Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.
Showing posts with label sexual orientation discrimination. Show all posts
Showing posts with label sexual orientation discrimination. Show all posts

Friday, January 17, 2014

Vikings Football Player Speaks Up For Gay Marriage, Is Fired: Can He Sue? Maybe

Chris Kluwe is a punter for the NFL. He used to play for the Minnesota Vikings. That is, until he started speaking up in favor of marriage equality. He got permission from the team to do some ads for the cause, but things changed when he wrote and published a letter to a Maryland state official defending a Ravens football player's right to free speech on the same subject. After that, his coach asked him to stop. He didn't.

His coach began to make negative comments about gays repeatedly in Kluwe's presence that they hadn't made in all the years he had worked for them. He also made comments to the effect that Kluwe, "would wind up burning in hell with the gays, and that the only truth was Jesus Christ and the Bible"

He was singled out for harsh criticisms that others had not been subjected to. The comments got increasingly angry, such as: "We should round up all the gays, send them to an island, and then nuke it until it glows."

He was instructed to kick in such a way that it helped the team but made him look worse in the stats. Ultimately, he was replaced. His full statement about what he says happened is here. A story that has the team's response is here.  The team is now investigating and maybe they'll do something, maybe not. 

Let's assume everything he says is true. Does he have a remedy? Let's examine what possible claims he may raise:
  • Free speech: This would be a non-starter. I've written about the fact that there's no free speech at work here, here, here and here. The First Amendment protects you against government action, not corporate action.
  • Sexual orientation discrimination: Minnesota has a law against sexual orientation discrimination, but there's no law protecting speech in favor of marriage equality. If he were fired for objecting to sexual orientation discrimination within the team, then he would be protected against retaliation, but there's still no openly gay football player in the NFL. The law in Minnesota does protect against perceived sexual orientation discrimination, but I see no indication that the coach actually thought he was gay. If Minnesota has an association discrimination provision in the law, then maybe he can argue he was fired for associating with gays. My guess is he's out of luck on sexual orientation discrimination.
  • Political activity: Minnesota has a law on the books making it a crime to retaliate against an employee because of that person's political activity. I think this one may be a winner. The question will be whether he has a remedy under this law because it makes violations a misdemeanor. Any Minnesota lawyers out there want to weigh in?
  • Contract: He almost certainly has an employment contract and I know absolutely zero about football contracts. I'd guess they can dump a player pretty much at will, although there may be some hoops they have to jump through. Unless he can only be fired for cause, or the contract says he can't be fired for political activity or for discriminatory reasons, he may have little or no remedy there. Anyone know what's in his contract?
  • Religious discrimination: If his coach actually told him he'd burn in hell, this would be the way I'd probably go with it. The coach has strong religious beliefs against gay marriage and Kluwe doesn't share those religious beliefs. In Florida, with no law protecting against political activity discrimination or sexual orientation discrimination, this might be the only way to go with a case like this one. I recently wrote about whether religious discrimination laws allow harassment of employees for various reasons, which you can read here.
Can he sue? I'd say maybe. He has one possible federal claim, one pretty good state law claim and one possible state law claim. I'm guessing we haven't heard the last of Mr. Kluwe, so we'll soon find out.

I said it to conservatives and now I'll say it to liberals: it's best to keep those controversial opinions to yourself at work and in public. If you have a boss who holds strong contrary views, or if you're likely to offend your employer's customers with your opinions, keep them to yourself and your friends (but not in social media). I guess it's a good thing I'm my own boss . . .

Thursday, January 16, 2014

Does Your Religion Excuse Homophobic, Racist or Sexist Behavior At Work?

When I wrote the piece about Duck Dynasty's Phil Robertson and his suspension for making racist and anti-gay comments in an interview done to promote his show, many readers told me that Mr. Robertson should be protected by religious discrimination laws. After all, the argument went, he was only expressing his religious beliefs about gays.
Tt is not freedom of speech, it is freedom of RELIGION--what Phil said was congruent with what the Bible says. Violation of the free exercise clause is the issue, not speech. Can you imagine firing an employee because they expressed atheist beliefs or supported Obama and his queer minions?????
Even though employers have to accommodate religious beliefs at work, do religious discrimination laws allow you to express your beliefs that "the gay lifestyle," and gay marriage are sinful? Are you allowed to tell your female coworkers that women belong in the home and should be subordinate to men? Can you dig out old Jeff Davis's views of the Bible to share with your African-American co-workers?

I write about the legal issues involved in determining how much religious expression at work is protected, and when it isn't in my latest article at AOL Jobs.

