EEOC Bans Discrimination against Sexual Orientation in the Workplace

Beth Rae ODonnellOn July 16, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) ruled that all job discrimination based on sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.

This historic 3-2 decision does what Congress and most courts so far have refused to do: ban discrimination against gays in the workplace. Until now, only a handful of states and municipalities have done so.

The ruling came in an appeal by an air traffic controller who had claimed he was discriminated against and denied a promotion in 2012 because he is gay. He filed a claim with the agency, whose staff initially ruled that sexual orientation discrimination was not within the jurisdiction of the agency. He appealed to the commission, which overturned the decision, stating, “We conclude that sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination.”

Neither Congress nor the courts have approved this ruling, and it contradicts several federal circuit court rulings that held sexual orientation is not part of Title VII. The EEOC’s views on Title VII are considered persuasive, but not binding, authority on the courts. What remains to be seen is how circuit courts will go along with the EEOC’s interpretation of Title VII. The 6th Circuit Court has held that Title VII’s prohibition of the basis of “sex” only applies to discrimination on the basis of gender and does not include discrimination based on one’s sexual orientation.

Now is as good of time as any for companies and governmental entities to start thinking about updating their employment policies to reflect this paradigm shift.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law.  She may be reached at (734) 261-2400 or erae@cmda-law.com.

Michigan Case Law Update: Harris v. Mott Community College

MICHIGAN CASE LAW UPDATE

Harris v. Mott Community College

497 Mich 903 (November 25, 2014)

On November 25, 2014, the Michigan Supreme Court upheld the dismissal of a case filed by a former nursing student against Mott Community College and Nursing Program Administrators. The former student sued the College after he was dismissed from the Nursing Program due to safety violations in the clinical component of the program. The College dismissed the Plaintiff from the program despite having a 3.8 grade point average. The Plaintiff alleged that he was denied his right to procedural and substantive due process because he was not given notice or the opportunity to participate in the procedures outlined in the student handbook. The Plaintiff further alleged that the College breached the contract outlined in the handbook. The College argued that its student catalog disclaimed any contractual relationship and that any breach of fair dealing and honesty claims were unsupported by the evidence. Additionally, the College argued that the Plaintiff had notice and an opportunity to be heard regarding his safety violations. Lastly, the individual Defendants argued that they were entitled to governmental immunity. The trial court denied the College’s Motion for Summary Disposition and the College appealed. The Court of Appeals reversed the finding of the trial court. While the constitutional claims against the College were not barred by governmental immunity, the Court did find that the Plaintiff had not stated a claim for monetary relief against the individual employees. Regarding the constitutional issues, the Court of Appeals found that there was no genuine issue of material fact that the College and the individual Defendants were entitled to judgment as a matter of law. The Court found that the Plaintiff could not claim a property right based on the student handbook and that the handbook did not create a contractual right to continued enrollment at the College. Assuming without deciding that the Plaintiff had a property interest in his education protected by due process, the Court found that College officials adequately apprised the Plaintiff of his safety violations and that he was afforded sufficient procedures to comply with due process safeguards. Lastly, the Court agreed that courts in general should show great deference to genuinely academic decisions of institutions, upholding the Plaintiff’s dismissal from the College.

Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on intellectual property, business law, education law, and employment and labor law. He may be reached at (734) 261-2400 or psturdy@cmda-law.com.

The Importance of Federal Registration

patrick sturdyBusiness owners and individuals should be concerned with protecting their brand identity, which means taking active steps to protect their trademark. The best avenue of protection is Federal Registration of the business or individual’s trademark with the United States Patent and Trademark Office.

The right to use a trademark does not come from Federal Registration, instead, the first business or individual to use a distinctive trademark in commerce has the right to use the mark and exclude others from using a confusingly similar trademark. However, this right of use is limited to the geographic location in which the trademark is being used. Registration provides nationwide priority over the trademark. Federal registration also creates a public record of the trademark and puts others on notice. Federal registration can create presumptive evidence of trademark ownership and exclusive right to use the trademark throughout the United States. Federal registration can also provide the basis of obtaining registration in foreign countries. Also, Federal registration provides the ability to file a suit related to the trademark in a federal court and recover the defendant’s profits and up to three times your actual damages, as well as your attorney fees if the court finds the case to be exceptional.

Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on intellectual property, business law, education law, and employment and labor law. He may be reached at (734) 261-2400 or psturdy@cmda-law.com.

Intellectual Property: The Most Overlooked Asset of a Company

Gerald DavisWhen evaluating the worth of a company, it is important to recognize the value of all assets and liabilities in determining the company’s value.  However, most overlooked are the intangibles – that is, assets that do not have a physical shape, but nonetheless contribute to the earning power of the company.  The true value of a company is its ability to generate earnings and earnings are a function of the productive use of a company’s assets deployed to maximum advantage.

Intellectual property is the most overlooked asset of the company, which can include its name, its reputation, its identity to the market and customer base, and its ability to charge a fair price for its products or services based on special recognition afforded the company by its customers and business prospects.  Intellectual property, therefore, is an attempt to monetize intangible business assets in a way that they are not confused with other vendors or suppliers, and give the company a special recognition not enjoyed by competitors or other vendors, to avoid commoditization pricing in its sales.  A commodity treats every item of the same class, type and kind as identical, and therefore the only difference is price, while intellectual property affords the vendor special recognition, pricing and competitive advantage which avoids commoditization in the sale of its products.  

