Transgender titles meet the 1st amendment

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A professor addressed a transgender student as Mr.

The transgender student wants to be addressed as Ms.

University policy says that the professor is required to use the pronoun or the title that the individual student prefers.

The professor on the other hand, has a religious belief. He believes that God created male and female and that those cannot be changed and that he has to follow that when he's teaching in class.

Eventually the University reprimanded him and told him that there would be more discipline coming if he continued to violate University policy. Now, the 6th Circuit came in and said, hey, this prof has a free speech right to do this – which I think is just totally wrong. They also said that the University violated his free exercise of religion, which I think is probably correct. Meriwether v. Hartop (6th Cir 03/26/2021) [PDF]

On the Free Speech part, there's the Garcetti case from the US Supreme Court, which basically says to public employees: If you're speaking out as a citizen you have free speech rights, but if you're speaking pursuant to your official duties as an employee, you do not have speech rights. And the 6th Circuit just basically turned that upside down and said, Oh, well, his speaking in class is the heart of his duties and therefore he has free speech rights. I think that's just totally wrong.

On the other hand, on the free exercise part, the University clearly was hostile to his religion. In fact, there was a Provost at the University who actually laughed during one of the hearings — laughed at his religious belief.

So this case is half right and half wrong. In any event, the 6th Circuit has sent it back for a trial.

SCOTUS will not be deciding a case on the N-Word in the workplace

I'm disappointed that the US Supreme Court decided NOT to decide a Title VII case involving the N-Word.

Collier v. Dallas County Hospital District [Briefs] [5th Circuit decision] seemed like the perfect case to grapple with the question of "Whether an employee’s exposure to the N-word in the workplace is severe enough to send his Title VII hostile-work-environment claim to a trier of fact."

The N-Word was scratched into an elevator that the employees used, and it stayed there for months.

And the District Court and the 5th Circuit held that this was not serious enough, and not pervasive enough, to alter the terms and conditions of the employee’s employment and create an abusive workplace.

The lower courts are split in terms of how they exactly handle the N-Word, but this case is just plain wrong. This is a case where a jury – not a judge – ought to be deciding whether there's an abusive workplace.

It's time to get the N-Word out of the workplace.

Football coach fired for praying

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It looks like the US Supreme Court is going to have a second shot at a case where a high school football coach got fired after he refused to stop his practice of saying a prayer right after the game on the 50 yard line surrounded by his players, surrounded by people from the stands. Kennedy v. Bremerton School District (9th Cir 03/18/2021).

The first time this case went up to the Supreme Court, the lower courts had denied the coach an injunction against the school.

All the Supreme Court did was decide not to decide the case. Kennedy v. Bremerton School District (US Supreme Court cert denied 01/22/2019)

But four of the Justices indicated that they were quite critical of the way the 9th Circuit had analyzed this case. So we may see it go up again.

The case really involves a conflict between the coach’s free exercise of religion and the school district’s interest in not appearing to establish a religion by endorsing this particular practice. And the 9th Circuit held simply that the school district had a compelling interest in ensuring that they were not engaged in violating the 1st Amendment which prohibits the establishment of a religion.

Interesting case.

Next stop — Supreme Court.

N-Word at the US Supreme Court

[View the 1:15 minute video]

The N-Word has landed at the Supreme Court of the United States. Collier v. Dallas County Hospital District [Briefs]. Petition for a writ of certiorari filed on January 15, 2021.

The N-Word was scratched into an elevator that the employees used, and it stayed there for months.

And the lower courts are saying well, this is not serious enough, not pervasive enough to alter the terms and conditions of the employee’s employment and create an abusive workplace. [5th Circuit decision]

I know the lower courts are split in terms of how they exactly handle the N-Word, but this case is just plain wrong. And I want the Court to take this case up.

This is a case where the jury ought to be deciding whether there's an abusive workplace.

It's interesting that once the cert petition was filed the employer filed a waiver saying — well, we don't need to file a response to this case. And the court has asked the employer to file a response. (Due March 18, 2021)

So I'm hoping they take this case up.

