ALL IN! The ever-expanding reach of employment discrimination law

Kaufman & Canoles, P.C.
VIRGINIA
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.
www.kaufmanandcanoles.com
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?
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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
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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
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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)
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But we don’t:
In re: Elizabeth Welborne, PA
The National Labor
Relations Board:
an agency in search of a
mission
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But we don’t:
•  Lowe v. Atlas Logistics Group Retail
Services, LLC, (N.D.Ga. May 5, 2015)
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But we don’t:
•  Salz v. Casey’s Mktg. Co., No. 11-CV-3055
(N.D. Iowa July 19, 2012)
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But we don’t:
•  GINA
•  NLRA
•  ACA
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•  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
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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
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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!
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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.
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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 sexrelated 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
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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”
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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
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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
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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!
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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
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National origin:
•  Flag-owners claim national origin
discrimination based on “ConfederateAmerican” status
•  Do they win or lose?
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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!
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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)
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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
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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
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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?
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Religion
•  Cynthia Simpson:
“Reclaiming Tradition
of Wicca,” “Broom
Riders Association”
•  Monotheistic and
pantheistic, invoke
Diana, Hecate, Pan
all as “aspects of the
one”
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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.
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What about religious satire?
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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!
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Race
Tuscaloosa Independent Monitor, 1868
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Race – Idiots Harass
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Race – Idiots Harass
•  Novellus Systems settlement of $168,000 in
racial harassment claim
•  “Harasser” was 27-year-old VietnameseAmerican who constantly played and sang
rap music, including music containing the “nword”
•  Company failed to take action for six months
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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.”
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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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Kaufman & Canoles, P.C.
VIRGINIA
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
www.kaufmanandcanoles.com