As explained in Part 1 of this four-part series, we are exploring some of the more recent state law developments addressing sexual harassment in the workplace. Since the #MeToo movement began over a year ago, there have been various reactions from employees, employers and state legislatures. Employees have reacted by filing more internal and external complaints.  In fact, in early October the Equal Employment Opportunity Commission (EEOC) released its fiscal year 2018 statistics regarding workplace harassment. The data showed that charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from fiscal year 2017. In addition, the EEOC reported that it recovered nearly $70 million for victims of sexual harassment in fiscal year 2018, an increase of $22.5 million from fiscal year 2017. You can find more information on the EEOC’s report here.

Employers have reacted to the #MeToo movement by updating policies, conducting more trainings, and holding employees accountable.  While the United States Congress has not yet responded with specific legislation, many states have taken action to address sexual harassment and sexual misconduct in the workplace.

As a result, employers operating in multiple states must be aware of the various approaches taken by states and ensure compliance obligations are met.  Most employers have already taken action to address differing state law requirements such as how and when to pay employees, availability and use of paid leave, and the legality and enforcement of restrictive covenants.  Going forward, employers need to add sexual harassment compliance to the state-by-state compliance list.

The states take a varied approach to addressing this issue through legal regulations and requirements.  We anticipate that more state laws are on the way.  In Part 1 of this series we explored the recent flurry of legislation enacted in the State of California. In Part 2 we look at the recent developments under Delaware law.

DELAWARE

On August 29, 2018, Delaware passed a law that includes mandatory distribution to employees of a state-created information sheet on sexual harassment. Employers with four or more employees in the state of Delaware will be required to distribute the information sheet to new employees at the commencement of employment and all existing employees by July 1, 2019 at the very latest. The sexual harassment information sheet can be found here.

In addition, much like California’s training requirements, Delaware requires employers with at least 50 employees in the state of Delaware to provide interactive sexual harassment training and education. However, unlike California’s training requirements, the new Delaware law requires that both non-supervisory and supervisory employees receive the training.

Employers covered by the new law must provide interactive sexual harassment training to employees that includes the following components:

  • Addresses the illegality of sexual harassment;
  • Defines sexual harassment with the use of examples;
  • Describes the legal remedies and complaint process available to employees;
  • Provides directions to employees on how to contact the Delaware Department of Labor; and
  • Instructs employees that retaliation is prohibited.

The training must be conducted for new employees within one year of the commencement of their employment. Current employees must receive the mandatory training by January 1, 2020.

New supervisors must receive additional interactive training within one year of the commencement of their employment in a supervisory role and existing supervisors must receive training by January 1, 2020. The additional training for supervisors must also include: (1) specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment; and (2) the legal prohibition against retaliation.

For employers who provide – or have already provided – training that meets the requirements of the law prior to January 1, 2019, are not required to conduct additional training until January 1, 2020. After January 1, 2020, both the employee and supervisor training programs must be repeated every two years.

Stay tuned for Part 3 of our journey through the patchwork approach of other recent state law developments in response to the #MeToo movement. In the meantime, if you or your organization have any questions regarding compliance with state laws in the area of sexual harassment, please contact any member of our Labor and Employment Practice Group.

While most Americans prepared for the Thanksgiving holiday, the Pennsylvania Supreme Court issued an opinion that establishes new precedent in the ever-developing area of cybersecurity law, and also limits a longstanding tort doctrine that had previously barred a large subset of negligence claims where the plaintiff claimed only economic loss (not bodily injury or property damage).  As a result of this decision, Pennsylvania businesses and employers face increased exposure to liability.

The case, Dittman v. UPMC, arose after UPMC experienced a data breach where employee data was compromised and then used to file fraudulent tax returns.  After suffering financial loss as a result of the breach, UPMC employees sued UPMC for negligence, alleging that UPMC owed its employees a duty of reasonable care to protect their electronically stored information, and that UPMC breached that duty. The Court held that an employer who collects and stores employee information on its internet-accessible computer system has a common law duty to protect that data from any foreseeable risk of harm. The Court also held that the employees’ claims of economic loss were not barred by the longstanding economic loss doctrine, which generally prevents a party from recovering solely economic damages under a negligence theory of liability.  The Court provided much needed clarification on the doctrine’s scope, stating that it does not preclude all negligence claims where the loss is solely financial, but does bar solely financial claims where the duty arises from a contract between the parties.  Because the plaintiffs in Dittman alleged breach of a common law duty separate, apart, and independent from any contractual duty, the economic loss doctrine did not bar UPMC employees’ claims.

The Dittman ruling is significant for two major reasons.

  1. It Establishes a Common Law Duty to Protect Personal Information. Before Dittman, it was very difficult for a data breach victim to recover due to the difficulty of tracking down the ultimate wrongdoer and a lack of precedent allowing recovery from those who collected and stored the compromised personal information.  By establishing a duty of reasonable care for employers who collect and store their employees’ personal and financial information on internet-accessible computer systems, the Pennsylvania Supreme Court created a clear method of recovery for employee data breach victims.  While the Court only imposed this duty on employers who collect and store employee information on internet-accessible computer systems, it is likely that the Court’s reasoning will be extended to other contexts where one party collects and stores another’s information, such as the business-consumer context or the university-student context.

Companies with employees in Pennsylvania should take immediate action to evaluate existing data security measures or impose data security measures if none are in place.  Since data breach victims will likely attempt to extend Dittman to other contexts, any business or entity that collects and stores data of Pennsylvania residents should evaluate their data security measures in order to avoid liability.

  1. It Is Much Easier for Plaintiffs to Bring Negligence Claims Seeking Solely Economic Damages. Before Dittman, defendants relied on the economic loss doctrine to quickly dispose of negligence claims seeking solely economic damages (as opposed to physical injury or property damage).  Now, negligence actions seeking solely economic damages cannot be dismissed as quickly or easily.  Instead, defendants will be tasked with proving that the plaintiff alleges a breach of a purely contractual duty, not a duty separate and apart from any contractual relationship.  By clarifying and limiting the economic loss doctrine in this way, the Court has opened the door to increased litigation and slower resolution of negligence claims seeking only economic damages.

As recognized by the trial court, the Supreme Court’s decision is certain to spark increased litigation. Indeed, in dismissing UPMC employees’ claims, the trial court noted that the creation of a private cause of action for victims of data breaches would likely trigger the filing of hundreds of thousands of lawsuits each year and overwhelm Pennsylvania’s judicial system.  Interestingly, in overturning the trial court’s decision and reviving UPMC employees’ claims, the PA Supreme Court did not address the impact of its decision.

Carol Steinour Young and Sarah Dotzel practice in McNees Wallace & Nurick’s Litigation Group.

The Fair Credit Reporting Act (“FCRA”) has been a fertile area for lawsuits against employers.  Recently, the Third Circuit Court of Appeals provided yet another warning for employers regarding compliance with the FCRA.  In Long v. SEPTA, the court held that an employer violates the FCRA when it fails to provide a copy of the applicable consumer report to prospective employees before taking an adverse employment action.  This decision serves as an important reminder of employer obligations under the FCRA and also provides clear and direct guidance on the steps an employer must take before it rejects an applicant on the basis of information contained in a consumer report or background check.

In Long v. SEPTA, SEPTA denied employment to three applicants who had been convicted of drug offenses.  Prior to making that decision, however, SEPTA did not send the plaintiffs copies of their background checks, nor did it send them notices of their rights under the FCRA.  The plaintiffs, in turn, filed a class action lawsuit, alleging that SEPTA violated the FCRA by taking an adverse employment action against them without providing copies of their background check reports or notices of their rights under the FCRA.

SEPTA argued that it made no difference whether the plaintiffs’ consumer reports were provided before or after its decision not to hire them because the reports were accurate.  Therefore, according to the employer, the plaintiffs suffered no legal injury under the FCRA.

The court rejected the employer’s argument and instead interpreted the statute based on its plain language as establishing two fundamental requirements: (1) that an employer must provide a consumer report and FCRA rights disclosure; and (2) that it must do so before it takes any adverse action.  The court explained that doing so “allows [the prospective employee] to ensure that the report is true, and may also enable him to advocate for it to be used fairly—such as by explaining why true but negative information is irrelevant to his fitness for the job.”  The court went on to note that the “required pre-adverse-action notice of FCRA rights provides the individual with information about what the law requires with regard to consumer reports….It helps ensure that reports are properly used and relevant for the purposes for which they are used.”

