviewed the authority in the Fifth Circuit regarding affirmative action for reassignment and determined that the Fifth Circuit would likely hold, similar to the Eleventh and Eighth Circuits, that the ADA does not require preferential treatment for reassignment and merely requires employers to allow individuals with disabilities to compete equally for vacant positions.  The court declined to follow contrary precedent in the Tenth and D.C. Circuits.

Employers should review their policies regarding reassignment for employees requesting an accommodation due to a disability and, as there is currently a circuit split, review the applicable law in their jurisdiction to ensure their policies are lawful. When an employee seeks reassignment to a vacant position as a reasonable accommodation, employers should work with counsel to determine whether they can require that employee to compete with other applicants for that position.

Third Circuit Holds Medical Residents May Bring Title IX Claims

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In a decision with significant implications for private hospitals, on March 7, 2017, the Third Circuit held in Doe v. Mercy Catholic Medical Center that medical residents may bring private causes of action for sex discrimination under Title IX against private teaching hospitals operating residency programs, and are not limited to claims under Title VII.

Title IX of the Education Amendments of 1972, 20 U.S.C. §1681, et seq., prohibits sex discrimination in any “education program or activity receiving federal financial assistance.” 20 U.S.C. § 1681(a). A former resident alleged the director of her program repeatedly sexually harassed her and then retaliated against her for resisting his advances and complaining about them, culminating in her termination from the program. In deciding a question of first impression, the Third Circuit held that Mercy could be sued under Title IX because, under the allegations of the complaint, its medical residency program constituted an “education program or activity” provided by a private organization principally engaged in the business of providing health care, 20 U.S.C. §1687(3)(A)(ii), that received Federal financial assistance. In so holding, Court established a test to determine whether a program is educational, asking whether it is structured as an educational program, allows participants to obtain a degree or certification or qualify for an examination, has instruction, tests, or grades, accepts tuition, and is promoted as educational.  The Court had little trouble finding that the allegations demonstrated plaintiff was enrolled in a multi-year regulated program of study and training that led to qualification to take a certification examination, and that this program was run by Mercy in affiliation with Drexel University’s College of Medicine, a university program also plausibly covered by Title IX.

Notably, the Court did not reach the question of whether Mercy’s receipt of Medicare payments constituted “Federal financial assistance” under Title IX because Mercy had not raised this issue in the District Court, although it expressed some skepticism towards Mercy’s argument that such payments merely flowed from “contracts of insurance.” In this regard we note that a number of courts have found Medicare payments can constitute Federal financial assistance for the purpose of coverage under Title VI and the Rehabilitation Act.

Importantly, the Court rejected Mercy’s argument that the plaintiff’s remedy should be limited to an action under Title VII (which would have been time-barred) because she was also an employee, finding that there is concurrent liability under Title IX. In this regard it followed decisions from the First and Fourth Circuits, rejecting conflicting decisions from the Fifth and Seventh Circuits that predated the Supreme Court’s decision in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), where the Supreme Court found a high school coach who alleged a retaliatory termination could sue under Title IX. Thus, it found that causes of action exist under Title IX for claims of both retaliation and quid pro quo sexual harassment and that, where an individual is covered by both Title IX and Title VII, that plaintiff can file complaints through either means. However, the Court did not reach the question of whether Title VII’s potential applicability barred a Title IX claim for hostile environment because that claim was time-barred under Title IX’s two-year statute of limitations.

This case stands as a warning to hospitals and other health care institutions providing accredited teaching and training programs to ensure that they have in place and follow policies that not only bar sexual discrimination, harassment and retaliation, both in general and with respect to medical residency and other educational programs, but also provide an effective complaint procedure for addressing claims that these policies have been violated.  These institutions also should be aware that employees covered under both Title VII and Title IX may pursue their discrimination claims under Title IX in federal court without first exhausting their administrative remedies, as required under Title VII.

Employment Law This Week: Waiver of Meal Breaks, Transgender Guidance Withdrawal

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Two stories on the new episode of Employment Law This Week will be of particular interest to our readers in the health care industry:

California Health Care Workers Can Waive Breaks

California health care workers can still waive some breaks. In February 2015, a California appeals court invalidated an order from the Industrial Welfare Commission (IWC) that allowed health care workers to waive certain meal breaks. The court found the order, which allowed the workers to miss one of their two meal periods when working over eight hours, was in direct conflict with the California Labor Code. The state legislature then passed a new law giving the IWC authority to craft exceptions going forward for health care workers. This month, the appeals court concluded that its 2015 decision was based on a misreading of the statute and that even waivers occurring before the new law are valid.

Transgender Guidance Withdrawal Impacts the Courts

A multistate lawsuit against the Obama administration’s transgender guidance is coming to an end. The states, led by Texas, have dropped their suit in light of the Trump administration’s decision to withdraw that guidance. The Obama-era guidance allowed students to use the bathrooms of the gender they identify with. The withdrawal has also prompted the U.S. Supreme Court to return a case that it was scheduled to hear on transgender rights in public schools. The appeals court, which based its original decision on the guidance, will now consider the case solely based on the statutory requirements of Title IX.

These stories are featured in the first and third segments of the show – see below:

Immigration Update: Travel Ban and Other News for Employers

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The Immigration Law Group at Epstein Becker Green released a Special Immigration Alert that will be of interest to our readers.

