News for June 6, 2016

Featured this week:

In state law news:

Featured this week:

No vacancy required for promotion denial to be adverse action
Although affirming a district court's decision granting summary judgment to an employer in a suit brought by a blind African-American Health and Human Services employee, the D.C. Circuit emphatically disagreed with the basis of the lower court's decision. While the district court had accepted the employer's argument that a promotion denial was only recognizable as an adverse employment action if a vacancy for the desired job already existed, the appeals court explained that there was "no such categorical rule" in its case law. Such an approach, the court warned, would create "an unacceptable loophole in our antidiscrimination law." The judgment was affirmed. (Chambers v Burwell, DCCir, May 31, 2016, Griffith, T.)

Directive that CEO get rid of ‘old son of a bitches’ and other remarks support ADEA claim
Denying cross-motions for summary judgment on the ADEA and state-law age discrimination claims of a longtime employee and senior VP, a federal district court in Kentucky found triable issues as to whether he was terminated based on his age under both the direct and indirect evidence standards, in light of ageist remarks by the CEO and a directive from his boss to get rid of the “old son of a bitches.” The employee’s retaliation claim failed, however, because there was no evidence that his complaint to a parent company’s general counsel was ever relayed to his employer. (Jecker v Monumental Life Ins Co, WDKy, May 23, 2016, Hale, D.)

City employee plausibly suffered years of race and gender discrimination, but not a hostile work environment
An African-American female employee plausibly alleged that she suffered several years of race and gender discrimination and retaliation during her tenure at a New York City agency, including demotions and denied promotions, but her hostile work environment claim failed because the alleged conduct was gender and race neutral. Denying in part the defendants’ motion to dismiss her claims under Section 1981, Title VII, New York State Human Rights Law and New York City Human Rights Law, the court also found that she sufficiently asserted Monell liability but denied her bid to add a First Amendment retaliation claim. (Goodwine v City of New York, SDNY, May 23, 2016, Furman, J.)

GM assembly worker who threatened coworkers has ADA claims tossed
General Motors was granted summary judgment against ADA discrimination and retaliation claims asserted by an assembly worker who suffered from general anxiety disorder. The federal district court in Ohio found that he failed to provide evidence that GM’s given reasons for his disciplinary suspensions—including his threatening behavior towards coworkers—were pretextual. He also failed to show GM’s requirement that he be psychiatrically evaluated before returning to work was unjustified. (McNamara v General Motors, LLC, EDOhio, May 27, 2016, Pearson, B.)

Trucking company to pay $3.1M-plus to end suit over same-sex trainer policy
New Prime Trucking, Inc. has agreed to pay over $3.1 million and will make job offers to women who were victims of the company’s unlawful discriminatory hiring policy, according to the EEOC. The payments come in the wake of an earlier court order finding that the company violated Title VII by discriminating against female truck driver applicants when it required that they be trained only by female trainers.

EEOC increasing Title VII, ADA, GINA notice posting penalties to $525
The EEOC has issued a final rule raising the penalty for violations of the notice posting requirements in Title VII, the ADA, and GINA from $210 to $525. The final rule is effective 30 days after publication in the Federal Register, which occurred on June 2.

IRS clarifies tax treatment of wellness program benefits and employer reimbursements
The IRS has clarified that employers may not exclude from employees’ gross income either payments of cash rewards for participating in wellness programs or employer reimbursements of premiums paid by employees (originally via salary reduction through a cafeteria plan) for wellness program participation. The guidance was set forth in a recent memorandum to Tax Exempt and Government Entities (TEGE) Division Counsel senior attorney Mark Ericson.

Unemployment rate declines to 4.7% in May; payroll employment changes little
The unemployment rate declined by 0.3 percentage point to 4.7 percent in May, and nonfarm payroll employment changed little (+38,000), the U.S. Bureau of Labor Statistics reported June 3. The number of unemployed persons declined by 484,000 to 7.4 million.

In state law news:

Maryland amends equal pay law to prohibit discrimination based on gender identity, adds worker right to discuss wages
Maryland’s equal pay for equal work law prohibits employers from paying different wages based on a person’s sex. This law is amended effective October 1 to also prohibit discrimination in terms of compensation based upon a person’s gender identity.

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Special Report

HIPAA requirements and system security must be tackled together

Privacy requirements under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and system security protections and requirements are intertwined, according to Peter MacKoul and Ken Hughes of HIPAA Solutions, LC, who presented at a webinar sponsored by the Health Care Compliance Association (HCCA). As a result, organizations should employ a compliance strategy that involves both privacy and security considerations. In the webinar, the presenters discussed how to develop a strategy to comply with HIPAA’s minimum necessary use requirement and roles-based access, as well as how to implement process controls to prevent impermissible uses and discloses of protected health information (PHI).

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