The Fourth Circuit Court of Appeals recently clarified the extent of workplace protections against same-sex sexual harassment (in other words, sexual harassment where the harasser and victim are of the same gender) under Title VII of the Civil Rights Act, in a case titled Roberts v. Glenn Indus. Grp., Inc. The Court explained there are multiple ways to prove same-sex harassment, including proof of an employee’s failure to conform to gender stereotypes.

The Roberts case has potentially widespread implications for both employers and employees.  The GaffneyLewis employment team is here to serve your legal needs, both inside and outside the courtroom.

In 2015, Chazz Roberts, a male employee, worked as a diver’s assistant for a company that specialized in underwater inspection and repair services. Roberts worked in an all-male environment and claimed he was subjected to homophobic, derogatory, and sexually explicit comments by his male supervisor. For example, Roberts’s supervisor called him “gay” and referred to him as having “retard strength.” The supervisor also physically assaulted Roberts on several occasions.

Roberts sued the company under Title VII, which prohibits same-sex sexual harassment in the workplace. The trial (district) court ruled in favor of the company, dismissing Robert’s sexual harassment claim before it reached trial.  The company prevailed because the district court determined Roberts’s complaints did not fall within any one of the three specific situations set forth in the Supreme Court’s 1998 decision, Oncale v. Sundowner Offshore Services, i.e., the supervisor/harasser was not homosexual, the offending comments did not demonstrate a general hostility toward men in the workplace, and, because the workplace was all male, there was no comparative evidence of the harasser treating female employees better than male employees. The trial court also ignored the physical assaults because they were not of a sexual nature.

On appeal, the Fourth Circuit vacated the district court’s ruling, clarifying that the three examples contained in Oncale by which an employee may allege same-sex harassment are not the only means available for an employee to prove same-sex sexual harassment.

Rather, an employee may use additional forms of proof to demonstrate the harassment was based on sex, including the employee’s failure to conform to gender stereotypes. Moreover, the Fourth Circuit reminded employers of the 2020 Supreme Court decision, Bostock v. Clayton County, which approved of sexual orientation claims under Title VII.

Finally, the Fourth Circuit concluded that the district court erroneously disregarded the physical assaults against Roberts because they were “not of a sexual nature.” There is no requirement under Title VII, the Court said, that only sexual-based assaults can substantiate a claim of a hostile work environment based on sex.

Cases like Roberts demonstrate how important it is for workplaces to not tolerate harassing, derogatory, homophobic, or sexually explicit language. Training should be in place to prevent and appropriately respond to such conduct. It’s a good lesson for employers and their human resources departments, and an encouraging sign to employees experiencing harassment.

If you’re an employee or employer and you have questions about your workplace rights or obligations, give GaffneyLewis, LLC, a call today.

What Is South Carolina’s New IPEN Electronic Notary Law?

On May 13, the General Assembly passed legislation that permits electronic notarization of signed documents. The South Carolina Electronic Notary Public Act was signed by Governor McMaster on May 18. While the law does not go as far as some want to allow remote notarization, it’s a step in the right direction. To its credit, the law does contain several safeguards to alleviate opposition to remote online notary (RON) legislation that may be taken up by the General Assembly in a future session.

First things first: what is IPEN? It stands for in-person electronic notary. As the term implies, the person signing the document must do so in the presence of a notary. This requirement makes it clear that the new law does not enact RON, and for many raises the question of why it was necessary in the first place.

Proponents of the law will point out that it adds a layer of security to the notarization process. Each electronic notary will be required to include the following items:

• Electronic signature
• Recording in an electronic journal
• Public key certificate
• Electronic seal

A so-called Certificate of Authority for an Electronic Notarial Act must be included with each electronic notarization. And while this all sounds impressive, skeptical observers have asked: what’s the point, unless this will pave the way for RON legislation?

RON isn’t just convenient for notarizing documents during pandemics, when in-person signings are less safe. It increases the efficiency of executing documents and allows parties to signings to devote more resources to other needs. Imagine the time and cost that could be saved if signatories and notaries did not have to show up at the same place to sign and notarize documents.

IPEN could be seen as a baby step in the direction of RON. But it would need to overcome resistance from lawyers and others who fear abuse of remote notarization. South Carolina real estate lawyers, for example, have long opposed remote notarization out of concern that notaries, not lawyers, will supervise closings.

However, these worries are unfounded. Included in the text of the new IPEN law is this: “Nothing in this act contravenes the South Carolina law that requires a licensed South Carolina attorney to supervise a closing.” In other words, there would be little to fear from a remote option because future legislation could easily address its worst excesses and potential abuses.