Accordingly, a prospective employee has the right to receive their consumer report and a description of their rights under the FCRA before an employer takes any form of an adverse action against them on the basis of information discovered in the report—regardless of how accurate the background check may be.  The court has made it explicitly clear that prospective employees have the right to know of and respond to such information prior to an employer’s adverse action.

If you have any questions regarding FCRA compliance, please contact any member of our Labor and Employment Practice Group.

There have been a variety of responses to the #MeToo movement since it began a little over a year ago. Employees have responded by filing more internal and external complaints.  In fact, in early October the Equal Employment Opportunity Commission (EEOC) released its fiscal year 2018 statistics regarding workplace harassment.  Among other things, the data showed that charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from fiscal year 2017.  In addition, the EEOC reported that it recovered nearly $70 million for victims of sexual harassment in fiscal year 2018, an increase of $22.5 million from fiscal year 2017.  You can find more information on the EEOC’s report here.

Employers have responded to the #MeToo movement by updating policies, conducting more trainings, and holding employees accountable.  While the United States Congress has not yet responded with specific legislation, many states have taken action to address sexual harassment and sexual misconduct in the workplace.

As a result, employers operating in multiple states must be aware of the various approaches taken by states and ensure compliance obligations are met.  Most employers have already taken action to address differing state law requirements such as how and when to pay employees, availability and use of paid leave, and the legality and enforcement of restrictive covenants.  This year, employers will need to add sexual harassment compliance to the state-by-state compliance list.

The states take a varied approach to addressing this issue through legal regulations and requirements.  We anticipate that more state laws are on the way.  In this four-part series, we explore some of the more recent state law developments addressing sexual harassment in the workplace.  We will start our exploration with the State of California.

CALIFORNIA

Limitations on Settlements of Sex-Based Harassment and Discrimination Claims

On September 30, 2018, a new law was enacted that prohibits the inclusion of language in settlement agreements that prevent the disclosure of factual information related to:

  • Acts of sexual assault;
  • Acts of sexual harassment as defined under Section 51.9 if the California Civil Code;
  • Acts of workplace harassment and discrimination based on sex;
  • Failure to prevent acts of workplace sexual harassment or sex discrimination; and
  • Retaliation against a person for reporting harassment or discrimination based on sex.

The new law applies to any settlement agreement entered into on or after January 1, 2019 settling a claim filed in a civil or administrative action. If a settlement agreement contains a provision prohibiting disclosure of the information listed above, the provision will be considered void as a matter of law and against public policy.

As a result of this new law, employers with operations in California should consider the impact on potential settlement of sex-based harassment and discrimination claims. The new prohibitions on certain confidentiality provisions of a settlement may create a greater risk for damage to the employer’s reputation even after settling a sex-based claim with an employee or former-employee.

Increased Sexual Harassment Training Requirements

Since 2005, California employers with at least 50 employees have been required to provide two hours of sexual harassment prevention training to all supervisory employees once every two years. On September 30, 2018, legislation was approved that will require California employers with at least five employees to provide sexual harassment training and education to all employees (both supervisory and non-supervisory).  This new law requires employers to provide at least two hours of sexual harassment prevention training and education to all supervisory employees and at least one hour of such training to all non-supervisory employees by January 1, 2020.  Thereafter, the training and education must be provided once every two years.

As a reminder, the sexual harassment training required since 2005, must address all of the following:

  • The definition of sexual harassment under the California Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964;
  • The statutes and case-law prohibiting and preventing sexual harassment;
  • The types of conduct that can be sexual harassment;
  • The remedies available for victims of sexual harassment;
  • Strategies to prevent sexual harassment;
  • Supervisors’ obligation to report harassment;
  • Practical examples of harassment;
  • The limited confidentiality of the complaint process;
  • Resources for victims of sexual harassment, including to whom they should report it;
  • How employers must correct harassing behavior;
  • What to do if a supervisor is personally accused of harassment;
  • The elements of an effective anti-harassment policy and how to use it;
  • “Abusive conduct” under California Government Code section 12950.1, subdivision (g)(2).

This training must be provided in a classroom setting, through interactive E-learning, or through a live webinar. E-learning training must provide instructions on how to contact a trainer who can answer questions within two business days. All training must include questions that assess learning, skill-building activities to assess understanding and application of content, and hypothetical scenarios about harassment with discussion questions.

