It's illegal to deny coverage for gender-affirming care to a transgender employee simply because the employee is transgender

Can an employer-sponsored health plan legally deny coverage for gender-affirming care to a transgender employee simply because the employee is transgender?

According to the 11th Circuit Court of Appeals in Lange v. Houston Cty., the answer is an unequivocal "No, it cannot!"

It's 100% legal to close your business to avoid a labor union

"We have some sad news to share. A process that began last year has reached its conclusion. Today was the last day of service for both cafes of the Wydown, which are now permanently closed." 

That sign hung on the door of both Wydown Coffee Bar locations late last week.

What's so newsworthy about two cafes closing? What if I tell you that the closure happened just five days before their 35 employees were set to vote on unionization?

The employees steadfastly believe that the cafes closed to avoid a labor union. The owners deny their claim and say that they were merely "ready for a change."

WIRTW #717: the ‘donut' edition

I love donuts. At 51 years old, however, I try not to eat them too often anymore. The weight just doesn't come off quite the way it used to. But it doesn't mean I won't indulge every now and again, including on a recent episode of The Triple D Podcast: Donuts, Disability and Discourse.

I sat down with local disability rights attorney Michael Liner to discuss my work as a labor & employment lawyer and craft beer lawyer, the types of clients I work with, my roll managing marketing and business development at my law firm, and the challenges and opportunities of working in a post-Covid world. I also shared my review of the outstanding craft-beer-based donut I sampled at Brewnuts, our host for the episode. 

You can watch the entire discussion here.

Finally, there are still some tickets left for the Rhett Miller/norah marie show at the Music Box Supper Club this Sunday, May 19, 🎟️ here. Doors are at 5, and Norah's opening set starts at 7.

---

Here's what I read this week that you should read, too.

This is why you should never give a pass to any employee misconduct

A law firm fires its HR Manager a mere days before she is set to return to work from maternity leave. It says it fired her for "cause," citing numerous performance related examples, including her alleged mismanagement of the firm's health-benefits enrollment.

The problem for the law firm, however, is that it allegedly discovered those performance issues months before the termination and sat on them until the employee was ready to return from her maternity leave.

That timing was enough for the court to deny the law firm's motion for summary judgment on her pregnancy discrimination claim.

This should constitute a racially hostile work environment; the court says it didn't

15 different Black employees complain that their health-care employer maintains a racially hostile work environment. The allegations include several being exposed to the N-word at work, patients refusing treatment by Black employees and calling them "colored" and other slurs, and other race-based incidents.

Nevertheless, in EEOC v. Village at Hamilton Pointe, the 7th Circuit affirmed the dismissal of the agency's racial harassment lawsuit. "In sum," the court wrote, "the evidence of record does not support, under established principles of law, a case for racial harassment that was so severe or pervasive as to alter the conditions of employment for any of these claimants."

I disagree.

For Ohio employers, it doesn't matter what the DEA says about marijuana

News recently broke that the DEA intends to reclassify cannabis from a Scheule I drug to a Schedule III drug. That reclassification would permit health care providers to legally prescribe cannabis for medicinal uses.

As a result of this reclassification, employers would likely inherit a legal obligation under the ADA to reasonably accommodate an employee's use of legally prescribed marijuana. It would no different that the use of any other Schedule III drug (e.g., ketamine or codeine) — you have to accommodate its use off duty but not employees' impairments on duty.

BUT … check your state law. 

WIRTW #716: the ‘new kid' edition

On June 5, 2014, Rhett Miller, founder, front person, and lead singer of Old 97's, promised my daughter (then a mere 9 days past her 8th birthday) that once she was playing her own paid gigs, he'd have her open for him. That conversation took place in the green room of the Beachland Ballroom, and the adjacent photo was taken just after that conversation.

A decade later, Norah is an established, working musician, and Rhett is making good on his promise. He's coming back to town to play a solo gig at the Music Box Supper Club. To make a long story short, when the club announced the gig, Norah reached out to Rhett to ask about opening for him; on May 19 she'll be doing just that.

