Category Archives: public accommodation

Worker safety vs. civil rights laws ?

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A bank teller window protected by bulletproof glass

Recently I noticed that the two bank branches where I bank have implemented security measures that would improve workplace safety for their employees. One bank branch put in a clear glass wall to protect tellers while the other bank branch is locked and requires customers to call at the door to be let in to the bank.

The two banks deserve credit for increasing employee safety, but does increased security at banks raise public accommodation issues?

“Banking while black”, a shorthand phrase describing the denial of service of African-Americans at financial institutions, has drawn media attention recently.  Is there a way to reconcile two important interests – workplace safety and public accommodation or  civil rights laws  — that might be in conflict?

At first glance, I don’t see why increased security at banks should conflict with public accommodation laws.

How security at banks promotes workplace safety

I have been writing about retail worker safety for a few years and bank tellers are particularly vulnerable in bank robberies. A study by the Indiana Department of Labor found that glass barriers were one effective way to protect retail workers, like bank tellers, from violence. Even if a bank teller is fortunate enough to avoid physical injury in a robbery, they are still vulnerable to mental trauma. Mental injuries are particularly troubling because bank tellers, like all workers besides certain workers involved in public safety, have no coverage for purely mental injuries under Nebraska workers’ compensation law.

Workers could bring a negligence case which could be part of the impetus for banks putting in increased security measures at their branches.

But security measures can have downsides. Anybody who has been delayed at a TSA checkpoint can attest to that fact, but security can also raise public accommodation issues.

Public accommodation laws and “banking while black”

African-Americans in Ohio, Florida and Washington have reported being unable to complete financial transactions at banks due to their race. A 40-something professionally dressed white male, like me, shouldn’t have a problem being let into a locked bank branch. It might be different if I were a person of color.

In Nebraska being hassled or refused service by a financial institution on the basis of race would run afoul our state’s civil rights laws. It would also run afoul federal civil rights laws as well as potentially leading to cases for breach of contract and interference with contractual rights.

In the Ohio, Florida and Washington cases, physical entry into the bank branch has not been an issue. The issue has been the inability to complete a transaction despite meeting the requirements of the financial institution such as having an account and or having proper identification. For now, it doesn’t appear that physical security at a bank has been used to deny service based on race. The problem of banking while black appears to be one of applying procedures differently to the detriment of African-Americans based on their race. I hope that lessons learned by banks in cases about applying procedures differently to African-Americans can be implemented into how banks apply heightened security at their branches.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Three ways to make sense of Masterpiece Cakeshop

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The Supreme Court’s decision in Masterpiece Cakeshop was not as harmful to LGBT rights or civil rights laws in general as feared.  In fact, Masterpiece was cited by the Arizona Court of Appeals in upholding a Phoenix municipal ordinance prohibiting LGBT discrimination in public accommodation.

But court watchers were left scratching their collective heads by the mixed signals sent by the court. Given a week to digest the decision and read over the commentary, I think Masterpiece is understandable in the broader context of other decisions made by the Roberts court. I think three trends explain Masterpiece: 1) The Court’s favor of protected status over protected activity) 2 skepticism of the “administrative state” and 3) the use of federal supremacy by the court to rein in progressive-leaning states and cities.

Protected Status > Protected Activity

Sexual orientation and gender identity are considered a type of protected class. Sometimes theses these statuses are protected expressly, like they are in state and municipal laws, or they are covered by sex as held by many federal courts. Civil rights laws protect everyone based on various protected statuses such as race, nationality, religion, sex, disability and age. Everybody is covered by multiple protected classes. Protected class discrimination is fairly non-controversial because most people agree that someone should not be discriminated against based on immutable traits like race or sex. Sexual orientation and gender identity are just additional protected classes that would apply some people.

This isn’t to say that LGBT rights are universally accepted. The fact there are so many litigated cases, like Masterpiece, based on direct evidence of discrimination should be proof of that statement. But even in conservative-leaning states like Nebraska, business interests have pushed to expand anti-discrimination laws to LGBT individuals in an effort to have cities and states be seen as “open for business”. That’s part of the reason that Omaha, like Phoenix, has a municipal ordinance prohibit discrimination based on sexual orientation and gender identity.   The Materpiece decision could be very persusasive to a Nebraska court hearing a challenge to Omaha’s laws prohibting discrimination agains the LGBT community.

Business looks less favorably upon protected activities than protected statuses. These are activities that individuals cannot be sanctioned for or retaliated against for engaging. From a business point of view the most problematic problematic activity is engaging in unionization or striking. Striking has re-emerged as a popular tactic for workers in the wake of teachers strikes and a possible strike by UPS drivers. The Supreme Court generally takes a business-friendly view on protected activity. In Epic, the court took a narrow view of what constituted protected concerted activity under the National Labor Relations Act. Earlier this term, in Somers v. DRT,  the court narrowed the definition of a whistleblower under Dodd-Frank. The split between how the court treats protected activities and protected statuses became apparent to me in 2013 when the court decided the landmark LGBT civil rights case Windsor in the same term they decided Nassar which raised the burden of proof for employees in Title VII retaliation cases. The same split between protected activity and protected activity is apparent in 2018 with Epic and Somers contrasted with Masterpiece.

Dislike of the Administrative State

The reason why Jack Phillips “won” Masterpiece was because of negative comments about religion made by a lone commissioner on the Colorado Commission on Human Rights. Phillips was being civilly charged by state administrative agency. The  Roberts court, Justices Gorsuch, Thomas and Alito in particular, are skeptical of the role of  administrative agencies on separation of powers grounds. That skepticism was evidenced by Justice Gorsuch’s comments about the National Labor Relations Board in Epic. ThIS terrm the court also heard what could be a close case about whether the Securities and Exchange Commission can use Administrative Law Judges to punish misconduct in the securities industry that could have broad — if not disruptive — implcations. If nothing else, Masterpiece is a bench slap to an administrative agency.

I also believe that Masterpiece could have a chilling effect on state and local human rights commissions.  I have served on the Lincoln Commission on Human Rights since 2014.  Even before Masterpiece was decided, commissioners were given a memo describing the concerns expressed by Justice Kennedy in oral arguments in Masterpiece about the comments made by the Colorado Civil Rights Commissioner. Civil rights commissioners often engage in spirted discussions about what constitutes unlawful discrimination in a particular case. It would be unfortunate if Masterpiece lead commissioners to self-censor over fears that those comments could be used by the parties they believe could be engaged in unlawful discrimination.

Federal supremacy over states and cities

Jack Phillips succeeded in making a first amendment argument that the Colorado Commission on Civil Rights violated his freedom of religion by making impermissible comments about his religion. Phillips resorted to federal law to strike down a decision made by the state agency of a progressive-leaning state. Much of the arbitration case law that supported the Epic decision was based on the Federal supremacy of  the Federal Arbitration Act over state laws that  prohibited arbitration. Many of these state laws were passed by “blue” states such as California. By overruling a decision made by the Colorado Commssion on Civil Rights, the Roberts court was able to assert some measure of federal supremacy over a progressive-leaning state.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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