It's time to get the N-Word out of the workplace.

Fired because she intended to get pregnant

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A recently married woman filed a lawsuit claiming she was discriminated against because she told the boss she was intending to become pregnant. South Texas College v. Arriola (Texas Ct App 02/11/2021)

Her claim is that she told her co-workers and her supervisors of her intention to become pregnant, and then all of a sudden she's getting harassed, she's getting disciplined, and ultimately she gets fired.

The legal question is whether this states a claim under the Texas Civil Rights Act.

The employer, of course, says well look, the statute does not cover a situation where somebody is just INTENDING to become pregnant. It only covers cases where people are pregnant.

And the Texas Court of Appeals replied saying look, when we interpret the Texas statute we are going to look at Title VII cases for guidance, and the overwhelming number of Title VII cases like this have held that it is sex discrimination when an employer discriminates against a woman who says she intends to become pregnant.

The point being that when you discriminate against a person who is intending to become pregnant, by definition you're discriminating against women.

This may have been the first time it ever came up in a Texas court, but this is pretty much the rule of law all around the country under Title VII.

7 US Supreme Court cases on employment law (2019-2020)

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During its 2019-2020 term, the US Supreme Court decided seven cases on employment law, including the game-changing decision that Title VII prohibits discrimination because an individual is gay or transgender.

Title VII, gay and transgender employees: An employer who fires an individual merely for being gay or transgender violates Title VII. Bostock v. Clayton County  (6-3).

Ministerial exception: The First Amendment’s Religion Clauses foreclose the adjudica­tion of employment-discrimination claims brought by fifth grade teachers at Catholic schools. Our Lady of Guadalupe School v. Morrissey-Berru (7-2).

ACA Contraceptive mandate: Federal agencies had the authority under the ACA to promulgate religious and moral exemptions to the contraceptive mandate. Little Sisters of the Poor v. Pennsylvania (7-2).

Age discrimination: The ADEA demands that federal personnel actions be untainted by any consideration of age. To obtain reinstatement, dam­ages, or other relief related to the end result of an employment deci­sion, a showing that a personnel action would have been different if age had not been taken into account is necessary, but if age discrimi­nation played a lesser part in the decision, other remedies may be ap­propriate. Babb v. Wilkie (8-1).

Causation under 42 USC §1981: A §1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury, and that burden remains con­stant over the life of the lawsuit. Comcast v. Natl Assoc of African American-Owned Media (9-0).

ERISA statute of limitations: A plaintiff does not necessarily have “actual knowledge” under §1113(2) of the information contained in disclosures that he receives but does not read or cannot recall reading. To meet §1113(2)’s “actual knowledge” requirement, the plaintiff must in fact have become aware of that information. Intel Corp Committee v. Sulyma (9-0)

ERISA standing: Plan beneficiaries whose benefits are defined lack standing to sue the plan for alleged poor investment of assets. Win or lose, they would still receive the exact same monthly benefits they are already entitled to receive. Thole v. U.S. Bank (5-4).

VIDEO - Race discrimination in the workplace

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Race discrimination in the workplace is forbidden by federal law, and by the law in most states.

This video gives an overview of race discrimination in employment, and some of the remedies that are available to employee,

VIDEO - Employment discrimination overview

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All discrimination is not illegal.

Some is legal.

This video discusses what "discrimination" means, and how to tell the difference between legal and illegal discrimination.

5th video in the Employment Law 101 series.

SCOTUS preview: Ministerial exception

[Video] I’m predicting a clear-cut victory for the schools in Our Lady of Guadalupe School v. Morrissey-Berru [Briefs].

Fifth grade teachers were fired, and claim violations of anti-discrimination laws. The schools argue that the 1st amendment “ministerial exception” allows them to decide who to hire and fire without any government interference.

The central issue is whether these teachers qualify as “ministers.”