Gerald C. Davis is a partner in our Livonia office where he concentrates his practice on corporate and business law, leveraged buy-outs, company reorganization and refinancing, analyzing investments for joint ventures, intellectual property, and drafting loan agreements. He may be reached at (734) 261-2400 or gdavis@cmda-law.com.

Protecting Your Company’s Internet Presence

Carla Testani CMDAA company’s name and logo make its products and services distinguishable from any other business and may be protected by a trademark registered with the United States Patent and Trademark Office (USPTO).  A trademark is considered property of the business and has a tangible value, as it is used by the public to associate a particular good or service with its source.  Often, business owners spend a great deal of resources developing their mark in traditional commerce while leaving its online identity an afterthought.  Ignoring a business’s internet presence could potentially result in dilution or loss of the mark on the World Wide Web (WWW).

Internet domain names are commonly referred to as “website addresses” and begin with “www.”  However, an actual website address is a sequence of numbers (i.e. 123.12.123.45) and a domain name is the way for internet users to easily recall or access a unique numerical address.  In order to obtain a website address, an individual or company applies through a domain name supervisor, such as GoDaddy.com and Gozerdomains.com, who is authorized by The Internet Corporation for Assigned Names and Numbers (ICANN) to correspond with a specific numerical sequence on the WWW.  Purchasing a domain name through a domain name supervisor is fairly inexpensive, but does not automatically afford special rights in the name unless it is used in commerce and/or subsequently registered as a trademark.

An internet domain name may be registered with the USPTO if it is functioning both as domain name (address) and also as a trademark.  The mark should have a distinctive component and be used as a source indicator apart from just being listed in the address line of the browser.  However, in order to receive protection for an internet domain name, just as with a traditional trademark, the name must be distinctive, famous, or take on secondary meaning, as opposed to merely a generic (i.e. “wolf”) or descriptive (i.e. “red”) term.

Before beginning to use a mark, a business should determine whether another business already uses an identical or similar trademark on or in connection with the same or related goods or services, regardless of whether or not the business has an internet presence.  Also, before devoting time or resources to marketing a name, a company should check to see if a specific desired domain name is actually available.  However, even if a particular domain name is already taken, it may not necessarily be in use.  The owner of the name may be willing to abandon the name or sell the rights to the name.

There are a number of problems that could arise if a thorough clearance check is not performed prior to successfully securing a domain name.  Sometimes, the domain name contains another company’s existing trademark.  While this registration may be a defendable and legitimate use of the name, if the owner is found to have registered the domain name in bad faith, he or she may face significant penalties if an infringement action is brought.  Other examples of bad faith registration include: a competing business registering a similar mark with an intent to profit from a consumer’s confusion, third party registration with the primary purpose of selling, renting or otherwise transferring the domain name registration to a business’ competitor, or a company registering its main competitor’s mark to prevent the competition from utilizing the name online.

The Anticybersquatting Consumer Protection Act (ACPA) was passed to provide trademark owners with effective ways to combat cybersquatters and other entities from infringing, diluting or unfairly competing with a registered domain name.  Additionally, ICANN has implemented a Uniform Domain Name Dispute Resolution Policy (UDRP) as a streamlined, cost-effective way to resolve disputes about domain names.  However, unlike traditional trademark and unfair competition claims brought under federal trademark statutes, consumer protection is not the main purpose of the ACPA.  In fact, the mere act of registering a domain name may violate the ACPA even if the domain name is never used or made available over the Internet.

As competition forces companies to put more and more information, products, and services onto the Internet, Internet domain name disputes will inevitably become more common.  Whether avoiding an infringement on someone else’s mark or defending against others claiming your business’ identity online, early consultation with legal counsel is critical to protecting valuable assets of a company.

Carla G. Testani is a partner in our Livonia office.   She may be reached at (734) 261-2400 or ctestani@cmda-law.com.

July’s 50 a Month Donation

CMDA is honored and appreciative for the trust our clients have placed in our Firm since 1965.  As a way to give back to the community as we celebrate our 50th anniversary, every month throughout 2015 the Firm will be donating 50 items (or more) to a local charity.

In July, we are collecting food and supplies for PBJ Outreach, Inc., which is a non-profit organization focused on feeding and clothing the poor living in the Detroit metropolitan area. The organization unites volunteers and equips them to obtain, prepare and distribute food and clothing while creating an awareness of their obligation to service others.  As storage space is limited, PBJ Outreach, Inc. is in need of specific food and supplies.   

If you are interested in donating, please stop by our Livonia office with your contribution.  Thank you for your support!

Gov. Snyder Signs Law to Bar Municipal Wage, Employment Rules

Beth Rae ODonnellOn June 30, 2015, Governor Rick Snyder signed HB 4052 into law which stops local governments from adopting, administering or enforcing future ordinances or policies that require local businesses to pay wages, fringe benefits or leave time that exceed State or Federal requirements. The bill will take effect on September 28, 2015. Currently, Michigan’s minimum wage is $8.15 per hour which will rise to $8.50 per hour on January 1, 2016. This law does not affect existing ordinances.

Governor Snyder indicated that the new law will bolster the State’s job creation climate by ensuring that regulations regarding employment matters are uniform across the State. Michigan’s law mandating “prevailing” wages on state-financed projects still remains intact.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law.  She may be reached at (734) 261-2400 or erae@cmda-law.com.