News for May 15, 2017

Featured this week: In state law news:
Featured this week:

Assistant principal could not be near 'potentially unruly students,' so couldn't perform essential functions
Affirming summary judgment against a former assistant principal's ADA failure-to-accommodate claim, the Seventh Circuit concluded that the undisputed facts showed she told the employer she could not work in the presence of "potentially unruly" students due to her knee injuries, and all but one of the vacant positions she wanted would have required her to do so. As for the last position, it would have been a promotion, which the ADA did not require the employer to give. (Brown v Milwaukee Board of School Directors, 7thCir, May 4, 2017, Hamilton, D.)

Law 'evolving' on whether Title VII covers sexual orientation, so court refuses to dismiss
Refusing to dismiss a former university employee's sexual orientation discrimination claim under Title VII, a federal court in New York acknowledged Second Circuit precedent on the issue but found that the legal landscape was evolving and declined to embrace "an 'illogical' and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination." The court also found that the employee stated plausible claims for sexual orientation discrimination, hostile work environment, and retaliation based on allegations of many discriminatory remarks, exclusion from meetings and projects, and termination soon after he complained. (Philpott v State of New York, SDNY, May 3, 2017, Hellerstein, A.)

Diabetic officer failed to provide documents needed to return from leave
A diabetic police officer who claimed confusion over how and why he needed to respond to his employer's requirement for fitness certification before he could return to work from FMLA leave failed to show he was not, in fact, on notice about how to meet that requirement, a federal district court in Virginia ruled. Even if the employer failed to include reference to the certification in its initial FMLA designation letter, the record clearly demonstrated that the employee was on notice about what he needed to do based on his recent annual physical, which had precipitated the leave and which had required him to complete an identical form. Thus, his FMLA interference claim failed on summary judgment. Likewise, his remaining claims of retaliation, discrimination, and unlawful medical inquiry under the FMLA, the ADA, and Title VII also failed. (White v Metropolitan Washington Airports Authority, EDVa, May 5, 2017, Brinkema, L.)

Proselytizing to employee, firing him after he objected, indicated Title VII violation
Evidence that an employee's supervisor regularly proselytized to him for years, that the employee received raises and was considered a good worker, and that he was nonetheless fired soon after complaining about the religious discussions at work, raised triable issues of fact on whether he was really fired due to reverse religious discrimination and/or retaliation, in violation of Title VII and state law, held a federal district court in Washington. However, his claims against two other entities failed because his joint employer theory was supported by nothing more than conclusory allegations. (Magden v Easterday Farms, EDWash, May 3, 2017, Quackenbush, J.)

USCIS completes data entry of FY 2018 H-1B cap-subject petitions
USCIS announced on May 3 that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in its computer-generated random process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected.

Rising health care benefit costs show no sign of abating globally
The cost of employer-provided health care benefits around the globe continues to climb with little relief in sight, according to a survey of medical insurers by Willis Towers Watson. Insurers continue to blame the cost of hospital/inpatient and outpatient medical services, advanced medical technology, and the overuse and overprescribing of services as the primary factors for driving up costs.

Unemployment rate changes little in April at 4.4%, BLS reports
Total nonfarm payroll employment increased by 211,000 in April, and the unemployment rate was little changed at 4.4 percent, the U.S. Bureau of Labor Statistics reported May 5. The number of unemployed persons, at 7.1 million, also changed little in April.

Texas 'sanctuary cities' ban becomes law, prompts ACLU travel warning
On May 7, Texas Governor Greg Abbott signed into law legislation banning "sanctuary cities" in the state of Texas—whatever that term means. The bill, which cleared the Texas Legislature on May 4, mandates that campus police departments and local government entities and law enforcement officials comply with federal immigration laws and detainer requests. S.B. 4 also creates civil and criminal penalties for entities that do not enforce the law.

NYC employers banned from asking applicants about salary history
In what his office called "a milestone achievement in the fight for pay equity," New York City Mayor Bill de Blasio signed into law a bill that amends the administrative code of New York City to bar both public and private employers from inquiring about a prospective employee's salary history. Int. No. 1253 was approved by the New York City Council on April 5 by 47-3 vote.

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Special Report

Research shows political talk plagues workers months after U.S. election
American workers are more likely to say they are feeling stressed and cynical because of political discussions at work now than before the 2016 presidential election, according to survey results released by the American Psychological Association. The survey found that 26 percent of full-time and part-time employed adults said they felt tense or stressed out as a result of political discussions at work since the election, an increase from 17 percent in September 2016 when they were asked about political discussions at work during the election season. More than one in five (21 percent) said they have felt more cynical and negative during the workday because of political talk at work, compared with 15 percent before the election.

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