By Ben James — Hot-button issues like sexual orientation discrimination in the workplace, the treatment of pregnant employees and medical marijuana use aren't just grabbing headlines, but they're also raising questions that can puzzle even seasoned attorneys. Law360 asked experts to identify the biggest open questions about employment discrimination law and offer some suggestions to help businesses address them.

Does Title VII Really Cover Sexual Orientation Bias?

The U.S. Equal Employment Opportunity Commission recently issued a ruling that said Title VII's ban on gender discrimination also forbids bias based on a worker's sexual orientation, but that didn't put the debate over Title VII's coverage for gay workers to rest.Whether the 1964 law protects gay and lesbian workers was at the top of the list of open questions about discrimination law for employment law experts on both sides of the bar.The EEOC decision, which was released July 16 and revived a complaint from an air traffic control worker who said he was passed over for promotion because he was gay, explicitly said, “Sexual orientation discrimination is sex discrimination.”The agency's take on the issue may be unequivocal, but it's also at odds with existing case law, and whether federal courts will agree with the EEOC is uncertain.“There's a lot of a misconception, just in the general public, that that is binding on private employers, and it isn't, and it's not binding on the courts at all,” Van Kampen Law PC founder Josh Van Kampen said of the EEOC decision.“There's more precedent that goes in the opposite direction.”The case law currently on the books is a hurdle, but some district court will leap it and endorse the idea that Title VII does bar discrimination based on sexual orientation, Van Kampen predicted, adding that U.S. Supreme Court review of the issue was a distinct possibility.“I think it's a forgone conclusion that we're going to have a circuit split, and it's possible, depending on what happens in the 2016 presidential election, that we'll see Congress act, but in the absence of that, it will be the a situation where the Supreme Court decides for us,” he said.Even supporters of LGBT workplace rights are skeptical that Congress had orientation bias in mind when it passed Title VII five decades ago and maintain that if lawmakers wanted protections for gay workers, they would have explicitly said so, either in the original law or a subsequent amendment.The U.S. Supreme Court's 1989 Price Waterhouse v. Hopkins decision, which recognized that sex stereotyping could be sex discrimination under Title VII, was a game-changer, said Christopher Kuczynski, acting associate legal counsel at the EEOC.“Things were different after 1989 as a result of that case,” Kuczynski said.He said he wasn't sure what lawmakers had in mind when they passed Title VII and the Civil Rights Act back in 1964 but added that sometimes, the words of a statute may sweep more broadly than what was originally intended.“What really controls is, first and foremost, the words of the statute,” Kuczynski said. “That's what we're interpreting.”Many large employers already prohibit discrimination based on sexual orientation, which is a smart business practice, noted Duane Morris LLP partner Jonathan Segal. But less than half of U.S. states ban workplace discrimination based on sexual orientation, he added.In Segal's home state of Pennsylvania, outside of a major city — many of which have laws against LGBT workplace bias — an employee could legally marry his or her same-sex partner and then be fired for being gay without any legal recourse. “The practical question is, 'How do you do the right thing and make clear that you don't discriminate without arguably binding yourself beyond what the law requires?'” Segal asked.Segal suggested implementing an employee handbook or equal employment opportunity policy that says the company will not “unlawfully discriminate” against workers based on sexual orientation, as well as more traditional protected characteristics such as race, gender and religion.That way, the employer sends a strong message of inclusion without actually promising to do more than the law requires, he said.

Will Pregnancy Be Treated Like a Disability Under the ADA?

In March, the Supreme Court ruled 6-3 to revive a Pregnancy Discrimination Act leveled against United Parcel Service Inc. by Peggy Young, a delivery driver denied light duty work while pregnant.Young had taken leave for in vitro fertilization, and when she attempted to return to work, she was deemed unable to perform the essential functions of her job because of a lifting restriction and was ineligible for light duty.Federal law doesn't require accommodations or special treatment for pregnant employees, UPS argued, adding that it had simply treated Young the same as other workers with similar lifting restrictions stemming from an “off-the-job injury or condition.”“We certainly got some good news with the Young v. UPS ruling,” Van Kampen said.But the high court's pronouncement that pregnant women have to be granted accommodations that are granted to other groups of employees “falls short of the reasonable accommodation obligations of the ADA,” he added.Establishing an Americans with Disabilities Act-style reasonable accommodation requirement for pregnant workers would likely require congressional action, according to Van Kampen. But Young makes it more likely that courts will be receptive to arguments for an expansive view of accommodation obligations for pregnant workers, he said.“The open question is, 'How close are pregnancy accommodations going to come to those requirements under the ADA?'” Van Kampen said. “It's a hot issue.”Hamline University School of Law professor David Larson also said it was unclear, post-Young, how far employers had to go in accommodating pregnant employees. Employees that want to play it safe can simply treat pregnant workers like disabled employees under the ADA, he added, but said guidance on precisely what's required of employers under the PDA would be welcome.“The lines aren't clear,” Larson said. “What are the boundaries of the new accommodation requirement for pregnancy?”The high court's ruling in Young didn't change the fact that pregnancy itself is not a disability under federal law, Kuczynski said. He also pointed out, however, that any worker with a pregnancy-related impairment that qualified as a disability would be eligible for a reasonable accommodation under the ADA, absent undue hardship.“Young made it harder for employers to rely on what courts in the past have called 'pregnancy blind' policies,” Kuczynski said. “Even facially neutral policies that don't specifically single out pregnant workers can violate the PDA after Young.”

