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Category — Prevention

Does Title VII Protect Against Sexual Orientation Discrimination? The Answer May Be Changing

Recent laws in North Carolina and Mississippi and the subsequent backlash are all over the news.  The U.S. Supreme Court’s decision in Ogberfell v. Hodges making gay marriage legal across the country is not even a year old.  The Fourth Circuit Court of Appeals very recently rule in favor of the right of transgender high school students to use bathrooms for the gender with which they associate.  LGBTQ rights are at the forefront like never before.  Employment discrimination is no exception.  The Equal Employment Opportunity Commission (“EEOC”) has recently filed two separate suits in Pennsylvania and Maryland district courts challenging the long-held belief that Title VII does not protect against discrimination based on sexual orientation.

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For many years courts held that because sexual orientation was not explicitly mentioned in the text of Title VII, the statute afforded no protection to employees based on their physical and emotional attraction.  Cases in numerous federal courts of appeal held that Congress had to explicitly protect this class of employees to allow for claims of sexual-orientation discrimination.

However, much like the American public, courts have slowly begun to change their minds.  More than ten years ago a federal court in Oregon found sexual orientation discrimination to be rooted in discrimination “because of sex.”  The court found that a jury could find a harasser would have acted differently if the homosexual female plaintiff had been a male dating a woman.  The court took this “but for gender” idea from the 1978 Supreme Court decision in Los Angeles Dep’t of Water & Power v. Manhart where the court said a practice is unlawful if the evidence shows the treatment of a person would have been different but for that person’s sex.

Other courts have taken the approach that discrimination based on sexual orientation is discrimination based on gender stereotypes.  The U.S. Supreme Court held in Price Waterhouse v. Hopkins (also in 1978) that such discrimination is illegal under Title VII.  Massachusetts, Ohio and Oregon federal courts have expanded on this ruling to address sexual-orientation discrimination.

Another approach to including protections based on sexual orientation is labeling it as discrimination “by association.”  In applying Title VII’s prohibition of race discrimination, courts have consistently held the statute prevents discrimination based on an employee’s association with a person of another race.  The reasoning is that discrimination based on an employee’s relationship with a person of another race requires an employer to consider race.  When you couple this argument with language in the Price Waterhouse decision that states Title VII treats race, sex, religion, color, and national origin equally, it creates what many consider a strong argument for protecting employees based on their sexual orientation:  if you discriminate against someone for their sexual orientation based on their relationship with someone of the same sex, you have to consider their sex, which is unlawful.

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The EEOC validated all three of these arguments an administrative appeal decision last summer, which as now been cited by a New York federal court in upholding a jury finding of sexual-orientation discrimination, including an award of punitive damages.  The EEOC already considers this the legal framework for including sexual-orientation discrimination under Title VII, and so last month it filed its first two sex discrimination lawsuits based on sexual orientation.  While Congress has not changed Title VII’s language, its interpretation by the EEOC and more and more courts is effectively including sexual orientation.  Wise employers will take note and review their policies, their training for managers and HR officials, and carefully consider all employment decisions where an employee’s sexual orientation might be at issue.

April 25, 2016   No Comments

HR’s Work Is Never Done: New California FEHA Regulations Require Revision of Anti-Harassment Policies

On April 1, 2016, new regulations from California’s Fair Employment and Housing Council will go in effect. These new regulations state that “[e]mployers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act,” and require changes in employment policies. As a result, employers should carefully review their existing policies to ensure compliance with these new standards and act quickly to make any needed changes before April 1. [Read more →]

February 24, 2016   No Comments

“You Can’t Order Safety”

I recently read a brief article regarding the former Captain of “The Best Damn Ship in the Navy.”  The article, an interview with Capt. D. Michael Abrashoff, formerly Captain of the USS Benfold (shown below), specifically focuses on his view that safety must be a top priority in any workplace.  As he says, even on a ship safety is something that you cannot just “order.” Rather, safety is something that has to be part of every individual’s daily thinking — from the Captain all the way down to the lowest ranking sailor.

The U.S. Navy announced today that the ballistic missile defense (BMD)-capable guided missile destroyer USS Benfold (DDG 65) and USS Milius (DDG 69) will become part of the Forward Deployed Naval Forces (FDNF) based at Commander Fleet Activities Yokosuka, Japan.

Captain Abrashoff’s perspective is useful for any workplace leader or any HR professional with responsibilities for workplace safety — and his point would be that every leader and HR professional has that responsibility.  The Captain offers some points worth considering and taking to heart in creating or reviewing your own safety program:

  • Creating a culture of safety is a must.

As he notes, even the Captain of a ship cannot “order” safety.  A belief in the importance of safety becomes a “culture of safety” when it permates everything.  Everyone has to feel the importance of doing every task safely.

  • When employees are injured, they don’t feel safe and that affects performance, not just medical costs.

Safety affects the success of the organization as a whole.  It cannot be compartmentalized or just made a facet of certain actions or obviously dangerous situations; it must be considered in everything that is done and recognized in everything that is not done too.  Safety impacts the bottom line in more than just lost work time, medical costs and workers’ compensation claims.

  • A safety culture takes actions, not just words.

Captain Abrashoff not only scheduled training on safe practices and improvements, but he attended the training and participated in the initatives right along side everyone else on the ship.  By sending the message that safety considerations applied to everyone, he helped communicate the right message.  As he says, “Every sailor knew that I felt their safety was a top priority of mine and not just lip service.”

  • Any sailor could stop any process if they thought safety was being impaired.
  • Any sailor had a direct line to me if they thought their chain of command wasn’t sufficiently concerned or didn’t see what they were seeing.