Here’s hint at why I think the schools will win: I think there's already three Justices that are lined up in favor of the schools. Justice Alito and Kagan have made it very clear that all they care about is what this teacher is actually doing. They don't care about the titles or things like ordination and that sort of formal stuff. And Justice Thomas has said all he cares about is whether the school has a good faith belief that the teacher is helping to propagate the religion.

Employer waived its right to compel arbitration

[Video] We know that courts will enforce an arbitration clause in an employment agreement. We also know that active participation in a lawsuit can waive that right.

Here we have a case out of the District of Columbia. An ex-employee sued claiming employment discrimination and the employer filed a motion to dismiss, another motion to dismiss trying to move the case to the Philippines, filed an answer with 23 affirmative defenses, and agreed to a very lengthy discovery process.

Five months after the suit was filed the employer filed a motion to compel arbitration. And they had no explanation for that five month delay.

So the court held that this was a waiver. TRG Customer Solutions v. Smith (Dist of Columbia 04/30/2020) [PDF].

The court couldn't figure out whether this employer simply didn't realize until too late they had the right to arbitrate, or whether they simply waited until it was clear they couldn't get a dismissal. And the court talked about the problem of gamesmanship and manipulation.

In any event the employer waived its right to arbitrate, and this case is going to stay in court.

SCOTUS age discrimination decision - video

[Video] A US Supreme Court age discrimination case holds that for federal employees, "any" discrimination can establish liability. However "but-for" causation required for a tangible remedy. Babb v. Wilkie (US Supreme Court 04/06/2020) (8-1) [PDF].

This decision was a victory for the employee, yet it was a hollow victory indeed.

§1981 cases require but-for causation

[Video] Entertainment Studios Network (ESN), owned by an African-American, sued Comcast, a cable television conglomerate, claiming that Comcast's refusal to carry ESN's channels violated 42 USC §1981(a), which guarantees "[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." At the pleading stage, the case turned on which causation standard to use. The trial court ruled that the plaintiffs had to point to facts plausibly showing that racial animus was a "but for" cause of the defendant’s conduct. The 9th Circuit reversed, holding that a plaintiff must only plead facts plausibly showing that race played "some role" in the defendant’s decisionmaking process.

The US Supreme Court unanimously held that a §1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury, and that burden remains constant over the life of the lawsuit. The Court said, "It is 'textbook tort law' that a plaintiff seeking redress for a defendant’s legal wrong typically must prove but-for causation," and there is no exception for §1981. Although Congress in 1991 adopted a "motivating factor" causation test for Title VII cases, §1981 dates back to 1866 and has never said a word about motivating factors.

Pacific Coast Labor & Employment Law Conference postponed

Pacific Coast Labor & Employment Law Conference has been postponed until September 16 & 17.  See announcement at https://pacificlaborlaw.com/

Prior salary and the Equal Pay Act

[Video] If starting salary is based on prior salary, that's not a defense to an Equal Pay Act suit. So says the 9th Circuit in an en banc (11 judges) decision: Rizo v. Yovino (9th Cir 02/27/2020) [PDF].

Setting initial wages based on prior wages is always problematic because it tends to perpetuate the discrimination that might have been practiced by previous employers to the disadvantage of women and racial minorities.

Now, we've got a 9th Circuit case saying that an employer cannot ever use prior wages to justify a pay differential between men and women which otherwise would violate the Equal Pay Act.

A woman was paid less than men who were doing the same job and the employer said Look, the Equal Pay Act has a defense. It's called any other factor other than sex, and we put her on the pay schedule based on her prior salary, and that is an other factor other than sex.

And the 9th Circuit says No. The other factor has to be job related, and prior salary is not job related.

My issue with this case, which we’ll see discussed in the Supreme Court, is that the statute says ANY other factor other than sex, and the statute does not say anything at all about that other factor having to be job related.

Pacific Coast Labor & Employment Law Conference

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Consistently excellent labor and employment law program. Pacific Coast Labor & Employment Law Conference in Seattle April 30-May 1.

Here’s the brochure: [PDF]

Website: https://pacificlaborlaw.com/2020-conference/2020-registration

email: registration@pacificlaborlaw.com

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