Federal Court of Appeals Holds that Title VII Protects Against Transgender Status


Today, the Sixth Circuit Court of Appeals -- the federal appellate court that hears appeals from the federal courts in Ohio, Michigan, Kentucky, and Tennessee -- held that Title VII protects employees from discrimination on the basis of their transgender or transitioning status.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of their race, color, sex, gender, national origin, and religion.

The courts have construed Title VII's sex-discrimination prohibition to likewise prohibit sexual harassment and even discrimination against an employee for failing to conform to traditional gender norms.

As we've discussed here multiple times, several other federal appellate courts -- the Seventh and Second Circuit Courts of Appeals -- have held that Title VII also prohibits discrimination on the basis of an employee's sexual orientation. The Sixth Circuit hasn't squarely addressed this particular issue in some time, but it's hard to reconcile this new opinion regarding transgender status with its prior opinions holding that Title VII doesn't protect against sexual orientation discrimination. It's simply a matter of time before that line of cases is reversed and sexual orientation becomes a protected class under the statute.

If you have any questions about how the Court's opinion impacts you, your co-workers, or your organization, give us a call today.

U.S. Court of Appeals Holds that Sexual Orientation Discrimination Violates Title VII


This morning, an en banc panel of the United States Court of Appeals for the Second Circuit, based in New York, held that discrimination on the basis of sexual orientation constitutes sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The Second Circuit joins the Seventh Circuit Court of Appeals, based in Chicago, to affirmatively protect against anti-gay discrimination in the workplace.

We previously covered the Seventh Circuit's decision here, as well as the decision of the Eleventh Circuit, based in Atlanta, here, which held to the contrary, that anti-gay discrimination doesn't violate Title VII.

In 2015, the U.S Equal Employment Opportunity Commission (EEOC) determined for the first time that sexual orientation discrimination constitutes impermissible sex discrimination, setting forth multiple ways to illustrate such discrimination. The Second Circuit's opinion tracks the EEOC's determination, concluding that:

"Title VII's prohibition on sex discrimination applies to any practice in which sex is a motivating factor.... [S]exual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one's sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account. Sexual orientation discrimination is also based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted. Finally, sexual orientation discrimination is associational discrimination because an adverse employment action that is motivated by the employer's opposition to association between members of particular sexes discriminates against an employee on the basis of sex."

A rift exists among the federal appellate courts on this issue, whether sexual orientation discrimination violates Title VII, so we expect the issue to be decided by the U.S. Supreme Court soon.

The take-away: In Kentucky, the state and federal courts have not expressly declared that sexual orientation constitutes sex discrimination or that it violates Title VII. The Sixth Circuit Court of Appeals, based in Cincinnati, Ohio, and which covers Kentucky, has previously held that Title VII does not protect against anti-gay discrimination in the workplace. However, the tide among the federal district courts is turning, and there are now two federal appellate courts which have concluded that such discrimination is illegal.

Employers must proceed with caution. Any adverse employment action, such as suspension or termination, that is based in any way on an employee's sexual orientation could lead to litigation, which could lead to any number of other adverse consequences, including a public relations backlash.

Employees who believe that they've being discriminated against on the basis of their sexual orientation should submit a written complaint to HR (or to whomever the employee manual requires discrimination and harassment complaints to be submitted) and keep an open line of communication with HR throughout the investigation process.

Thank You!

On this day two years ago, Lockaby PLLC opened its doors. Since then, we've helped countless employees (blue-collar and white-collar alike) and employers (including small business and Fortune 500 companies) make the workplace a better place.

We've recovered nearly $250,000 for employees who suffered discrimination, retaliation, and harassment at work.

We've successfully defended employers and management against frivolous claims in state and federal courts and administrative agencies, and we've helped them navigate the maze of state and federal workplace regulations.


We've assisted employees, employers, victims, and the accused through sexual harassment investigations.

And we've helped employees and employers through negotiations surrounding employment contracts, independent contractor and consulting agreements, severance and separation agreements, and layoff procedures.

Forbes estimates that 8 out of 10 businesses fail in the first 18 months. We've survived, and flourished, because of our loyal clients. And for that, we give a hearty thank you! We look forward to serving our clients and our community for many years to come.

Sexual Harassment Claims to be Exempted from Binding Arbitration Agreements?

If the Attorneys General from all fifty states and several U.S. territories have anything to say about it, yes. On February 12, the National Association of Attorneys General penned a letter, which was also signed by Kentucky Attorney General Andy Beshear, requesting that Congress enact legislation exempting sexual harassment claims from binding arbitration agreements.

In the last five years or so, the Supreme Court has consistently ruled that employers may require employees to submit workplace disputes, including discrimination, retaliation, harassment, and wage-and-hour claims, to mandatory arbitration. Agreeing to arbitrate these claims is often a requirement for initial employment.

