Employment & Labor Insider

NOTE FROM ROBIN: Because of tomorrow's holiday, this will be my “Friday” post.

Yesterday, we began our review of American employment law, in honor of our nation's semi- . . . sequin- . . . semiquin- . . . our 250th anniversary. 

"It's the semiquincentennial, you dummy!"

I knew that. I just wanted to see whether you did.

Before we go on, this cartoon should have been in yesterday's post, but I didn't find it until last night. From our bicentennial in 1976.

Here are the rest of our 76 employment law developments, from the 1990s through this very week:

The nineties

1990: The Older Workers Benefit Protection Act takes effect. The law requires that separation agreements provide certain information to anyone 40 or older who is part of a “group termination” for a valid waiver of federal age discrimination claims.

1990: The Americans with Disabilities Act is enacted.

1991: Congress amends 42 U.S.C. Section 1981 to expand the damages recoverable under Title VII and the ADA to include compensatory and punitive damages of up to $300,000 (based on the size of the employer) in addition to the lost wages and attorneys’ fees that were previously recoverable.

I have nothing to add to this picture. It's perfect.

1992: ADA takes effect for employers of 15 or more employees.

1993: The Family and Medical Leave Act is enacted.

1995: First FMLA regulations take effect. (NOTE: These are not current!)

1998: The Supreme Court issues its decision in Oncale v. Sundowner Offshore Services, saying that Title VII prohibits any harassment based on sex, including same-sex harassment. (In this case, the male plaintiff alleged that he was harassed by his male co-workers.)

Also, the Supreme Court issues its decisions in Faragher/Ellerth, establishing an employer defense to liability for harassment by a supervisor that does not result in a “tangible job detriment” to the alleged victim. Under the standard (still current), the employer will not be liable if it can show that (1) it took reasonable measures to prevent harassment and promptly correct any that takes place, and (2) the employee unreasonably failed to avail herself (or himself) of those measures. (If the supervisor harassment does result in a tangible job detriment – for example, the employee is fired for not going along with it – then the employer will be liable.)

New Year's Eve, 1999: "Sure glad we have this analog clock so we'll be prepared when the world's computer systems go down at midnight!"

It's a new millennium!

And the computers survived Y2K.

2002: Supreme Court issues two major blows to ADA claims. In U.S. Airways v. Barnett, the Court says that an employer does not have to deviate from a non-collectively-bargained seniority policy as a reasonable accommodation. In Toyota v. Williams, the Court says that employee must have significant medical limitations to be “disabled” within the meaning of the ADA. As a result, ADA litigation becomes dormant . . . for a while.

2006: Supreme Court rules in Burlington Northern v. White that unlawful retaliation could be any action that would dissuade a “reasonable worker” from engaging in protected activity. (In this case, plaintiff complained of sexual harassment and was given less favorable job duties at same pay rate, and was suspended without pay but fully reimbursed after she won her grievance.)

2007: Supreme Court rules against Lilly Ledbetter on her equal pay claim against Goodyear Tire and Rubber, saying the statute of limitations had expired. (Ms. Ledbetter alleged that she received discriminatory performance reviews early in her career and that effects of those old performance reviews meant that she was earning less than her male counterparts at retirement.)

2008: Congress enacts the ADA Amendments Act (effective 2009), signed into law by George W. Bush, which significantly broadens the definition of “disability” in the ADA. Among other things, it provides that mitigating measures cannot be considered in determining whether an individual has a covered disability, unless the “mitigating” measures make things worse. ADA litigation wakes up and never goes back to bed.

2009: Congress enacts the Lilly Ledbetter Fair Pay Act, signed into law by Barack Obama, which says the 180-day charge-filing period continues with the issuance of each “discriminatory” paycheck. (But only going back 2-3 years.)

The teens

2010: The FLSA is amended to require employers to let nursing mothers have breaks to express milk. (Patient Protection and Affordable Care Act)

Also the Employment & Labor Insider blog publishes its first post. (I’m way too humble -- jk! -- to count this entry toward the total of 76 employment law developments, but I can’t believe our blog is almost 16 years old! Thank you all!)

2013: Zoom software is launched, with seven years to spare.

2014: President Obama amends President Lyndon Johnson's Executive Order 11246 to also prohibit federal contractors from discriminating based on sexual orientation or gender identity.

Also, the Obama EEOC and Department of Justice take the position that Title VII prohibits discrimination based on sexual orientation or gender identity (federal employees only).

2017: The DOJ under Donald Trump withdraws the Obama DOJ position on sexual orientation/gender identity.

Also, Microsoft Teams is released, with only three years to spare.

From COVID to last week

"Hi! Remember me?"

2020: COVID pandemic begins. Lots of religious accommodation issues related to mandatory vaccines. Remote work booms, but Zoom and Teams have been ready for years.

Also, the Supreme Court decides in two cases that discrimination based on sexual orientation and gender identity is “sex” discrimination prohibited by Title VII.

2021: Juneteenth becomes a federal holiday.

2022: Joe Biden signs an omnibus spending bill that includes the Pregnant Workers Fairness Act, which requires employers to make reasonable accommodations for pregnancy and pregnancy-related conditions. (The law takes effect in 2023.)

Also, the same omnibus legislation includes the PUMP for Nursing Mothers Act, which replaces the 2010 lactation accommodation provision. The PUMP Act also takes effect in 2023.

2023: Supreme Court rules in Groff v. DeJoy that the “undue hardship” defense will not apply in religious accommodation cases unless the employer can show that the accommodation(s) would involve "substantial" difficulty or expense.

January 2025: President Trump revokes EO 11246.

April 2025: President Trump issues EO 14281, directing the EEOC to reassess (i.e., drop) any Title VII litigation brought under a disparate impact theory.

This week!

Monday, 6/29/26: The Supreme Court says the President is authorized under the Constitution to terminate a commissioner for the Federal Trade Commission without cause, overruling a 1935 decision to the contrary. The decision has implications for President Trump's termination in 2025 of Gwynne Wilcox, who was a Democratic Member of the NLRB. But in another decision issued on Monday, the Court says the President cannot terminate a Federal Reserve Governor without cause. You can read about both decisions here.

Tuesday, 6/30/29: The Supreme Court rules 5-4 that birthright citizenship is authorized and protected under the Fourteenth Amendment.

Also, didja know? The federal minimum wage is currently $7.25 an hour.

You've come a long way, baby.

Happy semiquincentennial, everybody!