The work ahead to implement this new law will take some time. The South Carolina Secretary of State will be tasked with registering electronic notaries. That means creating the necessary regulations to govern the procedures, practices, forms, and records needed for electronic signatures and seals. Unique registration numbers must be assigned to each electronic notary, and technology vendors have to be approved.

Perhaps this will open the door to South Carolina enacting true RON legislation. The General Assembly won’t consider such legislation before January 2022. During the intervening period, the practice of electronically notarizing documents may allay concerns of forgery, non-lawyers practicing law, and other issues that have stood in the way of RON.

In the last year, we’ve seen how technology can help law firms adapt to exigencies like the coronavirus pandemic. And Gaffney Lewis, LLC, has steadily kept pace. We are excited to see this move forward and what it could mean for the future of the notarization process. If we can assist with your legal needs, please reach out to us today.

GaffneyLewis LLC is pleased to announce that Randi Lynn Roberts, Nashiba Boyd and Robert Blain have been promoted to equity partner status. Roberts and Boyd are based in the firm’s Columbia office and Blain is in Charleston serving as the managing partner for the Charleston office.

“We are extraordinarily pleased to have Rob, Nashiba and Randi Lynn join us as equity partners,” said Regina Hollins Lewis. “Each of them brings exceptional skill and impressive professional credentials and we look forward to continuing to provide excellent service to our clients.”

Roberts, who has been with the firm since 2014, focuses her practice on tort defense, including catastrophic injury, pharmaceutical professional negligence, and products liability, primarily representing national retailers in cases across the state of South Carolina. Prior to joining the firm, Roberts first served as a law clerk to Judge Thomas A. Russo on the circuit court and thereafter as a law clerk to Chief Judge James E. Lockemy, of the South Carolina Court of Appeals. She holds degrees from the University of South Carolina (2007) and the Charleston School of Law (2010). Roberts is AV rated by Martindale Hubbell.

Boyd joined the firm in 2017 and also focuses her practice in the areas of tort defense and commercial litigation, including catastrophic injury, pharmaceutical professional negligence, and products liability. Boyd has over 15 years of civil litigation experience and also practices complex, multi-jurisdictional commercial defense. Boyd is a graduate of Clemson University (2001) and Howard University School of Law (2004). She is AV rated by Martindale Hubbell.

Blain started his legal career with the firm in 2012 and returned to the firm in 2019. He represents businesses and individuals in commercial and general litigation matters, including premises liability, personal injury, product liability, insurance defense, and other tort matters. His litigation experience includes handling a variety of complex civil cases with significant exposure in the state and federal courts of South Carolina. Blain is a graduate of Duke University (2006) and the University of South Carolina School of Law (2011).

“We congratulate these remarkable attorneys on this outstanding achievement,” said Amy Gaffney. “GaffneyLewis prides itself on providing first-rate service and value to our clients. The superb work of these new partners has played a pivotal role in the success and growth of our firm.”

The prevailing wisdom says you can mandate COVID-19 vaccinations for your employees.

The better question is: should you?

What allows you to make the COVID-19 vaccination mandatory?

A mandatory vaccination requirement in your workplace implicates several federal employment laws, including the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the religious protections of Title VII of the Civil Rights Act of 1964 (Title VII). Employers with 15 or more employees are generally subject to these laws.

To be fully transparent, there is not a definite answer to the mandatory vaccination question until and unless it is litigated because this is a novel issue. For example, some lawyers are concerned that the vaccine has not actually been fully approved and licensed by the FDA but is instead being administered under an Emergency Use Authorization only. There is, however, guidance from the Equal Employment Opportunity Commission (EEOC), which enforces the above laws, indicating mandatory vaccination policies are lawful if drafted and executed properly.

When might you have to honor an employee’s refusal to accept the mandatory vaccine?

• If a disabled employee has a medical objection and may be owed a reasonable accommodation. Here the company has to perform a direct threat analysis and engage in an interactive analysis with the objecting employee regarding a reasonable accommodation.

• If an employee with a sincerely-held religious belief objects based on his religious belief. The company will have to determine whether the employee’s objection creates an undue hardship and whether the company can accommodate the vaccination refusal.

• For example, some religious leaders have denounced the use of the Johnson & Johnson vaccine because the vaccine was produced using fetal cell lines (made in a laboratory) descended from cells taken from an aborted fetus in the 1980s. (That process is explained here: https://www.nebraskamed.com/COVID/you-asked-we-answered-do-the-covid-19-vaccines-contain-aborted-fetal-cells)

Now that you know you can (probably), should you?

According to research by the Society for Human Resource Management (SHRM), 60% of U.S. workers said they will probably or definitely get the vaccine once it becomes available to them. On the other hand, 28% of workers are willing to lose their jobs if their employer mandates the COVID-19 vaccine. Thus, you need to examine whether your company is prepared for the possibility of losing 28% of your workforce over the vaccine. If you do not terminate the employment of the objecting employees (who have no valid exemption as discussed above), you will now have a different set of legal and practical problems to solve.