"While there may be benefits to arbitration provisions in other contexts, they do not extend to sexual harassment claims. Victims of such serious misconduct should not be constrained to pursue relief from decision makers who are not trained as judges, are not qualified to act as courts of law, and are not positioned to ensure that such victims are accorded both procedural and substantive due process.

Additional concerns arise from the secrecy requirements of arbitration clauses, which disserve the public interest by keeping both the harassment complaints and any settlements confidential. This veil of secrecy may then prevent other persons similarly situated from learning of the harassment claims so that they, too, might pursue relief. Ending mandatory arbitration of sexual harassment claims would help to put a stop to the culture of silence that protects perpetrators at the cost of their victims."

The take-away: If Congress takes action and enacts legislation, employers may need to change current practices that require new hires to sign arbitration agreements or edit the arbitration agreement to comply with the legislation. The NAAG has not proposed any specific language; the group simply supports "appropriately-tailored legislation to ensure that sexual harassment victims have a right to their day in court."

#MeToo and #TimesUp Movement Helping Harassment Victims in Kentucky

The list of men in powerful positions accused of sexual abuse, assault, or harassment has been growing by the day. Harvey Weinstein, Roger Ailes, Bill O'Reilly, Bill Cosby, Larry Nasser, Senator Al Franken, and yes, even President Donald Trump. The list goes on.

No sector has been immune. Reports of harassment have sprung from Washington, D.C., from Hollywood, from Silicon Valley, from major media enterprises, and from everywhere in between.

Inspired by those who have already come forward, more and more women are continuing to come forward with their own stories of and experience with sexual harassment. While both movements, and society in general, have a long way to go in shining a light on and eradicating sexual harassment, we've seen several immediate benefits here in Kentucky:


First, immediate credibility. In years past, women who waited any amount of time to report harassment weren't taken seriously, their allegations brushed off as no big deal, the harassment labeled anything but. More recently, however, these brave women, and their harassment allegations, have been given the credibility they deserve.

Second (and relatedly), more empathy and understanding. We're now seeing a level of empathy and understanding from the general public, and juries, for why victims don't always immediately report harassment--fear of retaliation or losing a job, humiliation and embarrassment, to name just a few.

Again, there's more work to be done. And many women are still understandably fearful for coming forward. But the national conversation is helping, and those who do come forward can help change the workplace dynamic--for themselves and others.

Have you been sexually harassed? Are you worried about coming forward? Do you have questions about how you can come forward and still protect yourself and your family? We can help.

Class Action Investigation -- Student Loan Servicing Practices

Student loan debt ballooned to more than $1.3 trillion in 2017, more than two-and-a-half times the total student loan debt 10 years ago. Debt servicing is a lucrative business, but many services aren't acting in borrowers' best interests.

We are now investigating potential class-action claims against several student-loan servicers, each of whom are pushing borrowers into loan forbearance rather than offering graduated repayment plans, many times without ever informing borrowers of a graduated-repayment option, which helps pay down principal. Forbearance, on the other hand, generates higher interest payments and fees for the servicing company, but it is not always in borrowers' best interests.


Are you saddled with student loan debt? Have you been pushed into forbearance? Have you been denied a graduated repayment plan? Or, worse yet, never offered such a plan? You may be entitled to compensation. We can help. Call us today for your free consultation.

EEOC Releases 2017 Statistics

The EEOC has released its litigation statistics for 2017. There was a slight drop in total charges filed from 2016, going down from 91,503 charges to 84,254 charges. Once again, however, the highest number of charges were for race discrimination and retaliation, 33.9% and 48.8% of total charges, respectively.


In addition, sex discrimination charges, which include claims for sexual harassment, saw a slight decline from 2016 figures, down from 29,934 to 25,605 charges. We anticipate, however, that the prominent sex harassment headlines coming out of Hollywood, Silicon Valley, and Washington, D.C., not to mention the #metoo and #timesup movement, will trigger an increase in sex harassment charges in 2018 with more and more women coming forward.

These statistics make painfully obvious that the workplace remains rife with discrimination and harassment. Whether its race, sex, sexual orientation, gender, national origin, disability, or age discrimination, whether its sexual harassment or other harassment that creates a hostile work environment, we can help. Call us today for your free initial consultation.

Supreme Court (For Now) Refuses to Review Whether Sexual Orientation Discrimination Violates Title VII

On December 11, 2017, the Supreme Court of the United States denied a petition for certiorari -- a request that the Court review the decision of a lower court -- in the Evans v. Georgia Regional Hospital matter, a case in which the Eleventh Circuit Court of Appeals decided that sexual orientation discrimination does not violate Title VII of the Civil Rights Act of 1964. We previously covered the Evans matter here.

While the Supreme Court's decision is most certainly frustrating to the LGBTQ community, it is not altogether surprising. As the Hospital's response to the cert petition made clear, Evans had never served the Hospital with process (i.e., never properly brought the Hospital under the federal courts' jurisdiction) and, as a result, the Hospital never fully participated in the adversarial process.

