Tag Archives: Title VII

Will the employment at-will doctrine sink LGBTQ rights under Title VII?

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The Supreme Court will hear arguments Tueday about whether Title VII of the Civil Rights Act of 1964 expressly prohibits discrimination based on sexual orientation and gender identity. What you probably won’t hear about is the importance of the employment at-will doctrine in how the case is decided

The case for including sexual orientation within Title VII is based on the“sex plus” theory of discrimination which prohibits gender stereotyping. More broadly the equal protection arguments underlying the 2015 decision legalizing same-sex marriage would also support the inclusion of sexual orientation and gender identity within federal civil rights law.

In a brief the United States Department of Justice (DOJ) argued against expanding TItle VII protections to sexual orientation and gender identity based on a narrow reading of Title VII. Though the DOJ brief doesn’t mention the concept or doctrine of employment at-will expressly, its influence is felt strongly.

Employment at-will is judge-created or, according to an authoritative essay written by attorney Ronald B. Standler, a law professor-created doctrine created in the late 19th century. Employment at-will is a doctrine that holds an employer is free to fire an employee without cause at any time, for any reason without notice. On the flip side an employee is free to quit at any time. (Of course, employment at-will doesn’t stop employers from whining about employee ghosting. Employers also seek to enforce non-compete agreements against employees who quit)

One consequence of employment at-will, as pointed out on this blog, is that courts will narrowly interpret any exceptions to employment at-will doctrine.

Civil rights laws are exceptions to employment at-will. But opponents of expanding Title VII expressly to sexual orientation and gender identity are arguing to narrowly construe Title VII. The employment defense bar makes these types of arguments, often successfully, on a routine basis.

In a way the argument over whether to include sexual orientation and gender identity within Title VII is both groundbreaking and routine. I scratch my head when strong advocates of employment at-will  get apoplectic about the DOJ’s brief narrowly interpreting Title VII. All the DOJ is doing is narrowly interpreting an exception to employment at-will doctrine.

I also don’t understand the argument that laws prohibiting LGBTQ discrimination are economic development tools. I read an interesting article that could explain this idea.  The article was a critical exploration of the philosophy of Supreme Court Justice Clarence Thomas. Thomas, the second African-American Supreme Court justice has been critical of policies such as affirmative action. The article pointed out, somewhat sympathetically, that Thomas sees affirmative action as a matter of aesthetics among elites. In other words, the elite gets to chose what the elite looks like without having their power challenged. Inclusion is a form of marketing.

I think the idea of elite aesthetics explains how the professional-managerial class and their defenders can support LGBT rights in the workplace and employment at-will. Even if sexual orientation and gender identity are included within Title VII, those cases will still be difficult to win. Employers will still have what amounts to private sovereign immunity through exhaustion of remedies requirements. The National Labor Relations Board will still be making it harder for employees to form unions and not be subject to employment at-will.

But not all management-types are so willing to let their socially liberal instincts override their support of employer power in the workplace to create more exceptions to employment at-will. There are also many in the business community who don’t share socially liberal sentiments. I suspect this side may prevail in the argument over whether sexual orientation and gender identity are covered by Title VII.

Would it be logically inconsistent to allow same sex marriage but allow discrimination based on sexual orientation? Yes, but the importance of the employment at-will doctrine would at-least give that seeming inconsistency some logical explanation.

The offices of Rehm, Bennett, Moore & Rehm, 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.

This entry was posted in discrimination, employment law and tagged , .

What Both Sides Miss in the ‘Duck Dynasty’ Debate

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Duck DynastyComments made by “Duck Dynasty” star Phil Robertson, in an interview with GQ magazine, have set off a social media and cable news firestorm about the role of free speech in the employee-employer relationship. But neither side in the Duck Commander debate is telling the complete story. In short, while private employees do not have First Amendment protections in the workplace, Title VII provides some protections for religious belief and practice in the workplace.

Duck Commander detractors are correct to point out that the First Amendment does not apply to private employers* like A&E Networks and that employers are free to fire employees at will.* But what the largely urban, progressive and educated Duck Commander detractors largely fail to realize is that religion is a protected class under federal anti-discrimination law.

