A second Court of Appeal has ruled that discrimination against a person’s sexual orientation is a civil rights violation, in an unusual case where two federal bodies, the EEOC and the Justice Department, took opposite sides. In Zarda v. Altitude Express, Inc. et al, the federal appeals court in New York agreed with the EEOC that bias against sexual orientation necessarily discriminates on the basis of sex. While the employer, Altitude Express, Inc. is uncertain whether it will appeal the decision, it appears likely that this issue will ultimately head to the Supreme Court, because a third appellate court has, based on 1979 precedent, ruled that sexual orientation discrimination is not included in the Title VII anti-discrimination ban.
The First Circuit Court of Appeals issued an opinion last week, overturning summary judgment for an employer in a wage and hour case, based on the absence of a comma in Maine’s overtime statute. An exemption to Maine’s overtime law provides that overtime protections do not apply to employees engaged in the “canning, processing, freezing, drying, marketing, storing, packing for shipment or distribution of … perishable foods.” Some dairy delivery drivers, who do not engage in packing of any kind, sued their dairy employer for overtime, contending the exemption was inapplicable because they interpreted the clause “packing for shipment or distribution of” as one related phrase. The employer successfully argued to the trial court that the clause at issue concerned two distinct activities: 1) packing for shipment; and 2) distribution. According to the dairy, because delivery drivers engage in distribution, they were exempt from the overtime protections and were not paid overtime. The Appellate Court found the statute to be ambiguous as it was unclear if distribution was the last in a series (distribution) or a modification of the clause that was last in the series (packing – for shipment or distribution). Without the comma to make it clear that employees engaged in distribution were exempt, the judgment was reversed and the drivers are now permitted to proceed with their suit seeking millions in back overtime wages.
If you are a punctuation enthusiast, a link to the 29 page opinion with the Court’s analysis of grammar and punctuation is here: