Thursday, August 14, 2014

Employer investigating falsity of discrimination charge not guilty of retaliation against employees

Normally, a employee who is subjected to an investigation because he or she reported discrimination has a pretty good claim for illegal retaliation. But in this case, the Second Circuit federal Court of Appeals (covering NY, CT and VT federal courts) says there's no retaliation.  

In this case, the employees reported, in their complaint to the EEOC for race discrimination, that, among other things, they were confronted by  officers of a different race, who apparently accused them of racially-motivated conduct.  In their internal report to the employer, however, they left out this detail. The employer, a law enforcement agency with obvious skills in investigation, then conducted an investigation of the complaining officers, finding that their EEOC complaint was false because of the omitted details. 
The Court of Appeals said the employer was justified in investigating the discrepancy between the internal harassment complaint and the more provocative EEOC charge arising from the same event. If the employer has a solid justification for investigating the plaintiffs, then the employer wins. The Court bounced this case out of court partly because of the special status of the employer as a law enforcement agency, noting that law enforcement officials are required to file reports accurately, and thus the employer has a greater interest in disciplining officers who do not take that obligation seriously than do most employers.

Sunday, August 10, 2014

"At will" employment vs. "right to work" laws: Not the same

I am often confronted with confusion between "right to work" laws and the principle of "at-will employment." People will say: "I'm not protected from discrimination because mine is a 'right to work' state."

Not so. You are protected from discrimination, whether you live in a "right to work" state or not, since every state in the Union prohibits employment discrimination of various kinds. .

However, you are subject to being fired without cause by your employer in every state in the Union, save one.

Every state in the United States, except one, is an "at-will employment" state.  That means that an employer can fire you for any reason, or no reason at all, so long as it is not an illegal reason, such as race or sex discrimination. The only exception is Montana, which prohibits firing an employee who has completed six months of employment unless there is cause related to their employment. See MCA § 39-2-904.

The concept of a "right to work" state is entirely different. It refers to the right of employees to decide for themselves whether or not to join or financially support a union. A union cannot prevent you from working for the employer, even if you decide not to join the union. The union cannot create a "closed shop" agreement with the employer, in which the employer agrees not to hire employees unless they are union members. You can see which states are "right to work" states here.

To review: In a "right to work" state you cannot be required to join a union in order to work.  Nonetheless, you are protected from discrimination by state and federal law (and sometimes municipal law).  However, with the exception of discriminatory reasons, your employer may fire you for any reason or no reason at all, except in Montana.

Thursday, August 7, 2014

Check your references: "It was a lawyer."

Here's a great idea if you're looking for a new job post-transition. Make sure your old employers aren't slandering you and/or making a mess of your gender history.

 Personal story: When I was terminated at the time of my transition 15 years ago, I had a firm check my references. I had contacted my prior employer to explain that I did not want them to reveal my gender transition, and to respond appropriately to inquiries in my new name. I hired a reference-checking firm, which called my prior employer.

 Long story short, when asked what I did for the firm, the stilted response, after an oddly long pause, was "It was a lawyer." I've moved on since then, and let's hope they have as well.

 I have decided to make this reference-checking a standard part of my practice, and found the firm Allison & Taylor online, who seem to be reputable.

Here's their blurb:

 "Looking for a job is tough. Applying, interviewing, and waiting for call backs can be very stressful. Don’t let your references be another cause for concern during this stressful time. Let Allison and Taylor find out for sure what your former employer has to say about you.

Here is what one of Allison and Taylor’s client said after getting their reference report:

 “This report provided great peace of mind, knowing that a former boss had a favorable opinion of my efforts and and work ethic. I was quite relieved!”

 Don’t just assume your former boss will say something good about you. Be sure and have that peace of mind.

Tuesday, August 5, 2014

What does "you're not a good fit" mean?

According to the federal Second Circuit Court of Appeals, it can mean discrimination.

From Wait A Second blog:

From 2004 through 2009, all eight detectives who were chosen to work on the Van were white. The Court of Appeals notes that "Abrams had more training and seniority than each of the detectives selected above him." While Abrams was recommended for the Van position in 2007, a superior officer denied him that promotion because another applicant was a "better fit." for the position. This was not the first time that "better fit" factored into plaintiff's promotion denial. At some point between 2000 and 2004, someone said that Abrams "did not fit in" for the Van position.

The primary issue on appeal is whether Abrams was denied the Van assignment for discriminatory reasons. The Court of Appeals says this is a close case, but that the jury can find in plaintiff's favor. The "fit in" comment can have racial connotations. The Fifth Circuit in 2004 said that a "fit in" comment is "at least as consistent with discriminatory intent as it is with nondiscriminatory intent: The employer just might have found the candidate 'not sufficiently suited' because of a protected trait such as age, race, or engaging in a protected activity." So, while some cases hold the plaintiff to a higher standard in promotion denial cases when management says that someone else was simply better qualified for the position (see Byrnie v. Town of Cromwell, 243 F.3d 93 (2d Cir. 2001)), this case is different because the "fit in" comments suggest that something else -- race -- as opposed to mere qualification was going on here.

Wednesday, July 23, 2014

Is a complaint dismissable because the employer has a non-discriminatory reason for termination?

