My Letter to the Editor of the Indianapolis Star

"Indiana's so-called "Religious Freedom" law is an abomination. No matter what your Governor says, the State of Indiana now sanctions discrimination against a minority of its citizens. It is now legal in Indiana for businesses to refuse service based on sexual orientation in the name of "God." What's next -- legalization of discrimination against Jews and Muslims based on "religious freedom."? Way to go Indiana!"

David W. Neel, Esq.

More Unionization, More Employee Rights Coming

Hallelujah! On April 14, 2015 the National Labor Relation Board's new union election rules take effect. While some management lawyers call them “ambush election” rules, these rules provide important safeguards of employees’ rights to organize and bargain collectively – just as Congress intended when it passed the National Labor Relations Act.

The new rules streamline the union election process. Starting next month, most union representation elections must be held ten (10) to twenty-one (21) days after an election petition has been filed. This will curb abuses by zealous employers trying to railroad the election process in order to interfere with employees’ freedom of choice. The new rules also put off disputes over voter eligibility until after the election, expedite pre-election hearings, and require employers to provide greater union access to employee contact information.

Watch for more unions across the country engaging in greater organizing efforts. The new rules should result in sizeable increases in union participation. I’ve said it before and I’ll say it again, apart from the benefits of wage and benefit bargaining, perhaps the best result for employees who gain union protection is job security. Newly unionized employees will shed their employment-at-will status, which translates into greater protection of their livelihoods.

You can learn more about changes implemented by the NLRB in its Fact Sheet on the subject.

Summary Judgment and Trial in an Employment Discrimination Case

            A jury decided that the Diocese of Fort Wayne-South Bend Indiana refused to renew Emily Herx’s contract as an elementary school teacher because she was undergoing in vitro fertilization.  I like the court’s decision for what it says about overcoming summary judgment in an employment discrimination case:

            First, Mrs. Herx didn’t need to show prima facie case-quality comparators at the summary judgment stage because she made an adequate showing under the direct method of proof. See Docket No. 135, at 16-19. The direct method of proof can include circumstantial evidence, Whitfield v. International Truck and Engine Corp., 755 F.3d 438, 443 (7th Cir. 2014) (“A plaintiff may prevail by ‘constructing a convincing mosaic of circumstantial evidence that allows a [factfinder] to infer intentional discrimination by the decision maker.’”) (quoting Phelan v. Cook County, 643 F.3d 773, 779 (7th Cir. 2006)); Harper v. Fulton County, Ill., 748 F.3d 761, 765 (7th Cir. 2014) (“Should the plaintiff lack direct evidence, she may also point to circumstantial evidence that allows a jury to infer intentional discrimination by the decision-maker.”), and doesn’t always require a showing of better treatment of a similarly situated co-employee.

         Second, once a Title VII case proceeds to trial, the indirect method of proof - including the showing of comparators - doesn’t matter. The jury isn’t asked to evaluate whether the plaintiff has shown the prima facie required by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or even instructed on that test. Once the case gets to trial, the only issue the jury decides is whether, based on all the evidence in the case, it’s more likely than not that things would have been different had the plaintiff not been in the protected class and everything else remained the same.

Herx v. Diocese of Fort Wayne-South Bend, Inc., 1:12-CV-122 (N.D. Ind., Mar. 9, 2015).