Let's look at the arguments, pro and con, that the Supreme Court is likely to hear someday.

The issue of whether Title VII prohibits sexual orientation bias will have to be resolved another day.

This week, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit held that a “multimonth leave of absence is beyond the scope of a reasonable accommodation” under the Americans with Disabilities Act.

In doing so, the court rejected longstanding guidance from the Equal Employment Opportunity Commission that a long-term medical leave is a reasonable accommodation when the leave is (1) definite and time-limited (not open ended); (2) requested in advance; and (3) likely to enable the employee to perform the essential job functions on return. Noting that under the EEOC’s position “the length of leave does not matter,” the court characterized it as an “open-ended extension” of leave under the Family and Medical Leave Act.

(Not an actual letter from Mr. Kleber.

(Not an actual letter from Mr. Kleber.)

Last week, I received a scathing comment from Dale Kleber, a Chicago-area lawyer and a plaintiff in an age discrimination lawsuit. Mr. Kleber did not like my gut reaction to his lawsuit, which was based on an article that I’d read in The Washington Post. It appeared to me that Mr. Kleber — then a 58-year-old lawyer with roughly 30 years of experience, including experience as a CEO of a dairy industry trade group, Chief Legal Counsel, and General Counsel — was rejected for a low-level in-house staff attorney position because he was overqualified for the position, not because he was 58 years old.

Prompted by Mr. Kleber’s comment, I have now read the court papers (well, a lot of them, anyway).*

*Mr. Kleber’s case is currently on appeal to the U.S. Court of Appeals for the Seventh Circuit, but it is still in the very early stages. For you procedural nerds, I’ve included a summary at the end of this post. Non-nerds can skip it.

Now that I know more about Mr. Kleber’s lawsuit, I haven’t changed my mind. In other words, I still think he was rejected for being overqualified.

Can’t “overqualified” be a code word for “too old”? Yes, but not necessarily. Read on!

Two court decisions came out last week that ought to scare the heck out of employers.

Both involved employers who seem to have been aware of their legal obligations and tried to comply. The employers lost their cases because they either didn't go far enough, or didn't pay enough attention to "optics."

https://www.youtube.com/watch?v=oPwrodxghrw

I'd like to talk about each of these ...

Last week, I had a short post about the position taken by the U.S. Department of Justice in the Zarda v. Altitude Express "gay skydiver" case.

The DOJ has directly opposed the Equal Employment Opportunity Commission, which had also filed a brief in the case. The EEOC says that sexual orientation discrimination is prohibited by Title VII. The DOJ says it isn't.

(As I noted last week, the ...

Last week, the Missouri Court of Appeals issued an opinion holding that gender identity is not covered by the prohibition on sex discrimination in the Missouri Human Rights Act. The opinion builds on a 2015 opinion from the same court, which held that sexual orientation was not covered under the MHRA.

Last week's opinion arose from a lawsuit filed by a female-to-male high school ...

Employers, has this ever happened to you?

A guy (we'll call him "Ryan") comes to work for you through a temporary agency. The agency issues the paychecks and generally acts as Ryan's "HR" representative. Your company pays the agency but does not directly pay Ryan.

But when Ryan comes to work, he is supervised by Michael, who is one of your employees. Michael takes Ryan under his ...

Law360 reported this morning that the U.S. Court of Appeals for the Eleventh Circuit refused to rehear the case of Evans v. Georgia Regional Hospital, in which two out of three judges on a panel of the court decided that Title VII did not prohibit discrimination based on sexual orientation. Here is a copy of the Court's order denying the rehearing.

According to the Law360 article, Lambda ...

The U.S. Court of Appeals for the Second Circuit (Connecticut, New York, and Vermont) agreed yesterday to rehear en banc an appeal from the estate of a gay skydiving instructor who alleged he was fired after a customer complained about his sexual orientation. The case is Zarda v. Altitude Express.

The issue to be decided by the court is "Does Title VII of the Civil Rights Act of 1964 ...