2019 is kaput—long live 2019.

We finally saw two issues come to a crossroads at the United States Supreme Court in October, 2019: The first is whether sexual orientation is a protected classification under Title VII. The second is whether transgender status is similarly protected.

Let's start at sexual orientation. The case citation that will either be a path-breaking opinion or an also-ran footnote is Altitude Express v. Zarda. The decision will answer whether this type of question violates Title VII: A male employee is married to another man; he is harassed severely at work because of the relationship; is the harassment based upon his sex and thus a Title VII violation? Some courts say "yes" because if he was a woman, the harassment would not have occurred. And policy considerations militate in favor of a "yes" as well; after all, the rallying cry goes: Gays can legally get married on Friday and can be legally fired on Monday. Not fair, but policy also cuts the other way with the argument being that sexual orientation was never, ever contemplated to be on the roster of protected classifications because, well, being gay was often a crime in 1964. Transgender status? If an employee changes religion from Christian to Buddhist and is fired because of the switch then he is being fired "because of" religion. How is transitioning any different? The EEOC doesn't think so and makes that argument in EEOC v. R.G. & G.R Funeral Homes. Abracadabra, two new claims in the employment law firmament. A decision is coming down this spring.

But like the cycle of life and death the Supreme Court createth and the Supreme Court taketh away. The Court is now considering whether to strip the Fifth Circuit of its beloved "ultimate employment action" doctrine (shared only with the Third Circuit). The doctrine sanctions discrimination as it did in the 2019 case of Peterson v. Linear Controls, Inc. (5th Cir.) Black employees and white employees in the same job are assigned to work in the sweltering summer heat on an offshore oil platform. The blacks labor away outside in the heat while the whites employees labor away inside, in chilled comfort. There is some evidence the assignments were made because of race. Summary judgment is affirmed for the employer because while the assignment is surely adverse to the employee, it is not a big ticket item such as termination, demotion or denial of a pay increase. Alleged discrimination, unrectified. The Supreme Court has asked the Office of the Solicitor General on whether cert should be granted.

The EEOC got clobbered twice in 2019. The Fifth Circuit delivered the first blow in State of Texas v. EEOC (5th Cir. 2019), ruling against the Commission's guidance that employers arguably violate Title VII by excluding from employment those applicants with criminal backgrounds when that screening largely impacts minorities. It is called disparate impact. But the Commission cha-cha'd around the Administrative Procedures Act notice and comment provisions, and simply promulgated the rule as a substantive one, and not merely as a procedural nicety. The Commission was enjoined from its application. Oh well, back to Square One for the EEOC.

The second blow came with the Eleventh Circuit's decision in EEOC v STME, LLC d/b/a Massage Envy (11th Cir. 2019). An employee announced she was visiting Ghana, a country in which the Ebola virus was raging. Fearful she would contract the virus, her employer, a massage franchise, said "do not go." She did and she was fired as a result. The EEOC sued under the Americans with Disabilities Act (ADA). The court rejected the lawsuit. First, she had no disability at the time of her termination. The ADA only contemplates what is occurring in the present moment not what might occur in the misty future. So, a possible future disability receives zero protection. "Regarded as" claim under the ADA? The employee has no disability but the employer acts as if she does. No dice. Why? The ADA, according to the court, does not extend, by its terms, to an employer's belief an employee might contract or develop an impairment in the future.

But what if she had gone to Ghana without telling anyone, came back and talked about her trip and was then fired with, "You might now develop Ebola, so we cannot have you rubbing on anyone?" Perhaps a bit different because being a ticking "time bomb" (in the view of the employer) caves into myth, fear and stereotype the ADA was enacted to combat. Check out the concurrence in Massage Envy and Shell v. Burlington Northern Santa Fe Railway, 2018 WL 1156249 (N.D. Ill. 2018).

FMLA litigation in Texas in 2019 resulted in an interesting case duo. No employer liability for FMLA retaliation when an employee was terminated for lack of interpersonal skills, but was also counseled on this shortcoming before taking FMLA leave. And no animus as well if an employee previously took FMLA leave and did not suffer any adverse repercussions for doing so. Read all about it in Tatum c. Southern Company Services 930 F. 3d 709 (5th Cir. 2019). Also, the "discouragement theory was spiked in Gomez v. Office Ally, Inc., (W.D. Tex. 2019) in which a San Antonio federal court rejected the theory an employer unlawfully interferes with FMLA leave when it demonstrates hostility towards the FMLA. Discouraging is per se insufficient to establish a violation. Rather the court held the employee must have not taken leave or have cut leave short because of the discouragement because of the hostility, like in sports when someone declares "no harm, no foul."

Wrapping up, we have two opinions from the Texas Courts of Appeals: one on arbitration and the other on disability discrimination. They're reminiscent of when President Kennedy, upon learning during the Cuban missile crisis his order to remove our missiles in Turkey pointed at the Soviets was not carried out, asked why is it there is always someone, somewhere who gets the word and just ignores it? Fast forward and yet again, yet another appeals court has granted yet another writ of mandamus, setting aside a trial court's order denying a meritorious Motion to Compel arbitration. As the opinion points out, the Texas Labor Code approves of arbitration as an alternate means of dispute resolution. Period. The opinion is a model on how to convince a court (at least an appeals court) to compel a recalcitrant plaintiff to arbitrate an employment discrimination claim. Read the case details in Stage Stores Inc. v. Eufracio (Tex. App. Corpus Christi (Edinburg) 2019).

But there is, by contrast, a very pro-employee decision from a different Texas appeals court case. Look to Texas Department of Transportation v. Lara (Tex. App. –Austin 2019) for two pro-employee holdings. The first is indefinite leave can be a reasonable accommodation to an employee's disability. The second is asking an employer for any type of reasonable accommodation is a protected activity under the Texas Labor Code and thus prohibits retaliation against the employee for making the request. (There is a growing split in Texas cases on this issue.)

Michael P. Maslanka is an assistant professor of law at UNT Dallas College of Law. His e-mail is [email protected].