Archive for June, 2013

June 26, 2013

Overturning DOMA will increase LGBT rights in the workplace

The impact of the Supreme Court decision overturning the Defense of Marriage Act (DOMA) will be felt in the workplace.

First of all overturning DOMA will expand anti-discrimination protections and partner benefits to gay, lesbian and transgendered employees who are employed by the federal government.

Overturning DOMA will also probably benefit LGBT employees not working for the federal government. One argument is that that banning LGBT discrimination in federal employment will ease acceptance of extending anti-discrimination protections to gays and lesbians in the workforce as a whole. Legislation has been introduced that would explicitly extend protections offederal and state fair employment statutes to gays and lesbians.

From a political point of view, explicitly extending fair employment statutes to cover gays and lesbians probably won’t be feasible until at least 2015 depending on the outcome of the 2014 elections. Politicians in red states in both parties may be wary of conservative backlash if they support extending fair employment practices to gays and lesbians. That same reticence will probably be displayed by Senate Majority Leader Harry Reed who needs to Democrats to win in several conservative states in order to hold on to the majority.

But today’s decision overturning DOMA may further open the door to judicially expanding employment statutes to gays and lesbians. Justice Kennedy and the liberal bloc struck down DOMA on 5th/14th amendment equal protection grounds. If state’s can’t discriminate against gays in marriage on equal protection grounds it doesn’t make logical sense that the 5/14th amendment allows employment discrimination against gays.

It is arguable that gays, lesbian and transgendered people already have the protections of our fair employment laws under the theory of sex-plus discrimination which prohibits discrimination based on sexual stereotypes . In Smith v. City of Salem, Ohio the 6th Circuit Court of Appeals extended protections under the sex-plus theory to a male firefighter who started identifying as a woman.  In Lewis v. Heartland Inns of America, the conservative 8th Circuit Court of Appeals upheld a finding of possible finding of sex discrimination for a woman who was described by her boss as having  “an Ellen DeGeneres kind of look.” Though the 8th Circuit didn’t make any reference to sexual orientation in the decision, it is obvious that “Ellen DeGeneres” is a code word for “lesbian”. It makes sense to me that opposite sex attraction is a stereotype for each gender and that discrimination against gays, lesbians and transgendered people should be covered under the theory of sex-plus discrimination. I think courts will be increasingly be forced to rule that way in the wake of today’s decision on DOMA stating that discrimination against gays and lesbians runs afoul of the 5th/14th amendments. Another possible factor working in favor expanding fair employment protections to gays and lesbians are recent Supreme Court decisions interpreting federal fair employment law favorably for employers.  It’s easy to conceive of moderately conservative judge in the mode of Supreme Court Justice Anthony Kennedy judicially extending fair employment law to gays and lesbians with the understanding that it will likely be more difficult employees to win fair employment suits.

Until Congress and/or our state legislatures act, gays and lesbians are not guaranteed equal rights at work. But thanks to today’s decision overturning DOMA, I think courts will be more open to extending workplace rights to the LGBT community regardless of what is done in the legislative branch.


June 24, 2013

Nassar and Vance : Instant analysis

In two 5-4 decisions, the United States Supreme Court lessened protections for employees in the workplace today in the Vance and Nassar cases. My initial impression is the Nassar decision will have  a bigger impact on employees in Nebraska and Iowa and will probably have a bigger impact nationwide as well.


In Nassar the Supreme Court changed the standard for causation in a Title VII retaliation case from a motivating factor to but-for causation. Motivating factor is described as one of several causes where as but for causation means because of or even a sole cause. “But for” is a harder factor for an employee to prove than a motivating factor. In the 5-4 decision, Justice Alito pointed to the burden imposed on employers from the increase in retaliation cases filed with the EEOC. Alito believes that motivating factor in retaliation cases leads to  frivolous claims. Specifically he was worried that employees who knew they were going to get fired would file discrimination complaints in order to either prevent from getting fired or to set themselves up for a wrongful termination case.

In her dissent, Justice Ginsburg stated that Alito didn’t give federal trial court judges enough credit for sniffing out bogus retaliation claims on summary judgment. I agree. I also think Justice Alito doesn’t give attorneys — both management and employee side attorneys — enough credit in screening out bogus claims. As an employee attorney I am going to commit a substantial amount of time and money to a wrongful termination claim, so I am going to screen my cases. This is especially true in the area of Title VII where I can get stung for fees and costs both through the court rules and possibly under statute if I bring a weak case.

I am going to be doubly careful if I speak with a client who claims to have been fired right after turning in a discrimination claim. I assume human resources officers either know the law and/or consult with competent counsel before before they decide to fire somebody. I assume that management knows that firing someone soon after engaging in protected activity creates an inference of wrongful motive. I also assume that management will be able to prove to a court that they had a legitimate reason to fire an employee who recently engaged in protected activity.  Unless an employee can give me a good reason to doubt that assumption, I and most other plaintiff’s lawyers will decline that case.

Part of the expense of defending retaliation claims stems from responding to administrative filings with the EEOC and state and local fair employment agencies. The decision in Nassar does nothing to stop poor employees who were fired for good reason from filing claims with fair employment agencies. However as a result of today’s decision, good employees with legitimate cases, like Dr. Naiel Nassar, will have a more difficult time vindicating their rights in court.

But employee advocates can still bring retaliation cases under state fair employment statutes where causation standards may be less exacting for employees. Under current Nebraska law, proximate cause need not be the sole cause of an act in order to hold a defendant liable. However state courts tend to follow federal courts in their interpretation of fair employment law. State courts could very well carve out a fair employment exception to state law retaliation case under the reasoning of Nasser. Also courts could apply Nasser to raise standards for proximate cause for all civil plaintiffs. Employee advocates will need to proceed with caution on state law retaliation claims post-Nasser.


Vance clears up a split among Federal Courts of Appeal as to the definition of a supervisor under Title VII. The court agreed with the 1st and 8th Circuits that a supervisor is someone with authority to make tangible employment decisions such as hiring and firing. The court rejected the majority view that a supervisor was someone with the mere power to direct an employee’s work. Vance was arose out of a hostile environment claim under Title VII and the narrow holding was that an employer can not be held vicariously liable for harassment committed by someone who merely directs the work of another employee. As a result employees are now essentially required to report harassment to upper management and human resources in order to win a hostile environment claim under Title VII. Vance doesn’t change the law in Nebraska or Iowa or anywhere else in the 8th or 1st circuit. But again state courts will likely give deference to the decision. If employee advocates are advising employees pre-termination, it would probably be wise to make sure employees are able to prove their harassment case under a Vance standard.