Several states in 2018 enacted laws aimed at closing the gender-based pay gap that continues to persist in the American workplace. These new laws restrict employers’ ability to factor salary history into hiring and compensation decisions based on a recognition that relying on salary history tends to perpetuate the gender-wage gap.

One state, though—Wisconsin—passed a law that runs counter to the trend, expressly permitting employers to solicit salary history information and barring local government entities from passing laws to the contrary. Here is a summary of those measures:

California. A new law has been added to the California Labor Code that prohibits all employers from seeking or relying on salary history information of a job applicant as a factor in determining whether to offer the applicant employment or what salary to offer the applicant. Also, employers will be required, upon reasonable request, to provide the pay scale for the position being applied for. Under the law, employers are allowed to consider salary history information voluntarily disclosed by the applicant (Ch. 688 (A. 168), L. 2017, eff. January 1, 2018).

In addition, an existing law was amended to provide that an employer is not prohibited from asking a job applicant about his or her salary expectation for the position being applied for. And the employer is authorized to make a compensation decision based on an employee’s current salary as long as any wage differential resulting from that decision is justified by one or more specific criteria, including a seniority system or a merit system (Ch. 127 (A. 2282), L. 2018, eff. January 1, 2019).

Connecticut. Employers are prohibited from inquiring or directing a third party to inquire about a prospective employee’s wage and salary history during the job interview process, unless the individual has voluntarily disclosed such information (P.A. 18-8 (H. 5386), L. 2018, eff. January 1, 2019).

Hawaii. Employers and employment agencies are prohibited from requesting or considering a job applicant’s wage or salary history as part of the employment application process or compensation offer. And employers are prohibited from retaliating or discriminating against employees who disclose, discuss, or inquire about their own or coworkers’ wages (Act 108 (S. 2351), L. 2018, eff. January 1, 2019).

New Jersey. Executive Order No. 1 explicitly prohibits state agencies and offices from asking a job applicant for their past wage history or investigating the prior salaries of their applicants. The order took effect on February 1, 2018.

In addition, sweeping equal pay legislation, known as The Diane B. Allen Equal Pay Act, was signed amending the Law Against Discrimination to make it a prohibited employment practice for employers to discriminate against an employee who is a member of a protected class. Employers will not be able to pay rates of compensation, including benefits, less than the rate paid to employees not of the protected class for substantially similar work, when viewed as a composite skill, effort, and responsibility.

The law also prohibits employers from retaliating against employees for discussing their pay with others and provides for three times the monetary damages for a violation. Further, an aggrieved employee may obtain relief for up to six years of back pay, and the law allows courts to award treble damages for violations (Ch. 9 (S. 104), L. 2018, eff. July 1, 2018).

Pennsylvania. Executive Order 2018-18-03—Equal Pay for Employees of the Commonwealth—restricts Commonwealth agencies from inquiring about a job applicant’s current salary or salary history information, except where compensation is based on: (a) a collective bargaining agreement; (b) a seniority system; (c) a system of merit pay increases; (d) a system that measures earnings by quantity or quality of production, sales goals, and incentives. Job postings must clearly disclose a job position’s pay scale and pay range. The Commonwealth must disclose on the employment website that the applicant is not required to furnish current compensation or prior compensation at any stage of the hiring process.

Vermont. Employers are prohibited from asking about prospective employees’ salary history and may not determine whether to interview a prospective employee based on current or past compensation. In addition, employers are prohibited from requiring that a prospective employee’s current or past compensation satisfy minimum or maximum criteria. “Compensation” includes wages, salary, bonuses, benefits, fringe benefits, and equity-based compensation (Act 126 (H. 294), L. 2018, eff. July 1, 2018).

Washington. Discrimination in terms of compensation based on gender is prohibited. Differences in pay may only be the result of such things as seniority, training/education/experience, a merit system, a system that measures earnings by quantity or quality of production, or a bona fide regional difference in compensation levels. In addition, an employer may not limit or deprive career advancement opportunities based on gender. And, employers may not require nondisclosure wages as a condition of employment, or require an employee to sign a waiver or other document that prevents an employee disclosing the amount of the employee’s wages (Ch. 116 (H. 1506), L. 2018, eff. June 7, 2018).

Wisconsin. A new law was enacted allowing employers to solicit salary information of prospective employees. The law also prohibits local government entities (cities, villages, towns, and counties) from enacting ordinances that would prohibit employers from soliciting information regarding the salary history of prospective employees (Act 327 (A. 748), L. 2017, eff. April 18, 2018).

By Brandi O. Brown, J.D.

In the EEOC’s suit alleging that Wal-Mart refused to accommodate a deaf, visually impaired, and intellectually disabled cart pusher by allowing him to work with a job aide as he had done for many years, a federal district court denied Wal-Mart’s motion for summary judgment against ADA failure-to-accommodate and constructive discharge claims. The court found that disputed issues of material fact remained, including whether the employee was a “qualified” individual and whether allowing a permanent job coach was a reasonable accommodation (EEOC v. Wal-Mart Stores, Inc., December 18, 2018, Crabb, B.).

Worked with a job coach. In 1998, the employee at the center of this dispute began working at a Wal-Mart in Wisconsin as a cart pusher. Now 40 years old, the employee has been deaf, visually impaired, and intellectually and developmentally delayed for all of his life. In early 1999, Wal-Mart allowed him several accommodations, including the ability to work with his job coach/aide. During his employment he always worked with a job coach, a duty that was rotated and paid for through a Medicaid program. The parties did not dispute that the employee’s job coaches assisted in several ways, including watching for oncoming cars, helping the employee stay focused, and steering longer lines of carts. The employee’s performance ratings were generally positive, but his employment was not entirely without incident.

Incident with job coach. In 2012, a shift manager reported an incident between the employee and his primary job aide, about whom customers had complained. According to these reports, the job coach was seen physically abusing the employee. However, the police found the report unfounded because there were no physical injuries. In 2015, after a new manager took over the store, the incident was brought up again and manager decided to “delve deeper” into use of a job coach. The employee was asked to provide current, medically-supported information about his condition and reasonable accommodations.

Returned form, was not scheduled to work. He was asked to have his physician fill out an “Accommodation Medical Questionnaire.” In it his physician recommended as an accommodation that he have a “job coach-to do seeing & hearing.” What happened after the form was returned to the store manager, however, is disputed. The store manager claimed he asked for more information, but the plaintiffs denied he made such a request, stating that they were instead told to wait to hear from him In any event, the employee was not placed on the schedule or contacted after that date in July and in August the employee lost access to the employee’s online portal. He filed a charge with the EEOC and subsequent mediation failed. The EEOC brought suit on his behalf. The employer filed a motion for summary judgment.

No rule that permanent coach is unreasonable. For purposes of the motion, Wal-Mart did not contest that the employee was disabled. Instead, it made a variety of arguments on whether the accommodations requested were reasonable, whether the employee was a qualified individual, and whether he was terminated. As to whether a permanent job coach is a reasonable accommodation, the court noted that limited published case law exists on the subject, although there is EEOC guidance that states that an employer “also may be required to allow a job coach paid by a public or private social service agency to accompany the employee at the job site as a reasonable accommodation.” (However, a guidance regulation refers to a “temporary ‘job coach’.”) A few courts have held that indefinite use of a job coach is not a reasonable accommodation. Nevertheless, the court concluded that to the extent the employer was “advocating for a per se rule that a permanent job coach is never a reasonable accommodation,” the court was not persuaded and the Seventh Circuit had not adopted such a rule.

Disputes over job duties. Regarding whether the employee was a “qualified individual,” even if a permanent job coach was a reasonable accommodation, the court determined that factual questions prevented resolution on summary judgment. The employer relied on the job description and testimony of the manager and some other employees that there were duties that were essential outside of cart pushing, which the employee could not do. However, that evidence was disputed by evidence presented by the plaintiff that not all of the functions noted by the employer were essential, with testimony by more than one person that at least 95 (and as much as 98) percent of the cart attendant’s time is spent pushing carts. From the evidence presented by the plaintiff, the court explained, a reasonable jury could conclude that the essential function was cart collecting and placement and that customer interaction was not essential. The court also found genuine disputes over the extent to which the employee’s coaches might have provided assistance.

Unusual undue hardship argument. The employer also made an undue hardship argument, claiming the potential for legal and safety risks if the employee were allowed to have a permanent job coach (particularly one that had been reported for “beating” the employee), but its legal basis for the argument came from religious accommodation cases. The employer failed to cite any legal authority for the position that the Title VII standard should apply to ADA claims. It was also not clear from the evidence that allowing the employee to have a job coach would pose a safety risk, particularly if the job coach in question did not continue to serve as the employee’s job coach.

