1. “Bathroom Bills” Apply to All Public Facilities, Including Showers and Locker Rooms.
    Despite being commonly referred to as “bathroom bills,” the laws and policy statements regarding transgender individual’s bathroom access apply equally to locker rooms and showering facilities.  Bathroom bills are laws that seek to restrict access to public facilities on the basis of the sex that an individual was assigned at birth.  These regulations, whether merely proposed or actually enacted, are intended to apply to facilities other than just bathrooms.
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On October 12, 2016, the U.S. Court of Appeals for the Eighth Circuit, which hears appeals from federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, ruled that a trucking company did not violate the Americans with Disabilities Act (ADA) when it stopped giving work to a driver who refused to submit to in-lab sleep apnea testing.
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  1. Persistent failure to use a transgender employee’s preferred name, or update the employee’s records to reflect the preferred name, may constitute harassment.

    The EEOC in Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), held that intentional misuse of a transgender employee’s new name and pronoun may constitute sex-based discrimination and/or harassment. In Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120133123, 2014 WL 1653484 (E.E.O.C.) (Apr. 16, 2014), the EEOC held that an employer’s year-long failure to revise its records pursuant to changes in gender identity was severe or pervasive enough to constitute a claim of sex-based harassment.
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On May 11, 2016, President Obama signed the Defend Trade Secrets Act of 2016 (the “DTSA” or the “Act”) into law.  Prior to enactment of the DTSA, the law governing trade secrets was left to the states, most of which have adopted the Uniform Trade Secrets Act.  The DTSA creates a federal cause of action for misappropriation of trade secrets, which is available in conjunction with claims under state law.  Among other forms of relief, the DTSA provides for attorneys’ fees and exemplary damages, a form of punitive damages, under certain circumstances.  An additional means of protecting trade secrets is great for employers, but the DTSA sets forth specific steps that employers must take to enjoy all of its protections.
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It’s the most common employment law claim . . . retaliation.  In 2015, 44.5% of the total EEOC charges were based on retaliation, which exceeded even race-based charges of discrimination.  So it is not surprising that the EEOC decided to weigh in.  On August 29, 2016, the EEOC issued its final 76-page Enforcement Guidance on Retaliation and Related Issues, the first retaliation guidance provided by the EEOC since 1998.
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This year, there are several notable revisions to TN law regarding workers’ compensation. First, reasonable attorney fees and costs can be awarded to the employee and his/her counsel when the employer fails to initiate appropriate medical treatment pursuant to a settlement, expedited order, or judgment and when the employer wrongfully denies a claim and fails to promptly initiate temporary benefits. Therefore, this may greatly limit our ability to deny claims that we had previously denied. As you are aware, very few attorneys wanted to take on cases for employees and this is meant to encourage more attorneys to take claims for employees. (more…)

It took them more than 46 years but the OFCCP finally released updated guidelines for federal contractors regarding sex discrimination (the last update was in 1970).  The new guidelines are consistent with Title VII and the EEOC’s current interpretation of the statute and provide federal contractors with direction regarding OFCCP’s position on compensation, pregnancy, and harassment, as well as a listing of Best Practices to prevent sex discrimination in the workplace. (more…)

The prevalence of employees identifying themselves as “whistleblowers” has expanded in recent years due to expansion of federal and state whistleblower rights.  Recently, a recently enacted federal law, the Defend Trade Secrets Act of 2016 (“DTSA”), created a new class of whistleblower protection rights. The DTSA creates a federal private civil action for the misappropriation of trade secrets.  Included in this Act, however, is a provision for immunity from both civil and criminal allegations, under state and federal law, for employees and independent contractors who are whistleblowers. (more…)