Labor & Employment Law News
An Official Publication of the Labor & Employment Law Section
In This Issue
A Message from the Editor
Hosanna-Tabor V. EEOC: Discrimination by Religious Organizations
Don't Get Caught By Your Release: Drafting Effective Waivers and Releases
In Living Color: Examining Color-Based Discrimination Claims Under Title VII
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Winter 2013
2012-2013 Section Board of Directors


Newsletter Editor:  A. Craig Cleland


Chair:  William C. (Cory) Barker

Vice Chair/Chair-Elect:  Ian E. Smith

Secretary/Treasurer:  Benjamin I. Fink

Immediate Past Chair:  Daniel M. Klein


Members at Large:

Mary M. (Peggy) Brockington
Robert W. Capobianco
Andrea Doneff
Amanda Farahany
Marcia Alembik Ganz
Robert Lewis
Ellen B. Malow
Adriana Midence
Michelle E. Shivers


Communications Director:  A. Craig Cleland
Advanced Employment Law
Friday, March 15, 2013 9:00 am to 4:30 pm
at the W Hotel Midtown

The Labor & Employment Law Section's Most Popular, Useful and Informative Seminar

Presented by the Atlanta Bar Association Labor & Employment Law Section, the State Bar of Georgia Labor & Employment Law Section and Atlanta Bar CLE

6 CLE hours, including 1 Professionalism hour and 1 Trial Practice hour

Register online and view more information
A Message from the Editor
by A. Craig Cleland,
Ogletree Deakins Nash Smoak & Stewart, PC
As always, the Atlanta Bar Association Labor & Employment Section has a lot going on these days, not least the upcoming Advanced Employment Law Seminar on this Friday, March 15th and the Employment Law for Non-Profits seminar on March 26th, which is part of Pro Bono March Madness.  What's more, this Newsletter has three thought-provoking articles for the ides of March.  Dan Klein, a partner at Buckley & Klein, examines the nuances of the Supreme Court's 2012 Hosanna-Tabor decision and ruminates about how broadly it might be applied in future cases, including in a recent Fifth Circuit opinion.  In an unsure economy with both recent job increases and reductions in force, Melissa Cohn, who practices at Schreeder, Wheeler & Flint, reminds us of the OWBPA fundamentals and points to recent federal circuit court
cases strictly construing, sometimes startlingly so, those requirements.  Finally, a third-year law student at
Washington University School of Law in St. Louis and an Atlanta native, Adrienne Johnson delves into the often-overlooked word "color" in Title VII.  Providing an overview of the scant-but-increasing cases alleging color discrimination, she also lays out the practicalities that employers, who may not recognize complaints of color discrimination, sometimes face.  Good stuff.
Hosanna-Tabor V. EEOC: Discrimination by Religious Organizations
by Daniel Klein, Buckley & Klein, LLP
The First Amendment mandates, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."  The federal courts have long interpreted the First Amendment to confer a fundamental grant of autonomy to religious institutions.  Watson v. Jones, 80 U.S. 679, 727 (1872).  This right includes the freedom "to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine," Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952), and the right of religious organizations to select their own leaders, Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-25 (1976).

From the First Amendment, the courts of appeal uniformly have recognized the existence of a "ministerial exception" precluding application of employment discrimination legislation to claims concerning the employment relationship between a religious institution and its ministers. 

view the entire article
Don't Get Caught By Your Release: Drafting Effective Waivers and Releases under the Older Workers Benefit Protection Act
by Melissa H. Cohn, Schreeder, Wheeler & Flint, LLP
Even as the nation's economy slowly recovers, layoffs and force reductions have become an all too familiar part of the American workplace. One segment of the American population hit particularly hard by this is older Americans aged fifty-five and older. As older Americans are increasingly subject to layoffs and as employers continue to consider their older employees as targets for their corporate restructuring and force reduction plans, the provisions of the Age Discrimination in Employment Act (ADEA)3 and the Older Workers Benefit Protection Act (OWBPA)4 have become particularly relevant, especially as employment litigation surrounding ADEA and OWBPA claims has become increasingly common. Given that this trend is likely to continue as the employment picture for older workers darkens, this article will revisit the specific requirements for waivers and releases established by the OWBPA, and it will consider how recent case law has refined these. The article will conclude by providing practical pointers on crafting effective releases in light of these legal developments.

view entire article
In Living Color: Examining Color-Based Discrimination Claims Under Title VII
by Adrienne C. Johnson, Law Student, Washington University School of Law
Nearly fifty years after its enactment, and after innumerable cases alleging its violation, Title VII of the Civil Rights Act of 1964 continues to educate employers and employees in new and profound ways. Today's employers are increasingly aware of the value of a diverse workforce and have attempted to ensure that workplaces invite and encourage differences among its workers. Interestingly, though, the more employers begin to focus heavily on diversity and its implications, the more it appears that there is still much to learn about how best to recognize and remedy potentially discriminatory practices.  Title VII protects employees or potential employees from discrimination on the bases of race, color, religion, sex, or national origin.  For the most part, there is significant case law or administrative guidance concerning the parameters of Title VII protection for employees.  But discrimination on the basis of color is one of the statute's protections that is often overlooked. 

view entire article
megaphoneSee below for a list of current announcements submitted by Labor & Employment Law Section Members

Barrett & Farahany, LLP is pleased to announce the addition of three new associate attorneys: V. Severin Roberts, Amelia A. Ragan, and Leslie C. Tucker.  After several successful collective FLSA actions were certified and brought to a conclusion, Severin Roberts decided to limit his practice to handling FLSA and collective actions, and has joined the firm's Wage & Hour practice group, focusing exclusively on FLSA cases.  Amelia A. Ragan and Leslie C. Tucker both have joined the firm's ADR practice group, and bring years of employment experience, including working in a large firm environment for the defense, and working at the EEOC and the City of Atlanta employment department.  Amelia and Leslie's focus is on seeking alternative and early resolution for the firm's clients, outside the litigation process.   In addition, Barrett & Farahany has started work on its non-profit, Justice at Work, led by Amanda Farahany and Tanya McAdams.  By using a unique and multi-faceted approach, Justice at Work will strengthen its mission to preserve employees' rights to a jury trial.

Eleanor Mixon Attwood and Justin Scott haves joined Buckley & Klein LLP as partner and associate, respectively.

The Section wants to publish your announcement in the upcoming Section newsletter!
Please submit all accolades, awards, hiring of new associates, etc. to Editor Craig Cleland.