H&L Quarterly – July 2020

01 Jul H&L Quarterly – July 2020

U.S. Supreme Court Weighs in on Workplace Discrimination

In a landmark decision, the United State Supreme Court has ruled that Title VII protections against discrimination include homosexuality and transgender.  The opinion, authored by Justice Neil Gorsuch, as indicated in the syllabus of the opinion, in the simplest terms, held:
 
“An employer who fires an individual merely for being gay or transgender violates Title VII.”
 
The opinion expressed by Justice Gorsuch concluded that the classes of people deemed to be protected by the Civil Right Act of 1964, as set forth in Title VII, which include race, color, religion, sex, or national origin, also prohibits discrimination based on homosexuality or transgender.  The focus of the opinion determined it was inconceivable that a statutorily protected characteristic identified as sex is not, at least in part, the basis for the discrimination. Justice Gorsuch’s opinion stated as follows:
 
“. . . impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
 
The decision of the Supreme Court was a 5-3 decision with the majority prevailing in favor and in support of the opinion written by Justice Gorsuch.  However, dissenters, Justice Alito joined by Justice Thomas and a separate opinion by Justice Kavanaugh, are both lengthy and vehement in opposition.  Although the dissents explored many issues, it appeared the focus was on the assertion that neither homosexuality nor transgender was intended to be included as a protected class in the Civil Rights Act of 1964.  The opinion of Justice Gorsuch was a mere 33 pages in length, which summarized the basis for the majority opinion using straightforward approach a language that almost anyone could understand.  The dissent, on the other hand, was exhaustive and included the remaining 139 pages of the Court’s decision.
 
What does this mean for employers in the State of Michigan?   
As ironic as it may seem, the decision of the U.S. Supreme Court has no immediate effect for employment practices in the State of Michigan. In 1974, the State of Michigan enacted the Elliott-Larsen Civil Right Act.  This is a State law that substantially parallels the provision of Title VII and the Civil Rights Act of 1964.  The Michigan statute is more restrictive in some ways and is therefore not preempted by a decision of the United States Supreme Court.  As an example, Title VII applies to employers of 15 or more employees.  Whereas, Elliott-Larsen applies to employers of one or more employees.  Not only does the Elliott-Larsen provide protection against discrimination based on religion, race, color, national origin, and sex, but it also includes protection for discrimination against age, height, weight, and marital status. 
 
Michigan’s Civil Right Act, at the present time, being MCL 37.2101, does not afford protection against discrimination for homosexuality or transgender.  As a result of the lack of preemption, the decision of the U.S. Supreme Court has no immediate effect on practices in the State of Michigan.  However, as is the case with most decisions made by the U.S. Supreme Court, the courts of the State of Michigan will rely on decisions for guidance and persuasiveness on issues that may be presented in the future.  It is anticipated the Office of the Michigan Attorney General, along with the Michigan Civil Rights Department, and the Federal EEOC, will be scrutinizing complaints alleging discrimination based on homosexuality and transgender in the future in order to champion a cause that can be marshalled to the Michigan Supreme Court, in the hope the  opinion of Bostock will be adopted and applied in Michigan.
 
Additionally, the Bostock decision is limited to the application of title VII, which is a Federal statute enacted by Congress and included in the Civil Right Act of 1964. The protection afforded by the majority’s opinion as of June 15, 2020, was limited to the aspect of employment and whether or not an employer’s decisions to hire or fire due to homosexuality and transgender was discriminatory. The decision specifically did not address any other provision of Title VII, including accommodation and avoided any indictment of the Religious Freedom Restoration Act of 1993.  The Court also recognized other potential First Amendment issues that could inhibit the application of Bostock.
 
Additional inquiries should be directed to the author of this article, Michael Roney, at [email protected]

Director Addresses Reopening of Workers’ Compensation Courts

The director of the Workers’ Disability Compensation Agency issued a statement earlier today regarding his thoughts about the potential reopening of Workers’ Compensation courts throughout the state. Director Jack Nolish confirmed that our court system will remain closed through the end of July, and indicated “I have no prediction for when that will change.” With regard to conducting hearings while courts remain closed, Director Nolish indicated that he has proposed engaging in video conferences as a way to guard against seemingly endless adjournments. While the tone of the statement does not make it clear whether Director Nolish’s proposal will be adopted, it is clear from the statement that he would prefer virtual hearings in the place of our current system, which leaves the litigating parties to determine entirely on their own how to address scheduled court hearings. Further, Director Nolish spoke about potentially holding trials virtually, stating: “Let me make something clear, even if somehow implemented, this idea is NOT the beginning of
a plan to forever replace in-person WDCA trials with virtual hearings. But, in these uncertain and unprecedented times, we can ‘never say never.'”

Click here to read Director Nolish’s statement regarding reopening of the Workers’ Compensation courts. 

Independent Medical Evaluations During the Covid Shutdown

Director Nolish also issued a recent statement about Independent Medical Evaluations (IMEs). This has become an issue due to Governor Whitmer’s previous executive orders that postponed all “non-essential” medical procedures and limited travel. After reviewing in the effects of several different executive orders, Director Nolish stated: “Failure of an injured worker to attend an exam scheduled when they should not leave home to go to a location that should not be performing the service in question, certainly cannot be the basis of any adverse effect on the WDC claim.” It was also indicated by Director Nolish that  “the request for an IME should only be made if the facility for the evaluation is in full compliance with all applicable executive orders for businesses, including health care facilities, to operate with utmost safety including, but not limited to, such requirements as frequent cleaning; readily available hand washing; observance of social distancing; appropriate wearing of face masks; occupancy and group size limitations and all other requirements” imposed by the recent executive orders. It is our position that while we can, and have, been scheduling IMEs, it is quite possible that a plaintiff could refuse to attend. If this occurs, the presiding workers’ compensation magistrate may have to decide how Governor Whitmer’s executive orders effect the plaintiff’s statutory requirement to attend defendant’s scheduled IME or risk losing their entitlement to benefits. 

Click here to read Director Nolish’s statement regarding Independent Medical Evaluations. 

Safe Harbor Provision

Dealing with unresponsive lien holders can be undeniably frustrating. Some entities are very slow to communicate, or simply refuse to do so at all, even though their interests are affected by workers’ compensation settlements. 

Hanba & Lazar was recently involved in a case where plaintiff’s attorney tried repeatedly to obtain confirmation of a lien from a Medicaid contractor. After failing to receive a response from the vendor, plaintiff’s attorney contacted the Michigan Department of Health and Human Services (MDHHS) directly. MDHHS responded to plaintiff counsel and stated that if a party attempts to obtain lien information for 30 days without a response response, they are no longer responsible for satisfying the lien. Specifically, the MDHHS indicated that “Under MCL 400.106(10)(b), your obligation to protect the subrogation interest of the contracted health plan is discharged and you should send a letter to the plan informing them of your action pursuant to the statute.” This has been previously referred to as the “safe harbor provision” and we will continue to keep it in mind when we are dealing with unresponsive lien holders.