Businesses are constantly challenged by the ever-evolving landscape of labor and employment law, with new legislation and judicial developments occurring almost daily fueling a seemingly never-ending stream of litigation. For companies operating in multiple states, complying with this patchwork of federal, state, and local laws and developments can be daunting. Knowing these issues are a top concern for management and in-house counsel, Morrison Foerster keeps pace with this rapidly evolving landscape. MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues covering key judicial, litigation and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, such as:<ul><li>OFCCP compliance</li><li>Creating and implementing affirmative action plans</li><li>Defending OFCCP audits and onsite investigations</li><li>Conducting mock pay equity audits</li><li>Drafting and developing business ethics policies and programs</li><li>Complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act</li></ul>He is also well-versed in defending clients against claims alleging trade secret misappropriation, breach of post-employment restrictions, wage-and-hour violations, discrimination, and retaliation.Andrew routinely develops practical, proactive strategies to help employers minimize risk on various human resource matters. Andrew regularly advises clients on:<ul><li>EEO and diversity</li><li>Wage-and-hour</li><li>High-stakes employee terminations</li><li>Executive disputes</li><li>Reductions in force</li><li>Leaves of absence</li><li>Accommodations</li><li>Pay equity</li><li>Employee selection processes</li><li>Employment testing</li><li>Contingent workers </li><li>Policy development and application</li></ul>In addition, Andrew advises on a wide range of employment transactional matters, such as drafting and negotiating executive employment agreements and separations, overseeing internal investigations and audits of employment issues, and conducting employment diligence on mergers, acquisitions, and other corporate transactions.He has significant experience advising technology and other companies on protecting against the loss of trade secrets, proprietary information, and current and prospective clients. Andrew also represents employers in matters involving union avoidance, negotiating and drafting collective bargaining agreements, handling union grievances, and avoiding and defending unfair labor practice charges.<h4>Federal Contractor Experience</h4><ul><li>Defended numerous OFCCP audits, including closing audits with a finding of no violations against a major accounting firm, a language learning software provider, and a technology consulting company</li><li>Obtained complete dismissal of a significant OFCCP complaint against a large aerospace and space transport company</li><li>Performed mock SCA audits for various contractors</li><li>Led labor and employment diligence for $1 billion acquisition of international security firm</li><li>Developed and overhauled numerous affirmative action plans and EEO training programs</li><li>Analyzed subcontractor status for numerous companies to determine OFCCP coverage, including for a large semiconductor manufacturer</li><li>Conducted E-Verify and I-9 audit for a national dispute consulting contractor</li><li>Performed “single entity” analysis for one of the largest mutual life insurance companies</li><li>Conducted pay equity audits for contractors, including for a software and consulting company</li><li>Obtained DOL approval under the SCA for self-funded fringe benefit program of an aviation and space contractor</li><li>Advised a multinational package delivery company on establishing program to conduct denied party screening under lists maintained by OFAC and BIS while minimizing risk of discrimination claims and compliance with background check laws</li><li>Advised a global coffee and coffeehouse chain on establishing hiring processes to avoid discrimination claims while complying with ITAR/EAR</li><li>Developed business ethics policies and programs for a large pharmaceutical manufacturer</li></ul><h4>Other Representative Experience</h4><ul><li>Defended education association against claims by former employers of two executives alleging breach of restrictive covenants and theft of trade secrets and confidential information</li><li>Obtained preliminary injunction enforcing a noncompetition agreement and other restrictive covenants against a former senior sales executive of a technology firm</li><li>Led internal investigation of sexual harassment claims against COO of a public real estate firm</li><li>Advised a global food manufacturer in avoiding litigation while terminating employee threatening whistleblower claims based on employer’s confidential information</li><li>Defended former senior executives of a global manufacturer of performance fabrics against allegations of misappropriation of trade secrets and breach of noncompetition agreements</li><li>Advised an entrepreneur in creating startup while minimizing risk of his former employer pursuing enforcement of restrictive covenants </li><li>Assisted a property management firm in navigating internal investigation of whistleblower claims related to alleged fraud, ethics violations, and sexual harassment by senior executive</li><li>Won motion for reconsideration convincing court to grant summary judgment in gender discrimination and retaliation case against a large DC employer </li><li>Obtained terminating sanctions and attorneys’ fees and costs for discovery violations in a discrimination suit against a large utility provider </li><li>Obtained favorable arbitration decision for a software company in claims by former executive alleging breach of his employment agreement</li><li>Advised a company board in navigating termination of CEO and successfully defended CEO’s breach of contract and wage claims</li><li>Defended numerous EEOC charges, including against a national event planner, a multinational professional services company, and an operator of research and development centers for the government</li><li>Defended and settled over 30 unfair labor practice charges against a national call center operator</li><li>Negotiated new collective bargaining agreements with four separate unions in bankruptcy of an international maritime shipping company</li><li>Awarded pro bono achievement award for defending a non profit in litigation and several administrative audits before the EEOC and state agencies related to a former employee’s whistleblower and discrimination claims, including defending multiple onsite investigations</li><li>Oversaw validation of pre-employment tests for a national food service distributor</li></ul>Prior to joining MoFo, Andrew was a human resources manager for an Inc. 500 company, ranked as one of the fastest-growing private companies in the United States.Andrew is a member of the steering committee and actively involved in the Washington Metro Industry Liaison Group. He is also a member of the firm’s global Environmental, Social, and Governance (ESG) steering committee.<h4>Rankings</h4><ul><li>Recommended for Government Contracts – Legal 500 US 2019 </li></ul>

