Proactive policy changes HR should make: 3 key rulings

HR pros know it better than anyone: Courts are always issuing conflicting employment law opinions, which can make compliance an uphill battle. 
But three recent court rulings addressing major HR issues have bigger implications than just another differing opinion thrown into the mix.

Changes to consider now

These court decisions could influence the employment law landscape in the near future, according to Louis Lessig, partner at Brown & Connery LLP.
Lessig suggests employers consider policy changes now to stay safe and ward off potential legal trouble.
Here’s a breakdown of the three rulings and how employers might proactively respond to them:
1. In Minarsky v. Susquehanna County, the Third Circuit ruled a worker’s failure to report sexual harassment didn’t let the employer off the hook.
Sheri Minarsky claimed her supervisor made sexual advances toward her for years. She never reported it because she feared losing her job. The company argued since she never reported the harassment, they couldn’t have known to stop it.
But two other workers previously reported the supervisor for harassment, and the company had only given him verbal warnings.
The court ruled Minarsky’s fears preventing her from reporting the behavior were valid. Since the company already knew about the supervisor’s history and hadn’t done much, it wasn’t unreasonable for Minarsky to be hesitant to complain about the behavior, the court said.
Lessig says this is a crucial ruling, because it shows ignorace of harassment isn’t a solid defense for employers anymore. To avoid surprise harassment lawsuits, Lessig suggests companies implement civility and bystander intervention training.
2. In Stephens v. R.G. & G.R. Harris Funeral Homes, the Sixth Circuit said discriminating against a worker because they’re transgender is sex discrimination.
When Aimee Stephens told her employer she was transitioning to a woman, Stephens was fired.
Since discrimination against LGBTQ employees isn’t strictly prohibited by the Civil Rights Act, other circuit courts have ruled cases like this aren’t sex discrimination.
But, the Sixth Circuit said it’s “impossible to fire a transgender person without it being motivated, at least in part, by the employee’s sex.”
To stay safe, Lessig suggests remaining vigilant for any harassment or discrimination against LGBTQ workers, and to draft policies offering them protections.
3. In Noffsinger v. SSC Niantic Operating Company, a Connecticut district court said federal law doesn’t always allow employers to reject applicants using medical marijuana.
Katelin Noffsinger was offered a job with Niantic, conditional on passing a drug test. She disclosed she took legal medical marijuana to treat her PTSD.
But upon failing the drug test, the job offer was rescinded.
The company cited federal law and its zero-tolerance drug policy, but the court said that wasn’t enough to outright reject Noffsinger, who was using legal medical marijuana outside of the workplace.
Lessig says medical marijuana is a very complicated legal issue. But, he advises employers not to have zero-tolerance drug policies and to always take state laws into consideration.

Rachel Mucha
Rachel writes about Human Resource management and has been a member of the HRMorning staff since 2017. She is a graduate of Ithaca College. Email: