DHS Warns of Utilities Malware
Two cyber security firms have uncovered malicious software that they believe caused a Ukraine power outage last December. The software was recently uncovered by two cyber security firms—ESET, a Slovakian anti-virus software maker, and Dragos Inc., a U.S. critical-infrastructure security firm.
The two firms released details of the malware, which goes by two different names, Industroyer and Crash Override. They also issued alerts to governments and infrastructure operators to help them defend against the malware, warning that it could be easily modified to harm critical infrastructure operations around the globe.
The U.S. Department of Homeland Security (DHS) hasn’t seen any evidence to suggest that its critical infrastructure has been affected, but it will continue to investigate, as there is the possibility of more attacks using the same approach. In an alert posted on its website, the agency stated that “the tactics, techniques and procedures described as part of the Crash Override malware could be modified to target U.S. critical information networks and systems.”
In the same alert, the DHS posted a list of technical indicators that a system had been compromised by Crash Override and asked firms to contact the agency if malware was suspected.
Power firms are concerned that there could be more attacks, especially considering the malware could attack other types of infrastructure, such as transportation, water and gas providers.
The two companies do not yet know who masterminded the attack, although Ukraine blames Russia. Officials in Moscow have denied the claims.
Microsoft Warns of Cyber Attacks
Citing an elevated risk of cyber attacks, Microsoft has released several security updates during its June “Patch Tuesday” in an effort to protect against widespread hacking. A recent blog post by Adrienne Hall, General Manager of Microsoft’s Cyber Defense Operations Center, stated, “In reviewing the updates for this month, some vulnerabilities were identified that pose elevated risk of cyber attacks by government organizations, sometimes referred to as nation-state actors or other copycat organizations.”
WannaCry
In May 2017—after the WannaCry ransomware locked hundreds of thousands of machines around the world and demanded that victims paid a ransom in bitcoin—Microsoft was prompted to release updates for software that it no longer supports. This was an unexpected move that preceded more updates for old, outdated systems.
Microsoft’s motives for June’s most recent security updates are speculative, and it is unclear whether the company has been warned of another cyber attack using exploits similar to those of WannaCry. A Microsoft spokesperson stated that the decision to release the most recent updates is “an exception based on the current threat landscape and the potential impact to customers and their businesses.”
WannaCry Came from North Korea
According to British security officials, the May 2017 global ransomware attack that affected over 200,000 computer systems came from North Korea. The hackers are believed to be a hacking group known as Lazarus—the same group that targeted Sony Pictures in 2014.
In the wake of increasing tensions resulting from North Korea’s missile tests, the DHS and the FBI have issued an alert to businesses about another possible cyber attack led by North Korea, warning people to update old software
Recent Findings
British security officials have recently linked the North Korean government to the creation of WannaCry, based on tactics, techniques and targets. The ransomware was originally built around a hacking tool belonging to the National Security Agency and spread through a flaw in Windows.
The Importance of Performing Updates
WannaCry is believed to be a flawed attempt to raise revenue for the North Korean regime, considering the hackers have not yet cashed in the $140,000 in bitcoin they stole. That is likely because the transactions are easy to track. Despite the failed attempt, one of the reasons why WannaCry was so powerful was because many of the facilities attacked hadn’t updated their software to patch holes in security.
The most recent security update includes patches to its Windows XP, Windows Vista and Server 2003 products, which are all unsupported but still widely used. Microsoft suggests customers enable Windows Update if they haven’t already.
Target to Pay Settlement from 2013 Data Breach
Target has agreed to pay $18.5 million to settle claims made by 47 states and the District of Columbia as well as to resolve an investigation into the retailer’s massive data breach in 2013.
The investigation found that Target’s gateway server was accessed by cyber hackers through credentials stolen from a third-party vendor. As a result, data from up to 40 million credit and debit cards were stolen during the 2013 holiday season.
The total cost of the data breach was $202 million, according to Target. The state receiving the largest share of the settlement is California, which will receive more than $1.4 million.
Michigan Utility Company Loses Employees After Cyber Attack
A Lansing utility company is still recovering from a 2016 cyber attack that temporarily disabled its internal network and asked for a $25,000 ransom. According to officials, an employee unsuspectingly clicked on an infected email attachment, which shut down the company’s accounting and email systems.
Since the cyber attack, 14 employees have voluntarily left the company—13 of which were IT employees. The company is devoting its resources to minimize the odds of an attack and to quickly recover in the event it is hit again.
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Softwood Lumber Prices Keep Climbing
As the lumber dispute between Canada and the United States continues, uncertainty over the softwood lumber supply has increased prices by more than 12 percent since January, according to a National Association of Home Builders (NAHB) analysis. Although the Trump administration is eager for a quick deal to end the dispute, the Canadian government doesn’t see an agreement any time in the near future.
In April, the U.S. Department of Commerce announced an average preliminary 20 percent import tax on Canadian softwood lumber. That could increase to 30 percent after a U.S. decision on new anti-dumping penalties, according to RBC Capital Markets.
The United States imports one-third of its lumber supplies, and more than 95 percent of that comes from Canada, according to the NAHB.
Trump Signs Apprenticeship Order
In an effort to fill some of the 6 million open jobs in the United States, President Donald Trump signed an executive order providing more money for private companies to design apprenticeship programs. The order nearly doubles the $200 million in taxpayer money spent on learn-and-earn programs under a grant system called ApprenticeshipUSA. To avoid using federal money to fund the order, Trump is directing a government review, hoping to streamline over 40 workforce programs across 13 agencies.
There are about 500,000 apprenticeship positions in the country, representing less than 1 percent of the entire U.S. workforce. The executive order addresses the nation’s “skills gap” that has left millions of open jobs unfilled. Apprenticeships would give students a way to learn skills without facing the debt associated with attending four-year colleges.
Critics are concerned about limited government oversight, since Trump’s order does not require all apprenticeships to be registered, and the Labor Department would review the apprenticeships under broader standards. They are also concerned about the oversight of apprenticeship programs that operate under private companies’ control.
Heat App Updated in Time for Summer
The National Institute for Occupational Safety and Health (NIOSH) and OSHA have recently redesigned their Heat Safety Tool mobile app. The free app provides information on what precautions outdoor workers should take to stay safe in hot and humid conditions.
The updated app uses a cellphone’s geolocation capabilities to gather weather data from National Oceanic and Atmospheric Administration satellites. It can forecast the hourly heat index and determine whether the user’s current risk level is minimal, low, moderate, high or extreme. The information can help employers adjust work schedules and workloads.
According to OSHA, more than 65,000 people seek medical attention each year for extreme heat exposure.
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Summer Weather Safety Tips
Severe weather causes thousands of injuries and hundreds of deaths each year in the United States. Stay safe this summer by taking the following precautions:
- Create a disaster plan and a disaster supplies kit. Check the American Red Cross website for guidance.
- Identify a safe place to take shelter.
- Check the weather forecast before working outdoors.
- Set up severe weather alerts on your cellphone.
- Purchase a National Oceanic and Atmospheric Administration (NOAA)
“Weather Radio All Hazards” receiver unit with a warning alarm tone and battery.
Many Farmers Upset Over Cuba Policy
On June 16, 2017, President Donald Trump signed a presidential directive rolling back parts of former President Barack Obama’s efforts to improve the United States’ trade relationship with Cuba. Farmers saw the directive as a step backward, as it is expected to tighten restrictions on exports and complicate agricultural trade.
Shipments of U.S. grain and soy to Cuba have soared between 2016 and 2017, thanks to Obama’s 2014 diplomatic breakthrough. Within the first four months of 2017, the United States shipped 142,860 tons of grain and soy to Cuba, up from 49,090 tons during the same period of 2016. Although U.S. farmers have just gotten a taste of the profitability from exporting to Cuba, Trump’s move breakthrough is expected to cost U.S. farmers $125 million per year.
President of the U.S. Grains Council Tom Sleight said in a recent statement that, “Trump’s move could cut off near-term sales and stymie economic development that would drive longer-term demand growth.” Although the amount of exports to Cuba are small in comparison to total U.S. exports—corn exports were close to 56 million tons last year—every bit helps as farmers face a decline in farm income for the fourth consecutive year.
$20 Million Raised for Vertical Farms
Indoor agricultural startup Bowery has raised $20 million in Series A funding to build more farms, plant more crops and hire more people. The urban farming startup is one of many that intend to reimagine farming by growing produce vertically in warehouses across the country, as opposed to planting crops in sprawling fields that are reliant upon good weather.
Co-founder Irving Fain stated that since vertical farms can be built in any city, produce would be more accessible to customers and reach them more quickly.
According to Research and Markets, the vertical farm market is expected to grow to $5.8 billion by 2022.
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The Affordable Care Act (ACA) requires applicable large employers (ALEs) to offer affordable, minimum value health coverage to their full-time employees in order to avoid possible penalties. Because this employer mandate has been criticized as burdensome for employers and an impediment to business growth, it seems likely that its repeal will be part of any Republican plan to repeal and replace the ACA.
If the employer mandate is repealed, many ALEs will likely want to modify their plan designs to go back to pre-ACA eligibility rules (for example, requiring employees to have a 40-hour per week work schedule to be eligible for benefits). Employers may also consider increasing the amount that employees are required to contribute for group health plan coverage.
When making plan design changes, employers should review their compliance obligations under the Employee Retirement Income Security Act (ERISA) and the ACA mandates that may remain intact
EMPLOYER MANDATE RULES
Under the ACA’s employer mandate provisions, ALEs that do not offer affordable, minimum value health coverage to their full-time employees may be subject to penalties if any full-time employee receives a subsidy for health coverage through an Exchange.
These employer mandate provisions, which are also known as the “employer shared responsibility” or “pay or play” rules, only apply to ALEs, which are employers with, on average, at least 50 full-time employees, including full-time equivalent employees (FTEs), during the preceding calendar year.
| The employer mandate rules took effect for most ALEs beginning on Jan. 1, 2015. However, medium-sized ALEs (those with fewer than 100 full-time and FTE employees in 2014) generally had an additional year, until 2016, to comply with the employer mandate rules, if they satisfied specific criteria to qualify for this delay.
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For purposes of the ACA’s employer mandate, a full-time employee means an employee who works an average of 30 or more hours per week.
The Internal Revenue Service (IRS) provided ALEs with two methods to determine whether employees are full time under the employer shared responsibility rules—the monthly measurement method and the look-back measurement method.
| Monthly Measurement Method |
Under this method, an employee’s full-time status for a calendar month is determined based on hours of service for that month. |
| Look-back Measurement Method |
The look-back measurement method involves:
- A measurement period for counting hours of service;
- An optional administrative period that allows time for enrollment and disenrollment; and
- A stability period during which coverage is provided if the employee averages full-time hours during the prior measurement period.
If an employee had, on average, at least 30 hours of service per week during the measurement period, the ALE must treat the employee as a full-time employee for the stability period. This rule applies regardless of the employee’s number of hours of service during the stability period, as long as he or she remains an employee, unless a special rule applies.
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To comply with the ACA’s employer mandate, many ALEs were required to expand their health plan’s eligibility criteria to include employees who work 30 or more hours per week. ALEs that use the look-back measurement method have also implemented complex systems for tracking and measuring employee hours in order to identify the employees who must be offered coverage.
In addition, to satisfy the ACA’s affordability requirement (9.5 percent, as adjusted from year-to-year), ALEs have analyzed their employees’ premium contribution rates and made adjustments when necessary.
