This article features a current employment discrimination case brought by a former Metlife employee in Connecticut on December 4, 2019. The employee, who is Black, accuses Metlife of race discrimination in her employment. The case was filed pro se and I volunteered as pro bono counsel along with a colleague in May 2020. The case is captioned as Stefanie Cunningham v. Metlife Group, Inc. and Metropolitan Life Insurance Company, 3:19-cv-01912 (AWT) (D.Conn.). A copy of the First Amended Complaint is attached hereto.
In September 2011, Ms. Cunningham became employed with Metlife, in the company’s Bloomfield, Connecticut offices. She worked there continuously and with good performance reviews until racial problems arose in her employment. During her tenure, Ms. Cunningham was working towards her Ph.D.
In July 2017, Ashlee Tringo, a biracial African American, became Ms. Cunningham’s supervisor. Ms. Cunningham’s former supervisor was Ms. Tringo’s husband, a Caucasian. Ms. Tringo asked Ms. Cunningham if she was Puerto Rican, and she responded no, that she was African American. You are probably thinking, why is the supervisor attempting to discover her race and why is that even relevant to her work duties—it’s not! Ms. Cunningham retorted that she does not talk about her race at work and that she was raised African American. Coincidentally, Ms. Cunningham’s sister was also employed at the company. Ms. Tringo further asked why Ms. Cunningham and her sister had different textured hair. Specifically, Ms. Tringo inquired if Ms. Cunningham was mixed race or biracial. Adamant, Ms. Tringo argued that she could see the textual differences in the sisters’ hair and demanded to know why. Again, these are not relevant questions related to work and are discriminatory.
During her training, Ms. Cunningham was confronted by another African American employee who was providing job training. The employee stated to Ms. Cunningham “you are a fake black person”. Ms. Cunningham immediately reported the incident to Human Resources and explained how shocked she was by the work environment at Metlife. An investigation ensued but as usual the company failed to confirm the existence of any discrimination or even that the racial statement was made.
In October 2017, Ms. Tringo abruptly gave Ms. Cunningham a written warning that was factually baseless and intended to harass Ms. Cunningham.
During her employment she would attend daily team huddles, wherein Ms. Tringo again made comments about Ms. Cunningham’s hair, that it is kinky and looks like pubic hair. Again, why is this even relevant to Ms. Cunningham’s work duties and performance—it’s not.
Ms. Tringo would often discuss her personal life while at work in front of Ms. Cunningham. “Ms. Tringo described the details of taking a shower with Matt [her husband and Ms. Cunningham’s former supervisor] at his parents’ house, compared to her new master bathroom at their new home, with sexual inferences. Ms. Tringo stated that she had more white girlfriends then black ones and in fact she stated she didn’t have any black girlfriends. She also told Plaintiff and others how she was a bully in school and that she had her friends help her bully and taunt a girl for stealing her sneakers.” (First Amend. Compl. ¶23).
On July 17, 2017, a federal judge (Judge William Pauley, III, deceased) in Manhattan approved a $32.5 million settlement to resolve a racial discrimination class action suit filed by former Metlife financial service representatives. “At Metlife, we are committed to promoting a diverse and inclusive workplace and do not condone discrimination,” Kim Friedman, a company spokesperson, said in a July 6, 2017 email to Bloomberg BNA.”
On April 25, 2018, Metlife received a state agency complaint for racial discrimination that Ms. Cunningham had filed the same day via telephone. On that same date, Ms. Cunningham received a written warning for allegedly “not being productive”; she refused to sign the warning. “After being handed the warning [Ms. Cunningham] just started to cry as she had tried so hard to rise above all the discriminatory conduct and finally hit a wall.” (First Amend. Comp. ¶ 57). After the complaint was filed, Ms. Tringo targeted Ms. Cunningham and made every attempt to force her to quit. Eventually, Ms. Cunningham was forced to take a medical leave of absence on June 7, 2018 due to the enormous stress caused by Ms. Tringo’s racial discrimination directed at her.
Before her leave, Ms. Cunningham repeatedly complained to Human Resources in January 2018 but nothing was ever done to correct the racially hostile work environment which continued until the day Ms. Cunningham left on a short term disability leave of absence. She relayed all of Ms. Tringo’s racial comments, that her hair looks like pubic hair, whether her hair was real, if she used chemicals to straighten her hair, if she was the lightest one in her family etc. The Human Resources employee admitted Ms. Cunningham should not have been treated in this discriminatory manner and told her she would speak to Ms. Tringo directly. Ms. Cunningham requested a transfer out of the department, but the Human Resource employee stated she had to work out her differences with Ms. Tringo. How does a Black employee work out “differences” created by a racist bi-racial supervisor they are forced to work under? Things got even worse. Ms. Cunningham was denied a promotion by Ms. Tringo, which was given to a lesser qualified Caucasian co-worker. In February 2018, Ms. Cunningham again complained to Human Resources asking to be removed from an unhealthy work environment. The Human Resource employee denied her request.
On May 7, 2018, Metlife concluded it’s purported investigation of Ms. Cunningham’s complaints of racial discrimination and reported that it had found no racial issues. The HR investigator told Ms. Cunningham she had interviewed her coworkers, but Ms. Cunningham asked her coworkers if anyone from HR had called them. Her coworkers all denied being questioned by HR. On June 6, 2018, Ms. Cunningham filed a police report complaining of a hostile work environment and racial discrimination.
On June 1, 2020, Metlife tweeted on its social media account, “As a company that is deeply committed to diversity, inclusion and human rights, we will strengthen our resolve in advocating for change and in doing our part so that we build a society that protects all people and values all voices.”
On June 18, 2020, the Metlife Foundation “announced it was committing $5 million over the next three years to advance racial equity in the United States. The Foundation will use these funds to promote Black educational and career opportunities, Black business ownership, and racial-justice initiatives…Metlife Foundation’s $5 million pledge will supplement the $10 million in annual contributions it already makes to support diverse communities and racial equality, along with $100 million in impact investments made by Metlife Investment Management to support diverse communities and small businesses.” However, Metlife never defines what these initiatives are or defines impact investments. You would need to research these in company filings made to the Securities & Exchange Commission, but who besides me has the time and patience to do so—no one that’s the point—it’s all a marketing and public relations program to make it appear Metlife is concerned about important social issues.
The Metlife Foundation announcement goes on to include this statement, “[I]n 2019, Metlife joined CEO Action for Diversity & Inclusion, the largest CEO-driven business commitment to advance diversity and inclusion in the workplace.” The Metlife CEO is Michel Khalaf, who reportedly earned $15,434,255 in total compensation in 2020. (Source) All CEOs who join the initiative pledge a specific set of actions the signatory CEOs will take to cultivate a trusting environment where all ideas are welcomed, and employees feel comfortable and empowered to have discussions about diversity and inclusion.” Remember, this CEO initiative began at the same time as Ms. Cunningham’s racial discrimination case was getting under way.
The CEO pledge reveals the primary goal for all company CEOs that sign it, “we know that diversity is good for the economy; it improves corporate performance, drives growth and enhances employee engagement.” The pledge contains four commitments all company CEOs have committed their organizations to:
We will continue to make our workplaces trusting places to have complex, and sometimes difficult conversations about diversity and inclusion.
We will implement and expand unconscious bias education.
We will share best—and unsuccessful—practices.
We will create and share strategic inclusion and diversity plans with our board of directors.
On June 24, 2020, Metlife tweeted “[i]nclusion is a priority at Metlife. Click here to read how we’re using our Global #Inclusion and #Diversity Insights Study to strengthen our culture: spr.ly/6011GKo11” When you click on the last link in the text it produces a 404 error code meaning the company page was taken down. Why?
According to the company’s website regarding Global Diversity Inclusion “Our Workplace”, the company fails to include any information about Blacks on this set of pages describing current diversity and inclusion initiatives. Why?
On June 21, 2021, Metlife filed a certified EEO-1 form to the U.S. Equal Employment Opportunity Commission, which reveals that no (zero) Blacks or African Americans occupy positions in the C-suite (Executive Officers/Senior Officials & Managers). Overall, Blacks or African Americans occupy only 3% of the entire company workforce. In comparison, Blacks and African Americans comprise 13.4% of the U.S. population, according to the latest Census data. However, Dr. Cindy Pace, African American, is the Vice President, Global Chief Diversity & Inclusion Officer at Metlife. She has held this lead role since April 2019. She tweets at https://twitter.com/savvycindy.
Ms. Cunningham’s case continues to the present. As her attorneys, we have recently filed motions to compel further discovery and motions for sanctions against the defendants and their legal counsel. The issues involved in each motion address the wholesale failure to provide relevant discovery to Ms. Cunningham and absurd legal objections designed to conceal the very same racial discrimination alleged in the First Amended Complaint. In addition, Metlife has sought to shield a great many documents behind the attorney-client privilege. However, as claimed in Ms. Cunningham’s motions, Metlife abused the attorney-client privilege because the attorney identified in the defendants’ privilege log was not admitted in Connecticut during all dates of his communications from New York to the defendants’ employees in Connecticut who were handling Ms. Cunningham’s internal complaints of discrimination and her agency complaint for the same. Strangely, during a telephone conference, I was sternly warned by defendants’ legal counsel not to pursue a claim of the unauthorized practice of law by the out-of-state attorney in New York, who was also a former associate at the same firm. Both the District of Connecticut and the Statewide Grievance Panel will have to decide this issue.
What is your impression regarding Metlife’s efforts to support Black Lives Matter and Diversity Initiative while also handling of Ms. Cunningham’s case during the same period of time? Is Metlife canceling Ms. Cunningham while at the same time seeking to promote its’ corporate image related to the treatment of Blacks in America? The aforementioned information was all derived from publicly available information.
If you would like more information about this article, please contact our employment attorneys at Carey & Associates P.C. at 203-255-4150 or email to firstname.lastname@example.org.
If you have a noncompete agreement or about to be handed one, the following information is very important. The collective “you” here covers an estimated 40-60 million employees nationwide, from executives to low wage workers in the service economy. The epidemic use of noncompete agreements has gotten out of control and too many employees have needlessly and financially suffered under this onerous default management practice. The end of this BS employment practice has now arrived!
Noncompete agreements were created by employers for employers. Employees never had a chance to negotiate these agreements. We have written extensively about this topic, Read Here. Noncompetition agreements serve no valid or reasonable purpose to protect the interests of employees, only employers. Noncompete agreements are an overreach by employers, whose interests are already protected by Confidentiality and Proprietary Information Agreements. Read More Here. Employers say it further protects their competitive advantages, trade secrets and other corporate proprietary information. That is a lie, told over and over again by the pro-employer lobby groups and the defense bar that support them. Employees are now restricted from gainful employment more than any time in this country’s work history to their financial detriment. Meanwhile, employers reap billions in unlawful restrictive trade practices that are ruining our economy, just when we are trying to dig out from this pandemic. Shame on you employers!
How did employers cause this calamity? The facts are simple to understand. No one noticed the widespread use of this default employment practice. No one noticed the financial costs to employees. Employees are not organized and politicians sought only to align themselves with the business lobby such as the Chamber of Commerce or SHRM. It is exactly this decentralized and unorganized nature of nonunionized employees, roughly a 150 million strong, that employers across the spectrum abuse and mistreat with noncompete agreements. How certain am I of this fact, because I watch the endless flow of noncompete cases come through our offices. In every case we have litigated, the employee never negotiated the noncompete agreement, had no say in the matter, was told to sign it or lose the job opportunity after they were already hired etc. These default employment practices have to stop, they are abusive and restrict trade in the U.S. economy. This is not a political issue and neither party can claim it as a weapon. Companies, large and small, run or owned by members from both political parties use noncompete agreements. Employers who force noncompete agreements on employees derive the same financial benefit, i.e. profits, at an enormous expense to individual employees.
Federal Trade Commission Has Finally Weighed In
According to the Federal Trade Commission website, “On January 9, 2020, the Federal Trade Commission held a public workshop to examine whether there is sufficient legal basis and empirical economic support to promulgate a Commission Rule that would restrict the use of noncompete clauses in employer-employee employment contracts.” Proponents of the ban on noncompete agreements seek to create a rule that noncompete agreements in the workplace are an unfair method of competition under Section 5(a) of the Federal Trade Commission Act. Obviously, litigation will ensue right up to the U.S. Supreme Court, most likely on federalism grounds where opponents of the ban will argue states have a right to make and enforce their individual state laws vs. the federal government.
President Biden Issues a Comprehensive Executive Order Banning Noncompete Agreements
On July 9, 2021, President Biden issue a comprehensive Executive Order that stated in pertinent part, “Consolidation has increased the power of corporate employers, making it harder for workers to bargain for higher wages and better work conditions. Powerful companies require workers to sign non-compete agreements that restrict their ability to change jobs… (g) To address agreements that may unduly limit workers’ ability to change jobs, the Chair of the FTC is encouraged to consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility”
To be abundantly clear, this is not a political issue or socialistic propaganda by the Biden administration, but a return to fairness and placing a premium on a competitive workforce. As a political historian, employment activist, republican and employment litigator (employee side), I have professionally watched the nonsensical enforcement of unfair and dubious noncompete agreements for 25 years. Simply, enough is enough already! The pendulum is now swinging back to center.
According to an accompanying Fact Sheet published by the Biden Administration, “Competition in labor markets empowers workers to demand higher wages and greater dignity and respect in the workplace. One way companies stifle competition is with non-compete clauses. Roughly half of private-sector businesses require at least some employees to enter non-compete agreements, affecting some 36 to 60 million workers.”
The End of Abusive Default Management Practices
The above Executive Order banning noncompete agreements marks the beginning of the end of abusive management practices that has enveloped the nation’s workforce since the founding of this country. Other onerous default management practices such as forced arbitration, forced confidentiality of settlements, lack of employee privacy, lack of freedom of speech at work in the private sector and the employment-at-will rule, all strip employees of basic civil rights and negotiation power, and in some instances promote discrimination. Employees are indispensable to the operations and profitability of all companies, think of the Amazon warehouse in your neighborhood without line workers. How will your prime delivery get to you when you press “buy now” on the website? Employers dehumanize employees down to their human capital quotient for capitalism purposes. We should all be mindful not to break the collective backs of our nation’s workforce, and begin to recognize them for what they really mean to our economy as a whole. We need to bring more fairness and transparency to the workplace.
Yes, I am still riding day and night to reach 10,000 miles in one year and raising money for a cure for Multiple Sclerosis (MS). On June 29, 2021, I reached the 4000.5 mile marker on a particularly humid and hot 92 degree June evening. I have 6000 more miles to go. To date, I have raised over $5000. You can help contribute any dollar amount to this worthy cause by donating HERE. If you are NOT on Facebook, please use this donation link HERE. You can follow my daily rides on Strava.com HERE.
Who Are the Real Heroes We Are Helping Here?
People who have MS are just like you and me, but you might not know who they are. MS is deceptive, as most symptoms are not noticeable in people with MS, but in others the symptoms are more obvious such as mobility issues. People with MS are “fighters” and they are the most courageous, genuine and straightforward people you will ever meet.
Top MS Facts You Need to Know About
What is Multiple Sclerosis?
MS is a chronic disease of the central nervous system, which is made up of the brain, the spinal cord and optic nerves. The body’s own immune system attacks the central nervous system. Once attacked, the damage to the central nervous system interferes with the transmission of nerve signals between the brain, the spinal cord and other parts of the body.
Who Does MS Affect?
Women Are 2-3 times more likely to be diagnosed than men. Most people are diagnosed between 20 -50 years of age. MS impacts 1-3 million individuals worldwide.
Is There a Cure for MS?
There is no cure, although Bio-N-Tech has developed a vaccine/cure in animal studies in mice. Click HERE for more information about this research and possible cure.
Three Types of MS
Relapsing Remitting MS (RRMS) (85% of all cases) characterized by periods of relapses (new symptoms or a new worsening of older symptoms also called attacks or exacerbations) that subside, with full or partial recovery, and no disease progression (worsening) between attacks.
Secondary Progressive MS (SPMS) (50% of all cases) is characterized by a more progressive course, with or without relapses or new MRI activity.
Primary Progressive MS (PPMS) (15% of all cases) is characterized by a gradual but steady progression of disability from the onset of symptoms, with few or no relapses or remissions.
MS Symptoms Vary
The most common symptoms of MS include fatigue, numbness and tingling, blurred vision, double vision, weakness, poor coordination, imbalance, pain, depression and problems with memory and concentration. Less commonly MS may cause tremor, paralysis and blindness.
The total lifetime costs per person with MS is estimated to be $4.1 million. The average annual healthcare costs are estimated between $30,000-$100,000 per person based on the type of MS.
MS And Employment
People with MS work every day. A majority of people with MS will encounter employment related issues during their careers. For example, employees with MS require periodic time off to take medications and require time off during exacerbations. Employers are required to provide reasonable accommodations in the form of paid sick leave. In more serious cases, employees with MS require longer disability leaves of absences and apply and receive paid short and long term disability benefits through their employers. As an ERISA attorney, I have successfully handled these types of cases for MS clients, as the medical evidence is usually dispositive and benefits are almost always awarded by the employer’s disability carrier.
Employees with MS also face employment discrimination while on the job. Discrimination issues range from denial of accommodations, refusal to provide disability leave, demotions and wrongful terminations. I have also successfully handled and resolved a great number of MS discrimination cases over my career.
The financial industry is notorious for its cutthroat culture, largess incomes and racism. On June 21, 2021, the publication The Nation issued an alarming article by investigative journalist Susan Antilla using the above caption. The article explores the many destroyed careers of people of color on Wall Street and the financial firms and industry self-regulatory agencies that cover up overt racism through confidentiality agreements and forced arbitration.
Ms. Antilla wrote “…the industry is vowing to change. In the wake of last summer’s unrest, Merrill parent Bank of America and other giant financial institutions rushed to make commitments to racial justice and in several cases broke an industry-wide silence, releasing statistics that exposed the paucity of Black people and other minorities in the workforces. Merrill, for instance, revealed in August that 780 of its 17,500 brokers are Black, a figure of 4.5 percent. That’s a 125 percent increase since 1994, when 2 percent of its brokerage force was Black. But in an industry with sparse Black representation, it is easy to double or even triple a minority group’s numbers. More illuminating is that the Black segment of the firm’s brokers—also known as financial advisors—grew only 2.5 percentage points over those 26 years…” For comparison purposes, Blacks statistically make up 13.4% of the U.S. population according to the latest Census data.
The article continues in pertinent part, “Whether sincere or motivated by image concerns, Wall Street’s heightened passion for addressing the racism in its midst has opened an important conversation about recruitment, promotion, and pay policies in one of the nations most lucrative businesses. Missing from the dialogue so far, though, are some key questions: When racism does occur, how do firms treat Black employees who complaint? And what happens to Black people when they take their complaints to arbitration or to court?”
Ms. Antilla writes, “Racism exists in every industry, of course. But on Wall Street, where the potential earning power is vast, Black people face formidable barriers. They make up 13 percent of the US workforce, but they occupy only 2.9 percent of the industry’s financial adviser jobs, according to a January report by Cerulli Associates. Those who manage to get jobs can wind up losing them after enduring racist remarks, managers who deny them privileges enjoyed by their white colleagues, and social isolation that is both painful and distracting. The financial industry is a sharp-elbowed business that requires a thick skin to survive, but the brutality aimed at Black people exacts a different kind of toll. Capel and his colleagues gave an example of the day-to-day degradation in their complaint: A Merrill Lynch manager was photographing his brokers for a bulletin board display and suggested to a Black broker that he needn’t have his photo taken. ‘I can find your picture down at the precinct,’ the manager quipped.”
“Today, most major investment banks require employees to agree to arbitration—a policy that the rest of corporate America has admired and copied. Goldman Sachs, UBS, and Edward D. Jones are among those who have fought and won when employees tried to pursue civil rights claims in court. But few have gone to the extremes of Morgan Stanley, which has faced multiple racism complaints by Black former employees. In 2015, the firm sent e-mails to 36,000 workers that required them to respond to the company and opt out of a new mandatory arbitration policy if they wanted to retain the right to sue in court. The message included no hint of time sensitivity or importance in its subject line, and many employees said they didn’t recall receiving it. In the end, more than 30,000 employees failed to opt out, including several Black brokers who would later be forced into private arbitration.” Our law firm has represented former Morgan Stanley employees who were duped into these “forced arbitration agreements” and have argued in federal court against these now notorious email sham arbitration contracts. Unfortunately, courts have condoned this behavior in light of prior court decisions.
In 2018, a federal judge in New Jersey granted Morgan Stanley’s motion to compel forced arbitration in the matter of Craig Schmell v. Morgan Stanley & Co, Inc., 3:2017cv13080 [Doc.#35]. “CARE [Convenient Access to Resolutions for Employees] was implemented pursuant to an opt-out system between September and October 2015. During this period, Defendant sent emails to all employees informing them ‘that the program was mandatory unless they opted out and that their continued employment without opting out constituted acceptance of [the Agreement]…The fact that the email appeared in Plaintiff’s inbox, combined with the expectation that Plaintiff would read his email, is sufficient to indicate that Plaintiff had notice of the Agreement.” The same decision was reached by a federal judge in the Southern District of New York in Lockette v. Morgan Stanley, 1:18cv00876 [Doc.#35]. The Court endorsed the use of the forced arbitration agreement sent to employees via email, even if the employee never opened the email or noticed it was sent to his inbox. In all of the reported decisions, the forced arbitration emails were mostly sent to Morgan Stanley emails on a Friday evening over a Labor Day weekend, as reported in our own cases and those reported on Court databases.
Glencore, another leading commodities trading firm also uses forced arbitration for all new hires. However, the “trick” forced arbitration agreement was not contained in an email but in small print on the bottom of generic employment application. A federal judge in Connecticut in Murphy v. Glencore LTD, 3:18cv01027, granted Glencore’s motion to compel its’ forced arbitration agreement in a case that we filed during the #metoo movement on behalf of our client, holding, “Murphy further argues that Title VII employment discrimination claims are non-arbitrable as a matter of public policy. She contends that ‘[g]ender discrimination cases need to be decided in the public forum’ to ensure that companies are held accountable. The confidential nature of private arbitration, she says, ‘only helps to cover up the problem’ and does ‘nothing to deter [an employer] from discriminating in the future. Without minimizing the gravity of Plaintiff’s arguments—the subject of passionate and contentious debate for decades across this nation’s courts and legislatures—we are bound by precedent and cannot accept her position.”
For a more in depth discussion on forced arbitration and other issues faced by employees pursuing employment discrimination cases in federal court, I strongly encourage you to read Loser’s Rules by a former federal judge Nancy Gertner. Although the article was written in 2012, I will represent as a practicing litigator in many federal courts across this country for the past twenty-five years, the Loser’s Rules are alive and well.
The Nation article further identifies the dispute resolution programs, a.k.a. forced arbitration tribunals, such as JAMS and FINRA which are the sole judicial remedy for race discrimination employment complaints in the financial industry. Financial employees cannot go directly to court and present their cases to the public and to a jury. They must file their cases with FINRA or JAMS under the cloak of confidentiality. In the absence of confidentiality, we would all discover the rampant discrimination Susan Antilla reveals in her article. In every forced arbitration case our firm encounters, we seek to file court actions challenging the enforceability of the arbitration agreement AND lay out all the facts of the underlying discrimination claims for public consumption. Maybe there are other employees who will hear about the case and come forward with similar stories of ridiculous discriminatory behavior.
Ms. Antila reports that “[O]n April 29, FINRA published a notice seeking comment on any aspects of its rules and processes that might create “unintended barriers” to greater diversity in the industry. FINRA “is committed to fostering an inclusive and diverse workplace, and to doing our part (subject to our statutory mandate) in the fight against racism and prejudice within our industry and communities,” its spokesperson said in a statement. Brokerage firms have also shown willingness to change. People of color make up more than one-third of the current class of financial advisors in the training program at Bank of America’s Merrill Lynch, according to spokesman Halldin. And in early June, Goldman Sachs yielded to shareholder pressure and said it would undertake a review to see how forced arbitration impacts its employees. The move inspired optimism that opponents of forced arbitration are making progress in pursuing its demise.”
I offer some closing thoughts for you to consider. Every employment case filed in any judicial proceeding should and must be made public and not shielded by confidentiality agreements, nondisclosure agreements, and forced arbitration agreements. These default tactics used by almost all employers, whose owners come from both political camps, only perpetuate inequality and discrimination of all types. We have reached the crisis stage with respect to forced arbitration and it would take an act of Congress to amend or eliminate the Federal Arbitration Act. The Securities & Exchange Commission in cooperation with FINRA need to modify financial industry regulations to remove confidentiality from arbitration and to require mandatory disclosure of discrimination cases in company public filings.
If you would like more information about this topic, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or email to email@example.com.
Connecticut Law Requires Employers to Disclose Salary Ranges to Applicants: Earlier this month Governor Lamont signed “An Act Concerning the Disclosure of Salary Ranges,” which goes into effect October 1, 2021. This new bill has several excellent protections for employees!
Under this new law, employers (defined as anyone with at least one employee – so virtually all employers) must:
Provide job applicants with the wage range being offered for a position, either at the applicants request or when an offer of employment is made, and
Provide current employees with the wage range for their positions when the employee is (1) hired, (2) has their position changed, or (3) when the employee first requests the wage range.
If an employer violates the bill, and employee can bring a legal action against them for damages. The bill allows for compensatory damages (repayment for harm done to you), punitive damages (extra money damages against the employer for punishment, paid to you), and attorney’s fees and costs.
In addition, the new law strengthens the existing protections around gender-based discrimination in employee compensation. The current (old) law already made it illegal for employers to discriminate by paying people of different genders different amounts. However, the old law limited this to wages for “equal” employees. However, “equal” is obviously difficult to define – creating a luxurious loophole for employers trying to skirt the rules (or evade damages in a lawsuit). Are any two employees – or any two people – ever exactly equal? Don’t we all have slightly different skill sets or experience levels or educational backgrounds? Of course we do.
The new bill changes this language to prevent wage discrimination for “comparable” employees, which is defined as “a composite of skill, effort and responsibility.” This is a much more flexible standard which, in legal terms, translates to making it harder for employers to evade the rules if they are not paying opposite genders equally.
Connecticut Law Requires Employers to Disclose Salary Ranges to Applicants: If you suspect that your employer is not paying different genders equally, you may have a claim and should call us to discuss. Contact our employment attorneys at Carey & Associates PC at 203-255-4150 or email to firstname.lastname@example.org.
All employment relationships are based on a contract. A lot of people don’t know that. Its easy to forget. Most of us get a job. We work a job. We get paid. Not much time or reason to contemplate the legal metaphysics of our relationship to our employer. In the landmark Connecticut case called Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc. the Connecticut Supreme Court held that: “At the outset, we note that all employer-employee relationships not governed by express contracts involve some type of implied ‘contract’ of employment. There cannot be any serious dispute that there is a bargain of some kind; otherwise, the employee would not be working.”
What would we find if we took a few minutes to examine the fundamental nature of that contract which we all depend upon for our livelihood? As it happens, I have some thoughts on that subject…
Post Pandemic Recovery – Employees Market
In our current “almost but not quite post-pandemic” economic climate the dominant employment story is the dire shortage of workers. Recent economic reports reveal that employers in various sectors of the economy including transportation, construction, hospitality, manufacturing, and retail are experiencing an unprecedented difficulty in finding workers to staff up for the rapidly re-opening economy. “Despite unemployment numbers in the millions, some 8.1 million job vacancies remain.” The business press reports that demand for employees is at an all-time record high and is likely to remain so for the balance of 2021.
This rare confluence of social, economic, and biological forces may offer a rare opportunity to re-think the fundamentals of the American employment contract. Employees are more in demand than ever before. Whether they realize it or not, these in-demand workers have unprecedented bargaining power in the employment marketplace. If all employment is a “contract,” the newly empowered workers of today can and should demand a fair, just, and reasonable contract of employment.
You Have An Employment Contract But You Just Don’t Know It – Yet!
