News for November 2, 2015

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One-time flashing of genitalia will not lead to trial for employer
An employee who alleged that a male line leader exposed his genitalia and made sexual comments to her will not be able to present her sexual harassment claim to a jury, a federal district court in Mississippi ruled. The defendants argued, and the employee failed to rebut, that these actions were not severe or pervasive enough to alter the terms or conditions of her employment. Furthermore, the court concluded that the line leader was not the employee's supervisor and that the employer had acted promptly upon learning of the incident. The defendants' motion for summary judgment was granted. (Davenport v Nissan North America, Inc, SDMiss, October 22, 2015, Reeves, C.)

Psych exam of postal clerk justified by business necessity
The U.S. postal service was justified in requiring a mail clerk to undergo a psychological fitness-for-duty evaluation after she continued to be obsessed with a coworker whom she believed was receiving preferential treatment, held a federal district court in New York, granting summary judgment on her claim under the Rehabilitation Act that she was subjected to an unwarranted medical exam. The mail clerk had written numerous letters to management complaining about the coworker, including one that was 16 single-spaced pages, and refused to stop tracking the coworker’s movements. Her Title VII retaliation claim also failed. (Hanfland v Brennan, WDNY, October 16, 2015, Geraci, F.)

Threatening Facebook messages sent to on-leave EMT from office computer support HWE claims
An EMT who, while on leave as a result of a work-related injury, received a series of Facebook messages from an office computer that referenced her participation in a sexual harassment investigation, called her a “whore,” noted her mother’s frail health, and insulted her children, was not precluded from relying on the messages because they occurred outside the workplace, ruled a federal magistrate judge in Puerto Rico. Finding that a reasonable jury could consider them in determining the cumulative effect of the incidents she purportedly endured after complaining about harassment, the magistrate denied summary judgment against her Title VII gender- and retaliation-based hostile work environment claims. (Maldonado-Catala v Municipality of Naranjito, DPR, October 26, 2015, McGiverin, B.)

Reporting slurs about weight, sexual orientation not protected activity under Title VII
An employee’s complaints that a subordinate made derogatory remarks about his weight and sexual orientation did not constitute protected activity under Title VII because he was not complaining about discrimination based on a protected category, concluded an Indiana appeals court. Thus, his Title VII retaliation claim failed as a matter of law and summary judgment for his employer was affirmed. His claims under the federal constitution failed because the university was an arm of the state, protected by sovereign immunity. His claims under the state constitution failed because he sought only money damages and there was “no express or implied right of action for monetary damages under the Indiana Constitution” (Gaff v Indiana-Purdue University of Fort Wayne, IndApp, October 26, 2015, Najam, E., Jr.).

Proposed GINA rule clarifies narrow exception for employer-sponsored wellness programs
The EEOC has released its long-anticipated proposed GINA regulations pertaining to employer-sponsored wellness programs. The proposal, which would make six substantive changes to current GINA regulations, is crafted to remain consistent with the EEOC’s proposed ADA wellness program regulations, as well as the Affordable Care Act (ACA). It clarifies a narrow exception to the general rule that no incentives may be provided for an employee’s genetic information to permit employer-sponsored wellness programs to provide limited financial and other inducements in exchange for an employee’s spouse providing information about his or her current or past health status. The total inducement, however, is capped at 30 percent. The proposed GINA regulatory amendments were published in the Federal Register on October 30. The EEOC will accept comments on the proposed rule until December 29, 2015.

J. Crew is the latest retailer to end on-call scheduling
“J. Crew has agreed to end on-call shifts nationwide and to provide one week of advance notice about schedules to employees at all New York store locations,” according to Attorney General Eric T. Schneiderman in an October 23 announcement.

Review your health care costs now, employers are advised, to avoid 2018 Cadillac tax
Employers should start taking action now to reduce their health care costs, well before the implementation of the Cadillac excise tax on high-cost health plans, Deloitte has urged, in a recently-published Health Policy Brief. Many employers have not taken significant steps to reduce costs in anticipation of the 2018 tax, Deloitte says, pointing out that it could take several years for the impact of such initiatives to be realized.

Rate of nonfatal workplace injuries and illnesses continues ongoing decline in 2014
The nearly 3.0 million nonfatal workplace injuries and illnesses reported by private industry employers in 2014 occurred at a rate of 3.2 cases per 100 equivalent full-time workers, according to estimates from the Survey of Occupational Injuries and Illnesses (SOII) conducted by the U.S. Bureau of Labor Statistics (BLS). The rate reported for 2014 continues a pattern of declines that, with the exception of 2012, occurred annually for the last 12 years.

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Special Report

IRS issues proposed regulations defining terms related to marital status

The IRS has issued proposed regulations expanding terms related to marital status to take into account recent changes in the law with respect to same-sex couples in the Supreme Court rulings in Windsor v. U.S. and Obergefell v. Hodges. In light of these legal changes, the IRS has determined that marriages of couples of the same sex should be treated the same as marriages of couples of the opposite sex. Therefore, terms indicating sex, such as “husband,” “wife,” and “husband and wife” should be interpreted in a neutral way to include same-sex spouses as well as opposite-sex spouses.

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