Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the bases of race, color, national origin, religion, and sex. Federal circuits are currently split on whether discrimination based on sexual orientation falls within the scope of discrimination based on sex (and therefore within the scope of Title VII’s prohibition). On February 26, 2018, the en banc Second Circuit Court of Appeals found in Zarda v. Altitude Express that Title VII’s prohibition of discrimination based on sex does in fact cover discrimination based on sexual orientation, overturning its own precedent holding from almost twenty years prior. This result signals increased viability for challenges advocating a broader interpretation of Title VII to remedy sexual orientation discrimination, as well as a potential pushback by the Jeff Sessions-helmed Justice Department as these challenges arise.

Zarda involved a skydiving instructor (Zarda) who alleged that his employer (Altitude Express) fired him in response to a customer telling them of his sexual orientation. The U.S. District Court for the Eastern District of New York granted summary judgment in favor of Altitude Express on Zarda’s claim, finding that Title VII failed to cover sexual orientation discrimination, and that Zarda failed to establish the type of gender-stereotyping claim covered by the act. The District Court considered itself bound by the Second Circuit’s 17-year-old decision in Simonton v. Runyon, and held that, absent an en banc review by the Second Circuit reversing Simonton, Second Circuit precedent required dismissal. Zarda appealed the summary judgment to the Second Circuit, which granted an en banc review. Writing the majority opinion, Judge Robert Katzmann wrote in the majority opinion that sexual orientation discrimination necessarily involves sex discrimination, as it means discrimination against someone based on their own sex in relation to the sex of those to whom they are sexually attracted. Katzmann noted that although Congress had not sought to address sexual orientation discrimination in Title VII, laws like Title VII “often go beyond the principal evil to cover reasonably comparable evils,” which in this case included sexual orientation discrimination. The Second Circuit thus reversed Simonson, vacated the summary judgment, and remanded the Title VII claim to the District Court.

By allowing such a claim to proceed under Title VII, the Second Circuit joined the Seventh Circuit, which found last April that Title VII covers sexual orientation discrimination in its decision in Hively v. Ivy Tech Community College of Indiana. Hively concerned an adjunct professor who alleged that her employer passed her up for full employment because she was openly gay. Hively argued that she faced discriminated for failing to conform to female stereotypes, and because she publicly identified as a lesbian. The Seventh Circuit reversed and remanded the summary judgment in favor of her employer. It found that “discrimination on the basis of sexual orientation is a form of sex discrimination” and that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth
Continue Reading Developments in Sexual Orientation Discrimination Claims under Title VII

In a recent decision, the Rhode Island Supreme Court ruled that when an arbitration award exceeds the insurance policy limits, the Superior Court cannot consider the policy limits, or the insurance policy itself, in a motion to modify the award, unless the insurance company asserted a policy limit defense at the arbitration and provided a copy of the policy to the arbitrator.

In Lemerise v. Commerce Ins. Co., the Rhode Island Supreme Court held that trial courts may not supplement the review of a motion to modify an arbitration award pursuant to R.I. General Laws Section 10-3-14 with testimony, other evidence, and even arguments, if those items were not raised during the arbitration.  137 A.3d 692 (R.I. 2016).  This new precedent provides instructions to the trial court when reviewing motions to modify arbitration awards.  Courts are now forbidden to review evidence and arguments that were not presented or raised during the arbitration proceedings, and have been instructed to confirm arbitration awards unless the narrow exceptions outlined in Section 10-3-14 apply.

 

The underlying matter in Lemerise involved a dispute between the plaintiff, Joseph Lemerise, and the defendant, the Commerce Insurance Company.  In August 2011, Mr. Lemerise was struck by an uninsured motorist while crossing a street in Newport, Rhode Island.  Lemerise, 137 A.3d at 697.  Following the accident, Mr. Lemerise filed a claim for coverage under his automobile insurance policy through Commerce.  Id.  The parties unsuccessfully attempted to negotiate appropriate compensation for Mr. Lemerise’s injuries and a suit was subsequently filed in the Newport County Superior Court.  Id.  After filing the suit, the parties agreed to participate in arbitration pursuant to the terms of Mr. Lemerise’s uninsured motorist policy.  Id. at 705.  The arbitrator sought to determine the extent of Mr. Lemerise’s injuries and award sufficient compensation.  Id. at 698.  The arbitrator assessed Mr. Lemerise’s injuries at $150,000 and added prejudgment interest of $47,550, which brought the total award to $197,550.  Id. This total was well above the policy limit of $100,000.  Id.

At the conclusion of the arbitration, Mr. Lemerise moved in the superior court to confirm the arbitration award, and Commerce filed a motion seeking modification.  Id. at 698.  While reviewing the motions, the superior court supplemented its review of the issues at hand with a copy of Mr. Lemerise’s insurance policy, as well as testimony from the arbitrator.  Id.  The superior court justice granted Commerce’s motion to modify the award to conform with the insurance policy limit of $100,000.  Id. at 699.  The justice stated that he would not “allow [Mr. Lemerise] to take advantage of some technicality to get more than he bargained for in this case.”  Id.  Mr. Lemerise appealed to the Rhode Island Supreme Court, seeking a reversal of the superior court’s holding and a confirmation of the initial arbitration award.  Id.

The sole issue presented before the Supreme Court was whether the trial justice erred in granting the motion to modify the award, when, after supplementing the
Continue Reading Rhode Island Supreme Court Redefines Requirements for Modifying an Arbitration Award that Exceeds Insurance Policy Limits

This article is Part Five of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series. See Parts OneTwoThree and Four for reference.

A federal court in Connecticut has continued the recent trend of New England courts recognizing a cause of action under state law for patient-employees who are allegedly discriminated against due to their status as qualifying medical marijuana patients.  In Noffsinger v. SSC Niantic Operating Co. LLC, No. 3:16-CV-01938(JAM), 2017 WL 3401260 (D. Conn. Aug. 8, 2017), the United States District Court for the District of Connecticut denied a motion to dismiss state law claims by an individual whose job offer was rescinded as a result of her testing positive for marijuana.  Connecticut enacted a medical marijuana act in 2012—the Palliative Use of Marijuana Act (“PUMA”), which allows the use of medical marijuana by “qualifying patients” with certain debilitating conditions and expressly prohibits discrimination against qualifying patients by schools, landlords and employers.  See Conn. Gen. Stat. § 21-a-408p(b).

Plaintiff Katelin Noffsinger was diagnosed with post-traumatic stress disorder in 2012 and became a qualifying patient under PUMA in 2015.  Thereafter, she was recruited for and offered the position of director of recreational therapy at a nursing facility in Connecticut in 2016, and immediately accepted the offer.

Prior to starting her employment, Ms. Noffsinger was advised that she would need to take a pre-employment drug test.  She informed a representative of the defendant employer that she suffered from PTSD and was prescribed medical marijuana as a qualifying patient pursuant to PUMA, and provided her employer with a urine sample for the drug test.  Plaintiff further advised that she only consumed a capsule of synthetic form of marijuana, Marinol, in the evening prior to bed, and that she would never be under its influence in the workplace.  The day before Plaintiff expected to start work, she was informed that the offer was rescinded based on the fact that she tested positive for the use of marijuana.

Plaintiff filed suit alleging three counts; namely, a violation of PUMA’s anti-discrimination provision; wrongful rescission of a job offer in violation of public policy; and negligent infliction of emotional distress.  The employer removed the matter to Federal court.  The employer’s main defense was that PUMA was preempted by federal statute; to wit, the Controlled Substances Act (“CSA”), the Americans with Disabilities Act (“ADA”), and the Food, Drug, and Cosmetic Act (“FDCA”).

The Court first addressed the employer’s preemption argument and its underpinnings in the Supremacy Clause of the U.S. Constitution.  The Court discussed four potential bases for federal preemption by Congress: (1) express preemption; (2) preemption where Congress has manifested an intent to occupy the bounds of a particular regulatory field (“field preemption”); (3) preemption of state law that stands as an obstacle to the objectives of federal law (“obstacle preemption”); and (4) preemption where compliance with both the federal and state law is impossible (“conflict preemption”).  The
Continue Reading U.S. District Court for the District of CT Determines that Connecticut’s Medical Marijuana Law Protects Qualifying Patients from Workplace Discrimination

This article is Part Three of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series.

A few months before the Barbuto opinion, see Parts 1 and 2, a Rhode Island court issued a summary judgment ruling making it easier for employees to claim employment discrimination resulting from their status as qualifying medical marijuana patients.  See Callaghan v. Darlington Fabrics Corp., 2017 WL 2321181 (R.I. Super. May 23, 2017).  Judge Licht of the Rhode Island Superior Court issued an opinion in which he discussed the intent of Rhode Island’s General Assembly in enacting the Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act, G.L. 1956 §§ 21-28.6-1 et seq. (the “Hawkins-Slater Act” or “RIMMA”).  Plaintiff Christine Callaghan alleged that because she held a medical marijuana card, Defendants Darlington Fabrics Corporation (“Darlington”) and the Moore Company (collectively, “Defendants”) had discriminated against her with respect to hiring for an internship position.  See id. at 1.

