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Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of religion. On the other hand, the First Amendment prohibits Congress from enacting laws which interfere with how churches govern themselves. When a church makes an employment decision based on religion which negatively impacts one of its employees, does that church then violate the anti-discrimination provisions of Title VII? Today’s Long Island employment law blog explores the ministerial exception as elaborated on by the Supreme Court of the United States in the Our Lady of Guadalupe decision.

In 2012, the Supreme Court decided a case, Hosanna-Tabor. In that case, the country’s highest court applied a legal doctrine called the ministerial exception. The ministerial exception generally says that church employees who perform jobs which relate to religious responsibilities are exempt from coverage under anti-discrimination laws. For example, if a Catholic school teacher was responsible for teaching students math, but was also responsible for teaching bible studies, the teacher would likely not be protected by anti-discrimination laws because of the ministerial exemption. So, if the teacher was not married, but became pregnant, the church could lawfully terminate the teacher if it believes the teacher violated religious tenets.

Turning to the Our Lady of Guadalupe case, the decision concerns two cases which were heard and decided at the same time. In both cases, the plaintiffs were teachers at religious schools who had employment contracts with the school. Each teacher taught general elementary education classes, but both plaintiffs were charged with providing some religious instruction and leading prayer. Ultimately, each school terminated the respective teacher. One teacher alleged age discrimination, the other alleged disability discrimination. After the parties litigated whether the ministerial exception barred the claims, the cases reached the Supreme Court.

Long Island employment lawyer, Matthew Weinick, has been selected to chair the Nassau County Bar Association’s Labor and Employment Law Committee. Founded in 1899 with just nineteen members, the Nassau County Bar Association now boasts nearly 5,000 members.

The Labor and Employment Law committee is tasked with analyzing proposals for new federal and state legislation and regulations relating to employment issues such as employer-employee relations, benefits, and pensions. The committee also reviews judicial decisions concerning employment law matters including discrimination, retaliation, and wage and hour issues.

The committee meets once per month at the association’s Mineola office building, affectionately known by members as “Domus.” Meetings provide committee members the opportunity to discuss the latest developments in employment law. The committee invites a speaker to each meeting, to lead a discussion with members about a particular area of employment law.

The Equal Employment Opportunity Commission (EEOC) has been issuing guidance for employers about how federal discrimination laws relate to the COVID-19 pandemic. Specifically, disability discrimination laws cross paths with employers’ efforts to mitigate the risk of COVID-19 transmission in the workplace. Today’s Long Island employment law blog discusses some of the most recent guidance issued by the EEOC, the government agency responsible for enforcing federal discrimination laws. Our previous blogs discussed EEOC guidance issued earlier this year.

Employees with high risk family members at home have expressed concern about returning to work for fear of contracting coronavirus and spreading it to their families. The Americans with Disabilities Act requires employers to provide reasonable accommodations to employees with disabilities. The EEOC has already indicated that employers may be required to provide reasonable accommodations to employees who face higher risks from covid-19. But, do employers have to provide accommodations because of an employee’s family member’s risk to coronavirus? The latest EEOC guidance says employers are not required to accommodate an employee because a family member is at risk.

Federal anti-discrimination laws, such as the ADA and Title VII, also prohibit an employer from creating a hostile work environment against employees based on the employees membership in a protected class, such as having a disability or based on race or national origin. The June 2020 EEOC guidelines remind employers to be mindful of their obligation to prevent workplace discrimination. As it relates to coronavirus, the EEOC suggested that employers be “alert” to comments directed at employees based on employees of Chinese or Asian national origin. Comments from co-workers about the origins of coronavirus may be discriminatory. Though not particular to COVID-19, the EEOC reminds us that harassment can take the form of e-mails, phone calls, and video chats. In other words, use of technology is no defense to a claim of discrimination.

From the beginning of the coronavirus pandemic, the civil rights lawyers at Famighetti & Weinick PLLC, have predicted that constitutional challenges to  government covid-19 regulations would likely fail. Our videos and blogs have outlined some of our reasoning and earlier this month, partner Matt Weinick published an article further discussing the role of a 1905 Supreme Court case, which would likely prove fatal to most constitutional challenges.

This week, a Brooklyn federal judge again rejected another constitutional challenge, this time brought by a Long Island strip club and its owner. Today’s Long Island civil rights blog discusses the case and the judge’s decision.

In McCarthy v. Cuomo, the plaintiffs were the owner of a strip club, and the strip club itself. The essence of the lawsuit was similar to other challenges we’ve written about, except the suit also alleged that the plaintiffs were treated differently because of the type of business it conducts – a gentleman’s club. Generally, the plaintiffs alleged that the Governor’s shutdown orders and social distancing orders, violated the state and federal constitutions. They further alleged that the federal government’s Paycheck Protection Program unlawfully prohibited them from applying because of the type of business they conduct.

