Federal Court Permits Employer to Fire Transgender Employee

Posted by on Sep 6, 2016 in Gender Discrimination, Supreme Court, Title VII

In 2014, the Supreme Court of the United States ruled in Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014), that closely-held corporations are exempt from laws to which its owners object on religious grounds, if there is a less restrictive means of furthering the law’s interest. In Burwell, David and Barbara Green owned a family business, Hobby Lobby, and objected to provisions within the Patient Protection and Affordable Care Act (“PPACA”), more commonly known as the “Affordable Care Act” or “Obamacare,” that would have required them to pay for employee insurance coverage that provided access to contraceptives. This controversial decision was hailed by some as a victory for religious freedom, and simultaneously condemned by others as expanding previous Supreme Court decisions that treat corporations like people, notably, Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

More recently, the Honorable Sean F. Cox, U.S.D.J. of the United States District Court for the Eastern District of Michigan, ruled on the defendant’s motion for summary judgment in Equal Employment Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., 2016 WL 4396083 (E.D. Mich. Aug. 18, 2016), holding that the Supreme Court’s decision in Burwell meant a closely-held corporation could fire a transgender employee who, while transitioning from male to female, wished to begin dressing as a female. Notably, Judge Cox interpreted the Religious Freedom Restoration Act of 1993 (“RFRA”), in accordance with the Burwell decision, to mean that the sincerely held religious beliefs of a corporation provide an exemption to state and federal law unless the government can show a need to advance a compelling interest and that the requested means is the least-restrictive method of protecting such an interest. Accordingly, Judge Cox held that employers could terminate employees for the reasons described below.

In Harris, the EEOC argued that an employee’s right to not be discriminated against on the basis of transgender status or gender identity was protected by Title VII of the Civil Rights Act of 1964, which prohibits employers from discharging or otherwise discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Judge Cox stated that enforcement of Title VII would impose a substantial burden on the corporation’s ability to conduct business in accordance with its sincerely held religious beliefs, in violation of RFRA, and the EEOC’s demand of allowing the employee to wear women’s attire was not the least-restrictive method of protecting the employee’s interest in not being discriminated against.

Notably, Judge Cox pointed out the employer’s mission statement, which points to “its highest priority” as “honor[ing] God in all that we do as a company and as individuals,” as evidence of their sincerely held religious beliefs. In contrast, Judge Cox noted the employee’s desire to dress “in a stereotypical feminine manner (wearing a skirt-suit),” which would allow for gender expression, and that the EEOC refused to consider whether the employer would be willing to accept gender-neutral attire that still allowed for gender expression. As a suggestion, Judge Cox proposed a “dark-colored suit, consisting of matching business jacket and pants, but without a neck tie.”

Given Citizens United, Burwell, and now Harris, there appears to be a trend of federal case law indicating that corporations may be treated like individuals, and that the religious beliefs of a closely-held corporation’s owners can override federal protections against discrimination. As it appears likely that the EEOC will appeal this decision to the United States Court of Appeals for the Sixth Circuit, both employers and employees should continue to track its progress through the legal system.

Hill Wallack employment law attorneys are available to help navigate issues such as these and how they may affect clients in New Jersey, New York, and Pennsylvania.

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Supreme Court Holds That Where Violation of First Amendment Rights at Issue, Employer Perception Rules

Posted by on May 12, 2016 in Retaliation, Supreme Court, Wrongful Termination

In a decision that may be particularly timely in this heated election season, the United States Supreme Court recently considered the issue of whether an employee who was demoted because the employer mistakenly believed he participated in political activity can file a lawsuit against the employer under 42 U.S.C. § 1983 for deprivation of his First Amendment rights under the U.S. Constitution. The facts of this case took place right here in our region in Paterson, New Jersey.

In Heffernan v. City of Paterson, 136 S.Ct. 1412 (2016), a police officer went to a political campaign site to pick up a lawn sign for a mayoral candidate, who was a friend of his, on behalf of his bedridden mother. The police officer had no involvement in the candidate’s campaign. The officer’s supervisor and the chief of police had been appointed by the candidate’s opponent, the incumbent mayor. His fellow officers spotted the officer at the campaign site, and word got back to his supervisors about it. The officer was demoted the very next day for his “over involvement” in the campaign of the mayoral candidate.