Disputes over what happened during the interactive process also prevented the court from granting summary judgment on that claim. The related disability discrimination claim, based on a claim of constructive or actual discharge, also had disputes of fact requiring a jury’s resolution. The court also declined to grant summary judgment on the punitive damages claim.

By Lorene D. Park, J.D.

Affirming summary judgment against an ADEA age discrimination claim that was based on the elimination of an employee’s job and rejection of his application for another position, the Seventh Circuit rejected arguments that he didn’t raise below and, on the merits, held that a job screener’s reference to a younger applicant’s potential for longevity was not a proxy for age. The screener tied the comment to age-neutral characteristics of enthusiasm and persistence in applying more than once, stating that the younger applicant would “inevitably stay with the company for many years to come as he has been actively trying to find a foot in the door here.” The court also affirmed that the retaliation claim was time-barred because that administrative charge was not filed within 300 days of the employer unequivocally stating that it would sue to enforce a release and waiver if the employee continued pursuing his discrimination charge. Judge Bucklo dissented in part, finding that the retaliation claim could timely be based on the employer’s actual filing of the threatened lawsuit (Wrolstad v. CUNA Mutual Insurance Society, December 18, 2018, Sykes, D.).

Severance and release. A long-time insurance company employee was promoted to be financial reporting manager in 2006. Three years later, his position was eliminated in a corporate restructuring. Then age 52, the employee applied for five vacant positions, including one as a pension participant support specialist. He was considered by the external recruiter to be “very overqualified” for that position. He said he was willing to work for $55,000, which was $20,000 less than his prior salary, but it was above the range for the open position and he did not get a second interview. Three other internal candidates were also rejected, and the job went to a 23-year-old external candidate. The employee ultimately signed a severance agreement for $70,000 in exchange for a release of all claims against the company arising on or before that date.

Discrimination charge. Nonetheless, the employee filed a complaint with the Madison Equal Opportunities Commission accusing his former employer of age discrimination. The employer denied the charge and argued that the claim was barred by the release. The commission dismissed the complaint and the employee appealed.

Employer sues for breach. On December 22, 2010, the employer sent him a letter explaining in no uncertain terms that it would sue to enforce the waiver if he did not drop his administrative appeal by January 10. He refused, and on January 28, 2011, the employer filed a breach-of-contract suit in Wisconsin state court.

Employee’s retaliation charge, ADEA suit. The employee then filed a second charge in November 2011, alleging that the employer’s suit constituted retaliation for his first complaint. In 2012, the state court dismissed the employer’s contract suit, reasoning that the commission should determine the waiver’s enforceability. In 2015, the employee transferred both claims to the EEOC, which issued a right-to-sue notice in February 2016.

The employee then filed this ADEA lawsuit. The district court entered summary judgment for the employer, finding that the employee produced no evidence supporting an inference that the decisions to eliminate his job and to not hire him for the support-specialist position were motivated by his age. The court also found that the retaliation claim was time-barred because he filed his retaliation charge with the commission more than 300 days after it accrued.

ADEA discrimination claim fails. Affirming, the Seventh Circuit first rejected the employee’s argument that there were “irregularities” in the employer’s hiring process because he had not raised that issue below and could not raise it for the first time on appeal. The same was true of his argument that the decisionmaker ignored the four older internal candidates and took the successful candidate’s youth as a factor in his favor. As the party opposing summary judgment, the employee was responsible for informing the trial judge of all reasons, legal or factual, for denying the motion. And even if the appeals court considered this new material, it didn’t support his claim. He pointed to the screener’s note about the younger applicant’s potential for longevity, but that was not a proxy for age because the screener explicitly tied it to age-neutral factors, like the successful applicant’s enthusiasm and persistence in applying to work for the company.

In addition, assuming that the district court made improper assumptions about the employee’s qualifications, as the employee argued, the appeals court also found it undisputed that his salary goal was above the high end of the position’s pay range and that he lacked the one-on-one customer service experience that was an important job qualification. In light of the foregoing, the district court was right to enter summary judgment against the discrimination claim.

