Judge Blocks Private Employer Portions of Florida's Idiotic Stop WOKE Act

 I wrote a few weeks ago about the truly idiotic Stop WOKE Act that was passed in, you guessed it, Florida. Well, a federal judge just issued an injunction blocking its enforcement against private employers. The federal judge from the Northern District of Florida was duly irked:

In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. See Stranger Things (Netflix 2022). Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely. . . . Now, like the heroine in Stranger Things, this Court is once again asked to pull Florida back from the upside down.

The law, among other things, prevented private employers from certain diversity and anti-discrimination training. 

The Court gives a detailed example, and the judge's frustration is palpable:

In the end, Defendants suggest that there is nothing to see here. They say the IFA does nothing more than ban race discrimination in employment. But to compare the diversity trainings Plaintiffs wish to hold to true hostile work environments rings hollow. Worse still, “it trivializes the freedom protected” by Title VII and the FCRA “to suggest that” the two are the same. FAIR, 547 U.S. at 62.

Just imagine two scenarios. In the first scenario, a Black employee complains about a mandatory safety training scheduled on Juneteenth. Then, at a mandatory training the day before Juneteenth, “to the surprise of the employees in attendance, a white woman in a black gorilla suit enter[s] the meeting.” Henry v. CorpCar Servs. Hous., Ltd., 625 F. App’x 607, 608 (5th Cir. 2015).* As one of the managers blocks the only exit, the woman does “Tarzan yells and repeatedly refer[s] in a suggestive manner to ‘big black lips,’ ‘big black butt,’ and bananas.” Id. As the woman dances suggestively on one of the Black employees who had complained, another manager leans in and says: “Here’s your Juneteenth.” Id. In the second scenario, a company directs a White employee to attend a mandatory training in which employees watch “a video about violence committed against Black people in the United States over the centuries.” ECF No. 18-3 at 4. After the video, the presenter defines “Black rage”—“resistance towards oppressive people, practices, structures, and systems”—and “White Humility”—“a reflective practice that helps white people develop [the]capacity to interrupt white supremacy”—and asks Black and White participants to discuss them. Id. at 4, 12, 14. 

These two scenarios, under Defendants’theory, are indistinguishable. Indeed, Defendants say, to hold that the state may not ban the latter scenario is to hold that it may not ban the former. ECF No. 49 at 27 (arguing that a ruling for Plaintiffs would doom “a vast range of routine employment discrimination claims”). “If the law supposes that, the law is an ass, an idiot.” Charles Dickens, Oliver Twist 463 (3d ed. The New American Library 1961). But the law is neither an ass nor an idiot. It can tell the difference. Telling your employees that concepts such as “normal” or “professional” are imbued with historically based racial biases is not—and it pains this Court to have to say this—the same as trapping Black employees in a room while a woman in a gorilla suit puts on a retaliatory, racially inflammatory performance the day before a holiday celebrating the end of slavery. Rather, it is speech protected by the First Amendment. (emphasis added)

Things you didn't think you had to say when you became a federal judge, but apparently did.

The state is, of course, appealing. And because the injunction applies only to private employers, state employees are being terrorized by this ridiculous law, especially since schools and colleges are resuming.

I'm sure this isn't the last we'll hear on this law. As I wrote before, the law is badly written and I believe it actually means the opposite of what the legislature intended. SMH. 

* The fact that the judge doesn't have to make this bizarre scenario up explains why I have had a busy law practice for 36 years.

Yes, It's Illegal To Retaliate If HR Managers Or Management Oppose Discrimination

Management-side lawyers are always trying to come up with new ways to make discrimination and retaliation legal. So it's no surprise that they argued in a recent case that there is a "management exception" to retaliation. The theory was that, if an HR manager or other management opposes discrimination as part of their regular job duties, they aren't covered by anti-retaliation laws.

The 11th Circuit has clearly rejected this argument:

The manager exception would carve out of Title VII protection the actions of management employees who have in the course of their normal job performance opposed an unlawful employment action of an employer. That carveout does not fit within the ordinary meaning of the word "opposed," and it is contrary to how Title VII uses the word. For one thing, the statute does not put any qualification on the word "opposed." It does not say an employee has engaged in protected activity unless her opposition came as part of her duties in the normal course of her employment.

Because it's not explicit in the text, to limit the plain meaning of "opposed," the manager exception would have to be implicit in how a person speaking "in ordinary discourse . . . would naturally use the word" opposed. Crawford, 555 U.S. at 277. But the limitations imposed on the word "opposed" by the manager exception would be neither "ordinary" nor "natural" to someone using that word. A person speaking "in ordinary discourse" would think an HR manager has opposed her employer's unlawful employment practices even if it's part of her job to do so. Opposition is opposition, whether the opposer is drawing a manager's salary or not.

It is too big a stretch to think that Congress silently and implicitly wrote into the opposition clause a significant exclusion of an entire category of employees, HR managers. We "assume that Congress does not generally hide elephants in mouseholes." CSX Transp., Inc. v. Ala. Dep't of Rev., 888 F.3d 1163, 1176 (11th Cir. 2018) (quotation marks omitted). That assumption is especially true here where the elephant would have to trample the ordinary and plain meaning of the words Congress did choose.

Whew! Thank goodness. Another attempt to make retaliation legal is rejected. If you're an HR person or other management employee who has opposed discrimination, it's illegal for your employer to retaliate against you. If you think illegal retaliation happened to you, contact an employee-side employment lawyer in your state to discuss your rights. 

New Employer's Retaliation For Opposing Discrimination By A Former Employer Is Illegal

 One of the biggest worries I hear from clients and potential clients is the fear that filing a lawsuit for discrimination will follow them to a new employer. And it's a legitimate concern. A lawsuit is a public record. It will turn up in a background check. Plus, you'll have to testify and appear at hearings in your case, and your new employer will likely find out about your case. Even if it's not your case, what if you're subpoenaed to testify in a former coworker's case?

So, can a new employer retaliate against you for opposing discrimination by a former employer? The 11th Circuit Court of Appeals says such retaliation is illegal.

There is nothing in the anti-retaliation provision's opposition clause that permits an employer to retaliate against one of its employees for opposing an unlawful employment practice of a former employer. The clause forbids retaliation by "an employer" against "any individual" for having "opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a) (emphasis added). It doesn't say "opposed any practice of a current employer made an unlawful employment practice by [Title VII]." A former employer's unlawful employment practice is just as much an unlawful employment practice as one of a current employer. The statutory text makes no distinction between the two. Opposition is opposition, and any unlawful employment practice is any unlawful employment practice.

And the entity that the statutory provision forbids from retaliating is "an employer," not just the employer whose unlawful employment practice the employee opposed. In this context, as is usually the case, the indefinite article "an" means "any." See Alabama, 778 F.3d at 933. Georgia Pacific is unquestionably "an employer," and at the time it allegedly retaliated by firing Patterson it was her employer.

We hold that under the opposition clause's plain language, a current employer may not retaliate for opposition clause conduct even if it is directed at or involves only a former employer. See McMenemy v. City of Rochester, 241 F.3d 279, 284 (2d Cir. 2001) ("We think that Title VII protects an employee from any employer, present or future, who retaliates against him because of his prior or ongoing opposition to an unlawful employment practice or participation in Title VII proceedings.").

This case only refers to an employer, and not a potential employer. A discrimination lawsuit can turn up in a background check and there could be little way to prove that it was the reason you were denied a position. Still, Title VII makes such discrimination illegal:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-­management committee controlling apprenticeship or other training or retraining, including on—the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

The Fair Credit Reporting Act requires that employers provide you with a copy of any background check that caused them to turn down your employment, so it's wise to ask for a copy of any background check to see if a discrimination lawsuit is mentioned.

Bottom line: employers and potential employers can't legally discriminate against you for opposing discriminaiton by a former employer. It's your burden to prove that was the reason, but if you think this is what happened, talk to an employee-side employment lawyer in your state about your rights. 

Employer Asking About Family Members' COVID Test Results Is Illegal

EEOC recently settled a case where an employer was deemed to have violated the Genetic Information Nondiscrimination Act by collecting COVID testing data about employee family members. If your employer is making you provide information about your family's COVID test results, they may be breaking the law.

So what does COVID testing have to do with genetic information? EEOC provided some guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. They provide this information:

May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19?

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking about an employee’s contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.

GINA generally protects employees from discrimination relating to their family medical histories, so asking for family medical information is a big no-no.

In sum, your employer can ask you if you have had contact with anyone who has COVID or COVID symptoms. They cannot specifically demand your family member's test results or whether family members have COVID or COVID symptoms. 

If you think your employer is violating GINA, contact an employee-side employment attorney in your state about your rights.