Additional information on the requirements related to California’s mandatory sexual harassment training can be found here.

Stay tuned for Part 2 of our journey through the patchwork approach of other recent state law developments in response to the #MeToo movement.

In March 2016, OSHA published its standards for respirable crystalline silica in general industry/maritime (29 C.F.R. § 1910.1053) and in construction (§ 1926.1153), both of which have been phased in.  OSHA has been enforcing the construction standard for about a year (since September 23, 2017), and this summer the standard for general industry/maritime became enforceable (as of June 23, 2018).  Employees in general industry can be exposed to small silica particles during manufacturing (e.g., glass, pottery, ceramics, brick, concrete, and artificial stone) and during other non-construction activities that use sand (e.g., abrasive blasting and foundry operations).   Employers who are involved in such activities, or in construction work, may be affected by the silica standards.

Consequences of noncompliance are serious for employers, not only in terms of potential health risks to their employees, but also risks of enforcement actions by OSHA (and states with OSHA-approved programs).  OSHA has been conservative and generally modest in penalties issued to date, but that is likely to change.  For example, in August 2018, a construction company was cited for violations of the silica construction standard, with a proposed penalty of over $300,000.  Employers in construction and, now, general industry, should heed this warning as a sign of things to come.

Although the two silica standards differ in certain respects, both generally require employers to develop a written exposure control plan, perform an exposure assessment and periodic monitoring, implement feasible engineering and work practice controls, ensure respiratory protection and medical surveillance where necessary, comply with housekeeping measures, and maintain recordkeeping.  The general industry standard also requires demarcation of regulated areas.  It is important that silica hazards are incorporated into an employer’s hazard communication program, as the OSHA Hazard Communication Standard is also incorporated by reference and expanded upon in the silica standards.

Both standards are now subject to enforcement, except for some general industry/maritime requirements for employees exposed at or above the action level, and some requirements for hydraulic fracturing operations in the oil and gas industry.  For enforcement of the general industry/maritime standard, OSHA gave employers an additional 30-day grace period (until July 23, 2018), as long as they were making good-faith efforts to comply.  But the time has come for compliance, inspections, and enforcement.

Employers should be prepared accordingly, consider how to handle an inspection, and consult OSHA’s guidance.  OSHA recently issued various compliance materials on its general industry/maritime webpage, including interim enforcement guidance.  Additional resources  added by OSHA to its construction work webpage include a slide presentation for training construction workers, a five-minute video on protecting workers, a series of short videos for various construction tasks, and an FAQ page.

Even with these compliance materials, the silica standards can be complex and difficult to implement in a practical manner.  Employers should consult professionals to ensure compliance and mitigate any enforcement actions that may arise.

If you have followed our blog over the past year, you are aware of the long and tortured history of the National Labor Relations Board’s joint employer standard.  The recent history starts with the Obama Board’s decision to overturn decades of case law.  But the saga continued.

Just last month, we reported on the Trump Board’s proposal to promulgate regulations adopting a joint employer standard.  According to the Board, issuing regulations will clear up the uncertainty currently surrounding the standard that was created by years of case law.  Those who have been following this matter might view the Board’s proposed rulemaking as a welcome opportunity for clarity on an issue that has vexed employers and unions alike in recent years.

But not everyone was pleased by the Board’s announcement.  In a joint letter to Trump-appointed Board Chairman John Ring, United States Senators Elizabeth Warren, Kirsten Gillibrand, and Bernie Sanders questioned the Board’s ability to remain independent on the issue given its overturned decision in Hy-Brand (in February 2018, the Board reversed its own ruling after its Ethics Officials determined that one of the Board Members should have been disqualified from participating in the case due to a conflict of interest).  Essentially, Senators Warren, Gillibrand, and Sanders accused the Board of using rulemaking to reinstate the Hy-Brand decision.  In other words, they believe that the Board has already decided on the final rule to be issued based on personal bias and without regard for the notice-and-comment process.  Serious allegations, to be sure.