CURRENT STATUS OF EMPLOYER MANDATE
At this time, the ACA, including its employer mandate rules, remains intact as a federal law. Proposed legislation to repeal and replace the ACA is currently making its way through the federal legislative process. The current bill that is being considered by Congress, which is referred to as the American Health Care Act (AHCA), would reduce the penalties for failing to comply with the ACA’s employer mandate to zero beginning in 2016. This change would effectively repeal the ACA’s employer mandate (although it would technically still exist).
| ACA Reporting: The AHCA would not repeal the ACA’s employer reporting requirements under Internal Revenue Code (Code) Sections 6055 and 6056. Under these tax provisions, ALEs are required to report on full-time employee offers of coverage and employers with self-insured health plans must report on minimum essential coverage. Under the AHCA, employers would still be obligated to report and subject to penalties for failing to report until the proposed AHCA tax credit system is effective in 2020. Starting in 2020, employers would report offers of coverage on employees’ Forms W-2. |
The AHCA’s future is still uncertain. The bill has been amended several times and will likely be subject to additional revisions in the near future. Since the bill has not been signed into law, the ACA’s employer mandate, and its penalty provisions, remain intact. However, because the employer mandate has been criticized as burdensome for employers and an impediment to business growth, it seems likely that its repeal will be part of any Republican plan to repeal and replace the ACA.
REPEAL’S IMPACT ON EMPLOYERS
If the ACA’s employer mandate is repealed, ALEs will no longer be required to provide affordable, minimum value coverage to their full-time employees in order to avoid possible penalties. Many ALEs will likely want to modify their plan designs to go back to pre-ACA eligibility rules. Possible modifications that ALEs may consider include:
- Changing health plan eligibility rules so that only employees who have a full-time work schedule (for example, 40 hours per week) are eligible for coverage;
- Eliminating health plan coverage for employees who are part time, seasonal or temporary;
- No longer using the monthly or look-back measurement method to track employee hours and make eligibility determinations; and
- Increasing the amount that employees who elect group health plan coverage are required to contribute.
| Effective Date of AHCA Repeal: The AHCA would effectively nullify the employer mandate by eliminating potential penalties effective Jan. 1, 2016. Because the employer mandate took effect for some employers in 2015, penalties could technically still apply for the 2015 calendar year, although it is unclear whether the IRS would pursue these penalties under the Trump administration. Also, an audit report released by Treasury Inspector General for Tax Administration (TIGTA) reveals that, due to system and operational problems, the IRS has been unable to identify the employers that are potentially subject to an employer mandate penalty or to assess any penalties. |
It is difficult to predict whether federal agencies, such as the IRS and DOL, will issue guidance in the event the ACA’s employer mandate is repealed in order to help ALEs work through the changes. Even if federal agencies plan on issuing implementation guidance, it may take a while before it is available. In the meantime, ALEs will likely want to make changes to their health plans. In general, ALEs that are considering changes to their health plan’s design and administration should consider their compliance obligations under ERISA and the ACA mandates that may remain intact.
ERISA Rules
Making Plan Changes
In general, under ERISA, employers may amend, or make changes to, their health plans at any time, provided those changes do not violate other federal laws. An employer’s decisions about plan design, including who is eligible for coverage, are generally viewed as “settlor” functions that are not subject to ERISA’s rules that require fiduciaries to act solely in the interests of plan participants or beneficiaries. Thus, employers may make decisions about plan design based on their business interests, even if those decisions negatively impact plan participants or beneficiaries.
Although most employers implement plan design changes at the start of the plan year, an employer may change the terms of its health plan during the plan year. Employers with insured plans should review their insurance documents and consult with their carriers, if necessary, before making mid-year plan design changes. The following are two types of mid-plan year design changes that an ALE may consider making if the employer mandate is repealed:
Change the plan’s eligibility rules to raise the number of hours needed to be a full-time employee who is eligible for plan coverage. Changing the plan’s eligibility rules is not a “qualifying event” for COBRA purposes, so individuals who would lose coverage because they are no longer eligible are not entitled to elect federal COBRA continuation coverage. These individuals would, however, be eligible for a special enrollment period under an ACA Exchange or another employer’s group health plan.
