Transgender Discrimination is Illegal

Transgender discrimination is illegal. Why? Because it is gender discrimination under Title VII of the Civil Rights Act (and O.R.C. 4112.02, Ohio’s anti-discrimination statute). Two federal appellate courts have agreed. So has the Equal Employment Opportunity Commission. These courts (the 9^th and 6^th appellate circuits) and the EEOC riffed off the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins. There, the Court said that making negative employment decisions based on a perception that the employee does not conform to the “gender stereotype” is discrimination under Title VII.

Transgender discrimination will rise as the labor force absorbs more transgender individuals. The law (and employment lawyers like me) will be there to protect them.

Workplace Harassment - Severe OR Pervasive, Not Both.

The district court in Seale v. Madison Cty., Case No. 5:11-CV-0278 (N.D.N.Y., Feb. 17, 2015) (Slip. Op. at 16), makes clear that “in order to establish [a] claim for hostile work environment, a plaintiff need not show that her “working environment was both severe and pervasive; only that it was sufficiently severe or sufficiently pervasive, or a sufficient combination of these elements, to have altered her working conditions.” (Citations omitted.)

Termination for Rejection of Employer’s Demand for Repayment of Earned Overtime Is Unlawful FLSA Retaliation.

Plaintiff, the defendant company’s Director of Human Resources, was told by the CEO that he would lose his job unless he agreed to pay back his overtime earnings from several years before. Four days later Plaintiff refused to comply with this demand. The company fired plaintiff three hours later.

Temporal proximity alone may not sufficient to withstand summary judgment, but in this case plaintiff also had the CEO’s threat of termination for refusal to repay overtime.

O'Donnell v. America at Home Healthcare and Nursing Services, Ltd., Case No. 12-CV-6762 (N.D. Ill., Feb. 17, 2015).

Union Membership Is Good for America

More unions and more union members would be good for America. The labor force is the backbone of the American economy. Gross domestic product (GDP) is driven by a productive work force. Productivity depends upon employees who are secure in their jobs. A primary benefit of union protection is the requirement of just cause for termination from employment.

Union membership has been shrinking for the past fifty years, as shown by this interactive map of the United States.  This means that more and more employees are subject to the at-will employment doctrine. At-will employments means that employers can fire an employee for any reason or no reason, as long as it's not for an illegal reason such as discrimination.

Just cause for termination essentially means that employers must act reasonably. Unions serve the purpose of protecting members from unreasonable terminations. A grievance process culminating in arbitration proceedings would eliminate the flood of lawsuits brought for various legal claims such as wrongful termination. The body of employment law would become less obscure, as the numerous legal theories that cropped up as a way to get around the at-will employment doctrine would become unnecessary. Employees would still have the right to being claims for discrimination.

It's a win-win for employers and employees. I am not advocating in this article for all of the types of provisions found in the typical union-management contract. I am taking the position that getting rid of the at-will employment doctrine through union membership is a positive benefit for American workers and employers.

But-For Causation and Breaking the Camel's Back in EEOC Retaliation Case - An Example

Roberts v. State, Department of YouthServices, Case No. 2:13cv335 (M.D. Ala., Feb. 11, 2015)

Arthur Roberts, Jr. was hired by the Alabama Department of Youth Services (DYS) as a Security Officer. Within his first few months of employment Roberts notified his supervisor and other administrators that he was an ordained minister and that he wished to provide volunteer pastoral services to the facility’s young men. DYS gave its approval and scheduled him to begin providing services once a month on Sunday.  McCree, Roberts’ immediate supervisor, ridiculed him about his religious activity, teasing him with comments such as “preaching the word today, Minister?” and “You going to get some saved today, ain’t you, Preacher?” McCree also told Roberts not to “come out here with that preaching shit to these kids” because “they don’t want to hear it, ” and McCree stated to another employee, “How in the world is that man [Roberts] going to come out here and preach, when he can’t perform his job he was hired to do[?]”. These comments were made over several months.  Roberts filed a charge with the Equal Employment Opportunity Commission (EEOC) and later sued DYS and McCree for religious discrimination hostile work environment claim and for retaliatory discharge.  