Is a complaint dismissable because the employer has a non-discriminatory reason for termination? Not according to the federal Second Circuit Court of Appeals.

Wait A Second! blog deciphers the recent case of Brown v. Daikin American, where a reduction-in-force at a Japanese company reached only American citizens, but not the Japanese citizens. The Court isn't saying the case is proven, but only that it can't be dismissed outright without giving the plaintiff a chance at discovery. While the employer reasoned that the Japanese citizens, who were "rotational" employees brought in from Japan for a period of time, were not similarly situated to the American employees, the Court said that they were similarly situated, as they worked for the same employer.  The plaintiffs now have to find documentation and testimony to support their position during the discovery period. Otherwise, they will lose on a motion for summary judgment.

The case is also notable because it permits joint liability on the subsidiary and the parent corporation, if the plaintiffs' allegations about the two companies turn out to be true:

"Here, Brown alleged that DIL "closely directed the operations of its wholly owned subsidiary, Daikin America" and that DIL’s approval‚ was required as to all significant actions by Daikin America." Brown charged that DIL"immuniz[ed]" Japanese rotational employees from discharge by directing Daikin America to discharge only employees who were not Japanese, and by prohibiting Daikin America from reassigning or discharging Japanese rotational employees. Taken together, these allegations sufficiently suggest that DIL exercised centralized control over Daikin America’s decisions about which employees to terminate in the course of the workforce reduction, and that DIL, by protecting Japanese employees from discharge, effectively ensured that employees of other races or national origins, like Brown, would be terminated." (citations omitted)

Click here to

Tuesday, July 22, 2014

Religious Pushback Expected On LGBT Executive Order

Law360, New York (July 21, 2014, 8:27 PM ET) -- Although President Barack Obama is no stranger to using federal contracts as a testing ground for employment reform measures, religious employers may be more resistant to Monday's executive order banning discrimination against gay and transgender contractor employees than to other recent efforts, attorneys say.


“I think this one is going to create more pushback because the dollar threshold is so low it's going to affect a lot of companies,” Horvitz said. “Given the Supreme Court's decision, given the religious aspects of some of this, and given the low dollar threshold, I think there are going to be a lot of comments submitted when the [U.S. Department of Labor] issues its proposed rules.”

...Although top contractors may not have too much trouble adjusting to the new policies, the executive order will add new responsibilities for midsized, smaller and closely held corporations, especially ones that operate in states with no legal protections for gay and transgender workers, according to Laura Maechtlen, a partner at Seyfarth Shaw LLP.

“It's really kind of a patchwork of legal protections for LGBT workers,” Maechtlen said. “This order, at least for federal contractors, would round out those protections and apply them across the board so that you don't have to rely on state and local laws.”

The fact that the order explicitly prohibits discrimination for gender identity is a significant step, because companies have lagged somewhat in recognizing that kind of discrimination as a problem that needs correction, Maechtlen said. Many companies only became aware of the need to combat discrimination based on gender identity after the U.S. Equal Employment Opportunity Commission's 2012 decision in Macy v. Holder, which found that Title VII protects transgender workers from discrimination.

“I think the gender identity piece is a really important one, because employers have come to that late in the game,” Maechtlen said. “The concept of including gender identity was included late to ENDA, and it's also something that employers have been learning more about over time.”


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Monday, July 21, 2014

President signs Executive Order covering gender identity for federal workers and contractors



Washington, DC - Today, President Barack Obama signed an executive order protecting transgender federal workers from discrimination and prohibits anti-LGBT discrimination for employers that work with the federal government as contractors or subcontractors. The National Center for Transgender Equality (NCTE) welcomes the executive order extending gender identity and sexual orientation employment protections to 28 million workers across the country.  
In response to the signing, NCTE Executive Director Mara Keisling issued the following statement: 
"With President Obama's signature today, millions of LGBT Americans now have explicit workplace protections that ensures they and their families aren't cut out of a job because of who they are. Though Congress must act to extend explicit LGBT nondiscrimination protections to all Americans, NCTE celebrates this advancement as one step forward in the ongoing fight to end anti-transgender bias and prejudice in the workplace."
The executive order aims to fill gaps between Title VII sex discrimination protections and a handful of state laws that ban anti-LGBT discrimination. Today, only 18 states, Puerto Rico and the District of Columbia have gender identity employment non-discrimination laws on the books.  
In light of the signing, NCTE reissued two resources to help transgender workers understand their employment protections. The first is "Employment Discrimination and Transgender People," a broader employment guide for transgender people that outlines existing workplace protections--including the new executive order for federal contractors--and explains how transgender people can advocate for their employment rights through the Equal Employment Opportunity Commission. The second is "Transgender Federal Employees: Your Workplace Rights," which explains how the executive order bolsters their Title VII sex discrimination protections.  
"Though the House of Representatives continues their record of inaction on any legislation and, in particular, continues to allow federal job protections like the Employment Non-Discrimination Act to languish, some transgender people have some legal recourse under these new protections. NCTE hopes that our know your rights resources help transgender people better understand these protections so they can better advocate for their own rights," said Keisling. 
NCTE applauds today's action and will continue to press for nationwide employment protections.