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Co-Chair, Global Employment and Labor Practice

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Andrew Turnbull represents companies on a broad range of labor and employment litigation and counseling matters. He has successfully defended clients in complex employment litigation before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, including advising on all aspects of OFCCP compliance, creating and implementing affirmative action plans, defending OFCCP audits and onsite investigations, conducting mock pay equity audits, drafting and developing business ethics policies and programs, and complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act.

Andrew Turnbull

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MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues, covering key judicial, litigation, and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits. To learn more about our capabilities, please visit the <a href="https://www.mofo.com/capabilities/employment-labor" target="_blank">Employment + Labor</a> practice page and read about our <a href="https://www.mofo.com/people?practices=Employment%20%2B%20Labor" target="_blank">Team</a>.

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In the midst of Pride month, the Supreme Court of the United States has issued a landmark civil rights decision, holding that Title VII prohibits employers from

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Protecting Pride: Supreme Court Holds Title VII Prohibits Workplace Discrimination on the Basis of Sexual Orientation and Gender Identity

Protecting Pride: Supreme Court Holds Title VII Prohibits Workplace Discrimination on the Basis of Sexual Orientation and Gender Identity | Employment Law Commentary

Protecting Pride: Supreme Court Holds Title VII Prohibits Workplace Discrimination on the Basis of Sexual Orientation and Gender Identity | MoFo ELC | Latest Employment Law Developments and Commentary