Friday, January 10, 2014

Donna's Employment Law Predictions for 2014

Last week I revealed how I did on my predictions for 2013 (pretty darned good, if I do say so myself). Today, I look into my crystal ball for 2014. Here's what I see on the horizon:
  1. Minimum Wage: Raising the minimum wage will be a hot political issue in 2014. We saw some movements in 2013 to make significant increases, and that will continue. Unless something drastic happens in the midterm elections, it's doubtful we'll see anything significant on the national level, but look for more states to increase the minimum wage to the $ 9 - 10 range. Some may go even higher, like Seattle's move toward $15. Raising the minimum wage is great for the economy. Unlike trickle-down economics, it gets money circulating quickly. Henry Ford had the right idea: pay your employees enough so they can buy your products.
  2. Legalize It: Legalized marijuana will spread to more states, creating some confusion for employers. Can they fire employees who test positive, like Colorado? Or will their state prohibit firings for legal marijuana use like Connecticut, Arizona, Rhode Island, Maine, Colorado and New York? Colorado has a law, as do other states, prohibiting firing/discrimination for legal off-duty activities, so watch for some litigation over this issue there. Look for marijuana growers and sellers to push for laws like tobacco users have in several states protecting them from discrimination at work. In the meantime, medical marijuana users will seek protection under the ADA and other disability discrimination laws.
  3. Health Care: ObamaCare kicked in and it will change the way we look at health insurance. Sure, it isn't ideal. But when a million or so people who've never had health insurance or who haven't had it in years suddenly can get medical treatment, they'll start to expect to be treated like human beings instead of human waste. From here, we'll be very close to an upheaval in the way we deal with health insurance. This year, we'll see some confusion as the regulations kick in, some stupid employers dumping insurance and cutting people to part-time to avoid paying insurance, but the employer mandates have been delayed until 2015, so most of the stupid employer activity will be at the end of the year and into next year. I say that employers who do this are stupid because they'll ultimately lose good employees. With more people covered, there will be more health care jobs available.
  4. Internships Cut: With employers under attack for unpaid internship programs that don't actually educate the interns and replace regular employees, some programs will simply disappear. That's not all bad, since the interns-as-slaves programs need to die. We'll see better internship programs cropping up, ones that are truly educational, or paid internships. But most of the new programs will start up after this year. This will be a year of lost programs. We'll also see some attempts to put interns under the protection of discrimination and sexual harassment laws. Some may succeed on the state or local levels, but there's no way that happens on a national level with Congress as it is currently configured.
  5. Failed Again: Attempts to pass anti-bullying laws and the Civil Rights Tax Fairness Act will fail just like they do every year.
  6. NLRB and EEOC Cut Off By Courts: NLRB and EEOC will continue to try to expand the protections employees have. Courts will continue to stop them. Still, they'll inch forward with some new progress for employees. Baby steps.
  7. Lip Service: While the midterm elections kick in, we'll hear lots of big proposals to help employees. Little or nothing will pass due to gridlock. Failures will include the FAMILY Act, Arbitration Fairness Act, and ENDA. However, the fact that each of these bills will be blocked will become fodder to take down some of the more anti-employee members of Congress. Maybe 2015 will see some progress.
  8. Background Checks: EEOC's efforts to demonstrate that criminal background checks have a disparate impact on blacks have been pretty well crushed so far. However, there will continue to be efforts to ban credit checks. More states will ban or limit use of credit information in hiring. The federal efforts to do so will fail. More states will pass ban-the-box laws barring many inquiries about arrest and conviction records in job applications. There is zero chance such a law will pass on the federal level this election year.
  9. Pregnancy Discrimination: The issue of whether pregnancy is covered under the Florida Civil Rights Act will be resolved one way or the other by the end of the year. I think the Florida Supreme Court will say it is already covered. If not, then the legislature will pass a fix. The difference will be for all those women caught in between. If the Court doesn't rule for employees, lots of new moms who thought they were covered and sued under state law will be out of luck. Rule wisely, Supremes.
  10. LGBT Protections: States and local governments will continue to pass discrimination laws banning LGBT discrimination. The feds will fail again, but EEOC will continue to push for application of existing law to LGBT employees.
  11. Religious Discrimination: Religious employees will push the limits on their ability to proselytize and pray at work. There will be a disconnect between the right to practice religion vs. the right not to be harassed for not sharing a religion and also LGBT rights. Look for right-wing religious groups to push the argument that religious discrimination laws allow them to speak out against gay rights in the workplace. In an election year, we'll see extreme positions pushed on both sides.
Well, that's it for my predictions. I think this year will be one where employees start to wake up to how few rights they have and start to push for more. Major change will come only with a change in Congress.