The district court granted summary judgment on Roberts’ religious discrimination claim. The court decided that McCree’s comments were insufficient to establish objectively severe and pervasive conduct. In other words, they were isolated, off-hand comments.  Roberts’ claim was not aided by his testimony that he was still able to perform his job duties.

However, the district court allowed Roberts’ retaliatory discharge claim to go to trial. The central evidence in support of that claim was co-worker testimony that McCree said he intended to “fire [Roberts’s] ass” if he had filed an EEOC charge.  Under University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), a retaliation plaintiff must prove that the retaliatory motive was the ‘but-for’ cause of the adverse employment action. Thus, “proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer” is required. Nassar, 133 S.Ct. at 1533.

The district court borrowed an analogy from Burrage v. United States, 134 S.Ct. 881 (2014), to explain that but-for causation can exist even when other possible motives are in the mix, such Roberts’ lackluster job performance:  

[R]etaliatory intent may still constitute a but-for cause even if it “combines with other factors to produce the result, so long as the other factors alone would not have done so--if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.” Id. at 888.

So, even though Robert’s job performance may have contributed to the termination decision, McCree’s comment that he intended to “fire [Roberts’s] ass” if he filed an EEOC complaint raised a genuine issue of material fact as to whether the EEOC charge was “the straw that broke the camel’s back.” 

Empathy and the Trial Lawyer

I'm meeting with a new client later today about her potential sexual harassment case. She did not want to share any information with me over the phone. So, I don't have much information to work with. All I really know is that she is a member of a protected class. That's it.

This led me think about how I approach the first meeting with a potential client. What am I trying to accomplish? What is my goal (and I'm not talking about getting a signed retainer agreement)? How can I best help the person who comes to me for help?

I think answering these questions start with empathy. "Empathy is the capacity to understand what another person is experiencing ***, ie, the capacity to place oneself in another's shoes." Empathy in my opinion is a direct link to litigation and trial strategies and outcomes. If I can understand what another person is going through then I can express to judges and juries the legal conception of that experience. This means more than pigeonholing the client's employment experience into legal elements. It means at least for me visualizing the client's experience at work. The visual has to be more than a scrapbook of snapshots over time. The visual should be like a movie because movies tell stories. The visual must be a moving picture that can be conveyed in writing and orally, as if directing a stage or screen play. This is why I tell my evidence law students to try to see in their mind's eye the facts of a lawbook case. The facts must be brought to life.

Empathy allows me to gain a sense of whether the law provides a remedy for the employee. Empathy informs me if this is someone that I can actually help. Empathy connects me to what other reasonable people are going to think about the client's workplace experience. Making that connection is key to defeating a summary judgment motion (ie., reasonable minds can come to different conclusions) and to persuading a jury to award damages.

Circuit Court Title VII Scoreboard For The Week of January 12, 2014

Employers Romp, 8-1

FOR DEFENDANT

Davis v. James, 14-6063 (10^th Cir., Jan. 15, 2015)

Plaintiff  waived appellate review of discrimination claims because she failed to make any argument about them until her reply brief. (Citing Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). Moreover, Plaintiff failed to allege that her 2006 EEO complaint included allegations of "unlawful employment practices" under Title VII.

Cassotto v. Donahoe, 14-560 (2^nd Cir., Jan. 14, 2015)

While defendant's motions for judgment as a matter of law and a new trial were pending, the Supreme Court decided University of Texas Southwestern Medical Center Center v. Nassar, which subjected Title VII retaliation claims to a heightened standard of "but-for" causation. See 133 S.Ct. 2517, 2533 (2013). On that basis, the district court granted the government's motion for a new trial, resulting this time in a verdict for defendant.  Plaintiff argued on appeal that defendant had invited error by requesting an instruction in accordance with pre-Nassar precedent.  Court rejected this argument because plain error doctrine did not apply, as defendant had “ merely acquiesced in this Circuit's established interpretation of Title VII, which the district court was bound to apply regardless of what charge the defendant proposed.”

