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.

Thursday, April 21, 2022

How To Make $400,000 By Being An A**hat; And, Are You One Of The Chosen?

 I had just read about the philosophy professor who claimed it was against his religion to refer to a trans woman as she/her, and then sued after he was disciplined. The college just settled for $400,000. This isn't the first case where an evangelical Christian has claimed that their religion prohibited basic human decency and manners. And that got me thinking.

I then went for a walk and went face-first into a spiderweb and had an epiphany. An enlightenment, if you will. A new religion. Maybe you'll want to join it. And before you say, hey, you can't just pull a religion out of a hat, first of all, I have Mormon clients you've just triggered. Second, all you need for a religion to be legally protected is a sincerely held belief, observance, or practice. Here's what EEOC says about religion:

Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Sikhism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.Further, a person’s religious beliefs “need not be confined in either source or content to traditional or parochial concepts of religion.” A belief is “religious” for Title VII purposes if it is “religious” in the person’s “own scheme of things,” i.e., it is a “sincere and meaningful” belief that “occupies a place in the life of its possessor parallel to that filled by . . . God.” The Supreme Court has made it clear that it is not a court’s role to determine the reasonableness of an individual’s religious beliefs, and that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” An employee’s belief, observance, or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief, observance, or practice, or if few – or no – other people adhere to it.

Here are the beliefs of this spiderweb-inspired religion:

Name of religion: The religion is called Church of the Chosen. Why? Because the Creator's chosen people have always been the downtrodden and bullied. The misfits. The Jewish people are a good example of the chosen people, as are everyone who has been looked down upon. So if you are are gay, lesbian, trans, queer, female, Black, Brown, ace, atheist, agnostic, nerdly, disabled,  wrong in all the right ways, an underdog, a nitty gritty dirty little freak*, or you celebrate Festivus, do cosplay, geek out on a hobby, expound on the glories of wine or beer, collect rocks or books, or ever played D&D, then you are one of the Chosen.

Creator: The Creator of all things does not care what you call them. You can refer to them as God, Jehovah, Allah, or Sue. However, they do want you to know that they are non-binary. They are neither male nor female, having no need for reproductive organs. All humans are made in their image, including male, female, intersex, non-binary, and all iterations of sexual identification and sexual preference. Their pronouns are they/them. They aren't saying if there are more than one, or none, of them.

Belief: The Creator does not care if you believe in them or not. They do not need any particular form of worship. You can be atheist, agnostic, Buddhist, Muslim, Jewish, Christian, Santeria, Pastafarian, or any other religion and still be part of the Church of the Chosen. 

Pronouns: The Chosen believe that people should be given the courtesy of being called by their preferred pronouns. The Chosen also believe their religion demands** that those who deliberately misgender must, forever after or until they relent, be called by the opposite gender. So, in the case of Nicholas Meriwether, the Chosen shall now refer to the now-rich philosophy professor as Ms. Meriwether, and use she/her pronouns. For those who refuse to use non-binary pronouns, they shall forever after or until they relent, be referred to as they/them. This is our sincerely held belief, one of our core beliefs, and it must be respected. We fully expect the Alliance Defending Freedom to represent anyone who is disciplined for doing so. As their senior counsel, Travis Barham, said, “This case forced us to defend what used to be a common belief — that nobody should be forced to contradict their core beliefs just to keep their job.”

Science: The Chosen believe in science. The Chosen believe in following the recommendations of the CDC, the WHO, and their physicians. We believe in getting recommended vaccinations unless we have an allergy or our doctor otherwise advises us against them. We believe in using masks to prevent the spread of deadly diseases. The Chosen also believe that they should not have to sit next to anyone who is both unvaccinated and unmasked for a deadly disease against the recommendation of medical professionals.  While the Chosen believe it is anyone's right to believe that masking hides the face and is against the Creator's will, the Chosen also believe that their religion demands they, and their children, avoid such people, who will almost certainly contaminate their bodies. Thus, they must assert a religious exemption if they believe they are being required to be exposed to such contamination.

Bodies: The Chosen believe that their religion demands they have control over their bodies, and that any decisions related to their bodies be between their doctors and them. The religion demands that the Chosen claim a religious exemption from the dictates of any government or other authority which would limit their ability to choose birth control, abortion, gender-affirming treatment, gender-affirming surgery, or make other choices about their bodies. The Chosen in the medical profession also believe that they must assert a religious exemption and refuse to abide by any government restrictions on what treatments they may provide to patients who have chosen to utilize birth control, abortion, gender-affirming treatment, or gender-affirming surgery. 

Education: The Chosen believe that children should be taught about all kinds of families, and that children and teachers should be able to speak about their own families. The Chosen also believe that it is sacrilege to fail to teach all aspects of history, good and bad. Teachers who are Chosen must claim a religious exemption and refuse to abide by restrictions on discussing same-sex parents, gender dysphoria, science, critical race theory, math, or banned books. Parents who are Chosen must insist that teachers and schools exempt their children and abide by their religious beliefs in this regard. 

Prayer: The Creator is not a personal genie. They do not want to be bothered by football games, craps games, school functions, civic meetings, or other trivial matters. The Chosen believe it is sacrilege to engage in public prayer other than in places of worship, prayer groups, or other places where 100% of those in attendance actively want to participate. The Chosen believe it is your absolute right to bother the Creator with whatever you want to bother them with, as long as you do not force others to listen in or participate. The Chosen believe that, if forced to listen to the prayers of others, their minds and bodies will be polluted. Therefore, they must demand a religious exemption to participating in and listening to all forced prayer.

Voting: The Chosen believe that all citizens of a democracy should be allowed to vote and that voting should be made as easy as possible for those citizens. Therefore, Supervisors of Elections and other employees who work on elections have a duty to claim a religious exemption from any and all laws and regulations in which they would be required to reduce the number of voting places, ballot drop-offs, and/or early voting days; make absentee voting more difficult; or make voting in person more difficult.

These are just some of the core beliefs of the Church of the Chosen. I may have more epiphanies about the core beliefs of the Chosen the next time I run face-first into a spiderweb.*** If you also hold some or all of these beliefs, you are one of the Chosen. It is now your religion. You can demand that public accommodations, schools, and workplaces respect and abide by your religion. If one religion can exempt itself from complying with laws and regulations, so must the Chosen.**** It is the way.



* Okay, that last part may be because I was listenng to Pink when my face hit the spiderweb, but who am I to question the Creator? Maybe Pink is a prophet.

** Because the Creator is known to be vindictive as heck. Lot's wife is a little salty about this.

*** Which happens almost daily, because the little buggers are sneaky and we have a large yard.

**** While this is written with some tongue in cheek, I am dead serious. These are my sincerely held core beliefs. If they are yours, then fight for your religious rights as one of the Chosen.

Wednesday, April 13, 2022

How To Claim A Religious Accommodation For COVID Vaccines

 First of all, let me say that I'm a big believer in the COVID vaccines. They work. That being said, if you have a real religious reason (not a political reason) for seeking an exemption to the vaccine, here's what you need to know.

EEOC just updated its guidance on this issue, so if you are serious about seeking a religious accommodation under Title VII, I suggest you read it. Here are some of the key points:

Be ready to answer some questions. EEOC has its own internal form that employers and employees can use as an example. Employers might have their own forms to fill out. Here are the questions EEOC has for its own employees to answer on the form:

1) Please identify the EEOC requirement, policy, or practice that conflicts with your sincerely held religious observance, practice, or belief (hereinafter "religious beliefs"). 

2) Please describe the nature of your sincerely held religious beliefs or religious practice or observance that conflict with the EEOC requirement, policy, or practice identified above. 

3) What is the accommodation or modification that you are requesting? 

4) List any alternative accommodations that also would eliminate the conflict between the EEOC requirement, policy, or practice and your sincerely held religious beliefs.  

What is a sincerely held religious belief?: "EEOC guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information. See also 29 CFR 1605."

What are alternative accommodations?: "An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business. For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment."

What are the employer's duties regarding an accommodation request?: "Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship. Employers also may receive religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available to the employee. Such requests should be processed according to the same standards that apply to other accommodation requests."

Can the employer say no?: "Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. This is an easier standard for employers to meet than the ADA’s undue hardship standard, which applies to requests for accommodations due to a disability. Considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine. Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee."

"If an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation." 

What can they ask about my religion?:  "However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information. An employee who fails to cooperate with an employer’s reasonable requests for verification of the sincerity or religious nature of a professed belief, practice, or observance risks losing any subsequent claim that the employer improperly denied an accommodation."

The sincerity of an employee’s stated religious beliefs, practices, or observances is usually not in dispute. The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.” Section 12-I.A.2: Religious Discrimination (credibility and sincerity). Factors that—either alone or in combination—might undermine an employee’s credibility include: whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (for example, it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The employer may ask for an explanation of how the employee’s religious beliefs, practices, or observances conflict with the employer’s COVID-19 vaccination requirement. Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs—or degree of adherence—may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held. An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others. No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

So, when they ask about your religious belief, you need to give specifics. If you say that you believe the body is a temple that you are not permitted to pollute with chemical substances, or that your religion prohibits all vaccines, you will likely need to provide examples. So can you give examples such as not having been vaccinated since you joined this religion, not taking antibiotics, not taking any supplements to boost the immune system, etc? Is there a doctor who can confirm you refused such treatments when ill? Do you also decline alcohol and other similar substances? Do you refrain from eating processed foods and drinks that contain non-organic chemicals? This is the kind of information they are looking for. If you really do follow specific limitations in your medical treatment or consumption of chemicals, then you probably have a legitimate religious exemption. 

Does it have to be a traditional religion?: "The definition of “religion” under Title VII protects both traditional and nontraditional religious beliefs, practices, or observances, including those that may be unfamiliar to employers. While the employer should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, practices, or observances, employees may be asked to explain the religious nature of their belief, practice, or observance and should not assume that the employer already knows or understands it."

Some traditional religions do object to the vaccines. However, even Christian Scientists made an exception for them, so it is not very many religions. Catholics internationally object to none, but American Catholics in some areas object to Johnson & Johnson. 

I sincerely believe vaccinations are bad. Is that a religion?: "Title VII does not protect social, political, or economic views or personal preferences. Thus, objections to a COVID-19 vaccination requirement that are purely based on social, political, or economic views or personal preferences, or any other nonreligious concerns (including about the possible effects of the vaccine), do not qualify as religious beliefs, practices, or observances under Title VII. However, overlap between a religious and political view does not place it outside the scope of Title VII’s religious protections, as long as the view is part of a comprehensive religious belief system and is not simply an isolated teaching."

And then there's Florida: Florida has passed a law banning private corporations from mandating vaccines in the workplace unless they allow exceptions that include religion (as mentioned above, federal law already has exemptions for religion). The law details how to claim each exemption, and imposes fines on employers for noncompliance. Here's the form to claim an exemption in Florida. Other states have similar exemptions. If an employer in Florida does not accept an employee's properly completed exemption form, violations can be reported to the Attorney General. The Attorney General has the authority to impose fines for such violations:

  • Up to $10,000 for private entities employing less than 100 people
  • Up to $50,000 for private entities employing 100 people or more
Public employers, including educational or governmental institutions, are prohibited from imposing COVID-19 vaccination mandates. Violations for public employers can be reported to the Florida Department of Health through VaxPassFreeFL@FLHealth.gov.

Even with Florida's lax standards, if your employer catches you in a lie about your "sincerely held religious beliefs," you can be fired, so I suggest being serious about this. Don't claim a religious belief if you don't have a real one.

I guess watching Fox News is arguably being part of a cult, so maybe there's an argument there for a religious exemption. But seriously, get the vaccine if you can. If you don't have a medical or sincere religious reason, just get it. 

If you have a sincerely held religous belief against the vaccines, you might want to talk to an employee-side employment lawyer in your state about your rights.



Wednesday, April 6, 2022

Treasury Department Report Blasts Noncompete Agreements

 I wrote awhile back about President Biden's executive order on noncompete agreements. In it, he asked the FTC and other agencies to look into curtailing the use of noncompete and other anti-competitive agreements and practices. The Treasury Department just issued a report, presumably in an effort to comply, and it's damning in the extreme on the topic of noncompete agreements. 

Some juicy excerpts:

Firms can engage in tacit collusion by sharing wage information for different occupations, conspiring to fix wages, adopting no-poach agreements where firms agree not to hire other firms’ workers, or forcing workers to sign non-compete agreements that limit their ability to switch jobs.

Wage-setting power is also evident in the large number of workers who are subject to rules and agreements that limit their ability to switch jobs and occupations and, hence, their bargaining power. For example, a recent paper estimates that one-in-five workers is currently subject to non-compete agreements and double that number report having been bound by a non-compete agreement in the past.

Employers can also act to decrease the value of a worker’s outside options. For example, restrictive employment agreements that require workers to repay training costs if they leave the firm or non-compete agreements (both discussed in greater detail below) reduce worker power by increasing the costs of leaving the firm. Those costs are explicit in the case of training repayment programs but implicit in non-compete agreements. By preventing a worker from accepting positions well-suited to their skills, firms decrease the expected gains from a worker’s job search. 

By design, non-compete agreements limit employees’ outside options, which, in turn, weakens workers’ bargaining power and raises hiring costs for other firms. The limits are typically within a geographic area for a specific period and within a set of relatively similar occupations or industries but may be much broader. Balasubramanian (2017) models the effects of non-competes to show how this narrowing of outside options reduces employee bargaining power relative to their employer. All else equal, this leads to what they call a “lock-in” effect: lower worker mobility and longer tenure, as well as a flat or declining wage profile. Both the mitigation of the “hold-up” effect and “lock-in” effect mentioned above can reduce worker mobility. Lower worker mobility increases recruitment costs for all firms as fewer workers are seeking to switch jobs than otherwise would, absent the post-employment restrictive employment agreement. The increases in recruitment costs can lead to worse matches between employers and employees, lowering wages and aggregate productivity (Javanovic 2015).

However, the share of people who negotiate over a non-compete agreement appears to be quite small. Starr, Prescott, and Bishara (2021) find only about 10 percent of employees negotiate over their non-compete agreements. Therefore, it is unlikely that most employees demand (or receive) a compensating differential from signing a non-compete agreement. Furthermore, a worker with little bargaining power (e.g., low-income workers) or who is unaware they are bound by a non-compete (which may be more likely for less-educated workers) is unlikely to be able to secure a compensating differential in exchange for signing a non-compete agreement. To the extent that a compensating differential requires an explicit negotiation, certain workers may be less willing or able to do so—for example, Babcock and Laschever (2009) argue women are much less likely to negotiate during the hiring process. Accordingly, the share of workers whose wages increase as a result of non-compete agreements is small. While one of the main justifications for noncompete agreements (as well as other types of restrictive employment agreements) is mitigation of the “hold up” effect, there are far less restrictive means of addressing this problem. For workers with access to genuine trade secrets, there may be overlapping authority with trade secrecy laws, irrespective of the existence of a noncompete agreement.

Restrictive employment agreements, including non-compete, non-solicitation, and non-recruitment agreements, may reduce firm entry. In aggregate, this tends to lead to reduced demand and wage competition, leading to fewer appealing outside options for similarly situated workers. Samila and Sorenson (2011) find that increases in supply of venture capital funds has a stronger impact on firm start-ups, patent creation, and employment growth in states that have weaker enforcement of non-compete agreements, suggesting non-compete agreements may reduce certain types of entrepreneurial activity.

So long as the perceived probability of an employer attempting to enforce the contract is non-zero, restrictive employment agreements can create frictions. Consistent with this, Starr, Prescott, and Bishara (2020) present survey evidence that workers with non-compete clauses frequently decline job offers because of their preexisting non-compete agreement, even in states that do not enforce such agreements. Likewise, survey evidence also suggests that the incidence of non-compete clause inclusion in employment contracts is not strongly correlated with enforceability of non-compete agreements, which could suggest employers include such clauses even when they do not expect them to be enforceable. This partially occurs because people tend to be risk averse. Therefore, even in places where non-compete contracts are outlawed, the presence of unenforceable non-compete clauses can have a chilling effect on job-switching. The effects may be particularly severe for lower-wage workers, who may have limited access to legal counsel.  

Twenty-one percent of workers in the top income quintile are covered by a non-compete agreement compared to eight percent of workers in the bottom quintile of hourly wages. However, this still leaves millions of workers with minimal employer-specific training subject to non-compete agreements.

Unlike higher income workers, lower wage workers likely lack sufficient bargaining power to refuse a non-compete agreement. As a result, whereas non-compete agreements may increase top-earner wages at the expense of mobility, non-compete agreements appear to reduce both wages and mobility for lower-income earners. For example, Lipsitz and Starr (2021) find that the ban on non-compete agreements for hourly workers (who tend to be lower income) in Oregon increased overall hourly wages by 2–3 percent, with a stronger efect for female workers.

Starr, Prescott, and Bishara (2021) find that the huge number of low-skill workers subject to non-competes suggests that employers routinely apply them to workers who do not possess trade secrets or customer lists and are not given specialized training. They cite as an example a large sandwich chain, which subjected its workers to extremely broad non-competes. Though these non-competes are not likely enforceable under state law, they point out that they may have an in terrorem efect that deters employees from obtaining jobs at competing employers.

A decline in the competitiveness of labor markets lowers worker wages, may decouple wages from productivity, and likely diminishes the relative share of income that goes to workers. Moreover, actions of the firm such as requiring workers to sign non-compete agreements and limiting workers’ access to information diminishes worker mobility, implicitly reducing workers’ bargaining power relative to employers. 

These direct effects on workers’ wages, employment, and mobility have important broader negative impacts on the economy. Higher inequality likely makes it more difficult to sustain sufficient aggregate demand. Lower wages disproportionately impact women and workers of color. A large pool of low-priced labor likely weakens firm incentives to invest and improve productivity, while lower mobility diminishes productivity growth by hindering the reallocation of labor to more productive firms and industries. Non-compete agreements may prevent workers from starting their own businesses and discourage innovation. In short, a growing body of evidence suggests that declining labor market competition may stymie the drivers of U.S. economic growth. 

The use of non-compete clauses, especially among internet-based commerce firms, could be discouraging firm entry (Congressional Budget Office 2020). For instance, Marx, Strumsky, and Fleming (2009) finds that an unintended change in Michigan law boosting the enforceability of non-compete agreements led to sharp declines in the mobility of patent holders. Restricting the use of non-compete agreements and other restrictive employment agreements could allow for new firm creation, as workers at incumbent firms could leave the firm to pursue new ideas, thereby forcing incumbent firms to innovate to stay dominant. 

These are just some highlights. There's lots to unpack in this 68-page report, and I suggest you read it if you are interested. Summary: noncompetes are bad for society, bad for competition, particularly bad for low wage workers, and have the effect of suppressing wages, worker mobility, and innovation. 

And haven't I been saying this all along?

Wednesday, March 30, 2022

Discrimination Laws And The Will Smith Academy Awards Slap

Everyone who isn't on a desert island with no wifi knows that Will Smith slapped Chris Rock after Chris Rock made fun of Jada Pinkett Smith's alopecia. Lots of folks want blood. I hear many demanding that Will Smith's Best Actor Oscar be rescinded. Some say he should be expelled from the Academy. Others say he shouldn't be allowed to attend any more awards.

So let's look at the Academy's actual rules, and how they've handled similar incidents. Here's the rule that Mr. Smith violated:

In addition to achieving excellence in the field of motion picture arts and sciences, members must also behave ethically by upholding the Academy’s values of respect for human dignity, inclusion, and a supportive environment that fosters creativity. There is no place in the Academy for people who abuse their status, power or influence in a manner that violates recognized standards of decency. The Academy is categorically opposed to any form of abuse, harassment or discrimination on the basis of gender, sexual orientation, race, ethnicity, disability, age, religion, or nationality. The Board of Governors believes that these standards are essential to the Academy’s mission and reflective of our values.

The rules go on to say that, in case of a violation, the Board can consider any discipline permitted in their bylaws, including suspension or expulsion. The rules came out in response to #MeToo. It's notable that none of Harvey Weinstein's or Kevin Spacey's awards were rescinded. In fact, to my knowledge no actor has ever had their award rescinded.

First of all, Chris Rock also violated the rule, since he was harassing Jada Pinkett Smith on the basis of a disability, namely, alopecia. And before you tell me it isn't a disability, I assure you that it can be. For those demanding that Mr. Smith be arrested, it is to Mr. Rock's credit that he has declined to prosecute.

Second, there are many, many incidents that have occurred over the years of actors getting into actual fistfights. Not one was subjected to any discipline by the Academy that I've ever heard of. So possibly a private reprimand, but that's it. Here are 15 of the fistfights, a majority between white males. Here's a list of 9 fistfights, also a majority involving white males. So a single slap is a minor incident compared to the fistfights. Any discipline meted out more severe than a reprimand is going to be subject to discrimination claims.

Finally, if you said that Ted Cruz should have punched Donald Trump when Trump insulted Cruz's wife, sit down and shut up. And don't make me check your social media posts. You know who you are. And I bet some Academy Board of Governors members have some posts in that regard. I hope Mr. Smith's lawyers are searching those posts right now just in case.

In sum, yes, Will Smith violated the Academy's standards of conduct (as did Chris Rock). But his discipline should be proportionate to similar actions by non-Black actors and not a knee-jerk public execution. 


Thursday, March 24, 2022

The Only Way "Don't Say Gay" Is Consistent With Title VII Is Complete Gender Neutrality

I'm following up on my post Florida Don't Say Gay Bill Arguably Requires 100% Gender Neutrality Until 4th Grade, one, because I've thought more about it, two, because the law really irks me, and three, because I want to explain why an employment lawyer is writing about an education law.

If I go through my memories of law school, back when dinosaurs roamed, one of the things they taught us is the rules of statutory construction. That is, how judges are supposed to interpret laws after they are passed. And one thing that the rules of statutory construction say is that separate statutes must be read together, when possible, to achieve a harmonious statutory scheme. It is assumed that the legislature does not intend to create inconsistency. (Ha! Have they ever listened to a legislative debate?) But anyhow, that's one of the things a judge has to look at. 

And I keep coming back to two laws that are the backbone of any employment law practice: Title VII, which is the federal law prohibiting discrimination in the workplace, and the Florida Civil Rights Act, which is the state law prohibiting workplace discrimination. We all know that the Supreme Court has already ruled that sexual orientation discrimination is sex discrimination covered by Title VII. So sexual orientation discrimination or harassment based upon sexual orientation violates laws prohibiting sex discrimination in the workplace. That is established law. 

So how does that affect the interpretation of Florida's Don't Say Gay law? Let's look at it again: "Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards."

Let's look at two second grade teachers. Bob is married to a woman. Barb is married to a woman. Bob and Barb are both asked about their spouses by their students. If school boards, schools, or the state interpret this law to mean that Bob can answer but Barb can't, then they have violated Title VII and the Florida Civil Rights Act. If Barb is disciplined for mentioning her same sex spouse but Bob is not disciplined for mentioning his opposite-sex spouse, that is sex discrimination.

Barb is terrified that she might accidentally mention her spouse during class. If she is subject to extra scrutiny of her teaching methods due to her sexual orientation, that's sex discrimination.

Both Bob and Barb assign students a project to draw their families. Susie draws two dads. When it comes time for each student to discuss their families, do they have to skip Susie? Or tell her she can't mention the dads? Does that make Barb feel upset or attacked? If so, she is being harassed due to her gender. 

The school removes all books with two moms, two dads, any LGBTQ characters. Only straight characters and opposite sex marriages allowed in the library. Barb feels uncomfortable with this. She is being harassed due to her gender.

Now let's look at the gender neutral way to interpret the statute. Both Bob and Barb can talk about their spouses, but not use the terms "husband" or "wife." They can say spouse or partner. Both are treated equally. The kids label moms and dads as "parent" and refer to them as such. Both Barb and Bob are comfortable. The school leaves the books alone. Or removes all books relating to any kind of marriage or romance, including heterosexual ones. Both Bob and Barb feel comfortable. Nobody is being treated differently or made to feel uncomfortable due to their sexual orientation. 

So I repeat my assertion from last week. The Don't Say Gay bill may be the most accidentally woke law I've ever seen. I think that parents and students should insist that it be interpreted as requiring absolute gender neutrality. If schools, school boards, or the state of Florida does otherwise, school employees can bring workplace discrimination claims under Title VII and the Florida Civil Rights Act. And, although I don't do education law, students could have claims under Title IX, the law prohibiting sex discrimination in education.

Don't let the bigots get you down. Make them follow their new law to the letter, assuming it gets signed.


Tuesday, March 15, 2022

Florida Don't Say Gay Bill Arguably Requires 100% Gender Neutrality Until 4th Grade

 Florida teachers and school boards will have to be very careful now that the Florida legislature has passed the "Don't Say Gay" bill. It's actually called the "Parental Rights in Education" bill, and it addresses a number of issues. The big one, the most controversial one, is meant to keep teachers and schools from discussing LGBT issues in class. But that's not quite what it says.

Here's the provision:

Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards. 

Nowhere does the bill define either "sexual orientation" or "gender identity" to limit those terms to only LGBT issues. So we're left with the standard definitions of those terms. 

Websters defines "sexual orientation" as "a person's sexual identity or self-identification as bisexual, straight, gay, pansexual, etc. : the state of being bisexual, straight, gay, pansexual, etc."

Yes. Straight is included. Heterosexual is included.

Websters defines "gender identity" as "a person's internal sense of being male, female, some combination of male and female, or neither male nor female."

Yes, people born male and identifying as male are included. People born female and identifying as female are included.

As I read this, strictly construing the actual words used in the statute, there can be no instruction in K-3rd grade using the terms "boys," "girls," "husband," "wife," "mother," or "father." All instruction must be completely gender neutral, using "they" or "them." Students cannot be instructed to use the "boy's room" or the "girl's room." For gym, they cannot be instructed to use the "boy's locker room" or the "girl's locker room."

Is this what the legislature intended? Probably not. It was intended as a measure to bully LGBT students and their parents. But I think those parents can fight back by demanding absolute gender neutrality in their student's education in K-3. Once they're in 4th grade, the school can then instruct them about gender identity, including boy/girl, and sexual orientation, including heterosexuality.

So when teachers tell their students to draw a picture of their families, they can say the picture is of a parent, but not mom or dad. When teachers discuss married couples in history, they can say they were spouses, not husband or wife. And maybe that's the way it should be.

I think parents of LGBT should demand their rights under this statute once it's signed by the Governor. If my kids were still in school, I'd do it immediately. Tell the Florida legislature to be careful what they wish for.

Under the rest of the bill, there's a process. School districts must develop a plan and notify parents of the process to address any concerns, first at the school level, and then at the district level. Then, if not resolved, the parent may either ask for an administrative magistrate to hear the issue or file a lawsuit.

Teachers should advise the schools that they will only teach in gender neutral terms. School boards should set policies in accordance with the actual language of this bill.

Teachers who object to any other form of non-gender-neutral instruction can argue they are protected whistleblowers if they are disciplined for refusing to disobey this ridiculous law.


Thursday, March 10, 2022

Harassment, Hostile Environment, and Bullying: How To Figure Out If They're Illegal

Many employees have the mistaken belief that, if they are being harassed by their employer, a supervisor, or a co-worker or they are in a "hostile work environment" that they automatically have a claim against the employer. This is simply not the case. While general harassment and bullying are legal in all states, some states have pending legislation on workplace bullying. Since 2003, many states have introduced workplace bullying laws, none of which have passed (except, oddly, Tennessee, and that's just for government employees).

Illegal harassment: The only types of harassment or hostile environment that are illegal are harassment due to race, age, sex, sexual orientation, religion, national origin, color, disability, pregnancy, genetic information, having objected to illegal activity, having taken Family and Medical Leave, making a worker’s compensation claim, or having engaged in activity that is otherwise protected by a statute (in some states, other categories might be taking domestic violence leave, having a firearm in your vehicle, marital status, because of testimony under subpoena). If your boss is just a jerk or abusive, that is not illegal. And many small employers are not covered by these laws, so you may not be protected at all.

Report it: The other thing that I hear way too much of is, “I was harassed, so I quit and then I told them why.” This is a frequent mistake. The United States Supreme Court (not my rule - talk to the folks in the robes) says that, where an employer has a published sexual harassment/discriminatory harassment policy, the employee must report it under that policy and give the employer the opportunity to fix the situation. If you did not avail yourself of the employer’s policy before quitting, you are giving up your right to sue for a violation.

Employer’s duty: Appropriate remedies may be to discipline or warn the harasser, to move the harasser, under some circumstances to move the victim, to do training, or in extreme cases, to terminate the harasser. But they don’t have to take any action at all, or tell you what they did. They only have a duty to maintain a safe workplace. You might still have to work with the harasser. Many employees simply refuse to go back to work, even where the employer has warned or disciplined the harasser. Sometimes, the fear is justified. But it is the employer’s duty to create a safe workplace. If you return and are retaliated against or continue to be harassed, report it again. If the employer allows retaliation or continued harassment, that is the time to get an attorney involved. Employers will usually take accusations of this type of conduct seriously. Once they are on notice, they will be held liable if they allow it to continue, and they know it. And most employers know that this behavior is disruptive, has nothing to do with making money, and can adversely affect morale. Even if the employer takes no action, by reporting their inaction to EEOC or your state agency, you have put these agencies on notice that this behavior is occurring. The employer will have no excuse when the harasser does it to the next employee. And in some cases, you may have a remedy.

What to put in the report: General harassment, hostile environment, bullying, and other disruptive behavior that is not addressed to an employee due to a protected status or activity is not illegal. So before you write the long letter airing all your grievances against your boss, you may want to have an attorney look at it, or just make sure you are addressing your protected status. If you do complain, put it in writing and call it, “FORMAL COMPLAINT OF SEXUAL HARASSMENT,” or “FORMAL COMPLAINT OF RELIGIOUS HARASSMENT” or whatever category you fit into. Set forth the harassment due to your protected status, and be businesslike. This is not the time to air all your complaints about the business or your boss, only to air the specific complaint about the illegal behavior. While a long letter stating that your supervisor is incompetent or a jerk can and should get you fired, the formal complaint addressing illegal behavior should get a serious response.

Bullies are a huge drain on corporate time and assets. Employers should adopt zero tolerance policies regarding bullies. But even if they do, reporting bullies won’t protect you from retaliation unless your state legislature or Congress wises up and passes an anti-bullying law.

If you are harassed or are in a hostile work environment, make sure you understand your rights and responsibilities. Report it to the employer and give them a chance to address the situation. If they allow the harassment to continue, or if they retaliate, contact an attorney to discuss your legal options.