Earlier this week, Chairman Ring responded to the Senators with a letter of his own.  The Chairman explained, in no uncertain terms, that a majority of the Board will engage in rulemaking on the joint employer issue and that it intends to issue a notice of proposed rulemaking sometime this summer.  He reminded the Senators that all Board Members, both past and present, have personal opinions formed by years of experience.  After assuring the Senators that the Board has not pre-determined the final joint employer rule, Chairman Ring also pointed out that the courts have held that personal opinions do not render Members incapable of engaging in rulemaking unless it can be shown that their mind is “unalterably closed” on the issue.

If we’ve learned anything from this dust-up between the Senators and the Board, it’s that the Board will proceed with rulemaking on the joint employer standard, and that accusations of bias from U.S. Senators will not stop it from doing so.  As we said last time – stay tuned.  More news is coming, and soon.

With increasing frequency, when employees sue their employer or former employer, they also name individual managers or the company’s owners as defendants in their suit.  Under federal EEO laws (e.g. Title VII, ADA, ADEA), individuals generally cannot be held liable for acts of discrimination.  However, employment laws such as the FMLA, FLSA and the Pennsylvania Human Relations Act do allow for individual liability under some circumstances.  In Abdellmassih v. Mitra OSR (February 28, 2018), the U.S. District Court for the Eastern District of Pennsylvania addressed whether individuals may be held liable under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for failing to issue required COBRA notices.

Mr. Abdellmassih was terminated from his position at a KFC restaurant and sued his employer under a variety of laws.  He named the co-owners of the company as individual defendants with respect to his claims under several laws, including COBRA.  The basis for his COBRA claim was that he was allegedly never issued a COBRA notice after he lost his health coverage due to the termination of his employment.

COBRA provides that a plan administrator who fails to comply with COBRA’s notice requirements may, at a court’s discretion, be held personally liable for up to $100 per day that the required notice is not provided.  Mr. Abdelmassih argued that his former employer’s co-owners served as the health plan’s administrators and, therefore, should be individually liable for the plan’s failure to issue required COBRA notices.  However, upon reviewing the company’s health insurance brochure, the court noted that the owners were not named anywhere in the document – as plan administrators or otherwise.  Indeed, the brochure merely directed employees to contact a human resources representative if they had questions regarding their COBRA rights.  Since the co-owners were not named in the document, the court found there was no basis to impose individual liability upon them under COBRA.  However, Mr. Abdelmassih’s COBRA claim against the corporate entity remained intact.

The lesson of the Abdelmassih case is simple.  When identifying the “plan administrator” in a plan document or summary plan description, avoid naming individuals.  A general reference to the employer (or third party administrator firm) – or the department with responsibility for plan administration (e.g. human resources) –  is the best way to avoid individual liability situations under COBRA.  A quick check of your company’s plan language on this point may save you (or someone in your company) from significant liability!

The Supreme Court of the United States held today that arbitration agreements, which waive the right to proceed as part of a class or collective action, are enforceable in the employment context. In Epic Systems Corp. v. Lewis, the Court held that employment agreements that call for individualized arbitration proceedings to resolve workplace disputes between employers and employees are lawful. Interestingly, the Court’s 5-4 decision was authored by the newest Justice, Justice Gorsuch.

In a series of cases, employees and former employees had asserted that agreements requiring individual arbitration violate the National Labor Relations Act, because the NLRA protects employee rights to proceed in class or collective actions. Although it had previously taken a different position, in 2012, the National Labor Relations Board agreed that arbitration agreements, which waive the right to proceed in class or collective actions, violate the NLRA. The Board’s controversial position was set forth in D.R. Horton and Murphy Oil USA.

Employers countered that the Federal Arbitration Act expresses a strong preference for arbitration and makes clear that arbitration agreements are presumptively valid. The FAA requires that courts enforce arbitration agreements, including procedural terms related to the arbitration process itself. The FAA does provide that arbitration agreements will not be enforced if there is a legal basis to set aside the agreement, such as fraud or duress in the making of the contract. However, in this case, the only argument presented was that the individual arbitration agreements violate the NLRA.

The Supreme Court rejected that contention. Ultimately, a slim majority of the Supreme Court agreed with the employers and held that the FAA requires enforcement of arbitration agreements, including agreements that call for individual proceedings, because such agreements do not violate NLRA. The Court noted that in order for a law such as the NLRA to trump the FAA, there must be a clear statement of intention in the law. The Court found no such clear intention in the NLRA.