The officer filed a lawsuit under 42 U.S.C. § 1983 (which provides a cause of action for violations of constitutional rights) alleging that he was unlawfully demoted “because he had engaged in conduct that (on [the employer’s] mistaken view of the facts) constituted protected speech.” The Court observed, citing to Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980), that “[w]ith a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate.” However, the officer in this instance had just picked up a sign for his mother and was not actually engaging in political activity or supporting the candidate.

The question before Court in Heffernan was whether it is the employee’s actions, or instead the employer’s motivation in an employment decision, that determines whether an employee was deprived of a constitutional right. Put another way, does the analysis of whether the employee’s constitutional rights were violated by an employment decision focus on the employee’s conduct in engaging in protected activity, or is it instead focused on whether the employer believed (even mistakenly) that the employee was doing so?

The Court held in a 6-2 decision that whether the employee’s right was violated is determined by the employer’s motivation in the employment decision. In its decision, the Court looked to Waters v. Churchill, 511 U.S. 661 (1994), in which an employer terminated an employee when the employer believed the employee had engaged in speech that was not protected by the First Amendment, even though the employee’s speech was in fact protected. In Waters, the Court held that the employer did not violate the employee’s constitutional rights if it “(1) had reasonably believed that the employee’s conversation had involved personal matters, not matters of public concern, and (2) had dismissed the employee because of that mistaken belief.” The Court in Heffernan noted that the Waters decision focused on the perception of the employer, not the actions of the employee. The Court then stated:

“In Waters, the employer reasonably but mistakenly thought that the employee had not engaged in protected speech. Here the employer mistakenly thought that the employee had engaged in protected speech. If the employer’s motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here? After all, in the law, what is sauce for the goose is normally sauce for the gander.”

Notably, the Court also addressed whether its decision would increase the burden placed on employers to defend against claims, and held that a ruling that creates liability for an employer for a factual mistake does not place an increased burden on an employer. After all, the Court held, the employee still shoulders a heavy burden of showing the employer’s motive.

The case was then sent back to the lower court, who will hear, among other issues, if the employment decision was based on a policy prohibiting all officers from engagement in “overt involvement in any political campaign,” and if that policy was constitutional.

In light of the Heffernan decision, employers should be aware that they may not be able to defend adverse employment decisions where the employee’s engagement in protected speech is at issue merely by asserting that the employee was not actually engaged in protected speech. Their mistaken view will not relieve them of potential liability. Employers may wish to tread carefully when making an adverse employment decision and ensure that their investigatory procedure clearly documents that a decision was made as a result of unprotected speech by an employee or other just cause. As always, we advise that employers consult with an employment attorney prior to making adverse employment decisions.

The full text of the Heffernan decision can be found at: http://www.supremecourt.gov/opinions/15pdf/14-1280_k5fl.pdf.

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Supreme Court Raises the Bar for Older Workers

Posted by on Jun 23, 2009 in Age Discrimination, Supreme Court

By: Tiffanie Benfer, Esq.
Last week’s 5-4 decision in Gross v. FBL Financial Services, authored by conservative Justice Clarence Thomas, took several surprising turns. First, the Court addressed an issue — standard of proof for claims under the Age Discrimination in Employment Act (ADEA) — that was not even raised by the parties. Second, the Court declined to apply settled caselaw and evidence of Congressional intent for other statutes barring discrimination. The end result is an interpretation of the ADEA that makes the burden of proof for older workers bringing federal claims of age discrimination much higher than it is for workers alleging other forms of discrimination.
What does the FBL Financial decision say?
The Court’s decision turns on shifting burdens of proof in age discrimination cases, the kind of topic that makes non-lawyer eyes glaze over. To a large extent, it comes down to the difference between “a” and “the.” Under Title VII (which protects workers from discrimination on the basis of classifications such as race and gender), when there is a case of “mixed motives,” there is a shifting burden of proof, and employees must show that the protected class was a motivating factor. The FBL Financial decision basically takes away the option of arguing mixed motives in an age discrimination case – employees must argue that age was the motivating factor, not just a motivating factor.
What does FBL Financial mean in practice?

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Obama Signs Lilly Ledbetter Fair Pay Act into Law

Posted by on Jan 30, 2009 in Gender Discrimination, People In the News, Supreme Court

By: Tiffanie Benfer, Esq.
Barack Obama signed the Lilly Ledbetter Fair Pay Act yesterday. I’ve written about this legislation before, and won’t repeat it today, except to say that this is a sign that the current Congress is willing to take action to protect employees’ rights, and a sign that Congress is willing to overrule the Supreme Court when it will not fully implement Congressional intent.
Here is an excerpt from President Obama’s remarks:
“Equal pay is by no means just a women’s issue — it’s a family issue. It’s about parents who find themselves with less money for tuition and child care; couples who wind up with less to retire on; households where one breadwinner is paid less than she deserves; that’s the difference between affording the mortgage — or not; between keeping the heat on, or paying the doctor bills — or not. And in this economy, when so many folks are already working harder for less and struggling to get by, the last thing they can afford is losing part of each month’s paycheck to simple and plain discrimination.
“So signing this bill today is to send a clear message: that making our economy work means making sure it works for everybody; that there are no second-class citizens in our workplaces; and that it’s not just unfair and illegal, it’s bad for business to pay somebody less because of their gender or their age or their race or their ethnicity, religion or disability; and that justice isn’t about some abstract legal theory, or footnote in a casebook. It’s about how our laws affect the daily lives and the daily realities of people: their ability to make a living and care for their families and achieve their goals.
“Ultimately, equal pay isn’t just an economic issue for millions of Americans and their families, it’s a question of who we are — and whether we’re truly living up to our fundamental ideals; whether we’ll do our part, as generations before us, to ensure those words put on paper some 200 years ago really mean something — to breathe new life into them with a more enlightened understanding that is appropriate for our time.”
— Pres. Barack H. Obama, in remarks at signing ceremony for the Lilly Ledbetter Fair Pay Act of 2009, Jan. 29, 2009

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The Supreme Court Recognizes a Broad Interpretation of the Anti-retaliation Provision of Title VII

Posted by on Jan 26, 2009 in Gender Discrimination, Retaliation, Sexual Harassment, Supreme Court

By Tiffanie Benfer, Esq.
Just this morning, the Court issued a decision that sets forth a broad interpretation of the anti-retaliation provision of Title VII, and concluded it applies to employees participating in an internal investigation of Title VII violations. The decision in Crawford v. Metropolitan Government of Nashville will make it easier for employees to bring retaliation claims. It serves as a caution to employers, who should be aware that they may be liable for retaliation even if a court finds that there is no merit to the underlying discrimination claim.

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The Supreme Court Considers Again the Scope of Title VII's Anti-Retaliation Provision

Posted by on Jan 12, 2009 in Gender Discrimination, Retaliation, Supreme Court

By Tiffanie Benfer, Esq.
January is National Stalking Awareness Month. I think it is quite poetic that on January 9, 2009, the Supreme Court considered Ms. Dawn Martin’s Petition for rehearing, which asks the Court to reconsider whether her termination for reporting a stalker in the workplace falls within the scope of the anti-retaliation provision of Title VII. Ms. Martin was stalked in her workplace, and then was subsequently fired for asking her employer to implement existing security procedures to keep the stalker out of the workplace. If the lower court’s decision is not reversed, women like Ms. Martin will be forced to choose between their safety and their job. The Court previously denied Ms. Martin’s Petition for Certiorari in 2008.
Ms. Martin asks that the Court reconsider her work place stalking case in light of the Court’s consideration of Crawford v. Metropolitan Government of Nashville and Davidson County. http://www.oyez.org/cases/2000-2009/2008/2008_06_1595/ Oral argument in the Crawford matter took place on October 8, 2008, the Court considered: “Does the anti-retaliation provision of Title VII of the Civil Rights Act apply to employees fired for participating in an internal investigation of sexual harassment?”

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