Andrew R. Turnbull

In the midst of Pride month, the Supreme Court of the United States has issued a landmark civil rights decision, holding that Title VII prohibits employers from discriminating on the basis of sexual orientation and gender identity. Writing for a six-Justice majority in Bostock v. Clayton County, Justice Neil Gorsuch explained that an employer who fires an individual for being gay or transgender “fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”[1] The Court’s opinion resolves inconsistent interpretations of Title VII in courts across the country. And the Court’s reading of Title VII provides anti-discrimination protection to many LGBT workers in states and cities that had not yet promulgated such protections.<h3>Background</h3>Until recently, courts had unanimously read “because of … sex” in Title VII as not prohibiting discrimination on the basis of sexual orientation and gender identity. Although many states and local governments have expanded their anti-discrimination laws to extend workplace protections to sexual orientation and gender identity, many have not. LGBT employees in those jurisdictions have been stuck in a reality where, as one court put it, an employee could theoretically “be married on Saturday and then fired on Monday for just that act.”[2]Despite several U.S. Supreme Court decisions laying the groundwork for extending Title VII’s protections to LGBT employees, the Supreme Court had not previously addressed whether the federal statute covered sexual orientation or gender identity. In the absence of Supreme Court guidance, a split resulted in the federal circuits, with several courts of appeals recognizing that Title VII’s prohibition against “sex” discrimination prohibited discrimination on the basis of sexual orientation and gender identity, while others continued to hold it did not. To resolve this circuit conflict, the Supreme Court granted review in three cases. The first, Bostock v. Clayton County, involved a man who was fired for being gay after his employer, the Child Welfare Services Coordinator for the Clayton County Juvenile Court System in Georgia, found out about his participation in a gay recreational softball league.[3] The second, R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C., involved a funeral home worker who presented as a male when hired but was fired six years later when she announced her intention to live as a woman.[4] The third, Altitude Express, Inc. v. Zarda, involved a skydiving instructor who, after several seasons with his employer, was fired within days of revealing that he was gay.[5]<h3>The Court's Decision</h3>Writing for the Court, Justice Gorsuch (joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) assumed, as the employers argued, that the word “sex” in Title VII referred to the biological distinctions between male and female. But that, the Court said, was “just a starting point”: “The question isn’t just what ‘sex’ meant, but what Title VII says about it.”[6] Title VII prohibits an employer from firing an individual based in part on the employee’s sex. And, the Court reasoned, “it is impossible” to discriminate against a person for being gay or transgender without taking the employee’s sex into account.[7] The Court thus concluded that an employer that discriminates against an employee for being gay or transgender “inescapably intends to rely on sex in its decision-making.”[8]Justice Gorsuch offered several examples to illustrate how decisions based on those characteristics were inextricably tied to sex. In one, he imagined an employer with a policy of firing any employee known to be gay. If an employee comes to an office party with their wife, whether they will be fired hinges entirely on the sex of the employee. So, explained Justice Gorsuch, even if the employer’s “ultimate goal” was to discriminate on the basis of sexual orientation, it must, “along the way, intentionally treat an employee worse based in part on that individual’s sex.”[9]That was so, the Court held, even if the employer (or the employee) would describe the termination as being based on sexual orientation or transgender status. The Court explained that liability under Title VII does not turn on how one might label an employer’s action. Pointing to its past decisions, the Court noted that an employer’s rule requiring women to pay more into a pension fund than men could not be saved by calling it a “life expectancy” adjustment, nor could a policy against hiring mothers (but not fathers) of young children be defended as one based on “motherhood.”[10]The Court also held that sex need not be the sole or primary cause of the adverse employment action. Whether another factor is at play—even if it played a more important role—has no significance to the question of whether Title VII liability attaches.Finally, the Court rejected the notion that an employer could escape liability by treating all male and female gay and transgender employees equally. Because Title VII prohibits treating an “individual” differently because of their sex, Justice Gorsuch explained that an employer that fires both a man and a woman for being gay or transgender “doubles rather than eliminates Title VII liability.”