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination. Title VII, however, prohibits only the types of discrimination identified in the statute, including race discrimination, religious discrimination, national origin discrimination, and sex discrimination. Title VII does not explicitly prohibit discrimination based on sexual orientation and transgender status. Accordingly, for years, scholars and courts debated whether Title VII’s prohibition of sex discrimination includes discrimination based on sexual orientation or transgender status.

On June 15, 2020, the United States Supreme Court settled the question. In a 6-to-3 ruling, the Court held that an employer who fires an individual for being gay or transgender violates Title VII. Today’s Long Island employment law blog discusses the Bostock v. Clayton County decision.

The Background of Bostock and Sexual Orientation and Gender Identity Discrimination Law in the United States

With covid-19 not giving up, employment lawyers across the country, including our Long Island employment lawyers at Famighetti & Weinick PLLC, are facing questions about how the new pandemic will affect essential workers and non-essential workers who go back to work as the country adjusts to “the new normal” and the economy reopens.

In one of our previous posts, we opined that workers with generalized fear or anxiety about workplace covid-19 exposures likely were not protected under the Americans with Disabilities Act (“ADA”). That blog assumed that only vulnerable workers, or workers with underlying medical conditions worried about contracting coronavirus, were protected under the ADA.

A recent federal court decision, however, suggests that even workers with generalized fear or anxiety about workplace covid-19 exposures may be protected under the ADA. Even though the decision was issued by a Texas district court concerning voters, the analysis may be used to extend the disability discrimination laws’ coverage for workers who lack immunity to covid-19.

Early on in the coronavirus pandemic, we posted content about the constitutionality of social distancing and business shutdown orders. At the time, the issues were new and had not been recently tested in court. With protests about such orders’ constitutionality becoming more prevalent and with the orders being tested in court, it is time to re-visit the question of the constitutionality of COVID-19 related government regulations.

Constitutionality of Shutdown Orders

On May 15, 2020, United States District Judge Gary R. Brown (Eastern District of New York) issued a decision relating to New York’s business shutdown order, also known as the Pause. In sum, Governor Cuomo’s order directs that all business which are non-essential must operate via telecommuting only and must reduce  their in-person workforce by 100%. Essential businesses may stay open with no reduction in force required. The order allowed for enforcement under the Public Health Law with consequences for businesses which did not comply.

When the coronavirus pandemic started taking hold in the New York region, government moved to shutdown businesses to help control the spread of the virus. New York State Governor Cuomo instituted the Pause program which required all non-essential businesses in New York to close. But, essential businesses were allowed to stay open.

Almost immediately, employment lawyers across the state, including our Long Island employment lawyers at Famighetti & Weinick PLLC, were inundated with calls from essential workers worried about contracting covid-19 from the workplace. We blogged about these concerns and also posted a video about these issues.

As New York begins to emerge from the Pause and the economy is set to re-open, questions still remain about the rights of vulnerable segments of the workforce safely returning to work and the rights of other workers who are concerned about contracting the virus. Today’s Long Island employment law blog discusses some of these concerns, with a focus on the EEOC’s latest guidance issued on May 5, 2020.

As the country begins to re-open from the coronavirus shutdown, governments and employers are working to implement procedures to protect workers, patrons, and citizens generally, from the continued threat of covid-19. Face masks and temperature checks are likely to be universally accepted requirements for businesses and workplaces. But, antibody testing is also becoming widespread and was talked about early on in the re-opening discussion as an important tool because of the possibility that it could reveal individuals who have immunity.

But, the issue of immunity has been questioned more recently. Indeed, experts have expressed uncertainty as to whether a person exposed to covid-19 can become sick with the virus again. Some reports from overseas have supported the uncertainty by claiming that individuals who recovered from coronavirus, became sick again. Further, antibody testing is more invasive than merely taking temperatures by infrared thermometer or requiring a person to wear a mask externally.

So, can employers require that employees undergo antibody testing? Antibody testing (and even temperature checks) will be considered a medical examination under the Americans with Disabilities Act (ADA). The EEOC, which is responsible for guidance under the ADA, allows temperature checks to be taken of employees before they enter the workplace because of the severe risk posed by the spread of covid-19. The EEOC relies on the ADA’s permissible use of medical exams when the exam is job related and consistent with a business necessity.

Today’s Long Island employment law blog discusses the primary beneficiary test which is used to determine whether an individual is an employee for purposes of being covered by minimum wage and overtime laws.

As the prevalence of lawsuits concerning improper payment of wages has continued to rise over the past few years, one area of increased litigation is whether unpaid interns are considered employees and are thus entitled to the protections of minimum wage and overtime laws such as the Fair Labor Standards Act (FLSA). The law in this area became clearer after the Second Circuit Court of Appeals considered the Glatt case in 2016.

Glatt and the unpaid intern line of cases typically involve students who perform work for companies to obtain real-life experience in their field of study. For example, law students often take internships with judges or law firms while in law school to gain practical legal experience. Interns may work for the film industry, as they did in the Glatt case, or with financial services companies.

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