Tag Archives: Workplace Discrimination

U.S. Supreme Court Issues Landmark Decision Providing Discrimination Protections to LGBTQ Workers

Contributed by John Hayes, June 15, 2020

Judge’s Supreme Court gavel with law books

On June 15, 2020 the United States Supreme Court handed down a momentous decision ruling that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects gay and transgender employees from workplace discrimination. The decision consolidated three cases where the employees were terminated from their jobs: two separate cases involving the terminations of gay employees; and one case involving the termination of a transgender employee.

The vote was 6 to 3, with Justice Neil M. Gorsuch writing the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Justice Alito wrote a dissent joined by Justice Thomas, and Justice Kavanaugh wrote a separate dissent.

Title VII bars employment discrimination based on race, religion, national origin and sex. The question for the justices was whether discrimination “because of sex” applies to gay and transgender workers. While most federal appeals courts interpreted Title VII to exclude sexual orientation discrimination, both the Second Circuit Court of Appeals (in New York) and the Seventh Circuit Court of Appeals (in Chicago) had previously ruled that discrimination based on sexual orientation is a form of sex discrimination. 

Writing for the majority, Justice Gorsuch stated:

An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

… 

In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee.  We do not hesitate to recognize today a necessary consequence of that legislative choice: an employer who fires an individual merely for being gay or transgender defies the law.

Currently 22 states, including Illinois, have their own laws prohibiting job discrimination based on sexual orientation or gender identity.  While these laws remain in force, the Supreme Court’s ruling means federal law now provides similar protections for LGBTQ employees in the rest of the country.

Employers throughout the United States must now be aware that federal employment law (noting that Title VII covers only employers with 15 or more employees) prohibits discrimination against gay and transgender employees. The upside is that employers will no longer have to navigate inconsistent laws that vary from state to state and it will also likely make employee training easier and more consistent for employers operating in multiple states. Employers should update their discrimination and harassment policies to make sure gay and transgender employees are included in anti-discrimination protections.

It should also be noted that, for most employers, attempting to justify an employment action against gay or transgender employees on religious grounds will not be a successful avenue of defense.  The so-called “ministerial exemption” is very narrowly tailored to cover only churches and religious institutions, and applies only to employees performing a “ministerial” role within the institution.   

The takeaway for the vast majority of employers is that it is now crystal clear that Title VII’s prohibitions on discrimination based on sex include gay and transgender individuals. 

Responding to Violence in the Workplace – A “Catch 22” for Employers

Contributed by Michael Wong, August 10, 2017

Workplace investigation

The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many federal and state laws that may protect certain employee conduct. More importantly, because an employer has no objective “litmus test” for predicting which employee may become violent under particular triggering circumstances, there is no foolproof way to effectively eliminate the hazard.

Employers today can find themselves in a seemingly untenable dilemma when they have violence threaten to invade their workplace, as disciplining or terminating the problem employee can result in a legal claim as well.

In Mayo v. PCC Structurals, Inc., 795 F.3d 941, 942 (9th Cir. 2015), the employer, PCC, terminated the plaintiff, Thomas Mayo, after he made threatening comments to three co-workers that he was going to bring a gun to work and start “shooting people.” After the threats were reported, the employer took the proper precautions by immediately suspending the plaintiff, barring him from company property, and notifying the police. The police took him to the hospital for medical treatment on the basis that he was an imminent threat to himself and others.

After taking three months of leave under the FMLA and Oregon’s equivalent state law, a treating psychologist cleared Mayo to return to work, but recommended a new supervisor assignment. Instead, the employer terminated Mayo. Plaintiff then sued PCC alleging he was terminated because of his disability in violation of the Americans with Disabilities Act (ADA) and state law.

In Mayo v. PCC, the United States Court of Appeals for the Ninth Circuit held that an employee who made serious and credible threats of violence against coworkers is not a qualified individual with a disability under the ADA or Oregon’s disability discriminatory law. In granting summary judgment to the employer, the Court held that an essential function of almost every job is the ability to appropriately handle stress and interact with others, and that an individual is not qualified and cannot perform the essential functions of the job if he or she threatens to kill co-workers – regardless of whether such threats stem from a mental condition or disability.

What should employers do?

Against this potential liability minefield, an employer should develop an effective written workplace violence preventative policy. For those who already have policies in place, it would be a good idea to review your policies and practices with your legal counsel to make sure that these issues and any potential concerns are properly addressed.

Ask yourself the following questions to see if your policy needs to be modified in light of the recent lawsuits:

  1. Do your policies advise employees that they will be subject to discipline (up to and including termination) if they “fail to foster collegiality, harmony, positive attitude, and good relations in the workplace?”
  2. Do you have a statement that there is “zero tolerance” regarding threats or acts of violence?
  3. Do your managers/supervisors know what steps should be taken if there is a threat, complaint of bullying or violence?
  4. Have your managers, supervisors and employees been trained on identifying signs and symptoms of behavior which may predict potential violence (erratic behavior; comments regarding violence, homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; evidence of violent tendencies or abuse of alcohol or drug use)?
  5. Have your managers and supervisors been trained and regularly reminded about the importance of good documentation and dangers of bad documentation?

What Do You Do When The Schoolyard Bully Is Now Your Employee?

Contributed by Allison Chaplick

Just because you employ adults, does not mean that your employees will always act like adults.  And, no, I am not talking about your employees who walk around in skinny jeans, wool hats (even though it is the dead of summer), tattoos and colorful hair.  I’m talking about the bullies. 

Bullies can bring a serious threat to the workplace.  First, no one likes a bully.  Second, employees who are victims of bullying are not shy to file a lawsuit against their employer because of the bullying.  In fact, recently a woman won more than $1 million dollars in a settlement against her former employer because of bullying. Potential common law causes of action for allowing bullying to take place at work could include intentional (or negligent) infliction of emotional distress, and negligent hiring or negligent retention.  Unlike claims filed under Title VII for discrimination and harassment, there is no cap on what an employee can recover from the employer. 

Just like schools, employers should have a zero tolerance policy that prohibits bullying.  Chances are, you already do, you just call it something else.  First, take a look at your employee handbook, specifically the Anti-Discrimination/Harassment policy where you prohibit “name-calling, letters, gestures, ethnic slurs, racial epithets, and other conduct” that is aimed at a particular employee.  Now, look at your Codes of Conduct policy.  Do you prohibit “fighting or using obscene, abusive, or threatening language or gestures”?  How about advising your employees that they will be subject to discipline (up to and including termination) if they “fail to foster collegiality, harmony, positive attitude, and good relations in the workplace.”  Combined, these policies should be your anti-bullying provisions, and you should enforce them just like any other policy: consistently. 

So, what do you do when a victim complains to you about bullying?  Just as if you would investigate any complaint of unlawful discrimination or harassment, you should take all complaints and incidents of bullying seriously, separate the parties if necessary, and start investigating and documenting.  If necessary, take prompt remedial action against the bully by issuing a written warning, suspension or terminating that bully!