In January 2023, I wrote a piece on my predictions for what we might expect in the labor/employment law world in 2023. As 2023 draws to a close, let’s see how I did.
Prediction: Litigation over employee pronoun preference.
Pronouns have come a long way since we learned about them in grammar school and have become the subject of much debate. I predicted that debate would find its way to the courts. That’s happened in at least two cases over the last year.
In Faulkenberry v. U.S. Dep’t of Defense, Case No: 1:22-cv-01150, 2023 WL 3074639 (D. Md. Apr. 25, 2023), the plaintiff (a transgender woman) alleged unlawful discrimination and harassment after she corrected an interviewer with her preferred pronouns during an interview. She alleged that the interviewer expressed “disinterest” in hiring her after the exchange. The court dismissed her claims, finding that the incident in question was not “severe and pervasive” enough to constitute harassment, nor was there enough evidence to connect the remarks to the prospective employer’s failure to hire her.
In contrast, in MacDonald v. Brewer School Dep’t., 651 F. Supp. 3d 243 (D. Me. 2023), the plaintiff was a cisgender female teacher. (I admittedly had to look up the term cisgender. It means a person whose gender identity corresponds with the sex assigned at birth). She advocated to the superintendent and school board that all individuals who express a pronoun preference should have that preference respected. After she was passed over for a position, the plaintiff filed suit against the school board for harassment and retaliation. The school board moved to dismiss, but the court denied that motion, finding that the plaintiff’s allegations plausibly stated that she suffered adverse action because she advocated for adherence to Title VII’s anti-discrimination requirements.
The law here is still evolving, but the takeaway for prudent employers is that they should treat discussions about pronoun preference the same as discussions around gender identity or sexual orientation. Does this require allowing (or requiring) employees to identify pronoun preference on email signature lines? Probably not, in much the same way as an employer might not want employees to put “straight” or “gay” in an email signature. That said, employers are well-advised to honor employees’ pronoun preferences when they are expressed, and certainly retaliation for expressing such preferences is off-limits.
Prediction: Drug testing gets complicated.
A year ago I wrote about a complication employers faced with regard to drug testing employees for THC. There are several strands of hemp-derived compounds, such as Delta-8, that produce effects similar to those of traditional marijuana but that, under the current laws, are legal. Both the legal and illegal hemp-based products will result in positive THC tests for users.
North Carolina also has a statute prohibiting employers from discharging employees for the consumption of lawful products outside of working hours. The result is that employers who enforce a “zero tolerance” drug policy for THC might run afoul of the law if that policy results in termination of an employee whose positive result was due to use of a lawful product (like Delta 8).
I am not aware of any developments in the law in 2023 addressing this conundrum, but employers should continue to be aware of it as they develop and enforce drug testing policies.
Prediction: Employers scale back on work-from-home policies.
Post-pandemic, working from home became the “new normal” for many businesses. For some, that change seems permanent. For others, however, the pendulum may be swinging back towards a traditional workplace. Below are some of the questions I have fielded as employers look to bring employees back into the office, along with my responses:
- Can we compel employees to come back into the office? Yes.
- Can we force some employees to come back into the office but allow others to remain at home? Yes, although such determinations should be made based on different (nonprotected) classifications of employees rather than on an individual basis.
- XYZ employee wants to work from home because of a medical condition. Do we need to allow that? Maybe. The ADA requires that employers make reasonable accommodations for certain disabled employees. The determination of what is “reasonable” is often the subject of some dispute. A track record of allowing an employee to work from home very well could establish precedent that such an arrangement is a reasonable one.
Prediction: The labor shortage relaxes.
When I think of the 2022 labor market, I recall driving around town one day and seeing a billboard offering $2,000 signing bonuses for short-order cooks at a local diner. Many businesses, especially in the hospitality industry, closed early or closed on certain days of the week because they simply did not have the staff necessary to operate.
Anecdotally, that dynamic seems to have shifted in favor of employers in 2023. While I still hear employers mention that good help is hard to find, I no longer see offers of generous signing bonuses for entry-level jobs, and my favorite restaurant is once again open on Tuesdays. The data backs up this observation. According to the United States Chamber of Commerce, more than 50 million Americans quit their jobs in 2022. In 2023, that trend seems to have subsided, with around 30 million resignations through August 2023.
So, while it’s still a bit of a seller’s market when it comes to applicants looking for jobs, it seems that the playing field is leveling.