The Supreme Court didn't provide a reason for its denial of the petition, but this lack of participation was most likely central to its decision. Absent full participation and an exhaustive treatment of the issues, the Court is simply less likely to rule on an issue that will affect individuals across the country.

There are many others cases currently making their way through the federal courts in which the parties are arguing whether sexual orientation discrimination is prohibited under Title VII. With there now being a circuit split (the Seventh Circuit Court of Appeals ruled in April 2017 that it does), the Supreme Court is nearly guaranteed to review this issue soon.


Kentucky Supreme Court Permits Class Actions for Wage Violations

On August 24, 2017, the Supreme Court of Kentucky held that employees may bring class actions for wage violations, such as an employer's failure to pay minimum wages or overtime wages. See Mary McCann v. The Sullivan University System, Inc., 2015-SC-000144-DG, 2017 Ky. LEXIS 358.

McCann was hired by Sullivan as an admissions officer in 2006. Like other admissions officers, McCann would recruit and interview prospective students to determine if they were good candidates for admission, then enroll them.


After McCann was terminated in 2008, she filed a class action lawsuit under the Kentucky Wages and Hours Act, KRS Chapter 337, claiming that she was misclassified as an exempt employee and that she should have been paid overtime wages during her employment. KRS 337.385 states that a legal claim may be maintained for wage violations "by any one or more employees for and in behalf of himself, herself, or themselves." KRS 337.385(2). The Kentucky courts had interpreted this provision to mean that an employee, or more than one employee, could bring a legal claim on his or her own behalf, but not on behalf of others. See, e.g., Toyota Motor Mfg., Ky., Inc. v. Kelley, 2013 Ky. App. Unpub. LEXIS 910 (Ky. Ct. App. Nov. 15, 2013).

Relying on Kelley, the Jefferson Circuit Court denied McCann's motion to certify the case as a class action. The Kentucky Court of Appeals affirmed the denial.

The Supreme Court, however, reversed the decisions. The Court first determined that KRS 337.385 was not a "special statutory proceeding" that operated outside of or beyond the scope of the Kentucky Rules of Civil Procedure. Special statutory proceedings are those that comprehensively prescribe every procedural detail, such that the proceeding becomes "a wholly self-contained process." These proceedings include dependency, abuse, and neglect matters, forcible detainer or eviction proceedings, and election contests.

The Court next determined that, although KRS 337.385 neither explicitly permitted nor prohibited class actions, Rule 23 of the Kentucky Rules of Civil Procedure set forth how and when a class action may be maintained. And, in the absence of special statutory proceeding, Rule 23 permitted claims for wage violations under KRS 337.385 to be pursued as class actions.

In a class action, of course, one or more plaintiffs, or class representatives, maintain legal claims on behalf of those who are similarly situated, the absent class members, for some kind of relief or compensation. On of the hallmarks of a class action is the pursuit of claims that, on an individual basis, don't offer a high enough recovery to warrant action, but the potential recovery for hundreds or even thousands of others make the case worth pursuing.

The take-away: The availability of class-action relief for employees can open employers to significant exposure for misclassification of their workforce. Employers are advised to review their workforce-classification policies and procedures, such as whether an individual is classified as an independent contractor or employee, or whether an employee is classified as exempt or non-exempt under the Kentucky Wages and Hours Act.

If you're an employer and you'd like help reviewing your current practices, we can help. We can review your current policies and practices, provide proactive advice on how to remedy any potential issues, and take steps to mitigate any potential liability.

If you're an employee and you, and possibly your co-workers, have been denied minimum wages or overtime wages, we can help. We can investigate your potential claims and let you know your options for proceeding, either in an individual action, a class action, or through the Kentucky Labor Cabinet.

Xarelto Linked to Uncontrollable Internal Bleeding and Death

An anticoagulant, or blood-thinner, manufactured by Janssen Pharmaceuticals and marketed by Bayer Healthcare, Xarelto was represented as being the superior medication to reduce the incidence of stroke, deep vein thrombosis, and pulmonary embolisms. Studies, however, have found that Xarelto can lead to serious, uncontrollable, and life-threatening internal bleeding, and even death.


Unlike warfarin and other blood-thinner medications, for which a high dose of Vitamin K can treat bleeding events, there is no known antidote or reversing agent for the bleeding or hemorrhaging caused by Xarelto, even with a doctor's help.

To date, thousands of people -- approximately 14,000, to be exact -- have filed lawsuits across the country taking aim at Janssen and Bayer's initial failure to design and manufacture the drug to eliminate this risk and their subsequent failure to warn of this significant risk.

The lawsuits have been consolidated in a federal court in Louisiana, known as a multi-district litigation (MDL) proceeding. There is still time to take action, but time is running short.

If you, a loved one, or someone you know was prescribed Xarelto and suffered internal bleeding or hemorrhaging, including gastrointestinal and abdominal bleeding, eye bleeding, or intracranial hemorrhaging, call us today. We can talk to you about your options, how the MDL process works, and how you can potentially recover for the sustained injuries.