Topics include:

  1. President Trump Issues Revised Executive Order on Travel
  2. USCIS Suspends Premium Processing for H-1B Petitions Starting April 3, 2017: All H-1B Petitions, Including H-1B Cap Petitions, Are Affected!
  3. Use of New Form I-9 Is Now Mandatory
  4. IRS Announces That Delinquent Taxpayers Face Revocation/Denial of U.S. Passports
  5. DHS Issues Two New Memos on Enforcement/Border Security

Read the full alert here.

Employers: How to Prepare for “A Day Without” Actions

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A new post on the Management Memo blog will be of interest to many of our readers in the health care industry: “‘A Day Without’ Actions – How Can Employers Prepare?” by our colleagues Steven M. Swirsky and Laura C. Monaco of Epstein Becker Green.

Following is an excerpt:

[T]he same groups that organized the January 21, 2017 Women’s March on Washington – an action participated in by millions of individuals across the county – has called for a “Day Without Women” to be held on Wednesday, March 8, 2017. Organizers are encouraging women to participate by taking the day off from paid and unpaid labor, and by wearing red – which the organizers note “may be a great act of defiance for some uniformed workers.”

Employers should be prepared to address any difficult questions that might arise in connection with the upcoming “Day Without Women” strike: Do I have to give my employees time off to participate in Day Without events? Can I still enforce the company dress code – or do I need to permit employees to wear red? Can I discipline an employee who is “no call, no show” to work that day? Am I required to approve requests for the day off by employees who want to participate? As we explained in our prior blog post, guidance from the National Labor Relations Board’s General Counsel suggests that an employer can rely on its “lawful and neutrally-applied work rules” to make decisions about granting requests for time off, enforcing its dress code, and disciplining employees for attendance rule violations. An employer’s response, however, to a given employee’s request for time off or for an exception to the dress code, may vary widely based upon the individual facts and circumstances of each case. …

Read the full post here.

Implications of the Trump Administration for Transgender Workers

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How will the Trump administration handle discrimination cases involving transgender employees? The EEOC’s pursuit of a sex discrimination claim on behalf of Aimee Stephens, a transgender woman who was terminated by a Michigan funeral home for expressing her intention to dress in conformance with her gender identity, will be an early indicator.

In a brief filed with the Sixth Circuit on January 26, 2017, Stephens argues that the interests of transgender individuals will not be adequately represented under the new administration. Under the Obama administration, the EEOC sued Stephens’ former employer, R.G. & G.R. Harris Funeral Homes, for sex discrimination on her behalf. The funeral home owner argued permitting Stephens to dress as a woman would conflict with his Christian beliefs and pose a threat to his free exercise of religion. The Eastern District of Michigan dismissed the EEOC’s lawsuit in August 2016 on the grounds that the funeral home is exempt from Title VII under the Religious Freedom Restoration Act (“RFRA”). Although the EEOC appealed to the Sixth Circuit in October 2016, Stephens filed a motion to intervene as plaintiff-appellant, citing her belief that the new administration would not adequately represent her interests.

Over the course of Obama’s presidency, the trend in federal government was the extension of protections for transgender individuals. Many federal agencies, including the EEOC, OFCCP, OSHA, and HHS, previously promulgated rules and guidance affording increased protections for transgender individuals. Numerous federal courts, including the First, Sixth, Ninth, and Eleventh circuits, have applied theories of sex stereotyping under Section 1983 or Title VII, resulting in protections for transgender individuals. Few courts, however, have found gender identity or transgender status is a protected class under Title VII. Indeed, the district court in G.R. & R.G. Funeral Homes rejected that position when presented by the EEOC.

Whether the EEOC will continue to aggressively pursue the expansion of Title VII to include transgender protections remains an open question. While still just a rumor, it has been reported that the Trump administration is considering an executive order that would provide individuals and organizations the ability to deny employment, as well as services and other benefits, to LGBT individuals on religious grounds. In her motion, Stephens references the removal of the White House webpage dedicated to LGBT rights, the federal government’s requests for extensions of time in other civil rights cases, and the President’s authority over EEOC appointments as reasons she believes her interests may not be adequately represented. Further, the current acting chair of the EEOC, Victoria Lipnic, was one of two commissioners who voted against the EEOC’s July 2015 decision that held that sexual orientation is included within the definition of sex for discrimination purposes under Title VII. The Trump administration also has rescinded guidance previously issued by the departments of Education and Justice under the Obama administration that took the position that the Title IX prohibitions of discrimination “on the basis of sex” require access to sex-segregated facilities based on gender identity.

On the other hand, the EEOC filed its opening brief with the Sixth Circuit just two weeks after Stephens moved to intervene, arguing that (a) discrimination based on transgender status and/or transitioning is inherently sex discrimination under Title VII; and (b) the RFRA does not provide the for-profit funeral home a defense in this case. This stance is consistent with that taken by the EEOC while Obama was in office. Further, Trump has indicated Executive Order 13672, which banned federal contractors from discriminating against LGBT employees, will stand.

Stephens’ case may have implications for the protection of transgender employees at the federal level, but employers need to keep in mind that many states explicitly prohibit discrimination against transgender workers. At least sixteen jurisdictions – including California, Illinois, Maryland, Massachusetts, New Jersey and the District of Columbia – now include gender identity as a protected characteristic under their discrimination laws.

Employers are advised to familiarize themselves with their state and local laws, to take a proactive role in preventing transgender, or gender identity, discrimination in the workplace, and to have a plan in place to accommodate the potential needs of transgender workers.