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The ever-expanding reach of employment discrimination law

NAFA Non-Prime Auto Financing Conference

Plano, Texas June 2, 2016

John M. Bredehoft Kaufman & Canoles, P.C.

Kaufman & Canoles, P.C. VIRGINIA


Basic Concepts •  Discrimination

–  Most basic: “No Irish Need Apply” –  More subtle: Glass Ceiling

•  Harassment –  The word never appears in any law –  “Hostile Environment” and quid pro quo

•  Retaliation –  The most dangerous, largest category, fastest growing –  Includes less egregious conduct – “dissing” a complainer?


A little about retaliation: •  Fastest-growing category of EEOC Charges •  FY 2015: largest category of EEOC Charges

–  44.5% of all FY 2015 Charges = retaliation claim

•  (An aside – a word about EEOC Charges) –  Vastly understate the number of claims made –  Very, very few Charges find unlawful conduct, but

that is meaningless –  Charges stayed stable at around 100,000, then

93,000; FY 2014: 88,000; FY 2015: 89,000


Basic Concepts

•  Conduct is only unlawful if it is done based on one or more “protected” categories

•  Extraordinary expansion over the past three or four years in what categories are protected

•  It’s not just “sexual harassment” or “racial bias in promotions” anymore


We all know all of the protected classes:

•  Race, sex, color, national origin, religion (Title VII of the Civil Rights Act of 1964)

•  The Ku Klux Klan Act •  1967: Age Discrimination in Employment Act •  1977: Pregnancy Discrimination Act •  1990: Americans with Disabilities Act •  2008: ADAAA – everybody (2013 regulations)


But we don’t:

In re: Elizabeth Welborne, PA

The National Labor Relations Board:

an agency in search of a mission


But we don’t:

•  Lowe v. Atlas Logistics Group Retail Services, LLC, (N.D.Ga. May 5, 2015)


But we don’t:

•  Salz v. Casey’s Mktg. Co., No. 11-CV-3055 (N.D. Iowa July 19, 2012)


But we don’t: •  GINA •  NLRA •  ACA

•  FLSA retaliation •  FMLA retaliation •  SOX retaliation


But we don’t: state and local • VA: childbirth, marital status, lactation • PA: “ancestry” as well as “national origin” (same as Massachusetts); “handler or trainer” of a guide or support animal (mini-horses?) • NC: lawful use of lawful products outside work; absence because getting domestic violence order • WV: blindness or disability


But we don’t, continued: •  CA: political opinions or activity •  TN: “creed” as well as “religion;”

defines “familial status” but does not prohibit discrimination for it; tardy volunteer rescue workers

•  IL: unfavorable military discharge •  DC: matriculation; personal

appearance


Definitional issues: That which is forbidden in the office may be appropriate at other times and places. But that does not make it permissible in the office. “To flirt or not to flirt” should

never be the question!


Unlawful Harassment: •  Developed in the context of race discrimination

under Title VII

•  Applies to all “protected categories”

•  Hostile, abusive, severe, pervasive, unwelcome

•  Meritor Savings Bank and Harris v. Forklift Co.


Who knows what it is? •  “Abusive" (or "hostile," which in this context I take to mean the

same thing) does not seem to me a very clear standard—and I do not think clarity is at all increased by adding the adverb "objectively" or by appealing to a "reasonable person['s]" notion of what the vague word means. . . . As a practical matter, today's holding lets virtually unguided juries decide whether sex-related conduct engaged in (or permitted by) an employer is egregious enough to warrant an award of damages. . . . Be that as it may, I know of no alternative to the course the Court today has taken. ”

»  Justice Scalia, concurring in Harris v. Forklift Systems


Sexual Orientation and Gender Identity

•  Congress has never passed ENDA •  Some state laws protect (MA, NM) •  Some places, local option (TX) •  Some state laws seem to eliminate

protection, e.g. TN “sex” as “assigned at birth”

•  MA: sexual orientation “which shall not include persons whose sexual orientation involves minor children as the sex object”


Case study: transgender • Mia Macy • Discrimination on the basis of sex is unlawful • Discrimination on the basis of sexual orientation violates no federal law

–  “Transvestitism” is specifically excluded from the definition of “disability” under the ADA, and cannot form the basis for a disability discrimination claim

–  Marriage Equality cases do not say sexual orientation is a fundamental right, only that marriage is a fundamental right


Does Mia win? •  U.S. EEOC decision (because he was a

federal employee and she can bring a claim there) – per se discrimination on the basis of sex: she wins hands down

•  Almost all courts agree (Library of Congress) •  Clear precedent: Price Watershouse and cf.

Oncale same-sex harassment case


Sexual Orientation is different: •  EEOC takes the position that sexual

orientation discrimination is illegal, even though Congress has refused to pass ENDA

•  March 2016, two test cases filed in court •  So far, courts have held that firing someone

for appearing “gay” is illegal under federal law, but firing someone for actually being gay is not against federal law!


Case study – national origin? •  Sesquicentennial of the Civil War has just

ended. British Government: “what is more, they have made a nation”

•  Complaints: displays of Confederate Battle Flag regalia in the office, or on cars in the company-owned parking lot, create a hostile environment for other employees


National origin:

•  Flag-owners claim national origin discrimination based on “Confederate-American” status

•  Do they win or lose?


What happens to the flag? •  Numerous cases make it clear that this is not

what the Civil Rights Acts were intended to protect. (But so what? We expand laws all the time. And remember how “sex” came to be included in Title VII.)

•  Numerous cases make it clear that “Confederate American” is not a national origin

•  Creative plaintiffs: well, then, it’s a religion!


Religion: •  The Confederate Americans lose, but. . . •  Cloutier v. Cosco (CBM) •  Brown v. Pena (personal creed: Kozy Kitten) •  Schwartzentruber (KKK membership) •  Peterson v. Wilmer (white supremacy) •  EEOC v. Papin (Nuwabian nose ring) •  EEOC v. Red Robin (“My Father Ra is Lord”

tattoo)


Religion:

•  American Religious Identification Survey 2008 (used by Census Bureau)”4 –  1.6 million Atheist, 1.98 million Agnostic –  Quaker 130,000 v. Wiccan 340,000 –  Sikh 78,000 v. Pagan 340,000

–  CUNY 2001: 33,000 Druid


Religion:

•  Jedi Knight: –  Australia 2006: 65,000 –  New Zealand 2001: Second largest after Christian –  United Kingdom 2012: Seventh largest; was fourth

largest in 2001 with 177,000, larger in UK than Sikh, Buddhism, Judiaism


Case study - Religion:

•  Chesterfield County Board of Supervisors •  Random selection from ministers to start

Board meeting (phone book) •  A noted lack of religious diversity among

denominations selected •  So, who sues?


Religion •  Cynthia Simpson:

“Reclaiming Tradition of Wicca,” “Broom Riders Association”

•  Monotheistic and pantheistic, invoke Diana, Hecate, Pan all as “aspects of the one”


Does Cynthia win?

•  No, but not for the reason you might think. Special exception for “legislative prayer” (that’s the Town of Greece case from 2014 – and they had invited a Wiccan!)

•  Hiring practices would be different. Might well have won if challenging job action.


What about religious satire?


A word about harassment on the basis of religion:

•  Normal, everyday harassment: evil or stupid •  Dichotomy does not apply to religion: many

religious harassers want to help their victims –  Post-9/11 invocations to pray to particular God –  “God’s Home Health Care Agency” –  Social media policy: one good reason to make

sure Facebook and other Internet posting by employees do not suggest corporate sponsorship

–  Question never to ask in interviews!


Race

Tuscaloosa Independent Monitor, 1868


Race – Idiots Harass


Race – Idiots Harass

•  Novellus Systems settlement of $168,000 in racial harassment claim

•  “Harasser” was 27-year-old Vietnamese-American who constantly played and sang rap music, including music containing the “n-word”

•  Company failed to take action for six months


Some cases are easy:

•  Everdry Waterproofing case –  Attempts to grab breasts –  Spankings, lewd comments –  Demands female employees wear “specific

clothes” –  A 16-year-old female employee “coerced into

having her toes sucked by her male manager in front of co-workers her first day on the job.”


What does this mean? •  Bottom line is: EVERYONE is in a protected

category, everyone has some special status •  Bottom line is: NO ONE should be acted

against for any reason except pure business performance

•  Bottom line is: NO ONE should be harassed •  Company or agency’s policy can be more

expansive than the legal definition of “harassment”

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ALL IN!

The ever-expanding reach of employment discrimination law

NAFA Non-Prime Auto Financing Conference

Plano, Texas June 2, 2016

John M. Bredehoft Kaufman & Canoles, P.C.

Norfolk, Virginia

Kaufman & Canoles, P.C. VIRGINIA

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