The material facts forming the foundation of Ms. Callaghan’s claims were not disputed by the parties.  Plaintiff needed to complete an internship to fulfill the requirements of her Master’s program at the University of Rhode Island.  Id.  Ms. Callaghan’s professor directed her to Darlington, a division of Moore Company, where Plaintiff met with Darlington’s Human Resources Coordinator, Karen McGrath, on June 30, 2014.  Id.  After Plaintiff was required to sign a Fitness for Duty Statement, which acknowledged that she would have to take a drug test before being hired, Plaintiff advised Ms. McGrath that she held a medical marijuana card authorized by the RIMMA.  Id.

During a conference call on July 2, 2014, Ms. McGrath and a colleague asked Plaintiff whether she was currently using medical marijuana.  Plaintiff responded affirmatively, explained that she would test positive for marijuana, and informed Darlington’s employees that she was allergic to other pain medications and would neither use nor bring medical marijuana with her into the workplace.  Plaintiff did not receive an internship.

Plaintiff then filed a three-count complaint on November 12, 2014. Count I sought a declaration that the “failure to hire a prospective employee based on his or her status as a medical marijuana card holder and user is a violation of the” Hawkins-Slater Act.  See id. at 2 Counts II and III sought damages: Count II alleged Defendants’ conduct violated the Rhode Island Civil Rights Act (RICRA), G.L. 1956 §§ 42-112-1 et seq.; and Count III alleged violations of the Hawkins-Slater Act due to employment discrimination.  See id.   Defendant moved for summary judgment on all three counts under Superior Court Rules of Civil Procedure 56.  Plaintiff filed a cross-motion for summary judgment on Counts I and III, and otherwise opposed Defendants’ motion on Count II.  See id. at 1.

The Court first endeavored to determine whether § 21-28.6-4(d) of the RIMMA, which provides that “No school, employer, or landlord may refuse to enroll, employ,
Continue Reading RI Superior Court Finds Implied Private Cause of Action Within the State’s Medical Marijuana Law for Adverse Action Taken Against Qualifying Patients & Recognizes that the RICRA Provides Similar Protections for Qualifying Patients Faced with Workplace Discrimination

Plaintiff’s attempt to preclude testimony of expert witness in asbestos related products liability litigation meets impasse—court refuses to circumscribe competent experts to narrowly defined fields or specific licensure.

On Friday, June 9, 2017, Presiding Justice Alice Gibney of the Rhode Island Superior Court, Providence County, issued a decision denying a plaintiff’s motion to preclude the expert testimony of Dr. Michael Graham, proffered by the Defendant Crane Co., in an asbestos-related products liability action.

Plaintiff argued that Dr. Graham was not qualified to provide expert testimony regarding causation of asbestos-related diseases and sought to preclude his testimony, pursuant to Rhode Island Rule of Evidence 702, which provides that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine ac fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of fact or opinion.

Defendant objected and maintained that the Court should allow Dr. Graham’s testimony as he was an experienced and qualified pathologist.  In the alternative, Defendant requested that any ruling on Plaintiff’s Motion be reserved until Dr. Graham had the opportunity to present his qualifications to the Court.

Plaintiff argued that Dr. Graham’s background as an expert pathologist, expert medical examiner, and expert at determining cause of death did not render him an expert in causation in connection with asbestos-related diseases.  Plaintiff noted that Dr. Graham’s professional publications were almost completely devoid of reference to asbestos and discussion of mesothelioma.  As a result of this alleged deficiency, Plaintiff contended that the testimony was not relevant and that it would be of no assistance to a jury.  Plaintiff urged the Court to circumscribe that limits of permissible expert testimony in a manner analogous to medical malpractice litigation—narrowing competent experts to those with specialized qualifications in narrowly defined fields.

Defendant countered by asserting that Dr. Graham was a board certified pathologist, had studied asbestos-related diseases for over thirty years and had the opportunity to review over 1000 case of asbestos-related diseases throughout his career.  Defendant also emphasized that Dr. Graham testified in more than 750 cases within the United States and specifically reviewed the Plaintiff’s pathology in forming his opinions in the case.

In reaching its decision, the Superior Court reaffirmed that “before admitting expert testimony, the trial justice must evaluate whether the testimony that a party seeks to present to the jury is relevant, within the witnesses’ expertise, and based on an adequate factual foundation.”  (Internal citation and quotation omitted).   The Court explained that it would evaluate the expert’s qualifications by reviewing his education, training, employment and experiences.  Thereafter, the Court would endeavor to determine whether the expert would present scientific, technical, or other specialized knowledge that would assist the trier of fact.

Justice Gibney quoted to the Rhode Island Supreme Court’s Opinion in Raimbeault v. Takeuchi Mfg. U.S., Ltd., 772 A.2d 1056, 1061 (R.I. 2001) with approval for the proposition that an expert witness “need not
Continue Reading Rhode Island Superior Court Denies Plaintiff’s Motion to Preclude Expert Testimony in Products Liability Action