By: Eva Zelson
On: July 30, 2021
What Trends in Employment Law have Emerged in the First Half of 2021?
To many observers, there are three key trends in employment law that have emerged in the beginning of 2021:
- A landmark Supreme Court ruling in the Bostock v. Clayton County case has created new questions in employment law. In short, the ruling created workplace protection laws for LGBTQ employees, many of which have been further elaborated upon by lower courts. For example, an Illinois court found that a woman was discriminated against for not providing her with insurance for her spouse (also a woman), when man-and-woman marriages were given coverage. Following the Bostock case, we can anticipate more courts to explore the bounds of employment protections for LGBTQ employees.
- Another employment law trend that has been noticed is Courts’ willingness to consider special accommodations in certain cases. Following the Supreme Court’s 2015 ruling in Young v. UPS, courts have reviewed a variety of different accommodations, such as debating whether pregnancy should have similar protections as disabled employees, and the place of religious freedom inside the workplace and its impact. These cases have become even more popular in 2020 and 2021.
- Lastly, the current political climate has continued to encourage Courts to address instances of racial harassment and discrimination in the workplace. For example, this last year, the 2nd Circuit Court presided over a case in which two Black plaintiffs alleged that their offers for employment were revoked when their employer learned of a past criminal record, and they pointed to evidence of how Black men are arrested at higher rates than White men. Courts also heard employment law cases debating the use of political statements and items in the workplace that could constitute racial discrimination or harassment, pointing towards more cases of this nature in the future.
What is the Bostock Decision and How has it Been Interpreted in 2021?
The Bostock v. Clayton County decision was a Supreme Court Case in which the plaintiff (Gerald Bostock) was terminated from employment at his place of work after he discussed the possibility of a gay softball league at his work. In a 6-3 ruling, the Court decided that discrimination based on sexual orientation or gender identity is still discrimination and ruled that Title VII laws should still apply. Since that ruling, the Bostock case has been applied to a variety of employment law cases involving discrimination, mostly based on sexual orientation and gender identity. Bostock has also been applied to instances of gender stereotyping or misgendering, and that any instances of discrimination that are clearly based on those factors are in violation of Title VII protections.
What is New in How the Courts Have Addressed Employee Accommodations?
The biggest trend in employment law concerning accommodations is that courts are finding that employers must treat pregnant employees in the same manner that they are required to accommodate employees with disabilities. For the first time, we are seeing a shift in courts to grant protections for women who have difficult pregnancies or other medical issues during their pregnancies. Courts are also beginning to explore the applicability of religious accommodations as well. For example, the 7th Circuit Court rejected an argument by the EEOC that a manager for a Walmart could reasonably ask for Friday nights and Saturdays off to accommodate his religious preferences because it would have had a high burden on the store’s ability to function.
What Types of Racial Discrimination and Harassment Cases were Heard in Early 2021?
There are several cases that we are keeping a close eye on for 2021 for new employment law trends. For example, in one case, a Black nurse alleged that her workplace was a racially hostile work environment after one of her coworkers identified herself as a ‘redneck’ and told the plaintiff that she flew a Confederate flag at her private residence. The District Court held that, while sharing Confederate items at work would be racial discrimination, merely discussing items at home does not meet that threshold. The plaintiff has appealed this decision to the 11th Circuit and it is set to be argued this year.
What Cases have gone to Court Regarding Covid-19?
According to the Fisher Phillips COVID-19 Employment Litigation Tracker, there have been more than 1,400 different COVID-19 related cases that have worked their way into the Court system. Some employment law attorneys say that many of these cases relate to workplace safety violations by an employer. In many of these cases, workers were retaliated against for making complaints or whistleblowing, indicating a violation of worker protections and wrongful termination. Furthermore, we are also seeing an increase in discrimination claims for employees who were furloughed or had cut hours because of legally protected reasons under the guise of COVID-related needs.
What Employment Law Trends Should We Watch in the Second Half of 2021?
As we move into the second half of 2021, we should keep an eye on the trends already mentioned, as they are sure to develop further. Additionally, as employers and workers begin to return to traditional workplace environments following COVID-19, there will surely be continued trends revolving around transitioning employees back to the workplace and safety issues regarding coronavirus. If you have any questions regarding your employer’s requirements as you transition back to the office after more than a year of working from home, contact the employment law attorneys at the Zeff Law Firm to discuss your case.