Friday, January 3, 2014

Call Me Prescient: How My 2013 Employment Law Predictions Fared

If you are a regular reader, you'll recall that I made predictions at the beginning of 2013 about what I thought we could expect. How did I do? Call me Cassandra.

Here's what I said would happen, and what really did:

1. Even More Active NLRB: Look for stepped up activity against employers on social media restrictions, attempts to suppress worker concerted activities and lopsided agreements. NLRB will do what other government agencies have punted on: help employees.

Sure enough, NLRB didn't disappoint. They were up to full strength by the middle of  the year. They continued to press for employee rights in non-union workplaces. They struck down some overbroad social media policies and policies on confidentiality of investigations. They rolled out an app to inform employees in union and non-union workplaces about their rights. It wasn't all pro-employee. NLRB upheld several Facebook firings. See also here and here for some of 2013's social media cases.

2. EEOC Will Start Stepping Up Not to be outdone by NLRB, EEOC will become more active as well. This year saw the beginnings of activity to address gay rights and retaliatory confidentiality agreements. Look for more activity that actually helps employees, and for an agency that no longer accepts employer position statements as gospel.

EEOC tried to step up with the issuance of a guidance and then a clarification to its guidance on criminal background checks, but was repeatedly shot down in the courts. Let's hope they don't give up on this important issue, which definitely has a disparate impact on minorities. EEOC also stepped up its enforcement of Title VII regarding LGBT employees under the theory of "sexual stereotyping." They also cracked down on overbroad agreements that limit employees' ability to file with EEOC. I still see a tendency to accept employer position statements as gospel, at least here in Florida, but there's definite progress. Baby steps.

3. Marijuana Litigation With flat-out legalization in two states and legal medical marijuana in many more, we’ll start to see litigation on the employment-protection provisions built into many of these new state statutes. The fact that it’s still illegal under federal law will make things complicated. Will the feds finally give up and recognize state’s rights? Probably not this year, but definitely within the next 5 years.

Sure enough, the litigation has begun. See also here and here. Still nothing on the federal front to recognize states' rights, but it's only a matter of time.

4. Gay Rights Expansion Speaking of states’ rights, with gay marriage spreading across the country, the feds can’t be far behind. We probably won’t see Congress adding sexual orientation to Title VII or gay spouses to FMLA this year, but I think it’s going to happen this Presidential term.

Wow! What a year for gay rights. The Defense of Marriage Act was stricken down, which led to the Feds deciding that FMLA and EBSA do protect gay couples in states that legalized gay marriage. While there was no legislation passed to amend Title VII or FMLA, ENDA did pass the Senate (although it is stalled indefinitely in the House).

5. Strikes All of a sudden, workers are waking up. They’ve realized they don’t have to put up with crappy working conditions in silence. We’ll see more non-unionized workforces going on strike. We’ll also see some Wal-Mart and fast food corporations retaliating for the strikes that have happened last year and which will continue in 2013. Fortunately, I think NLRB will take action to slap employers for illegal retaliation.

2013 saw more fast food strikes and Wal-Mart strikes.  As predicted, Wal-Mart retaliated and NLRB slapped them.

6. Federal Courts Become (Slightly) Less Anti-Employee While federal courts have long been a sad place for employees, especially here in the 11th Circuit, some recent cases indicate that the times may be changing. Look for some rulings in favor of employees for a change. All it will take is a couple of Supreme Court appointments over the next four years and it will be a different world for employees. This year, the Supremes will, for the most part, continue to bend toward corporate interests instead of the working people.

There were some baby steps toward becoming more pro-employee in the federal courts. The usually very pro-employer 11th Circuit sided with the NLRB in a recess appointment case.  Several federal courts found that sex discrimination includes sex stereotyping, providing protection for LGBT employees. Some other pro-employee decisions here and here. Still, the Supremes came in overwhelmingly pro-employer this year. Overall, the federal courts remain a relatively unfriendly place for employees in many circuits.

7. Arbitration Under Fire
Although arbitration clauses have been the darling of employers, who are sneaking them into applications, handbooks and that giant stack of papers employees sign on their first day, look for some attacks this year coming from government agencies. Watch for NLRB, EEOC, FTC and maybe even DOJ to subject arbitration agreements to extra scrutiny. It’s doubtful Congress will take action this year, but if they do something to help consumers, employees will probably be able to benefit.

Some courts have tossed one-sided pro-employer arbitration agreements. However, the Supremes upheld class action waivers in arbitration agreements. The NLRB lost when it attempted to invalidate an arbitration agreement. Meanwhile, FTC is challenging a consumer arbitration clause. No legislation passed to help consumers or employees this year.

8. Bullies Will Slide Although states periodically consider anti-bullying laws, they always fail to pass. It’s likely 2013 will be no different. Watch for more consciousness-raising but no legal action this year.

Still no anti-bullying laws passed in 2013. Sigh.

9. Privacy Protections More state legislatures will pass laws against demanding employee social media passwords and other egregious employer snooping. Congress might even do something to stop some of the worse invasions of privacy, but I won’t hold my breath. They’re too busy with gridlock to actually do anything that might protect their constituents.

Arkansas, Colorado, Illinois, Nevada, New Jersey, New Mexico, Oregon, Utah, Vermont and Washington passed laws against demanding social media passwords, with at least 36 states trying to follow suit.

10. Background Check Restrictions More states will place limitations on background checks and what background information employers can use against applicants. Watch for laws limiting use of criminal records, unemployment, and credit history against applicants. EEOC will continue looking for disparate impact of background check information against women and minorities. It’s only a matter of time, say 2013 or 2014, before we see a case arguing that use of criminal records has a disparate impact on men, but it won’t come from EEOC.

10 states and almost 60 local governments have passed "ban the box" legislation prohibiting or limiting the use of criminal background checks. Some major employers also announced they'd end the practice. There was one unsuccessful case arguing that criminal background checks had a disparate impact on men. It didn't come from EEOC. As I discussed in 2 above, EEOC lost a number of criminal background cases this year based on racial impact. It is no surprise that it didn't try to expand the theory to include sex discrimination.

Overall, 2013 was a mixed bag for employees. Better than some years, and we definitely saw some activity to protect employees. The biggest surprise was the passage of some minimum wage increases, with 13 states raising the minimum wage.

Stay tuned for my predictions for 2014.

Tuesday, November 12, 2013

ENDA (Banning Sexual Orientation Discrimination) Passes In Senate What It Will Mean If It Becomes Law

ENDA is the Employment Non-Discrimination Act, and the Senate just passed it. I wouldn't get too excited yet, because unless Republicans lose their majority in the House in the midterm elections we aren't likely to see this become law anytime soon. Still, I thought it would be worthwhile to discuss what the law will do (and what it won't do) if passed in the House and signed into law.

Read my article in AOL Jobs to find out what ENDA will do if it becomes law, and what it won't do, despite what detractors are saying.

Friday, April 5, 2013

The NFL Wants You (Unless You're Gay)

Here's a new post by my associate, Ryan Price. I think he's spot on with this important issue. If the military survived gays in the barracks, the NFL will survive gays in the locker room.

By:  Ryan Price

Are you ready for some football?!?!  The management of several National Football League (NFL) teams hope you are, unless of course you are homosexual.   In a not so shocking news story, several NFL teams questioned draft prospects about their sexual orientation at the annual scouting combine.  This story came not long after the Manti Te’o scandal, where the star Notre Dame player’s sexual orientation came into question after it was reported he was romantically involved with a fictitious girlfriend portrayed by a male. Now, Te’o’s draft status is in question because teams are afraid of what they may have to “deal with” down the road if news comes out that Te’o is indeed gay.  Why should this ever matter in any employment setting? At least in the NFL, Mike Florio of NBC sports says, “We have to step aside from the rest of reality and walk into the unique industry that is the NFL . . . .  Teams want to know whether Manti Te'o is gay. They just want to know. They want to know because in an NFL locker room, it's a different world. It shouldn't be that way." Is it really a different world? Is it really unique? Are there not homophobic and prejudiced people in many work environments?

Earlier this year backup San Francisco 49ers cornerback Chris Culliver stated he would not welcome a gay teammate in his locker room. What would he do? Quit his high paying job as a backup? I don’t think so. In fact, unbeknownst to Culliver, he did play with a gay teammate. His teammate was outed not long after the Culliver controversy following a domestic dispute with his boyfriend. Of course there are gay players in the NFL and all other major American sports. However, most do not come out while they play, but that may be changing soon. The fact of the matter is, whether or not someone is a homosexual does not affect their job performance, unless perhaps they are faced with a hostile work environment. Hostile work environments begin and end with upper management. 

When management questions prospective employees on their sexual orientation, they are creating or endorsing such hostile environments. Most people, including Culliver, would not quit their job because their co-worker is gay.  However, employers will lose quality employees if they endorse such hostile work environments.  

The NFL released a statement following reports that teams were questioning draft prospects about their sexual orientation.  They simply stated, “teams are expected to follow applicable federal, state and local employment laws." Further, "It is league policy to neither consider nor inquire about sexual orientation in the hiring process. In addition, there are specific protections in our collective bargaining agreement with the players that prohibit discrimination against any player, including on the basis of sexual orientation." The league vowed that it would “look into the report [about the] scouting combine. Any team or employee that inquires about impermissible subjects or makes an employment decision based on such factors is subject to league discipline."

NFL Players Association executive director DeMaurice Smith commented, "I know that the NFL agrees that these types of questions violate the law, our CBA and player rights.”  However, to date, there have been no reports that the league has done anything about these “illegal” hiring practices. Perhaps that is because such interviewing questions are not illegal at all and these statements were simply released for PR purposes.
Are there any protections for employees or potential employees who are questioned about their sexual orientation during the hiring process or after they are hired? Unfortunately, the answer is usually no. There isn’t any federal law protecting employees against sexual orientation discrimination. In our country, it is mostly legal to discriminate and harass on the basis of sexual orientation. (Note: EEOC says that discrimination based on gender identity is illegal sex discrimination, but it remains to be seen whether the courts will see it that way.)

The tide is slowly changing.  More and more states, counties, and municipalities are passing laws against these heinous practices. Sexual orientation is irrelevant in the determination of a person’s qualifications for a job. In addition, these companies are sabotaging their own competitive position by filtering out homosexuals. By discriminating against employees based on their sexual orientation, companies are losing out on quality employees and also hurting their brand and image. Companies should hire the best of the best, not the best of the straight.

If you feel you have been discriminated against or harassed based on your sexual orientation you should check your state and local laws to find out what protections and redress you may have. Make sure to save copies of all applications and take notes following your interviews where you believe inappropriate questions were asked.  When in doubt, contact your local employee-side employment law attorney.

Monday, September 24, 2012

An Employment Lawyer's Debate Questions for President Obama

This is the first in a series that I am doing along with a group of employment attorneys around the country. Management and employee side attorneys will be providing their own debate questions for the Presidential and Vice Presidential candidates this week. The first candidate is President Barack Obama.

Here are some questions I’d ask the President at the debates if I had a chance:

The very first piece of legislation you signed into law was the Lilly Ledbetter Fair Pay Restoration Act, empowering women to recover wages lost to discrimination by extending the time period in which employees can file claims. You’ve also advocated for passage of the Paycheck Fairness Act, which would have required employers to demonstrate that any salary differences between men and women doing the same work are not gender-related. Plus, you convened a National Equal Pay Task Force to ensure that existing equal pay laws are fully enforced. Why do you feel so strongly about the need for pay equity in America and what do you think about the Republican party’s strong opposition to your efforts toward pay equity?

Then I’d probably ask:

Your opponent wrote an editorial saying we should let the automobile industry go bankrupt rather than bail them out during the worst part of the recession. Do you think the bailout was worth it, and are you glad you saved over a million jobs and supported an industry that has added hundreds of thousands of new jobs when most industries are cutting workers?

I’d follow up with:

You’ve said that you believe people who work full time should not live in poverty. Before the Democrats took back Congress, the minimum wage had not changed in 10 years. Although Congress did raise the minimum wage during your administration, the minimum wage’s real purchasing power is still below what it was in 1968, and full time minimum wage workers are mostly below the poverty line. You’ve said you want to further raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit. Why do you think it’s important to make sure that full-time workers can earn a living wage that allows them to raise their families and pay for basic needs such as food, transportation, and housing?

Then I’d ask:

You repealed Don’t Ask Don’t Tell, which limited gay and lesbian Americans’ right to serve in the military and be honest about their sexual orientation. You’ve also instructed the Justice Department to stop enforcing the Defense of Marriage Act, and you are in favor of the Respect for Marriage Act, which would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as other couples. Why do you think it’s important to treat gays and lesbians with respect and to end discrimination against them, and what more will you do to ensure equality for all Americans?

I’d end with:

Most Americans probably think they’re entitled to some sick time off of work, yet three out of four low-wage workers have no paid sick leave. You’ve said you support efforts to guarantee workers seven days of paid sick leave per year. Why do you think it’s unfair that a single mom playing by the rules can get fired or lose wages because her child or she gets sick, and what do you plan to do to ensure paid sick leave for all American workers?

There are, of course, lots more questions I could ask. I think the choice between the candidates as far as workplace issues is crystal clear.

Here's another perspective, from Robin Shea, a management-side employment lawyer.