Blog Archives

Title VII
Got Questions About Medical Marijuana?

These past few months, I’ve been getting a lot of questions about medical marijuana.  And no, the questions haven’t been about how to get medical marijuana!  Rather, companies and the media have been asking me various questions about the rights of businesses when it comes to medical marijuana usage, either by employees or even customers.  It appears these questions have become more and more common because medical marijuana dispensaries will be opening shortly here in Hawaii.


Recently, the Kokua Line – a column for the Star Advertiser – wrote a couple of brief articles addressing some of the questions that are commonly raised by businesses.  You can read the articles on the following links:

There were also several bills relating to medical marijuana moving through this year’s legislative session.  Only one bill is still alive, however, and that measure would expand the reasons for which an individual could qualify for a medical marijuana card.  Under current law, an individual qualifies for medical marijuana usage if s/he has a “debilitating condition” – which currently includes cancer, glaucoma, HIV, AIDs, or a chronic or debilitating disease or condition that involves cachexia, severe pain, severe nausea, seizures, severe and persistent muscle spasms, or PTSD.

For further information about Hawaii’s medical marijuana laws, you can read the applicable statutes here:  HRS Chapter 329.

U.S. Supreme Court Addressing Burden of Proof for Title VII Retaliation Claims

The Supreme Court of the United States recently heard oral arguments in a case called University of Texas Southwestern Medical Center v. Nassar, which will resolve the following issue:

Whether Title VII’s retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation (i.e. that an employer would not have taken an adverse impact action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e. that an improper motive was one of multiple reasons for the employment action.)

For the non-lawyers, the “but-for” standard carries a higher burden of proof than the “mixed motive” standard.  The Supreme Court’s decision will resolve a split between different federal circuits.  Specifically, the First, Sixth and Eleventh circuits have adopted the higher “but-for” standard, and the Fifth and Eleventh circuits have adopted the mixed-motive standard.

Although this case might seem to address a technical issue that only lawyers would care about, the result of this case is also important to employers – because (a) it may affect how employers make employment decisions (in order to avoid lawsuits) and (b) it will also affect how employers decide to defend against Title VII retaliation lawsuits.

You can read the transcript from the oral arguments here:  Transcript of Oral Arguments.  You can also listen to an audio version of the oral arguments on the website here:  Audio Recording of Oral Arguments.

U.S. Supreme Court Hears Oral Arguments In Two Employment Law Cases

The 2012-2013 term of the United States Supreme Court is currently in session, and the High Court recently heard oral arguments for two cases involving employment law issues.

The first case, Vance v. Ball State University, deals with the issue of what type of authority must an employee possess to constitute a “supervisor” for purposes of imposing strict liability on an employer for the actions of its supervisors, under Title VII of the Civil Rights Act of 1964.  The specific question in this case is whether an employer is strictly liable under Title VII for harassment by (a) employees who have authority to oversee and direct the work of the alleged victim, or (b) only those who have the authority to “hire, fire, demote, promote, transfer, or discipline” the alleged victim.

This issue is significant, because of the landmark cases of Faragher v. City of Boca Raton and Burlington Industries, Inv. v. Ellerth, where the Supreme Court ruled that an employer is vicariously liable for severe or pervasive workplace harassment committed by a supervisor of the victim.

Currently, the different federal circuit are split on this issue.  The Second, Fourth, Ninth and Tenth Circuits have adopted a broader approach, and ruled that strict liability under Title VII extends to employees who have the authority to direct and oversee their victim’s daily work.  Additionally, the EEOC Guidelines also set forth a broader definition of “supervisor” as somebody who has the authority to direct employees’ daily work activities.  On the other hand, the First, Third, Sixth, Seventh, and Eighth Circuits have adopted a narrower approach, and ruled that strict liability applies only for supervisors who have authority to “hire, fire, demote, promoted, transfer, or discipline” the alleged victim.

The Supreme Court heard oral arguments for this case on November 26, 2012.

The second case, Genesis Health Care Corp. v. Symczyk, deals with the issue of whether a collective action under the Fair Labor Standards Act (“FLSA”) becomes moot when the lone plaintiff receives an offer of judgment from the employer that fully satisfies the FLSA claim.

In this case, the Third Circuit Court of Appeals ruled that the employer’s offer of judgment did not render moot a plaintiff’s claim under the FLSA.  The court reasoned that it did not want to enable employers to “pick off” individually-named plaintiffs in order to avoid FLSA collective action claims.

The Supreme Court heard oral arguments for this case on December 3, 2012.

Supreme Court Denies Class Certification In Wal-Mart Case

In a split decision issued earlier today, the United States Supreme Court reversed an earlier decision by the Ninth Circuit Court of Appeals, and ruled that a group of 1.5 million female employees at Wal-Mart could not be certified as a class action lawsuit.

In reaching this decision, the high Court noted that the 1.5 million female employees needed to show they had common “questions of law or fact.”  On this issue, the Court explained that the lawsuit attempted to sue Wal-Mart for millions of employment decisions in the same lawsuit.  Without some “glue” holding together the allegedly discriminatory reasons for those decisions, however, it would be impossible to say that examination of all the class members’ claims would produce a common answer to the crucial discrimination question.

The Court also noted that, in a company of Wal-Mart’s size and geographical scope, it is unlikely that all managers would exercise their discretion in a common way, without some common direction from the company.  In this instance, the employees’ attempt to show such common direction through the use of statistical and anecdotal evidence “falls way short.”

The high Court also ruled that the plaintiff’s backpay claims were also improperly certified as a class action.

You can read a copy of the Court’s decision here.  You can already read the transcript from the oral arguments for this case here and the Ninth Circuit’s earlier decision here.