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Employment Law Highlights of 2013

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This past year developments in employment law kept lawyers, judges, employers, and employees on their toes. Both sides of the employment bar scored victories in 2013. Thus, the question of “What did we learn this year?” is an especially interesting one. Below are some highlights, though this is by no means an exhaustive list.

Retaliation claims mandate but-for causation

The Supreme Court drew directly from the tort rule book and gave employers a leg up by ruling that for a retaliation claim under Title VII to be viable it must satisfy but-for causation. This means that the alleged retaliation must be because of a person’s pursuit of their rights under Title VII, or their standing up for someone for a violation under Title VII. This should pare down the number of retaliation claims in federal courts, but it may also lead to an increase in actual retaliation on the job.

Most people still do not understand how the Constitution works

After A&E temporarily suspended (very temporarily, as he was brought back within two weeks) Duck Dynasty star Phil Robertson for homophobic and racist remarks in a magazine interview, the Internet blew up with claims that his First Amendment rights had been violated. Unbeknownst to most Twitter and Facebook users, the First Amendment does not stop a private corporation from disassociating itself from certain types of speech. Robertson did not go to jail. His ability to say what he said was not in any way impeded by the government. Robertson’s First Amendment rights are still fully intact, despite what some individuals who should have known better said.  In the end, Robertson’s offensive remarks just didn’t matter as much as the potential lost revenue.  Robertson returned to the show and will likely continue to make millions (along with A&E), something many will incorrectly chalk up as a win for the constitution.

Apparently, only supervisors can harass you

The Supreme Court ruled that an employer may only be liable for harassment committed by those whose job-description grant them authority over an individual, another big win for the defense bar.

Employment discrimination is ever-evolving

The debate over protecting LGBT persons from employment discrimination continues to be controversial, but for the first time ever the Senate passed a bill that would do just that. The Republican-controlled House did not follow suit, but the bill, which is not completely dead yet, did find some unexpected allies around the country. The conservative governor of Pennsylvania, Tom Corbett, and the Islamic Society of North America were among those who publicly expressed their support.

The implementation of “Obamacare” will continue to be messy

The Affordable Care Act was passed in 2010 and ruled mostly constitutional in 2012.  Although the law will not be fully implemented in 2014, 2013 still saw a lot of action regarding its application, especially in the employment realm. Lawsuits wound their way through the courts concerning the legality of requiring employers to cover contraception in their insurance policies. The Supreme Court is expected to hear oral arguments on this in the first half of 2014. Additionally, the Department of Health and Human Services spent time post-US v. Windsor figuring out how the law will impact same-sex couples and their insurance options.

 

About Jonathan Cohn

Jonathan Cohn (Jon) focuses on employee benefits, labor, employment and class action cases. Jon also litigates individual employment discrimination actions in both federal and state court, advises executives and professionals concerning their employment and non-competition agreements, and negotiates severance packages. Find him on Google+.

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