So, if all employment is a contract then what kind of contract is it? Even in situations where there is no written agreement the basic employment relationship, (i.e. “You work for me doing ‘x’ and I will pay you ‘y’”) creates, at a minimum, what is known as an implied contract. While an express contract is usually in writing with more or less clearly defined terms spelled out, an implied contract is created by the words, actions, or conduct of the parties which manifest an intent to undertake an actual contractual commitment. Contracts may be created by the initial offer letter. Oral promises of employment along with the terms of that agreement implied through the publication of company policies set forth in handbooks and manuals may also form the required agreements. The important take-away here is that even where an employment arrangement does not involve a formal written agreement, a contractual relationship is still created. The terms and conditions of that agreement are to be determined by the words and actions of the parties.
So why does it matter if my employment is technically a legal contract? What difference does it make to me? The significance of the contractual nature of the employment relationship lies in the fundamentals of contract law. Over the centuries, Anglo-American judges have created rules that govern the interpretation of contracts. This process of judicial rule making is known as the “common law” of contracts. These rules, either through codifications of the common law such as the Uniform Commercial Code or directly through common law case precedent govern the interpretation of all contracts from commercial sales to union labor contracts. Indeed, these rules apply directly to employment contracts as well. These rules of contract can and should be used to the advantage of workers who traditionally occupy a subordinate position in the economic caste of our society.
At-Will Employment is Abusive Because It Is Unconscionable!
So…is the basic employment contract unconscionable? I contend that it is. First, the default rule of employment is the “employment at will” doctrine. This is the doctrine that holds that barring a specific agreement to the contrary, all employers may terminate their employees at any time and for any reason or for no reason at all. In other words, the employer has no particular obligation to its employees to continue their employment or to treat them fairly regardless of the circumstances. The only caveat to this default rule is that an employer cannot terminate a worker for an illegal reason such as race or gender-based discrimination for example. We have written extensively about the fundamental inequity of the employment at will doctrine. As long as employers are not technically breaking a law, they can do whatever they please.
Why is the employment at will doctrine so unfair? One reason is that in most cases, the disparity in the economic bargaining power between an employer like Amazon, McDonald’s, or Wal-Mart, and the average employee is staggering. A worker applying to Amazon has absolutely no leverage to bring against such a global financial giant. Even a high-level management employee is an insignificant cog in the global machine. Whatever terms of employment these huge employers are offering is what the worker can get. Period.
Disparity In Employee Bargaining Power vs Employers
While the disparity in economic power is more dramatic in the Amazon example, it is also true in the small business context. A person who owns a restaurant is likely to have vastly greater resources than the employees applying to wait tables and wash dishes at the restaurant. In most employment scenarios, the resources of the business owners are going to be vastly superior to those of the employees seeking to work there. The economic power of the employer nearly always overshadows the economic power of the worker.
One might suggest that if an employee does not like the terms of employment offered by a given employer the worker is free to seek employment elsewhere. While this is true in some sense, it ignores the economic reality facing most workers, i.e. the need to work is an economic and social imperative. All those who are not independently wealthy must work in order to survive. Most workers must accept any suitable employment available or risk dire financial consequences for themselves and their families. Very few workers can remain out of the workforce and await more favorable terms of employment with another employer. Further, the fact that nearly all employers follow the “rule” of employment at will means employees generally find themselves in similar conditions with any employer for whom they work.
Our economic system depends upon employers having a large pool of available workers in such desperate need of employment that they will work under almost any conditions or for almost any wages. Indeed, the current shortage of workers has been roundly attributed to the provision of federal subsidies to unemployment benefits. These benefits are apparently keeping low-wage workers temporarily out of the workforce and causing the employee shortages discussed above. The U.S. Chamber of Commerce has recently stated the following about the federal $300 weekly supplement to unemployment benefits: “[T]he $300 benefit results in approximately one in four recipients taking home more in unemployment than they earned working.” To the extent this statement is valid, there is a serious problem here. If $300 per week is enough to surpass the wages of one quarter of the workforce, then a quarter of our workers are working for almost nothing! This statement shows that our business community essentially needs an available slave labor force in order to function! This dynamic illustrates the vast superiority of the employer’s position and the extreme vulnerability of the average worker.
When one considers the relative value of the goods exchanged between a worker and an employer the unconscionability of many employment relationships becomes apparent. When a worker agrees to accept a full-time job, that individual is usually giving almost all of their available waking time to that employer. A recent Gallup survey revealed that the average work week for U.S. full-time employees consists of around 47 hours. Some 21 percent of full-time workers surveyed work as much as 59 hours every week. Thus, a full-time job requires most or all of the productive waking time a person has available. So a full-time worker is required to give almost all of his or her energy and time resources to the employer. That is a huge percentage of one’s personal resources. So is the employer likewise required to give most of its resources to the worker? Not at all. The wages and benefits of one employee is not only a fraction of the employer’s overall resources, it is usually a fraction of the productive value the employee brings to the enterprise.