Brainard v. City of Topeka, 14-3055 (10th Cir., Jan.13, 2015)

In this RIF case, plaintiff appealed from grant of summary judgment on age and gender discrimination claims. Court held that plaintiff’s case failed on the similarly-situated prong of the McDonnell-Douglas test.

Jenkins v. Foot Locker Inc., 14-1696 (6th Cir., Jan.15, 2015)

Plaintiff claimed that defendant denied her a promotion and pay raises and chose not to rehire her based on race. After discovery, the district court granted summary judgment for defendant because plaintiff could not establish a prima facie case of discrimination on her failure-to-rehire claim, and because Jenkins failed to exhaust EEOC remedies. Court affirmed because plaintiff failed in the first instance to respond to the motion for summary judgment and comparator evidence showed that of the twenty-eight job applicants hired by defendant, twenty-seven were African American and one was multiracial.

Marshall v. Aryan Unlimited Staffing Solution/Faneuil Inc., 13-14538 (11^th Cir., Jan. 14, 2015)

Pro se discrimination plaintiff appealed from the dismissal with prejudice of her sixth amended complaint and from the denial of her motion to file a seventh amended complaint. Affirmed because the sixth amended complaint did not, after numerous warnings, make a short and plain statement of her claims and instead was a “shotgun pleading” (one in which "it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.")

Chang v. MetroPlus Health Plan, 14-665-cv (2^nd Cir., Jan. 13, 2015)

Pro se appellant challenged summary judgment on Title VII, ADA and NYCHRL. “[D]istrict court properly granted summary judgment to the defendants for the reasons stated in its thorough and well-reasoned memorandum and order.”

Gertner v. Pace University, 14-237-cv (2nd Cir., Jan.16, 2015)

Court affirmed judgment after an eight-day bench trial on national origin/failure to promote to full professor claim.

Green v. City of Northport, 14-11916 (11th Cir., Jan.12, 2015)

Former Police Chief appealed summary judgment on race discrimination and retaliation claims.  Evidence of racial animus was a remark by decisionmaker made to his father-in-law that he was going to "get rid of the black son-of-a-bitch who drives the BMW." Court of appeals affirmed, deciding that the comment was inadmissible hearsay (without perhaps recognizing that the remark was an Evid. R. 801(d)(2) admission).

FOR PLAINTIFF

In Greengrass v.International Monetary Systems Ltd., 13-2901(Seventh Circuit, Jan.12, 2015), Plaintiff sued her former employer alleging retaliation for filing an EEOC complaint. Plaintiff claimed that defendant retaliated by naming her in its annual SEC filings and casting her complaint as "meritless." The district court granted summary judgment for defendant on the ground that plaintiff lacked evidence showing a causal link between her EEOC filing and the alleged retaliatory act. Reversing the Seventh Circuit decided that defendant engaged in an adverse employment action when it listed plaintiff’s name in its SEC filings. Naming EEOC claimants in publicly available SEC filings could dissuade a reasonable worker from making or supporting a charge of discrimination, which is “the essence of a materially adverse employment action.” As for evidence of discriminatory animus, the court cited emails evincing disdain for the EEOC process and expressing confidence that it could avoid a "large damages award" because, without the EEOC's involvement, plaintiff "likely [would not] have the resources for a lengthy court fight." The court also pointed to the forwarding of her EEOC complaint to an alleged harasser with the message, "Call me before you explode." Further, the defendant’s multiple shifts in policy -- from not including litigants' names in the SEC filings, to listing them, and then not including them again—could lead a reasonable juror to find that defendant was "dissembling."