To hear the longer version of this story, tune in to the most recent episode of The Norah and Dad Show, available on Apple Podcasts, Spotify, Amazon Music, Overcast, the web, and everywhere else you get your podcasts. 

As for me, I'll be front and center at Music Box on May 19, singing along to Norah's and Rhett's songs. It's gonna be a great night! If you're interested in joining us the Music Box still has some tickets available here. (You'll find a running list of all of Norah's gigs here; click "Follow" for notifications of new gigs as they're announced.)

---

Here's what I read this week that should read, too.

DOL cautions employers on the use of AI

"When used responsibly, AI has the potential to help improve compliance with the law. Without proper human supervision, however, these technologies can pose potential risks to workers … and may result in violations of the law…." 

Those are the words of the Department of Labor in its just published Field Assistance Bulletin, Artificial Intelligence and Automated Systems in the Workplace under the Fair Labor Standards Act and Other Federal Labor Standards.

The DOL highlights many potential legal pitfalls for employers that rely on AI to manage how their employees are paid and to track their attendance and leaves of absence.

Does a prank involving adult diapers and a wheelchair = age discrimination? It depends.

An attorney celebrates a paralegal's 50th birthday by decorating her office party with a wheelchair, fake pill bottles, and adult diapers. (Get it? She's "old.")

The paralegal does not appreciate the joke, and lets the lawyer know as much. In response, the lawyer simply moves the decorations adjacent to the paralegal's workstation. Around the same time, the lawyer also starts asking when the paralegal intends to retire.

Sexual harassment, bathroom, and pronouns

"Sex-based harassment includes harassment based on sexual orientation or gender identity, including … repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity … or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity."

That the official position of the EEOC in its just released, Enforcement Guidance on Harassment in the Workplace.

EEOC Commissioner Andrea Lucas disagrees. She voted against the final guidance. She believes that the bathroom guidance is an "assault on women's sex-based privacy and safety," and the pronoun guidance is an assault on "speech and belief rights."

WIRTW #715: the ‘over the top' edition

Another successful Craft Brewers Conference is in the books. 

I spent a few great days speaking (on how to craft a harassment-free craft brewery); seeing old friends and making new ones (I love my craft beer tribe); networking with brewers and other industry professionals (at the Start A Brewery lounge my firm co-sponsored and at nighttime events at breweries around town); eating (the fried chicken at Yardbird in the Venetian is better than advertised, and they advertise it as the best in the country); and, yes, drinking (mostly within moderation; CBC is a marathon, not a sprint).

I also spent an evening supporting an incredibly worthy cause. Wild West Access Fund held its Brewsters Arm Wrestling event. Women, non-binary, and trans people in beer took the stage in a single-elimination arm wrestling competition to raise money to provide financial assistance to those seeking abortion care in Nevada.

It felt good to do good. While my friends who competed did not win — sorry, Julie Rhodes and Dr. J — it was an amazing night for an amazing cause.

---

Here's what I read this week that you should read, too.

"This is a business." Google CEO fired back and fired protesting employees.

"This is a business, not a place to act in a way that disrupts coworkers or makes them feel unsafe…."

Those were the words of Google CEO Sundar Pichai in a post on his company's corporate blog.

He's referring to Google's recent firing of 50 workers involved in protests against the company's cloud-computing contract with the Israeli government.

FTC bans all non-competes … Now what?

There's more than one way to skin a cat … or at least that's what many employers are hoping.

Yesterday, the Federal Trade Commission turned the workplace on its head by banning nearly all non-compete agreements.

I'm not going to summarize the FTC's Rule; your inboxes and LinkedIn feeds will be flooded with plenty of those … including this one we sent out this morning.

Suffice it to say that 120 days from the publication of the Rule in the Federal Register, employers will no longer be able to enforce any non-compete agreements except for those already in place with senior execs earning $151,164 or more annually.

WIRTW #714: the ‘today's post is brought to you by the letters W, G, and A' edition

"No one wants to see a picket line on Sesame Street," said Writers Guild President Lisa Takeuchi Cullen.

Earlier this week, Writers Guild members at Sesame Workshop unanimously voted to authorize a strike if management does not agree to a new collective bargaining agreement before their current contract expires later today. Absent a deal, picketing will begin on April 24.

