Title VII of the Civil Rights Act of 1964 provides that “it shall be an unlawful employment practice for an employer…to discharge an individual, or otherwise discriminate against any individual with respect to his compensation, terms, condition, or privileges of employment, because of… his/her sex….” 42 U.S.C. 2000e-2(a). Under Title VII, sexual orientation is not a prohibited basis for discriminatory acts. Gilbert v. Country Music Ass’n, Inc., 432 F. App’x 516, (6th Cir. 2011).  (Similarly, Ohio law does not extend to sexual orientation Cooke v SGS Tool Co.)

Despite the fact that sexual orientation discrimination is not an actionable claim under current Federal and State (Ohio) law, the Courts have been expanding protection for related claims.

In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) the U.S. Supreme held that harassment directed at a person because that person does not conform to traditional sex stereotypes is a form of sex discrimination prohibited by Title VII.  Since Price Waterhouse, the Courts have been expanding on the meaning of “does not conform to traditional sex stereotypes.”

The Sixth Circuit (the federal circuit which includes Ohio) has addressed the issue on several occasions.  Most recently in Koren v. The Ohio Bell Telephone Co. the Plaintiff (Koren) alleged that his employer discriminated against him because he took his husband’s name after they married, but did not similarly discriminate against women for doing the same.  Koren did not allege discrimination because he was gay.  The Court allowed Koren’s case to move forward on the theory of gender non-conformity.

The case demonstrates the difference between a sexual orientation discrimination claim, which is not protected by Title VII or Ohio law, and a gender stereotyping claim, an increasingly recognized form of sex discrimination.  The latter claim removes actual sexual orientation from the analysis, and relies only on establishing that the plaintiff was discriminated against because he or she did not conform to traditional gender stereotypes.

Also, the Sixth Circuit recognizes claims of sex discrimination where men are penalized for acting femininely, as such treatment is “because of sex.”  Smith v. City of Salem, Ohio, 378 F.3d 566, 674 (6th Cir. 2004).

In conclusion, the law (Congress) has yet to recognize protection for discrimination based on sexual orientation.  The Courts, however, continue to expand the protection under the gender stereotyping theory.  It appears the Courts are indicating to Congress to expand the Title VII to include long overdue protection.

Here are links to some other articles and information on the topic:

National Center for Lesbian Rights – Federal Case Compilation.  

EEOC Fact Sheet on Sexual Orientation Discrimination

ACLU state-by-state Non-Discrimination Laws

In general,  compensable hours worked include all time an employee is on duty or at a
prescribed place of work and any time that an employee is suffered or permitted to work. This generally includes work performed at home, travel time, waiting time, training, and probationary periods.

• Federal Minimum Wage: $7.25 per hour effective July 24, 2009. States, however, may require higher minimum wages.  In Ohio, the Minimum Wage is $7.70 per hour effective January 1, 2012.

• Tipped employees may be paid $2.13 per hour; if an employee’s tips combined
with cash wage does not equal the applicable minimum wage, the employer
must make up the difference.

• Overtime after 40 hours in a week = 1 ½ times an employee’s regular rate of pay.

Certain Exempt employees are not covered by the overtime and minimum wage requirements.  These exemptions to overtime and minimum wage include Administrative Exemption, Professional Exemption, Executive Exemption, Outside Sales Exemption, and Computer Professional Exemption.  The focus of this employment law blog post pertains to the Highly Compensated Worker Exemption.  If you answer yes to all the criteria below, you are exempt from overtime and minimum wages under the FLSA.

1.  You make a total annual compensation of $100,000 or more.

2.  You annual compensation includes $455 per week paid on a salary basis.

3.  You primary duties include office or non-manual work.

4.  You customarily and regularly performs at least one of the exempt duties or responsibilities of an exempt executive, administrative or professional employee.  (See Exemption Blog Post for more information on exempt duties and responsibilities under the FLSA.)

For more information on the Highly Compensated Worker Exemption under the FLSA visit the Department of Justice Fact Sheet.

If you believe you are entitled to overtime and minimum wage under the FLSA and you are not receiving it, contact Mansell Law today.

Certainly, no one wants to be subject to intrusive and unnecessary medical exams and inquiries.  Indeed, it may lead to an employer viewing an employee in a negative light based on preconceived notions, bias, and unfounded fears.  The legislature and judicial system have taken this into account when constructing and interpreting these laws.  After employment, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.  Furthermore, the ADA requires that employers keep medical information obtained from a disability-related inquiry or medical examination, as well as any medical information voluntarily disclosed by an employee, as a confidential.  Employers may share this medical information only in limited circumstances with supervisors and managers.

What is considered “job related and consistent with business necessity”?

Generally, a disability-related inquiry or medical examination of an employee may be “job-related and consistent with business necessity” when an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.” Exams and inquiries in response to a request for reasonable accommodation when the disability or need for accommodation is unknown  may be job-related and consistent with business necessity. Additionally, periodic examinations under specific circumstances may be job-related and consistent with business necessity.

What is the Scope of the lawful medical exams and inquiries?

Even if an employer can demonstrate a lawful reason for requesting a medical inquiry or exam, it does not not entitled your employer to all your medical records.  Instead, an employer can only obtain information necessary to determine if the employee is capable of performing the essential functions of his/her job.  If the employee requests an accommodation, the employer can require sufficient documentation to establish the employee suffers from a disability under the ADA and how the accommodation will allow the employee to perform the essential functions of his/her job.  Employers are not entitled to unrelated medical records.

For more information visit these links:

EEOC Guidance on Medical Exams and Inquiries
Full Text of American with Disabilities Act
Article on Medical Inquiries during Employment

Exemptions

The FLSA requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek.

The FLSA, however, provides an exemption from minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional, outside sales employees and certain computer employees.  To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. For more information on whether you are actually exempt, click here.

 Independent Contractor vs Employee

Employers are obligated to pay employees in accordance with the FLSA.  Employers may try to circumvent these obligations by calling an employee an independent contractor.

In the application of the FLSA an employee, as distinguished from a person who is engaged in a business of his or her own, is one who, as a matter of economic reality, follows the usual path of an employee and is dependent on the business which he or she serves.

Among the factors which the Court has considered significant are:

1) The extent to which the services rendered are an integral part of the principal’s business.
2) The permanency of the relationship.
3) The amount of the alleged contractor’s investment in facilities and equipment.
4) The nature and degree of control by the principal.
5) The alleged contractor’s opportunities for profit and loss.
6) The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
7) The degree of independent business organization and operation.

If you think you are being misclassified, contact Mansell Law today.

Read an article on Obesity under the ADA and a recent settlement on this topic.

UPDATE:

It seems the law is trending toward obesity as a disability.  In February 2012 a Federal Judge held that severe obesity may be considered a disability.  In EEOC v. Resources for Human Development, Inc., No. 10-3322 (E.D.La. Dec. 7, 2011), the employee weighed over 500 pounds at the time of her termination.  The ADA does not specifically address obesity.  The Court relied on EEOC’s ADA Compliance Manual which states: “being overweight, in and of itself, is not generally an impairment…On the other hand, severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment.” More importantly, the individual does not have to prove his or her obesity was caused by an underlying health condition.  Here is an article on the topic:  Summary of Obesity as a Disability.  Remember: This is only one Court’s interpretation.  Other Courts have reached other conclusions.

View and download the FMLA Guide

For more information on the ADA, reasonable accommodations, and what constitutes undue hardship, check out the Equal Employment Opportunity Commission (EEOC) ADA fact sheet.