Discrimination

Does a Transfer That Does Not Cause Significant Disadvantage Constitute Discrimination? The US Supreme Court recently heard oral arguments on whether an employer-directed transfer that does not result in significant disadvantage, economic or otherwise, constitutes discriminatory conduct by an employer. In this case a police officer claimed that her transfer from the Department’s Intelligence Division was discriminatory although it did not result in a reduction in pay or benefits. The issue to be decided centers around whether a showing economic disadvantage is necessary to bring a discrimination claim or if the issue is relevant only in the damages phase of a discrimination claim. Muldrow v. City of St. Louis, No. 22-193, (2023)

Harassment

Exposure to Sexually Explicit Music in the Workplace Can Constitute Harassment. The Ninth Circuit, pursuant to the facts presented, recently held that sexually explicit or violently misogynistic music, blared throughout the workplace with the approve of management, can be considered sexual harassment. In the case, the employer approved of music that denigrated women, glorified prostitution, and described extreme violence throughout its warehouse. The court rejected the employer’s argument that the music was “motivational.” Stephanie Sharpe, et. al. v. S&S Activeware, L.L.C, No. 3:20-cv-00654-MMD-CLB (9^th Cir., 2023).

Consensual Relationships and Sexual Harassment. In the wake the suspension of Michigan State’s football coach for allegedly sexually harassing a subordinate (who happened to be a rape survivor) raises the oft-asked question about consent as it relates to workplace relationships. Tucker essentially confessed to much of the alleged conduct but argued that his accuser knew of and consented to his conduct. Sexual harassment must be “unwelcome” interpreted by the Supreme Court to mean that participation may or may not indicate whether the conduct was unwelcome. This is in recognition of circumstances where a victim may unwillingly participate in harassing conduct because of the fear of loss of job or other employment benefit. We are following who the court will be believe-Tucker or the victim- as to whether his conduct was “unwelcome.”

EEOC Proposes Updates to Workplace Harassment Guidance. After years in the making, the EEOC recently published proposed updates to its Workplace Harassment Guidance to include protection for federal employees against harassment specifically for LGBTQ+ employees, pregnant workers and for religious expression. It also recognizes the possibility of virtual harassment considering the federal government’s extensive use of telework. While the updates apply to federal employees, it is anticipated many state, local and private sector employees will adopt these updates as well.

Sexual Orientation

MD State Law Does Not Expressly Prohibit Sexual Orientation Discrimination. Answering questions certified by the United States District Court for the District of Maryland, the state’s highest court decided that “sex” as a protected category does not include sexual orientation under the Maryland Fair Employment Practices Act (MFEPA) and Maryland Equal Pay for Equal Work Act (MEPEWA). As it stands, federal law may provide more protection to Maryland workers from discrimination based on sexual orientation than state law. John Doe v Catholic Relief Services, Misc. No. 28, September Term 2022 (August 14, 2023).