The writers are seeking industry standard annual raises, improvements to residuals, and union coverage for Sesame Workshop's animation and social media segments.

Anyone who follows me on the regular knows that I'm no fan of labor unions. The demands of these writers, however, seem fair and reasonable. They will also have public sentiment on their side.

"Millions of parents and families around the world are going to have a lot of questions," said Lisa Takeuchi Cullen. "They might ask why the bosses at Sesame Workshop are ignoring their company's own messages of kindness and fairness."

Ouch. Your business has a serious problem when your actions don't match stated values. And that's brought to you by the letters, B, A, and D.

---

Here's what I read and listened to this week that you should, too.

Supreme Court eases path for employees to sue employers for discriminatory job transfers

In a unanimous decision, the Supreme Court held that an employee alleging a discriminatory job transfer need not show the suffering of a "materially significant" disadvantage. Instead, the employee need only show "some injury respecting her employment terms or conditions."

The case involved a police sergeant forced to transfer out of her position in the department's intelligence division. The employer claimed that she could not establish a Title VII volitation because the transfer did not result in a diminution of her pay. 

EEOC makes is clear that the Pregnant Workers Fairness Act covers unpaid time off for abortions

From this point forward, if an employee needs an unpaid leave of absence to obtain and recover from an abortion, you better give it her. I realize this topic is divisive, but this issue is no longer subject to debate.

Earlier this week, the EEOC published its final regulations implementing the Pregnant Workers Fairness Act. Pre-publication, agency considered 94,000 comments urging it either to exclude or include "abortion" from the Act's definition of "pregnancy, childbirth, or related medical conditions." The EEOC chose the latter. Here's why.

One bourbon, one union election, and one Cemex bargaining order

One bourbon, one union election, and one bargaining order … is what an NLRB ALJ told Woodford Reserve Distillery last week. The judge held that the distillery violated federal labor law by undermining its employees' unionization efforts and ordered the distillery to bargain with its employees as their remedy.

WIRTW #713: the ‘lounging around' edition

Next week I'll be at the Craft Brewers Conference at the Venetian in Las Vegas — a four-day gathering presented by the Brewers Association of all things craft brewers and craft beer. There are loads of speakers spread across eight educational tracks, a massive trade show, and too many networking opportunities to count.

On the educational front, I'm speaking on Sunday as part of the THRIVE pre-conference workshop discussing how to craft a harassment-free craft brewery.

On the networking front, my firm is sponsoring the Start A Brewery lounge. Start A Brewery is a community of craft beer industry veterans who share our knowledge and experience in support of the craft beer community by helping new breweries and breweries in planning.

If you're at CBC and want to connect, look for me in the Start A Brewery lounge. I will be in and out on April 22 and the morning of the 23rd. (The lounge is open through the 24th.)

Our lounge will be located at the top of the escalators leading into the main exhibit hall at the Venetian. There will be beer available all around us, and we'll have couches and charging stations to refresh yourself and your devices.

Please let me know if you plan on stopping in so that I can make sure I'm present and available. And please say hello if you're at my speaking session or just happen to run into me at the Conference or at any of the events around Las Vegas. I will happily share a beer with you and toast our industry.

---

Here's what I read this week that you should read, too.

Don't be an ostrich with harassment

"If I ignore harassment, it will go away" … is the 100% incorrect response to harassment happening in your workplace. It's also a non-refundable first-class ticket to a nasty lawsuit.

An employer CANNOT ostrich workplace protected class harassment. "Employer" includes managers and supervisors. If someone in a position of authority witnesses or otherwise learns of protected class harassment in the workplace, the business has the same legal obligations as if the victim had complained.

Must you accommodation an employee's religion not to attend DEI training? Believe it or not, it might depend on the training.

"Your respectful workplace training is against my religion; count me out."

That's what one employee told his employer when it tried to compel him to attend its mandatory training about treating all with courtesy and respect.

When the employee learned that one module of the training would include LGBTQI+ issues, he explained to his employer, "This subject matter contradicts my sincerely held religious beliefs." He advised that he would excuse himself during that portion of the training.