These two concepts are key to an effective safety program.  Employees will not believe there is a real commitment to safety if they have no role in it or if they are required to proceed with any action they consider unsafe.  Knowing they have the right to say “stop” and that they can go to the top if they need to — even in a super-heirarchical organization such as a branch of the military — underscored that the Captain was serious about safety.  That made the workplace safer.

While a Navy ship is not your regular “workplace,” the lessons of Captain Abrashoff’s experience offer great guidance to HR professionals and leaders in any workplace.

 

October 28, 2014   No Comments

The List: Making 2013 an HR Success – Part 1

Human Resources professionals have a job that requires a great deal of effort – a good HR Manager will stay on top of developments in employment law; establish sound, consistent procedures for managing typical staff issues, such as leave requests, on-site injuries, and separation from employment; and cultivate good relationships between employees and management.  From the other side of the phone line, however, comes a wish list from an attorney’s perspective – what the Human Resources department should consider doing  to help minimize difficulty down the road and ensure as successful an HR year as possible. [Read more →]

February 12, 2013   No Comments

Workplace Violence: Navigating the Minefield of Workplace Gun Laws

The horrific Newtown, Connecticut elementary school massacre has brought the gun control debate front and center.  But gun violence is not just in our schools.  In August, a former employee shot and killed a co-worker near the Empire State Building before being shot by police himself, and eight bystanders were injured in the shoot-out.  A 30-person Minneapolis sign company was decimated in September when an employee who was discharged shot and killed six people, including the company’s founder and a UPS delivery driver, and wounded two others before taking his own life.  In November, an Apple Valley Farms employee shot four co-workers at a chicken processing plant in Fresno, California, killing two of them, before turning the gun on himself.  Not long after, a ConAgra Foods employee in Indianapolis fatally shot his co-worker outside a break room, then killed himself.  Two other workplace violence incidents, in Pine Bluff, Arkansas (an employee fatally shot her co-worker) and Manteno, Illinois (an employee shot and wounded his co-worker), took place in July, 2012. [Read more →]

January 3, 2013   No Comments

Sticks and Stones Can Break Bones, but the Wrong Words Can Hurt Your Business

Over the last two years, the amendments to the Americans with Disabilities Act (ADA) have been a prominent and well-discussed topic of employment law. The changes are substantial and significant, as you surely have recognized. But, the changes have also likely left many of you (and supervisors and managers you work with) concerned and confused about how to interact with disabled employees without offending or upsetting them.

To help you out, DiversityInc.com has posted a list of 7 Things NEVER to Say to People with Disabilities. Some of the tips listed are hopefully pretty obvious (e.g. do not say “Oh, if you just have faith, you can be healed,” or “How do you go to the bathroom?”). Some of the other tips, however, may come as a surprise (e.g. ““I don’t even think of you as a person with a disability.”) In either case, you may find the article useful, particularly when training others within your business about how to respectfully, effectively and legally deal with employees with disabilities.

And while you are visiting the DiversityInc.com , check out some of the other articles in their Things Not to Say archives. Some of the articles are quite provocative and designed to start some tough conversations about diversity and inclusion. While you may not want to follow the advice completely, you may find that some of the articles are helpful, or at least raise questions worth discussing with your peers (or your favorite employment attorney).

June 26, 2012   No Comments

Hostility At Work — Expensive, Wrong & OUT OF CONTROL!

I have recently written about cases where discrimination and retaliation led to large verdicts and huge liability for employers.  These cases remind us that hostility at work, in the form of discrimination and harassment, is wrong and expensive.  An additional example from just this week shows what happens when harassment occurs and is allowed to continue, and ends up out of control.

This past Tuesday, a federal jury in New York awarded $25 million to a steel plant worker on his mind-boggling claims of racial discrimination, harassment and retaliation, as well as some tort claims for emotional distress.  That kind of verdict raises eyebrows for sure.  But what is even more startling is what the employee was subjected to by his co-workers and how his employer responded (or in most cases, failed to respond). [Read more →]

June 14, 2012   No Comments

Distracted Driving Lawsuits – Are Your Employees Making You A Target?

Using a cell phone while driving is dangerous – we all know that.  Texting while driving is (or will soon be) illegal in 39 states and the District of Columbia.  But are your company’s employees using their cell phones to call or text while driving?  Are they doing it in a company car, with a company phone?  Even if your employees are only handling company business on a personal phone in a personal vehicle, you may still be at risk for a distracted driving lawsuit should they be involved in an accident.  [Read more →]

June 12, 2012   No Comments

Hostility at Work Is Still Wrong — and Retaliation Is Hostility

A previous post discussed a huge jury verdict for an employee who was harassed and mistreated at work due to her religion.  The lesson:  harassing an employee, subjecting her to a hostile work environment, and retaliating against her for complaining about harassment are all wrong, illegal and expensive.

A decision handed down yesterday by the federal appeals Court covering Georgia, Alabama and Florida has made that point again.  In doing so, it further explained that retaliating by creating a hostile work environment for employees who complain about discrimination also violates Title VII — and is also wrong, illegal and expensive. [Read more →]

June 5, 2012   No Comments

A Company That “Gets It” — That HR Law Really Matters

We started HRLawMatters.com because we recognized how important the Labor & Employment laws that Human Resources professionals have to understand and contend with every day really are to their businesses’ success.  We think many of you agree, as do your companies.  I noticed recently one company that looks like it really gets that human resources and the law really matter, and what they did that signals that they “get it” is a bit unusual. [Read more →]

May 22, 2012   No Comments