Retaliation claim untimely. Also affirming with respect to the retaliation claim, the appeals court explained that it accrued on December 22, 2010, when the employer sent the employee a letter giving clear notice of its decision to sue to enforce the waiver in the severance agreement if he continued to pursue his appeal. The employee argued that the decision was not final because it was conditional, but the Supreme Court rejected that type of argument in Del. State Coll. v. Ricks. Because the employer’s letter was unequivocal, the employee had 300 days from that letter to file his retaliation charge, and he failed to do so within that time.

Partial dissent. Judge Bucklo concurred on the age discrimination claim but dissented with respect to the retaliation claim, reasoning that the employer’s filing of its lawsuit was a distinct, independently retaliatory act that opened a new limitations period under the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, so his retaliation claim based on the filing of the breach of contract suit would not be time-barred.

An employee who was not yet eligible for Family and Medical Leave Act (FMLA) time off could go forward with her claims for FMLA interference and discrimination, a federal court in Wisconsin ruled, after the leave was denied and the worker terminated.

By Lorene D. Park, J.D.

After learning an employee planned to take FMLA leave as soon as she reached the 12-month mark for eligibility, a human resources coordinator allegedly told her to begin leave as soon as possible (with no medical reason) and encouraged her to move up her surgery date, assuring the employee she would receive FMLA leave and her job would be waiting. Instead, the employee was denied FMLA coverage and terminated. Refusing to dismiss her subsequent FMLA interference and discrimination claims, a federal court in Wisconsin found that should her allegations turn out to be true, the employer could be estopped from denying FMLA coverage. The court also pointed to an Eleventh Circuit opinion stating that the FMLA’s advance notice requirements shouldn’t be a trap for newer employees (Reif v. Assisted Living by Hillcrest LLC, dba Brillion West Haven, November 6, 2018, Griesbach, W.).

The employee was hired on January 25, 2017 to be an administrative assistant at an assisted living facility. During her employment, she experienced significant pain in her right hip and knee due to an abnormal gait she had adopted due to an unsuccessful repair of a tear to her Achilles tendon. In early January 2018, the employee’s doctor advised her that surgically repairing her Achilles would improve her gait and significantly reduce her pain and difficulties.

Meetings with HR about FMLA leave. In a January 9 meeting with an HR coordinator, the employee stated her intent to have surgery after she became eligible for FMLA leave. The HR rep informed her that she would not be eligible for FMLA leave until January 25, the date on which she would have been employed there for 12 months. The employee then scheduled her surgery for January 31 and informed the HR rep.

Later that same day, after consulting with an executive administrator about the employee, the HR rep told the employee to immediately “punch out and go home until [she was] completely healed from surgery.” Even though the employee was not under any restrictions from her doctor, the HR rep allegedly said the administrator wanted her sent home because she was a liability and the employer didn’t want her to injure herself further and file for worker’s compensation claim.

The HR rep also allegedly told the employee to schedule her surgery as soon as she could, and she would work with the employee so her FMLA would be approved. The employee was assured her job would still be there for her when she returned.

Despite assurances, FMLA denied and employee fired. The employee allegedly relied on these assurances and had her surgery moved up to January 17. She submitted her FMLA application on January 10. On January 22, she received a letter dated January 19 and signed by the same HR rep, acknowledging receipt of her FMLA request but stating she didn’t meet eligibility requirements. She was also informed on January 24 that the employer would not hold open her position. After the employer received a doctor’s certification that the employee could return with restrictions, she was informed her position had been filled. She filed suit.

Employer may be estopped from denying FMLA coverage. Moving to dismiss, the employer argued the employee was not an “eligible employee” under the FMLA because she had not been employed for 12 months when leave was to start. Denying the motion, the court said the employer “would be on solid ground as far as the FMLA is concerned if [the employee] had simply taken off for her surgery on her own prior to becoming eligible,” but that was not the case here.

According to the complaint, the HR rep told the employee to begin her leave immediately, even though there was no medical reason to do so, and encouraged her to move up her surgery, assuring her that she would receive FMLA leave and her job would be waiting. In the court’s view, if these allegations turn out to be true, then the employer might be estopped from refusing to grant the employee FMLA leave: “It would be fundamentally unfair to allow an employer to force an employee to begin a non-emergency medical leave less than two weeks before she would become eligible under the FMLA, assure her that she would receive leave and her job would be waiting for her when she returned, and then fire her for taking an unauthorized leave.”