Increase the amount that employees are required to pay for coverage. If employees pay their health insurance premiums on a pre-tax basis, the Code Section 125 rules limit when they can change their elections during the plan year. Certain mid-year changes are permissible (for example, automatic increases or decreases to employees’ contributions for insignificant cost changes). Also, if the cost increases significantly during a plan year, the plan may allow participants to make an election change, including dropping coverage in certain situations.
| Compliance Concern—Vested Benefits: Unlike retirement plan benefits, welfare benefits (for example, group health plans) are not subject to ERISA’s vesting requirements. Because welfare benefits are not vested under ERISA, they can be amended or changed at any time, as a general rule. However, there are some circumstances when group health plan benefits may vest under the terms of the plan documents. The case law on this issue generally provides that, once a participant satisfies all of the plan’s conditions for receiving a benefit, those benefits cannot be reduced or eliminated for that participant. The application of this rule depends on the specific facts of each situation, including the terms of the plan document. Employers that are making changes to their eligibility rules, particularly mid-year changes, may want to consult with their legal counsel regarding any vested benefit concerns. |
Communicating Changes to Participants
Any changes that are made to plan design must be formally adopted by the plan sponsor as part of the health plan’s documentation. These changes also must be communicated to participants through either an updated summary plan description (SPD) or a summary of material modifications (SMM).
ERISA provides generous deadlines for communicating plan design changes to participants—the deadline is 210 days following the close of the plan year in which the amendment was adopted, except that notice of material reductions in benefits and services generally must be given no later than 60 days after the date of the adoption of the modification. However, to help avoid benefits disputes and possible litigation, employers should communicate changes to their health plans’ eligibility rules as soon as possible, and before the changes take effect, as a best practice.
In addition, federal courts have addressed what information an employer is required to provide to plan participants when it is considering whether to make a plan amendment. These cases often arise in the context of retirement plan benefits, but the same ERISA fiduciary principles would also apply to welfare plan benefits, such as group health plan coverage. In general, most courts have ruled that ERISA plan fiduciaries (that is, plan sponsors) have a duty to provide truthful information about potential plan amendments when participants ask about the possibility of plan changes.
Other ACA Reforms
When considering plan design changes, employers should remember that many ACA reforms will likely remain in place even if the employer mandate is repealed, including the following ACA reforms that impact plan eligibility.
| ACA Reform |
Description |
| Waiting Period Limits |
The ACA prohibits group health plans from applying any waiting period that exceeds 90 days. A “waiting period” is the period of time that must pass before coverage for an employee or dependent who is otherwise eligible to enroll in the plan becomes effective. This waiting period limit does not require an employer to offer coverage to any particular employee or class of employees, including part-time employees. It only prevents an otherwise eligible employee (or dependent) from having to wait more than 90 days before coverage under a group health plan becomes effective. |
| Dependent Coverage to Age 26 |
The ACA requires group health plans and health insurance issuers that provide dependent coverage to children on their parents’ plans to make coverage available until the adult child reaches age 26. This provision does not require plans and issuers to offer dependent coverage at all. It only requires plans that otherwise offer dependent coverage to make that coverage available until the adult child reaches age 26. |
| Prohibition on Rescissions |
The ACA prohibits group health plans and health insurance issuers from rescinding coverage for covered individuals, except in the case of fraud or intentional misrepresentation of a material fact. A “rescission” is a cancellation or discontinuance of coverage that has a retroactive effect (such as one that treats a policy as void from the time of enrollment). Thus, as a general rule, changes to a health plan’s eligibility rules should be effective on a prospective basis only. |
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HIGHLIGHTS
- The final rule required employers to create and maintain workplace injury and illness records for at least five years.
- The Trump administration signed into law a bill that invalidates the final rule.
- Employers subject to OSHA recordkeeping requirements must create injury and illness records within six months of an incident and retain these records for at least five years.
IMPORTANT DATES
December 19, 2016
OSHA’s final rule on ongoing employer recordkeeping obligations published.
April 3, 2017
The final rule was nullified.
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On April 3, 2017, President Donald Trump signed into law House Joint Resolution 83 (H.J. Res. 83). This bill nullifies a recordkeeping final rule issued by the Occupational Safety and Health Administration (OSHA). OSHA issued this final rule to amend its recordkeeping regulations and clarify that an employer’s duty to create and maintain work-related injury or illness records is an ongoing obligation. The final rule did not create any additional or new recordkeeping obligations for employers.
