Synopsis: Black Lives Matter

Editor’s comment: I/We at KCB&A understand and agree with this concept. We join with lots of others across our country and the world to fight systemic racism. I want to confirm for my readers racism can’t be ignored but it isn’t a science and is one of the dopiest and most pointless things the human race has ever engaged in. I recoil to be asked my “race” in applications and anywhere. I assure all of you the goofy term “Caucasian” has nothing to do with the even goofier term “white.” If you want that analysis, send a reply.

One thought I have I call “Floyd’s Law.” I feel Federal, State and local governments should

Note Police officers almost always work in groups;
The groups should all be responsible and responsive if one of their group initiates and/or uses deadly force at any time;
Federal, State and local governments should enact a rule/law that a police officer cannot be indifferent to the inappropriate use of deadly force in their presence—they have to take steps to warn other reporting officers and block them to the best of their ability from the inappropriate use of deadly force or face termination and prosecution themselves.

I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Title VII’s Plain Meaning of “Sex” Encompasses Sexual Orientation and Transgender Discrimination. Time to revisit those handbooks in some States! Analysis by Bradley J. Smith, J.D.

Editor's Comment: In Bostock v. Clay County, Georgia, the U.S. Supreme Court (SCOTUS), issued a landmark decision holding that Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace based on employees’ sexual orientation or gender identity. SCOTUS considered “whether an employer can fire someone simply for being homosexual or transgender” without violating federal law. And its determination was memorable. Writing for the majority, Justice Gorsuch found that this type of discrimination violates Title VII. He was joined in his majority decision by Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan. Justices Alito, Thomas, and Kavanaugh all dissented. The central dispute between the justices was whether textualism was applied in the reasoning or some form of “judge supplementation” of a statute.

Nonetheless, despite the argument between the justices, Bostock resolved the recent split among the federal appellate courts as to whether Title VII’s prohibition against “sex” discrimination encompasses sexual orientation or gender identity. This split in the federal appeals courts can be traced back to the Seventh Circuit opinion in the decision Hively v. Ivy Tech Community College of Ind.

Hively was a recent decision. And it was a doozy. Not in the ultimate holding, but the reasoning appeared all over the place and not well grounded in the legal assessment that should have been applied. Instead, the justices in that case appeared to more blatantly apply “judge supplemented” legislation. In fact, Justice Posner went so far to ask that everyone call it out for what it really is: judicial interpretive updating. Ultimately, the court—with arguably different reasoning than Bostock—determined that discrimination based on sexual orientation is discrimination based on sex under Title VII.

Differing slightly in the reasoning, the Bostock court looked at the language at the time Title VII was enacted in 1964. In doing so, the court recognized that Congress may not have anticipated that the Supreme Court might one day interpret the law to prohibit discrimination because an employee is gay or transgender. The majority opinion determined that the drafters’ intentions are no substitute for the plain language of the statute. Accordingly, the majority determined that there is “no contest” that Title VII’s prohibition against discrimination based on sex encompasses sexual orientation and gender identity.

And it determined this by applying the plain language applicable to the meaning of “sex.” In other words, SCOTUS set out to determine the ordinary public meaning of Title VII’s command that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). But the court did not stop at defining “sex” in 1964. It opted to look at the statute’s language of “because of” and applied the standard of but-for causation. In other words, so long as the plaintiff’s sex was one but-for cause of the employment decision, that is enough to trigger a violation of the law.

The court explained that an individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. And SCOTUS had examples. Those examples consisted of the following: consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee's sex, and the affected employee's sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee's sex plays an unmistakable and impermissible role in the discharge decision.

Turning to the issue of your employment policies

Many employers rightfully already have policies and practices in place that are inclusive of lesbian, gay, bisexual, and queer (LGBTQ) workers, and now is a great time to review those policies and programs in light of SCOTUS’s ruling.

Currently, many states and local municipalities have laws in place to protect the LGBTQ community in the workplace. Those existing state and local laws that explicitly protect applicants and employees from discrimination based on sexual orientation and gender identity will remain in place. SCOTUS’s decision now protects LGBTQ workers nationwide.

Expanding your policy to include protections for sexual orientation and gender identity is the right thing to do. It will also provide evidence that your company intends to comply with Title VII’s protection of “sex” in its totality.

Employers should also undertake comprehensive reviews of their job application, hiring practices, and ongoing work processes. They should also conduct supervisor training on this protected class to assure that their managers, supervisors, and employees understand the change in the national laws. Employers should be sure to have clear anti-harassment and anti-discrimination standards for the LGBTQ worker, so as to protect the workers and themselves from missteps.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding employment discrimination claims and any other general liability defense questions at bsmith@keefe-law.com.

Synopsis: Indiana Worker’s Compensation/GL News: TTD and PPI Rates Stay the Same, but Mileage Reimbursement Goes Up, and PPI calculations for Extremities Are Being Changed.

This is a “Must Read.” Comment by Kevin Boyle of Keefe Campbell Biery & Associates, LLC.

Editor’s comment: Every year about this time, the new Indiana statutes go into effect on July 1. Also as usual, many WC changes to the statutes were proposed during the Legislature Session, but few actually made it into law. Here is a summary of a few important changes you should know about.

First, although it was proposed and expected, the TTD minimum/maximum rates and PPI rates did not change. Please keep using the same rates that you have used for injuries that occur after 7/1/2016.

Second, the IWCB’s mileage reimbursement rates slightly increased from .38/mile to .39/mile for travel outside the county of employment on or after March 1, 2020. This change is not statutory, but was enacted by the State of Indiana Department of Administration that must be followed by the IWCB per I.C. 22-3-3-4.

Third, there were some statutory changes to the PPI statute (I.C. 22-3-3-10) for vision claims. Subsection (i)(12) was deleted and a new one was substituted: “Visual impairments shall be based on the Functional Vision Score (FVS), assessing the visual acuity and visual field to evaluate any reduction in ability to perform vision-related Activities of Daily Living (ADL). Unless such loss is otherwise specified in subsection (i)(5), visual impairments shall be paid as a whole person rating.”

Finally, although the PPI rates were not changed, the IWCB has instituted Guidelines that will affect PPI calculations for upper and lower extremities from now on. You may have had 1043s recently rejected even though your PPI calculations were based on the same PPI chart we’ve used for decades. If you’d like a copy of these new guidelines, or an updated rate chart, let me know. In summary, a wrist injury will be considered an impairment of the upper extremity, but if use of the hand is also affected, there should be a hand rating as well, and these will be combined. Also, if there are impairments to various parts of a limb, such as an elbow and wrist, the Board will approve payment for the combined rating to the upper extremity.

Also, upper and lower extremity impairments will no longer be separated into above or below the joint except in the case of amputations, per IC 22-3-3-10 (i)(1), (9) and (10). Upper extremity ratings for those joints should be based on 50 degrees, not 40; lower extremity ratings for foot, ankle (and knees) will be based on 45 degrees instead of 35 degrees. These PPI changes are advisory, for general guidance, and not enacted by a new 2020 statute, but these changes are being implement and enforced by the IWCB in approvals and calculations now.

Stay tuned for more. If you have questions/concerns about Indiana worker’s comp, general liability, MVA, employment or any other legal issues, please contact: kboyle@keefe-law.com

Synopsis: Join KCBA’s very own Brad Smith, J.D. for his podcast discussing all trending legal topics.

Editor’s comment: In Brad’s Everything Legal Podcast, Brad discusses the legal world in an understandable and practical way. In his initial episode Brad analyzes the legislation that matters to you and other notable circumstances surrounding the COVID-19 Pandemic. Brad’s podcast will continue to explore legal topics of significance on an ongoing basis. We hope you can subscribe and happy listening to you.

Please subscribe on Apple Podcasts, Spotify, or Anchor by searching “Brad’s Everything Legal Podcast.”

You can also link to the Apple Podcast here: Brad's Everything Legal Podcast.

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic and New Rules Mentioned Above—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:

Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;
Investigate and verify claims for other workers possibly not covered by the Rules and
Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.

We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.

Please also make note, if you don’t diligently investigate, even without a presumption, our IL WC Commission may rule any Covid-19 claim is going to be adjudicated to be compensable.

Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:

Interviewing – the ability to draw out the relevant information through effective questioning

Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations

Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation

Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk

Interaction – personal attributes that enable effective relations with other people

Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified

If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com

KCBA Blog

7-1-2020; Black Lives Matter and "Floyd's Law" from Gene Keefe; Bradley Smith, J.D. on LGBTQ Rights and What It Means to Your Company and more