How Should Employers Spot and Address Mental Disabilities?

Since the ADA Amendments Act took effect in January 2009, a broadened definition of what constitutes a disability has been in place. There's less of a stigma associated with mental disabilities now than there was in the past, noted Mintz Levin Cohn Ferris Glovsky & Popeo PC partner Michael Arnold.Those developments have left employers grappling with how to properly handle mental disabilities, Arnold said. A mental disability such as clinical depression may be much tougher to spot that a physical disability, and the ADA makes clear that workers don't have to say any particular “magic words” to trigger the interactive process required by the statute, he said.Exactly when a mental disability has been disclosed to an employer can be unclear, Arnold said, adding that it can also be tough to differentiate between simple performance problems and performance issues stemming from an arguable mental disability.“The courts are doing their best to address this issue, but there's not clear guidance on it, or at least, the enforcement guidance needs to be updated to reflect modern realities,” Arnold said.The best weapon in the employer arsenal for dealing with this potentially nettlesome topic is training, according to Arnold.“What's critical is educating human resources professionals on how to engage in the interactive process or administer reasonable accommodations when dealing with mental disabilities,” Arnold said. “This is an issue we are dealing with more and more as management-side attorneys.”If an employee's conduct or job performance falls below what's expected, the employer has a right to step in and address that shortcoming, Kuczynski said. That's true regardless of whether a mental or physical disability may be in play.“The employer is well within its rights to manage the performance or conduct issue and should not medicalize the issue,” he said.If a worker comes forward and asks for an accommodation, the employer should be “proactive and interactive,” Kuczynski added. He noted that employers can seek some verifying information if they're dealing with a nonvisible disability and that conditions such as major depressive disorder and schizophrenia will easily qualify as disabilities and require minimal documentation.But in light of the ADAAA, employers generally shouldn't be spending a lot of time figuring out if a particular ailment qualifies as a disability, according to Kuczynski. Instead, they should focus on what their limitations are and how they might best be accommodated.

How Should Employers Handle Medical Marijuana Use?

Marijuana is still illegal under federal law, but with a growing number of states allowing medical marijuana use, lawyers say they see a quandary for employers. Some observers see a conflict between telling individuals they can use marijuana for medical necessity while also telling them they can't be employed if they test positive for the drug.Seyfarth Shaw LLP's Jerry Maatman, who said lawyers are getting calls from curious employers about physician-prescribed marijuana, cited the the intersection of the federal ADA and medical marijuana in states that permit it as gray area. "Employers are sitting in the middle, sort of scratching their heads,” Maatman said.Since employers can fire or decline to hire anyone who currently uses illegal drugs, and the term "illegal" is defined in this context by reference to federal law, an employer would have no obligation to accommodate marijuana use under the ADA, according to Kuczynski, regardless of whether there's a state-sanctioned medical marijuana program in play.“This is an issue that has come up, that we have been asked about,” he said. “The commission has not, to my knowledge, beyond what has been said in the regs, taken a position with respect to marijuana.”Kuczynski did warn, however, that medical marijuana can't be used as a smokescreen for unlawful discrimination. He pointed to a case — which recently wrapped up with a $42,500 settlement — in which the EEOC accused an assisted living facility company of firing a worker after learning she had epilepsy.The employer argued that it took action against the worker, who used medical marijuana, because she failed a drug test. In April, a Michigan federal court refused to grant that employer summary judgment, saying there was a genuine issue of material fact as to whether that rationale was pretext.Lawyers agreed that given the illegality of marijuana on the federal level, employers are likely to be on solid ground when firing someone over a positive marijuana test, even in a state that's given a green light to medical use.“The real question is: Is that the right answer going forward? Is that the policy you want to stick with?” Larson said.Larson pointed out that the unemployment rate for disabled people is already so high that its “horrific.” If medical marijuana use could make a disabled person more employable, then firing him or her over a positive test seems problematic, he said.Employers have a right to require that their workers not be impaired when on the job, and if there was some way to distinguish between actual intoxication and a mere residual presence from offduty use, that could be very helpful, according to Larson.“If there was some way to distinguish presence from impairment, we'd be in good shape, but given the fact that that does not appear to be readily available, we're going to continue to struggle with this issue in the next few years,” Larson said.