Mandating the vaccine in your workplace will surely alienate a significant portion of your employees, especially if any have secular objections to the vaccine (as opposed to religious objections) and/or have adverse reactions to the vaccination. If an employee has an adverse reaction to the vaccination, you will need to report that to your Workers’ Compensation carrier.

Moreover, the recent blood clot issue with the Johnson & Johnson vaccine is a good example of how employers do not know what they are taking on when mandating a vaccine.

Can you be held liable for NOT mandating the vaccine in your workplace?

Are you feeling stuck between a rock and a hard place yet? While employers have an obligation to provide a workplace reasonably free of health and safety hazards (check out OSHA requirements), what this means for a specific employer or industry will need to be addressed on a case-by-case basis.

If you would like help wading through these competing interests as it relates to your company, please call us to schedule a consultation.

Pending South Carolina Legislation

Three House bills and one Senate bill are pending in South Carolina, all of which would prohibit employers from mandating a vaccine. See House Bills 3217, 3511, and 3711 and Senate Bill 177.

Senate Bill 177, and similar House Bill 3711, would prevent any person from being compelled to receive a COVID-19 vaccination and prohibit employers from taking adverse actions—including (i) termination, (ii) suspension, (iii) involuntary reassignment or (iv) demotion—against employees who choose not to be vaccinated. Senate Bill 177 states that individuals treating or caring for vulnerable populations (persons over the age of sixty (60) or with underlying medical conditions) can be required to receive a vaccination. The Bill has no prohibition against an employer encouraging, promoting or administering vaccinations or offering incentives to employees who choose to be vaccinated. Senate Bill 177 was passed by the Senate and sent to the House where it is in committee. https://www.scstatehouse.gov/sess124_2021-2022/bills/177.htm The 2021 session adjourns on May 13.

​April 30, 2021 – GaffneyLewis LLC is proud to announce that its founding partners have been named to the 2021 South Carolina Super Lawyers List. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this recognition.

GaffneyLewis attorneys honored as South Carolina Super Lawyers in 2021 are:

Amy Gaffney (Charleston) – Employment and Labor

Regina Hollins Lewis (Columbia) – Personal Injury – General

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.

The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area.

Meet Marian Wright Edelman

In our final post celebrating Women’s History Month GaffneyLewis LLC is proud to introduce you to Marian Wright Edelman, an American activist for children’s rights.

Hailing from Bennettsville, South Carolina, Edelman was born on June 6, 1939, to Arthur Jerome Wright, a Baptist minister, and Maggie Leola Bowen.

Edelman has been a life-long advocate for disadvantaged Americans and is the founder of the Children’s Defense Fund. Her work in this area has influenced leaders including Martin Luther King Jr.

After graduating from high school in 1956 she attended Spelman College in Atlanta, Georgia. Edelman was awarded a Merrill Scholarship which afforded her the opportunity to travel and study abroad. In 1959 she returned to Spelman for her senior year and became involved in the civil rights movement. In 1960, Edelman and 77 other students were arrested during a sit-in at segregated Atlanta restaurants.She graduated from Spelman as valedictorian of her class. She went on to study law and enrolled at Yale Law School earning her Juris Doctor in 1963. She would later become the first black woman elected to the Yale Board of Trustees (1971).

In 1964 Edelman became the first African American woman to be admitted to the Mississippi Bar and she started her legal career with the NAACP Legal Defense and Educational Fund representing civil rights activists.

Edelman first met her husband, Peter, an assistant to Robert F. Kennedy, when Kennedy was touring the Mississippi Delta. The two married in 1968 and relocated to Washington, D.C.

In 1968 Edelman founded the Washington Research Project, a public interest law firm. She also worked on the Poor People’s Campaign for Martin Luther King Jr. and became more involved in issues relating to childhood development and the protection of children.

As her activism and support for underprivileged children advanced, Edelman founded the Children’s Defense Fund to be a voice for children of color, poor children, and those with disabilities. Edelman was instrumental in getting the United State Congress to overhaul the foster care system, and to protect children who are disabled, homeless, or abused.

Edelman is also the author of several books focusing on the importance of children’s rights and protecting them. Her passion for children and the lifelong journey to protect them is reflected in her words, “as adults, we are responsible for meeting the needs of children. It is our moral obligation. We brought about their births and their lives, and they cannot fend for themselves.”

In 2020, Edelman became president emerita of the Children’s Defense Fund, but her passion for the work and commitment to children continues.

Thank you, Marian Wright Edelman for the being the light for the children who need it. You have touched so many lives and your work will continue for years to come.