Conservative, evangelical Duck Commander supporters also fail to realize that federal anti-discrimination laws protect them as well. In the case of Ollis v. HearthStone Homes, an evangelical Christian successfully sued his employer for discrimination and retaliation for firing him in retaliation for failing to participate in “New Age” religious practices. The Ollis decision gives a good guide on what constitutes religious discrimination:

To establish a prima facie case of religious discrimination, a plaintiff must show he (1) has a bona fide religious belief that conflicts with an employment requirement, (2) informed the employer of such conflict, and (3) suffered an adverse employment action. If the plaintiff establishes these elements, the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. Thereafter, the burden shifts back to the plaintiff to show the reason offered by the employer is pretextual.

Assuming that Robertson was an employee, it might be difficult to argue that his religious beliefs conflicted with an employment requirement. Even if he could make that argument, his employer could argue that how he expressed his comments about gays could be legitimate reason for termination. Finally, regardless of Robertson’s comments about gays, his comments about race relations in the South could likely provide any employer with a legitimate reason for termination.

 

*Robertson is likely not an employee of A&E Networks and likely has an a contract with A&E so Title VII is probably not applicable in this case

The offices of Rehm, Bennett, Moore & Rehm, 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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Offered Severance? Questions for Hurt Workers to Ask

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Getting hurt at work and getting fired are two of the most stressful occurrences for an employee. Oftentimes, these stressors are combined when an injured worker receives a severance agreement. This article provides five questions an injured worker who gets a severance agreement should ask:

  1. Does signing a severance agreement settle your workers’ compensation claim? Connecticut courts recently ruled that a severance agreement does not release a workers compensation claim. However, Florida courts have held the opposite. My state of Nebraska generally does not allow workers’ comp claims to be released in severance agreements. Consult with a lawyer in your state to get a good answer. Most lawyers who do workers’ compensation work on a contingent fee basis are generally happy to spend a reasonable amount of time answering questions from injured workers faced with a severance agreement. Don’t let fear of cost deter you from contacting a lawyer.
  2. What does your state’s workers’ compensation act cover? Some workers’ compensation statutes, like Ohio and Texas, also cover retaliatory discharge cases. My state of Nebraska makes wrongful discharge a separate civil claim. The consequence of that for injured workers in Nebraska and other states with so-called “common law” retaliatory discharge causes of action: a severance agreement would close out that case along with most other claims under fair employment statutes like the ADA, FMLA and Title VII. If you are in a state where retaliatory discharge is covered under your workers’ comp statute, then that case may not be released in a severance agreement in a comp claim if your state doesn’t allow comp claims to be settled in severance agreements.
  3. What are your chances for receiving unemployment benefits?  Finding out your chances of receiving unemployment is critical – again, especially if you are forced to choose between severance and workers’ compensation. The key questions to ask for eligibility for unemployment are 1) whether you earned enough wages to be covered 2) whether you quit without good cause or were fired for misconduct and 3) whether you are able and available for work. Of course, if you have an ongoing workers’ compensation claim, the fourth question is how receiving unemployment would affect your workers’ compensation claim. If you chose to negotiate your severance agreement, either by yourself or with a lawyer, try to include a provision where the employer chooses not to oppose your application for unemployment benefits.
  4. Do you get benefits like vacation pay, even if you don’t sign a severance agreement? In some states, including my state of Nebraska, an employee should receive vacation pay or paid time off regardless of whether they sign a severance agreement or not. Again, if you live in a state where an employer can release a workers’ compensation claim through a severance agreement, your eligibility for vacation pay along with unemployment benefits should help you decide whether it make sense for you economically to pursue your workers’ compensation claim if you have to pick between severance and workers’ compensation. This also holds true for severance agreements in general if you an employer is asking to you to release a strong fair-employment claim for a low-ball severance amount.
  5. Did you contact a lawyer who is knowledgeable about workers’ compensation? This is a critical period and critical especially if you live in a state where comp claims can be released by severance agreements. An experienced workers’ comp lawyer can value your comp claim. Some ways to evaluate whether a workers’ compensation lawyer is knowledge is to check whether they are a member of the Workers’ Injury Law & Advocacy Group (WILG). Another is to see if you can search them on your state’s workers’ compensation court website or through free legal research services like FindLaw and Google Scholar. A knowledgeable workers’ compensation lawyer in your state should also be able questions 1-4.

The offices of Rehm, Bennett, Moore & Rehm, 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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