The Supreme Court’s decision is the law of the land, and that means that arbitration agreements in the employment context that require individualized claims are lawful. Employers looking to update their employment agreements in light of this decision can reach out to any member of the McNees Labor and Employment Group. In addition, if you are thinking about implementing arbitration requirements for the first time, we can help.

For several years we have been providing updates on the Obama-era National Labor Relations Board’s rather employer-unfriendly joint employer standard.  We have yet another. We believe the final episode in this saga should be good news for employers.  We’re just not sure whether the good news will come from the Courts, from the regulatory process, or both.

This may be hard to follow, but stay with us…

To recap, in 2015, the Obama Board issued a decision in Browning-Ferris Industries of California, and vastly expanded the situations in which a franchisor or a source employer could be deemed a joint employer with its franchisee or with a supplier of a contingent workforce.  All that needed to be shown under this new standard was some reserved ability by the franchisor or source employer to potentially control the terms and conditions of the other entity’s employees. To the relief of employers, Browning-Ferris quickly appealed this decision to the United States Court of Appeals for the D.C. Circuit.

As we reported in the Spring of 2017, the Board’s new standard appeared to receive a cool reception from the Court of Appeals during oral argument. We waited and waited, but no opinion came from the Court.

Then, in December 2017, the Trump Board decided Hy-Brand Industrial Contractors, and announced that it would return to the prior standard that required proof of a joint employer’s actual exercise of control over essential employment terms, rather than merely having reserved the right to exercise control. After Hy-Brand was issued, Browning-Ferris was no longer relevant, so the Court of Appeals remanded that appeal back to the Board.  All appeared to be right in the world.

Alas, this return to normalcy was short-lived.  In late February 2018, the Board issued an Order vacating Hy-Brand based on a determination by the Board’s Ethics Official that one of the three Members who participated in the matter should have been disqualified. With that disqualification no Board quorum existed.  So, what next?  The Board asks the Court of Appeals for a “do-over”: please recall Browning-Ferris and issue a decision. Please?!

On April 6, a divided Court of Appeals granted the Board’s request and recalled Browning-Ferris, and just like 2017, we again await that appellate decision.

But hold on.  There’s more.  Yesterday the Board announced that it is considering rulemaking to address the standard for determining joint-employer status. That would be actual regulations, folks. New Board Chair John Ring’s comments accompanying the announcement are telling: “Whether one business is the joint employer of another business’s employees is one of the most critical issues in labor law today. The current uncertainty over the standard to be applied…undermines employers’ willingness to create jobs and expand business opportunities. In my view, notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the standard ought to be.”

So, stay tuned for more news.  We know it’s coming.  Just not sure which channel will air it first.

The Sixth Circuit Court of Appeals has held that discrimination against transgender/LBGTQ employees is discrimination on the basis of sex that violates Title VII of the Civil Rights Act of 1964.  Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc.  Moreover, the court held that the employer could not use the Religious Freedom Restoration Act (RFRA) as a defense to justify such discrimination.

The Plaintiff began work as a funeral director and presented as a male (birth sex).  Eventually, Plaintiff informed the funeral home that she had a gender identity disorder and would transition to female.  Plaintiff was fired when she informed the funeral home she was no longer going to present as a male and would transition and dress as a female.  The funeral home contended that continued employment would harm its business clients and violated the funeral home’s owner’s Christian beliefs.

The federal Equal Employment Opportunity Commission (EEOC) filed suit under Title VII alleging unlawful discrimination on the basis of sex.  The funeral home owner defended the termination under the RFRA.  The RFRA prohibits enforcement of a religiously neutral law that substantially burdens religious exercise, unless the law is the least restrictive way to further a compelling government interest.

The district court held that Plaintiff was discriminated against based upon sex stereotypes, but held the EEOC could not enforce a Title VII claim because it would burden the employer’s exercise of religion in violation of the RFRA.  The court granted summary judgment to the funeral home.

The Sixth Circuit reversed and held that Title VII prohibits discrimination on the basis of LGBTQ status.  Perhaps more importantly, the court held that the funeral home was not entitled to a RFRA defense on the ground that continuing Stephens’ employment would not, as a matter of law, burden the employer’s exercise of religion and, even if it did, the EEOC had established that enforcing Title VII is the least restrictive means of furthering the EEOC’s compelling interest in combating and eradicating sex discrimination.