[11]Justice Samuel Alito (joined by Justice Clarence Thomas) and Justice Brett Kavanaugh filed separate dissents. Both dissents accused the Court of legislating, reading into Title VII protections not included in the text as understood when passed in 1964. Although Justice Gorsuch, writing for the Court, acknowledged that the drafters of Title VII likely did not anticipate the Court’s result, the broad language they chose—“because of … sex”—required it: “When the express terms of a statute give us one answer and extratextual considerations suggest another,” he wrote, “it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”[12]<h3>Practical Implications</h3>Under the Court’s decision, that benefit is now available to nearly all LGBT employees in the United States.[13] The decision brings federal law in line with the numerous states and localities that already protect sexual orientation and gender identity. Most of these laws cover small employers that are not subject to Title VII. Many companies already have policies and practices prohibiting discrimination against LGBT individuals; indeed, hundreds of companies joined amicus briefs in the Supreme Court supporting the employees’ position. But employers should continue to review their policies and practices to ensure against discrimination on the basis of sexual orientation and gender identity.The Court’s decision left open several issues. The Court did not address how doctrines protecting religious liberty might interact with Title VII’s protections. Nor did it decide whether employer sex-specific restroom or changing facility policies would violate that law. Both questions were for future cases. The meaning of other federal statutes that prohibit discrimination because of sex likewise remains unresolved. Justice Alito’s dissent predicted that the Court’s decision is “virtually certain to have far-reaching consequences.”[14] He attached an appendix listing dozens of laws that may be affected, including Title IX, the Fair Housing Act, and the Equal Credit Opportunity Act. Companies with activities potentially affected by these open questions should review their practices with an eye on whether changes are warranted in light of the Court’s decision. <a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref1">[1]</a> Bostock v. Clayton County, Georgia¸ 590 U.S. ___, slip op. at 2 (2020).<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref2">[2]</a> Hively v. Ivy Tech Community College, 853 F.3d 339, 342 (7th Cir. 2017).<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref3">[3]</a> Bostock v. Clayton Cnty, 2017 WL 4456898 (N.D. Ga. 2017); affirmed Bostock v. Clayton Cnty. Bd. of Commissioners, 723 <a href="https://en.wikipedia.org/wiki/F._App%27x" title="F. App'x">F. App'x</a> 964 (<a href="https://en.wikipedia.org/wiki/11th_Cir.">11th Cir.</a> 2018).<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref4">[4]</a> Equal Employment Opportunity Comm'n v. R.G. & G.R. Harris Funeral Homes Inc., 100 <a href="https://en.wikipedia.org/wiki/F._Supp._3d" title="F. Supp. 3d">F. Supp. 3d</a> <a href="https://www.leagle.com/decision/infdco20150424e00">594</a> (<a href="https://en.wikipedia.org/wiki/E.D._Mich." title="E.D. Mich.">E.D. Mich.</a> 2015); summary judgment granted, 201 F. Supp. 3d <a href="https://www.leagle.com/decision/infdco20160819951">837</a> (E.D. Mich. 2016); reversed, 884 F.3d <a href="https://www.leagle.com/decision/infco20180307120">560</a> (<a href="https://en.wikipedia.org/wiki/6th_Cir." title="6th Cir.">6th Cir.</a> 2018).<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref5">[5]</a> Zarda v. Altitude Express, Inc., No. 2:10-cv-04334 (<a href="https://en.wikipedia.org/wiki/E.D.N.Y." title="E.D.N.Y.">E.D.N.Y.</a> 2014); affirmed, 855 <a href="https://en.wikipedia.org/wiki/F.3d" title="F.3d">F.3d</a> <a href="https://www.leagle.com/decision/infco20170418090">76</a> (<a href="https://en.wikipedia.org/wiki/2d_Cir." title="2d Cir.">2d Cir.</a> 2017); reversed on rehearing <a href="https://en.wikipedia.org/wiki/En_banc" title="En banc">en banc</a>, 883 <a href="https://en.wikipedia.org/wiki/F.3d" title="F.3d">F.3d</a> <a href="https://www.leagle.com/decision/infco20180226048">100</a> (2d Cir. 2018).<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref6">[6]</a> Bostock at slip op. at 5 (2020).<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref7">[7]</a> Id. at 9.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref8">[8]</a> Id. at 11.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref9">[9]</a> Id. at slip op. at 11.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref10">[10]</a> Id. at slip op. at 14.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref11">[11]</a> Id. at slip op. at 12.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref12">[12]</a> Id. at slip op. at 2.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref13">[13]</a> 42 U.S. Code § 2000e(b). Note: “Title VII covers employers with 15 or more employees.”<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref14">[14]</a> Bostock at slip op. at 44 (Alito, J., dissenting).

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