01 Oct October 2018 HL Quarterly Update
Making the Transition
Michigan law does not explicitly prohibit discrimination on the basis of sexual orientation or gender status, but Federal law does, based on the provisions of Title VII. In fact, the Federal court system recently made an important ruling on this exact issue. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (2018), which was argued before the Sixth Circuit Court Appeals (whose jurisdiction includes Federal courts in Michigan), an employee informed his boss that he would be transitioning from male to female and that he would begin wearing women’s clothing at work. Plaintiff was fired as a result.
The Court ruled against the employer in G.R. Harris on the basis of “sex stereotypes.” This term applies when an employer expects an employee to conform to the employer’s preconceived notion of that specific gender. For example, firing a woman because she was not “womanly enough” in her speech, dress, or actions would be discriminatory under the same sex stereotype theory. Similarly, as explored in G.R. Harris, it would violate the sex stereotypes rule to force men not to wear makeup.
Overall, the easiest way to ensure compliance with Title VII in this regard is to take no action against the employee on the basis that they are transgender or transitioning to a different gender.
Submitted by Aaron Majorana
Source: EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (2018)
Shower Me Not
A New Jersey appellate court reversed a Workers’ Compensation’s decision in favor of a trucker who filed a claim after sustaining injuries at a truck stop due to a fall in the shower area. The appellate court denied the driver’s request for workers’ comp, stating that taking a shower was not part of his course of employment.
In April, an appellate court determined that Plaintiff Samuel Kamenetti did not qualify for workers’ compensation, after Plaintiff’s application was originally granted in August of 2016. Back in October 2015, Plaintiff Samuel Kamenetti was hauling produce from California to New Jersey. During his trip, Plaintiff stopped at a Pilot Flying J truck stop to fuel up and take a shower. While putting his boots on in the shower area, the bench he was sitting on collapsed, causing him to fall and sustain injuries. Plaintiff sought worker’s compensation benefits, and in August 2016, a worker’s compensation judge awarded Plaintiff benefits, stating that his injuries “arose out of and in the course of his employment.”
However, the appellate court reversed the judge’s decision in after referring to 1979 amendment to the New Jersey Workers’ Compensation Act that states “when the employee is required by the employer to be away from the employer’s place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer.” Further, the court stated “When he was injured, he was putting on his boots after showering.” As a result, “He was not ‘performing his prescribed job duties at the time of the injury.’” Also, the appellate court stated “Kamenetti’s showering was indistinguishable from the showering of countless on-premises employees in their homes every day before going to work,” the appellate court determined.
Although this is an out-of-state case, it is clear that New Jersey law incorporates language that is very similar to the Michigan statute with regard to injuries arising out of and in the course of employment. Further, we would clearly like to see more magistrates here in Michigan adopt the reasoning of the New Jersey appellate court.
Submitted by Jonathan Rea
Idaho Says Yes
Undocumented workers in Idaho had an established right to receive worker’s compensation benefits if they were hurt on the job. Now, the Idaho Supreme Court says an individual’s immigration status is not an absolute bar from receiving long-term disability payments, either.
The court’s ruling, issued in August, stems from a 2015 complaint filed by a Mexican citizen against the painting company that employed him. Plaintiff Elfego Marquez came to the U.S. illegally in 2000. He had a college degree and had worked as an elementary school teacher in Mexico, but after arriving in the U.S., he used fake Social Security cards to get jobs doing manual labor. Plaintiff injured his right wrist, arm and shoulder at work in 2010. He needed multiple shoulder surgeries and couldn’t return to his job.
Plaintiff qualified for benefits under the Idaho’s Workers’ Compensation Act. A state insurance fund paid $87,527 for Marquez’s medical bills, $30,986 for total temporary disability, and $8,488 for permanent partial impairment benefits.
Plaintiff then sought permanent disability benefits in excess of his impairment because his post-accident medical restrictions excluded him from a significant portion of the undocumented immigrant labor market in Idaho. However, the state insurance fund refused to pay him those benefits because of his immigration status.
The Idaho Supreme Court ruled that immigration status can still be a factor in disability decisions. But it alone is not a reason to deny someone benefits. “The Idaho Legislature made the policy decision over twenty years ago that those unlawfully employed are entitled to benefits under the [Idaho Workers’ Compensation] Act,” the court’s opinion said. “If the Idaho Legislature desired to create an absolute bar for permanent disability for those ‘unlawfully employed’ within the Act, it was free to do so when it amended the Act … in 1996 or thereafter,” the court reasoned.
In Michigan, the courts and legislature have taken a more conservative approach, as individuals are not entitled to wage loss benefits once it has been established that they are an undocumented immigrant. This ruling places Idaho as one of the more liberal states with regard to this issue.
Submitted by Jonathan Rea
Finding a new job is never easy. That is especially true if you have a criminal record. However, some Michigan employers and activists are working toward finding employment for those who were previously on the wrong side of the law.
“We’re going to have felony-friendly employers signing people up for apprentice programs, and lawyers and a judge at our expungement seminar (to wipe criminal records clean), and a lot of other opportunities that can really change someone’s life,” said Percy Johnson, a veteran pipe fitter at GM’s Detroit/Hamtramck Assembly Plant, who is organizing a job fair aimed at helping those with criminal records find work. The event will take place in downtown Detroit, and is a joint program of the UAW and International Brotherhood of Electrical Workers. Also on hand will be numerous advisers from such organizations as Family Assistance for Renaissance Men, Focus: HOPE and Wayne County Community College.
“We’ve had guys and women who really served some hard time, I mean years and years (in prison), and now they’re making $25, $35, $45 an hour, and this is without any college,” Johnson said, referring to a similar job fair held last year at a UAW union hall in southwest Detroit.
Pure Michigan Talent Connect’s website estimated that nearly 107,000 jobs were going unfilled in Michigan. But some say demand is even greater, as Michigan companies race to install robots when they can’t get humans to punch in and do the work, and as trucking firms count the minutes until self-driving trucks solve their shortage of drivers. While it is unclear how many people may be hired as a result of this program, it does appear clear that Michigan employers are in need of any worker they can get their hands on.
Submitted by Jonathan Rea
Please send us your comments or questions, and if there is a topic you would like to see discussed in the next Quarterly, let us know. We can be reached at (810) 767-9400 and email about the Quarterly should be sent to Jonathan Rea at email@example.com.