Richard D. Tuschman, P.A. Employment Lawyers

As we draw closer to the end of the Obama administration and the beginning of a new presidential administration, the question many employment lawyers should be asking themselves is whether and to what extent the face of the federal judiciary has changed, and whether any such change will have or continue to have an effect on employment law decisions issued by the courts.

In theory, federal courts are more favorable to employers given what has long been perceived as a conservative bias by federal court judges, which bias usually runs in favor of employers. As the federal circuit governing Florida said in the past, summary judgments (dismissals if you will) are not uncommon in employment law cases. Federal court judges, moreover, are appointed by the president of the United States and have life tenure. So, such perceived conservativism has been long lasting.

All that could be changing, however. Aside from Obamacare, President Obama’s greatest legacy could be the number of female and minority federal court judges he has appointed during his tenure. Starting with the highest court in the land, the United State Supreme Court, Obama appointed two females, Sonia Sotomayor and Elena Kagan, both of whom were confirmed.

The trend President Obama has set in motion has been felt in Florida. Of the 16 active judges in the Southern District of Florida, President Obama has appointed 5. Three of the appointments were female, and one was an openly gay Black judge. Of the 15 active judges in the Middle District of Florida, President Obama has appointed 6 judges, 2 of whom were female.

Whether as a result of President Obama’s appointees or his liberal philosophy when it comes to women and minorities, many recent court decisions and causes taken up by the Equal Employment Opportunity Commission have resulted in favorable outcomes to women and minorities. President Obama set the tone immediately when the very first law he passed as President was the Lilly Ledbetter Fair Pay Act, which significantly extended the statute of limitations for claims of unequal pay.

In 2011, the federal circuit court of appeals governing the State of Florida ruled that transgenderism is a protected category under the federal civil rights act. The court’s ultimate point was that if you believed an employee was qualified when he was a man, but no longer qualified and terminated after he became a woman, the employer’s decision is discrimination based on gender. But the rationale used by the court is far more sweeping. The court’s rationale was that employment decisions should not be based on perceptions of conduct which is or is not in conformity with a person’s sex. So, while the courts have not gone as far as to extend this decision to gays and lesbians, the rationale underlying the court’s decision could easily be applied to gays and lesbians who conduct themselves in ways that may be perceived as running contrary to their actual gender. For example, an effeminate gay man could easily be perceived as not acting in conformity with the expected characteristics of a man.

In 2012, a Tampa, Florida woman was awarded $340,000 in back pay from Citicorp. where her male predecessor made nearly double what she was making. In June 2013, a Vermont woman was successful in federal court of proving that she was paid $7,000.00 less than her male replacement. Surprisingly, and in an act almost unheard of in federal courts in Florida, the court did not even require a trial, ruling in favor of the woman on summary judgment. In August 2013, the EEOC filed suit against Checkers due to female shift managers being paid less than male counterparts either directly by paying less, or giving them less hours so they make less.

In June 2014, the Florida Supreme Court recognized pregnancy for the first time as a protected category under the Florida Civil Rights Act. Earlier this year, the United States Supreme Court issued a pregnancy discrimination decision which arguably made it easier for women to get past summary judgment in pregnancy discrimination cases. Rather than having to demonstrate that the employer’s proffered reason for termination was untrue, pregnancy discrimination employees need only show that the reason given by the employer was not “sufficiently strong enough.” In addition, the court suggested that whereas previously health conditions associated with pregnancy could not be considered disabilities under the disability discrimination laws, such conditions could very well now constitute disabilities covered by the disability discrimination laws.

Given that many of the Bush and Clinton appointees are now taking senior status, the next president could go a long way in continuing the current trend. In theory, this would be particularly true if Hillary Clinton gets the nod. Even if the Republican nominee were to be elected, his appointments would not likely reverse the current trend. Instead, given the number of appointees by President Obama, the playing field would likely at least be kept level. Stay tuned and check back to this site for more information.