The clarification explained that an employer remains under an obligation to record a qualifying injury or illness throughout the five-year record storage period, even if the incident was not originally recorded during the first six months after its occurrence.
This Compliance Bulletin contains information regarding the nullified final rule and clarifies which legal requirements no longer affect employers subject to OSHA recordkeeping rules.
ACTION STEPS
The final rule is no longer valid. Therefore, employers are no longer required to comply with any of its provisions. Employers that were affected by the final rule should review their workplace injury and illness recordkeeping procedures and ensure that they are consistent with the nullification of this rule.
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OSHA Recordkeeping Requirements
OSHA requires employers to create and maintain records about workplace injuries and illnesses that meet one or more recording criteria. Specifically, employers must:
- Create and update a log of work-related injuries and illnesses (OSHA Form 300);
- Create and maintain injury and illness incident reports (OSHA Form 301); and
- Create and display an annual summary of workplace incidents (OSHA Form 300A) between Feb. 1 and April 30 of each year.
Employers must keep these records for at least five years. The five-year retention period begins on Jan. 1 of the year following the year covered by the records. For example, the five-year retention period for incident reports created on Jan. 23, 2015, June 15, 2015, and Nov. 4, 2015, begins on Jan. 1, 2016.
Penalties for Noncompliance
OSHA has the authority to issue citations and assess fines against employers that violate recordkeeping laws. However, in general, the Occupational Safety and Health Act of 1970 (OSH Act) does not allow for a citation to be issued more than six months after the occurrence of a violation.
OSHA is of the opinion that a violation exists until it is corrected. Therefore, according to OSHA, the six-month period to issue citations and assess penalties begins on the date of the last instance of the violation. For example, if a violation that started on Feb. 1 was corrected on May 15, the six-month period would begin on May 15, and OSHA would have until Nov. 15 to issue a citation.
OSHA also asserts that uncorrected violations are considered ongoing violations, and that each day of noncompliance is subject to a separate penalty.
The Final Rule
According to OSHA, adopting the final rule and amending its recordkeeping regulations was necessary because the previous regulations did not allow OSHA to enforce an employer’s incident recording obligation as an ongoing requirement. In fact, a federal circuit court has held that the former regulations did not authorize OSHA to “cite the employer for a record-making violation more than six months after the recording failure.”
The court also noted that there is a discrepancy between the OSH Act and the regulations, and that while the OSH Act allows for continuing violations of recordkeeping requirements, the specific language in the regulations does not implement this statutory authority and does not create continuing recordkeeping obligations.
The federal court interpretation of the regulations meant that employers were no longer responsible for recording or storing workplace incidents if OSHA failed to detect and penalize employers for omitted recordable incidents within the six-month period. For this reason, OSHA issued its proposed amendments on July 29, 2015.
Impact on Employers
Because the final rule has been effectively repealed, employers are no longer required to comply with any of its provisions. This means that OSHA cannot enforce an employer’s recordkeeping obligation if the employer fails to record an incident within the first six months of when the incident took place. In practical terms, this means that OSHA will have to limit the scope of its recordkeeping investigations to the previous six months, rather than the previous five years.
However, because some OSHA records span entire calendar years, employers that fail to create injury and illness records in a timely fashion risk the possibility of keeping inaccurate records or reporting erroneous information to OSHA. Therefore, employers should not interpret this legislative development as an opportunity to bypass or contravene existing OSHA recordkeeping obligations. |
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OVERVIEW
The U.S. Court of Appeals for the 7th Circuit has ruled that Title VII of the Civil Rights Act (Title VII) prohibits employment discrimination based on sexual orientation. The decision in Hively v. Ivy Tech, issued on April 4, 2017, makes it illegal to use an individual’s sexual orientation as a basis for employment decisions.
The ruling applies to employers with 15 or more employees in Wisconsin, Illinois and Indiana.
The decision is groundbreaking because it overturned prior cases and also conflicts with law from other federal courts. However, it aligns with the Equal Employment Opportunity Commission’s (EEOC) position. This makes review of the issue by the U.S. Supreme Court likely in the future.
ACTION STEPS
Affected employers should review their existing policies to ensure they do not allow discrimination based on sexual orientation or gender identity. Employers should also review any applicable state laws and the EEOC’s enforcement guidance to ensure their policies are compliant.
Background
Title VII is a federal law that prohibits employers with 15 or more employees from discriminating against employees and job applicants on the basis of their race, color, religion, sex or national origin. Since Title VII was enacted in 1964, several federal courts, including the 7th Circuit, have held that the law’s inclusion of the word “sex” means that its protections only extend to traditional notions of gender.
For example, the 7th Circuit’s 1984 decision in Ulane v. Eastern Airlines had held that Title VII only makes it unlawful to discriminate “against women because they are women and against men because they are men.” The U.S. Court of Appeals for the 11th Circuit (which includes Alabama, Florida and Georgia) recently issued a similar holding in its March 2017 decision in Evans v. Georgia Regional Hospital.
Although the U.S. Supreme Court has never specifically addressed whether Title VII prohibits discrimination based on sexual orientation, its decisions in other cases have established that:
- The practice of “gender stereotyping” falls within Title VII’s prohibition against sex discrimination; and
- Discrimination based on the race of a person with whom another individual associates is a form of racial discrimination under Title VII.
Relying on these and other Supreme Court decisions in its ruling in Hively v. Ivy Tech, the 7th Circuit expressly overturned all of its prior case law that had excluded sexual orientation from Title VII. Instead, the 7th Circuit held, “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” The court further specified that “it is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”
Hively v. Ivy Tech
In 2013, Kimberly Hively, an openly gay woman who had worked as a part-time adjunct professor, filed a Title VII discrimination charge against her former employer, Ivy Tech Community College. Hively alleged that because she was gay, Ivy Tech had rejected her for six full-time positions and refused to renew her part-time employment contract. She argued that these actions constituted unlawful discrimination based on sex under Title VII.
A district court dismissed her case based on prior federal court interpretations of Title VII’s prohibition against sex discrimination. Hively then appealed to the 7th Circuit, which ruled in her favor on April 4, 2017. Under its comparative analysis, the court concluded that Hively’s claim involved discrimination based on her failure to conform to a heterosexual female stereotype. According to the court, this made Hively’s claim “no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction and policing.”
The 7th Circuit also compared Hively’s claims to cases in which the Supreme Court held that employers may not discriminate against an individual based on the race of his or her associates. Noting that the Supreme Court has held that this type of discrimination affects both partners in an interracial marriage, the 7th Circuit applied the same reasoning to Hively’s situation.
Considerations for Employers
While the 7th Circuit’s decision overturned the court’s prior cases to clarify how the federal law applies in the three states under its jurisdiction, two of those states (Wisconsin and Illinois), along with 20 other states in the United States, have already passed laws outlawing sexual orientation discrimination in employment. In addition, the EEOC, which is responsible for the enforcing Title VII, has taken a position that aligns with the 7th Circuit’s decision since 2015. Specifically, the EEOC already interprets and enforces Title VII’s prohibition against sex discrimination as forbidding any employment discrimination based on sexual orientation or gender identity.
Therefore, employers should be aware that the 7th Circuit’s decision does not necessarily represent a radical shift in the law. Instead, the decision merely reinforces the fact that employers may be penalized for discriminating against individuals based on sexual orientation or gender identity. More information about the EEOC’s enforcement policy is available on the EEOC’s website.
The 7th Circuit’s decision provides additional guidance for employers as well. For example, the court stated that “any discomfort, disapproval or job decision based on the fact that a complainant—woman or man— dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.”
Finally, employers should be aware that the 7th Circuit’s decision does not address the meaning of sex discrimination in the context of social or public services, nor in the context of employment related to a religious mission. In addition, the issue addressed in the case may undergo review by the U.S. Supreme Court in the near future. Therefore, employers should continue to watch for legal developments affecting Title VII.
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