FMLA notice requirement shouldn’t be a “trap” for newer employees. Even without equitable estoppel, it appeared to the court that the employee’s FMLA claims survive under the Eleventh Circuit’s ruling in Pereda v. Brookdale Senior Living Communities, Inc., which found that a loophole under which an employer can fire an employee who plans to take FMLA leave before she became eligible, would be “contrary to the basic concept of the FMLA,” including the advance notice requirements of the FMLA. Without a remedy, advance notice would be a trap for newer employees. Based on the appellate court’s reasoning, the court here refused to dismiss the employee’s FMLA interference and discrimination claims.

State-law claims fail. On the other hand, the court dismissed the employee’s intentional and negligent misrepresentation claims because, under Wisconsin law, the breach of an employment contract is not actionable in tort. Her claim against the HR rep for promissory estoppel failed because the promise at issue was continued employment and the HR rep was not the employer so there was no basis for insisting on enforcement of an employment promise against her.

By Ronald Miller, J.D.

The contract-bar doctrine cannot bar the processing of an employer’s RM petition that was filed before the contract’s effective date, ruled a four-member panel of the NLRB, in a 3-1 decision. Because the employer’s petition was filed at a time when there was no contract in effect, there was no contract to bar the petition. Accordingly, the Board was required to process the petition, giving the employees a Board-conducted election to resolve a question concerning representation. Thus, the Board granted the employer’s request for a review of a regional director’s decision to dismiss the case, and remanded the matter for further appropriate action. Member McFerran filed a dissenting opinion (Silvan Industries, a Division of SPVG, October 26, 2018).

The employer operates a manufacturing facility in Wisconsin. On October 16, 2015, the union was certified as the exclusive bargaining representative of the employer’s production and maintenance employees. After months of bargaining for an initial contract, on October 13, 2016, the parties reached a tentative agreement, subject to ratification by bargaining unit employees, effective from November 7, 2016 through November 13, 2019. On October 15, the union informed the employer that the employees had ratified the proposed contract and the parties agreed to meet in person on October 25 to execute the contract.

Employee petition opposing representation. On October 25, an employee presented the employer with a petition in which employees expressed opposition to continued representation by the union. Believing that the petition raised a good-faith reasonable doubt as to the union’s continuing majority status, the employer filed an RM petition with the Board’s regional office. Shortly thereafter, the employer signed the CBA. On December 19, the regional director dismissed the RM petition without a hearing on the ground that it was filed after the union had accepted the employer’s contract offer. Specifically, the regional director found that the employer was precluded from challenging the union’s majority status under Anciello Iron Works.

In its request for review, the employer asserted that the regional director erred in dismissing the petition. Citing the Board’s 1953 decision in National Broadcasting Co., the employer contended that the parties’ agreement could not bar an election petition filed prior to the agreement’s effective date. It also asserted that nothing in Anciello Iron Works required a different result.

Contract-bar doctrine. To promote stability in collective bargaining and labor relations, the Board, under the contract-bar doctrine, limits the circumstances under which it will process an election petition that is filed during the term of a CBA. On the other hand, delay in resolving an otherwise valid question concerning representation necessarily affects the Section 7 rights of employees who do not support continued union representation. As part of its efforts to appropriately balance these competing considerations, the Board has formulated specific requirements that must be satisfied before it will allow a CBA to bar an election. These requirements include that the CBA be in writing, signed by the parties, and specify its effective date on its face so that employees and outside unions may determine the appropriate time for filing petitions from the face of the agreement itself, without having to resort to parol evidence.

The Board has recognized that the period during which a CBA bars an election runs from its effective date. In this case, the petition was filed on October 25, and the parties’ agreement was not effective until November 7. Accordingly, the petition was timely filed and was not barred by the parties’ agreement. It did not follow from the Board’s 1962 ruling in Montgomery Ward & Co., Inc. that an employer may not file an RM petition before a CBA goes into effect. Here, the contract-bar doctrine did not warrant dismissal of the petition because no contract was in effect when the petition was filed.

