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In recent years, states throughout the nation have expanded protections for employees in the workplace. Most recently, Texas Governor Greg Abbot signed two new bills (SB 45 and HB 21) that went into effect on September 1, 2021. The laws give employees new protections against sexual harassment in the workplace and implements key revisions to preexisting state law.

First, the definition of an “employer” has expanded. Previously, an employer had to have 15 or more employees to be covered by the anti-sexual harassment laws. As of September 1, 2021, the law defines an “employer” as a person who employs “one or more employees.” Under this revised definition, all employers including those with as few as one employee could be held liable for damages for workplace sexual harassment. To this end, virtually all Texas employers are now within the statute’s reach, resulting in far more Texas employees being able to sue for sexual harassment.

The legal definition of “employer” was further expanded for purposes of sexual harassment claims to include a person who “acts directly in the interest of an employer in relation to an employee.” Before this amendment, only a business could be the subject of a sexual harassment lawsuit. Now supervisors, managers, and co-workers may also be named defendants in sexual harassment lawsuits and could potentially be held individually liable for damages. It is unclear whether this definition will be extended to independent contractors, consultants, or advisors of a business. Nevertheless, an employer should look into reviewing their vendor and service agreements with contract partners for issues of potential liability.

At a celebration of the 31st anniversary of the Americans with Disabilities Act (ADA), President Biden announced that long Covid will now be considered a covered disability under the ADA and other federal statutes that protect persons with disabilities. The Americans with Disabilities Act prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications and access to state and local government’ programs and services. The executive order highlighted new joint guidance from the United States Departments of Justice (DOJ) and Health and Human Services (HHS) relating to this newly recognized condition.

For context, while most people infected by Covid-19 recover from the illness with little or no lingering effects, reports of long Covid symptoms have been growing among Americans for some time. Long Covid is the long-term persistent condition that people suffer from after contracting Covid-19. The symptoms vary but can include fatigue, ongoing high temperature, breathlessness, cognitive impairment, generalized pain and mental health problems. During his remarks, President Biden noted that these conditions can be disabling and that accommodations for these conditions are necessary for long haulers “so they can live their lives in dignity.”

According to guidance from the DOJ and HHS, long Covid will constitute a disability under the ADA “if the person’s condition or any of its symptoms is a ‘physical or mental’ impairment that ‘substantially limits’ one or more major life activities.” For example, if a person experiences memory lapses or difficulty concentrating as a result of long Covid substantially limiting their brain function or cognitive ability, that person could be considered disabled. Long Covid will not, however, automatically be considered a disability under the new guidelines and it is cautioned in the guidance that each decision must be made on a case-by-case basis. The guidance further provides that an “individualized assessment is necessary to determine whether a person’s long Covid condition or any of its symptoms substantially limits a major life activity.”

Brandi Levy, a student at Mahanoy High School (MAHS), was finishing her freshman year when she tried out for and failed to make her high school’s varsity cheerleading team. When she was at an off-campus convenience store over the ensuing weekend, a frustrated Levy posted a photo of herself on Snapchat with the caption “F*** school f*** softball f*** cheer f*** everything.” The post was accompanied by a photo of Levy and a friend displaying their middle fingers to the camera.

Levy’s post was visible to about 250 people on the social media network, many of whom were her peers at MAHS and some of whom were cheerleaders. It was intended to disappear consistent with the Snapchat protocol, but several students who saw the post approached the cheerleading coach and expressed concern that it was inappropriate. The coach decided Levy’s post violated team and school rules, and Levy was suspended completely from the cheerleading program for the year.

Levy, represented by the American Civil Liberties Union (ACLU), sued Mahanoy High School claiming the suspension was a violation of her First Amendment rights. She won in federal district court with the court basically finding that she had not waived her right to speech simply by agreeing to the team’s rules. Furthermore, because the Snapchat was taken off-campus, the court held her speech was not subject to school-time regulation, and her Snapchat did not rise to the level of disruption required to warrant discipline.  In 2020, the school district appealed the district court decision and the U.S. Court of Appeals for the Third Circuit again sided with Levy holding that school officials do not have the authority to discipline off-campus speech by students. The Circuit court ordered that Levy be allowed to rejoin the cheerleading team and found that “public schools have an interest in teaching civility … but they may not leverage the coercive power with which they have been entrusted to do so.”

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