No withdrawal of recognition. The Board also recognized that the RM petition here was filed at a time when the employer could not have lawfully withdrawn recognition. However, in this instance, the employer did not withdraw recognition; rather, it engaged in good-faith bargaining as required by the Act, and when it received the employee petition opposing continued union representation, it filed an appropriate petition with the Board. Thus, the standard for determining whether an employer could lawfully withdraw recognition did not apply in this case

Dissent. Member McFerran argued that the Board should not permit an employer to file an election petition challenging a union’s majority status after the employer and union have reached an initial agreement, but before the agreement’s effective date, based on new uncertainty that the union has majority support.

According to McFerran, it was the employer—not the employees or a rival union—that was seeking to challenge the union’s status. Unlike employees seeking to decertify their union, or a rival union seeking to replace it, the employer negotiated and entered into a CBA with the union at a time when its majority status remained unquestioned. The parties had thereby successfully achieved one of the NLRA’s primary goals: reaching an agreement that stabilized their relationship and governed employees’ terms and conditions of employer for the duration of the agreement. Under those circumstances, McFerran argued that it was decisive that the employer had entered into a binding agreement before filing its petition.

By Joy P. Waltemath, J.D.

Listing a teacher on a public website as “under investigation” for “immoral conduct” (required in certain circumstances under Wisconsin law) does not implicate the loss of a liberty or property interest protected by the Due Process Clause, the Seventh Circuit ruled, and thus a teacher so listed—and later removed from such a list—was not entitled to a name-clearing hearing before publication of the investigation. The majority stressed that the complaint really alleged defamation, nothing further; defamation plus some other injury, like loss of employment, might require a hearing. But the complaint didn’t claim the listing cost the teacher his job; rather, he had already voluntarily resigned and was looking for a new job when he learned of the listing. Although the majority made much of the legal tradition in criminal law that (public) notice of charges always comes well before a hearing, Judge Hamilton, concurring in the dismissal, pointed out that here, the combination of stigma and the delay (17 months under investigation when the Department of Public Instruction told him it could be a year longer before it was completed actually did present “serious due process questions even if Fritz himself is not entitled to relief under federal law” (Fritz v. Evers, October 23, 2018, Easterbrook, F.).

Resignation prompts discovery of being “under investigation.” Taking the facts from the concurring opinion, the teacher resigned from his teaching job in March 2012, learning only when he was turned down for a new teaching job later that month that he had been listed by the Department of Public Instruction as “under investigation.” Under Wisconsin Wis. Stat. § 115.31(3)(a), a school administrator must report a licensed teacher to the Department, which must designate that teacher as “under investigation” on its public website, when: (1) the teacher is charged with one of many serious crimes against children (e.g., sexual assault or child trafficking); (2) the teacher is convicted of such a crime or of fourth degree sexual assault; (3) the teacher is dismissed (or his contract nonrenewed) “based in whole or in part on evidence that the person engaged in immoral conduct;” or (4) the teacher resigns and the administrator has “a reasonable suspicion that the resignation relates to the person having engaged in immoral conduct.”

Former employer’s “reasonable suspicion.” The teacher here was neither charged nor convicted of any such crimes and had resigned from his last teaching job; consequently, the only statutory basis for reporting and him was his former employer’s “reasonable suspicion” that his resignation related to engaging in “immoral conduct.” “Immoral conduct” under the statute includes a teacher’s use of school computers for pornography, assisting child predators with obtaining school positions, or otherwise “endanger[ing] the health, safety, welfare, or education of any pupil” by violating “commonly accepted moral or ethical standards” (§ 115.31(1)(c)1).

Removed from the listing. The majority noted that the complaint was made about him in March 2012 and in August 2013 the Department told the teacher that the report about him was not supported by probable cause to believe that he had engaged in misconduct; his name was removed from the site. The concurrence pointed out, in addition, that this information was revealed only after the teacher learned, in July, from the Department that it would not complete its investigation until at least 2014, two years after the report, after which he hired a lawyer, who requested a hearing (to which he was not entitled), and the Department then made a formal finding in less than three weeks of no probable cause and removed the “under investigation” designation.

No liberty or property interest implicated. The teacher’s suit under 42 U.S.C. §1983 alleged that schools would not hire him while he was under investigation and the state should have afforded him a hearing before putting his name on the list of persons under investigation. Fatal to his claim was the fact that he sued only the superintendent in his official capacity, and §1983 does not authorize awards of damages against states, and a state official (in his official capacity) is the state, said the Seventh Circuit. Plus, defamation by a public official does not violate the Due Process Clause, yet defamation was what the complaint alleged. Had it alleged defamation plus some other injury, such as loss of employment, it might have implicated liberty or property interests, but here all that happened, in the appeals court’s view, was the state had “just provide[d] public notice of an investigation.”

No advance hearing. Finally, the Seventh Circuit dispensed with the teacher’s contention that he should have been given a hearing before public notice that a charge is under investigation. “Yet our legal tradition is notice first, hearing later,” concluded the court. “Wisconsin followed the traditional approach: it conducted an investigation to see whether a formal proceeding was warranted, and after concluding that it was not the state closed the investigation and removed the public listing. It would upset more than two centuries of practice to declare that approach a violation of the Constitution.”

Concurrence. Judge Hamilton wrote separately because of concerns about what happens with Wisconsin’s system for publicizing an investigation of a licensed teacher for “immoral conduct,” pointing out that because a state-issued professional license is at stake, the rule about no defamation by state officials did not necessarily control. In practical effect, Wisconsin’s public designation of a teacher as “under investigation” for suspected “immoral conduct” may inflict a stigma that makes a teacher unemployable until the investigation is resolved. As such, a teacher may well be entitled at least to notice of the charge being investigated and a name-clearing hearing—and within a reasonable time. Although the state claimed it was “simply implausible that anyone could reasonably infer anything of substance” from the designation that a teacher is “under investigation,” the concurring judge was not so sure.

State law requires that a report be made within 15 days after an administrator learns of the basis for the report, but after that, there is no time limit on the department to determine whether probable cause exits and whether to initiate license revocation proceedings. Plus, the department was supposed to “Notify the licensee that an investigation is proceeding, the specific allegations or complaint … and [allow] the licensee [to] respond to the investigator regarding the complaint or allegation.” Allegedly, this teacher never received this notice and was “in limbo indefinitely and did not know why.”

Wisconsin has the power to suspend a teacher’s license, which would require due process, at least notice and a timely and meaningful opportunity to be heard. Calling it “disingenuous” for the state to argue that an “under investigation” designation is not meant to affect a teacher’s status, the judge pointed out that school administrators are told to use the designation when making hiring decisions and are assured the department’s website “will indicate in red type at the top of the page if a person’s license [is] under investigation.” These state powers should include “the responsibility to be fair to teachers, too, which includes complying with state law and resolving these cases promptly,” concluded the concurrence.

The group wants to drive up turnout in cities, particularly in Michigan and Wisconsin.

By Brandi O. Brown, J.D.

In a lawsuit brought by transgender employees of the State of Wisconsin, a federal district court has granted in part their motion for summary judgment, concluding that the state employer’s actions in excluding coverage of gender reassignment procedures constituted sex discrimination under Title VII and the Affordable Care Act. The employer’s actions also failed to survive heightened scrutiny under the Equal Protection Clause. However, the court also ruled that the individual defendants enjoyed qualified immunity from damages based on violations of the Equal Protection Clause (Boyden v. Conlin, September 18, 2018, Conley, W.).

Coverage denied. The plaintiffs, both transgender women, asserted various claims for excluding gender transition care from coverage under the group health insurance plan for state employees. The women worked for the University of Wisconsin system and both were denied coverage for gender confirming surgery (GCS), in this case vaginoplasty. The Wisconsin Department of Employee Trust Funds (ETF), a statutorily created executive branch department, administers group health insurance for state employees, but the terms of the policy are set by the Wisconsin Group Insurance Board (GIB), which is an autonomous entity within ETF that sets policy and oversees administration of the insurance plans for employees and retirees. GIB made the decision to exclude gender transition-related care and ETF was bound by the decision.

In addition to those defendants, the lawsuit also named the Secretary of the ETF and other individuals involved in adopted a specific exclusion to the Uniform Benefits that excluded from coverage the “[p]rocedures, services, and supplies related to surgery and sex hormones associated with gender reassignment.” That exclusion had existed since 1994, with a language modification made in 2015, but in 2016 there was a brief period in which it appeared that the GIB would change its position and, in fact, it voted unanimously to amend the uniform benefits to remove the Exclusion, effective on the first day of 2017. However, just before the end of 2016 the GIB reconsidered that decision and voted to reinstate the Exclusion, if certain contingencies were met. The following month the ETF Secretary determined those contingencies had been satisfied and reinstated the Exclusion, effective February 1, 2017.

The estimated cost for removing the exclusion, based on expert testimony presented by the parties, would have ranged between $140,000 and $300,000 per year, which would have resulted in a per member per month health care cost of 10 cents or less, which represented less than 0.1 percent of the overall costs of medical care.

Title VII and ACA. Although the defendants challenged the employees’ theory that the coverage exclusion constituted sex discrimination, the court was not persuaded. It explained that it had recently considered a similar argument to that made by the defendants regarding a similar exclusion for Wisconsin Medicaid recipients, in Flack v. Wis. Dep’t of Health Servs., and had rejected it. As in that case, the exclusion here “denies coverage for medically necessary surgical procedures based on a patient’s natal sex” because it differentiates between a natal female born without a vagina and a natal male. The former was covered, whereas the latter was not. “As such,” the court explained, “this is a ‘straightforward case of sex discrimination.’” And no reasonable jury could credit the defendants’ argument that the exclusion was nondiscriminatory because benefits exclude coverage for all cosmetic treatments related to psychological conditions.

‘Entrenches’ beliefs. There was also no support for the comparison the defendants attempted to make between gender dysphoria and depression related to attributes such as breast size. There was also no merit to the argument that it was not discriminatory because not all transgender individuals have gender dysphoria. The Seventh Circuit already explained that “there is no requirement that every girl or every boy, be subjected to the same sex stereotyping.” The exclusion implicates sex stereotyping, the court explained, because it limits the availability of medical transitioning and, in some cases, makes it economically infeasible, therefore requiring transgender individuals to maintain the physical characteristics of their natal sex. “In other words,” the court explained, “the Exclusion entrenches the belief that transgender individuals must preserve the genitalia and other physical attributes of their natal sex over not just personal preference, but specific medical and psychological recommendations to the contrary.”

Private right of action exists. The court also explained that private rights of action are available under the ACA, noting that the statute expressly provides that enforcement mechanisms available under Title VI, Title IX, Section 504, and the Age Discrimination Act were applicable. This language indicated that Congress intended to provide a private right of action for enforcement of the ACA’s anti-discrimination provision. Moreover, the GIB and ETF were not immune under the Eleventh Amendment from liability because those entities receive federal financial assistance. It also was not possible to believe that the state would have turned down millions of dollars in federal funding to avoid funding procedures that cost no more than $300,000 per year.

Equal Protection. The standard of review applicable to sex-based classifications is a heightened one, the court explained, and to pass muster the defendants’ justification had to be “exceedingly persuasive.” However, the defendants’ purported reasons for the exclusion—the cost of providing coverage and the safety/effectiveness of GCS and hormone therapy—did not meet that standard. With regard to the costs, there appeared to be no dispute that the cost of coverage was immaterial, even under the defendants’ cost estimation, and, more importantly, the evidence in the record contradicted the defendants’ assertion that the GIB actually considered that cost in reinstating the Exclusion. Regarding the second reason—the safety and efficacy of GCS—there was little to no evidence that it was considered at the time. The evidence was also overwhelming that the actual reason for reinstating the exclusion had to do with the belief, based on the guidance of DOJ attorneys, that a Texas court’s issuance of an injunction related to the ACA absolved it of any legal obligation to provide such coverage. However, this did not create a genuine issue of material fact because the defendants expressly disavowed this justification in a motion filed with the court, arguing against being compelled to turn over the DOJ memo in question.

Relief. The court also concluded that a reasonable jury could find that the ETF Secretary was personally involved and could be held liable for the Equal Protection violation. However, GIB board members who were named individually were entitled to qualified immunity. Finally, based on its determination of liability on the employees’ Title VII and ACA claims, the court explained that they have the right to pursue equitable relief, compensatory and punitive damages, and attorneys’ fees and costs. With regard to their Equal Protection claim, they are entitled to equitable relief and attorneys’ fees. The defendants demanded, and will receive, a jury trial regarding the claims for compensatory and/or punitive damages.

The U.S. Equal Employment Opportunity Commission on Friday filed a lawsuit accusing Walmart Inc of forcing pregnant workers at a Wisconsin warehouse to go on unpaid leave and denying their requests to take on easier duties.