The fact that a meagre $300 per week extra unemployment benefit is enough to keep one quarter of workers out of the workforce illustrates the unconscionable nature of many employment relationships. Why would anyone not under extreme duress voluntarily agree to give most of his or her time and energy (i.e., most of his or her life) to an enterprise that offers so little in return? Further, why would the employee agree to that arrangement when he or she can be terminated at will for no reason, no matter their seniority, their dedication to the company or how hard they work? That is a bargain, “…such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other…’”
So the employment at will doctrine leaves workers in the position of making an agreement that one would have to be “under delusion” to agree to while the employer is placed in the position of requiring a bargain that no “fair” person would accept. Even in situations where an employer pays fair and reasonable wages, there are other ways in which the unequal bargaining power between employer and employee is manifest in the modern marketplace.
Employers Are Delusional – What Were They Thinking?
Employers frequently use their superior bargaining position to insist on making other agreements part of the at-will employment contract which only someone “under delusion” would accept. Non-competition agreements, forced arbitration provisions, and other restrictive covenants are often forced on workers as a condition of employment.(See related articles: When Can Non-Competition Agreements Be Enforced Against Independent Contractors? ; Free Yourself From Forced Arbitration). These pernicious and inequitable covenants can impair an employee’s ability to earn a living after the employment relationship ends. So an employer is free to extract a non-compete from an employee by offering the consideration of employment, then terminate the employment for no reason and thereby withdraw the consideration previously offered and then nonetheless prevent the employee from finding another job in the same industry. Indeed “delusion” backed by economic coercion is the only explanation for such an agreement.
The fact that the fundamental legal principles of the employment relationship are outrageously inequitable is evident to anyone who has had a serious dispute with an employer. As an employment lawyer representing employees and executives, I am frequently in a position where I need to educate my clients on their employment rights and guide them through all manner of disputes with their employers. Without fail, clients are shocked and outraged when they are apprised of the limited rights they have to resist the unchecked hegemony of their employers. Employees sign non-competes because they feel they are required to in order to get a job. Then when their employment ends, often through no fault of their own, they are shocked to realize they cannot work in their industry because the employer has extracted an inequitable yet enforceable promise from them not to work for a competing business. They signed away their right to work in exchange for a job they can be fired from for no reason whatsoever and for a wage which is in no way worth the time and effort they sacrificed!
I have spoken to thousands of employees who were unfairly treated at work during my career. Invariably in these situations, the employee assumes there is some fundamental legal principle of equity or “fairness” that would work to right the outrageous wrong they suffer. This confusion regarding the rules governing employment contracts is essentially being “under delusion.” My contention is simply that if principles of contract law were actually fairly and logically applied to the employment contract, the unequal bargaining power between employer and employee, as well as the relative disparity in consideration offered between the parties to the employment contract should make patently unjust results such as the one outlined above all but impossible. The fact that these outrageous default rules like “employment at will” have ben normalized in our society and in our jurisprudence makes them a self-fulfilling prophecy. Questioning those default rules and resisting the presumption that they are even remotely fair is a first step in changing them.
Aside from the inherent imbalance of power between employer and employee and the relatively disproportionate value of the consideration exchanged, the dynamics of the legal process itself reinforce the unconscionability of the standard at-will employment agreement. All employment agreements are contracts. When the rights of parties to contracts are in dispute the results are determined by our civil court system. They are determined usually by judges. When employees seek to engage the legal system to resolve disputes with their employers, they are stepping into an arena so dominated by employers that the process itself is designed to reject their claims.
The Losers Rules Favor Employers – Employees Need to Finally Wake Up
In her seminal article in the Yale Law Journal called “Loser’s Rules,” former Federal District Judge and Harvard Law Professor, the Honorable Nancy Gertner observes that because employers are repeat players in the judicial system, they have the power (as a group and over time) to settle employee’s cases when they are strong and to litigate the cases that are weak. The power to accomplish this strategic settlement is itself born of the economic disparity between the players.
While an employer has the money to buy off a plaintiff employee with a strong case, individual employees who cannot afford protracted litigation costs are forced by economic necessity to accept these settlements rather than push their case to trial. This power to choose which cases settle results in an overwhelming majority of judicially determined employment cases favoring the employer. These decisions become the body of legal precedent which shapes future decisions on employment cases. This, like the blind acceptance of the employment at will rule also becomes a self-fulfilling prophecy. Judge Gertner notes: “Over time, strategic settlement practices produce judicial interpretations of rights that favor the repeat players’ interests.“ This dynamic illustrates the often unseen ways that the social, economic, and political power of employers as a group dominates the individual employee in the employment relationship.
The rules currently governing the employment relationship are not written on stone tablets. Legislators, employers, workers, judges, and juries have created these rules and they can also be changed. The first step is the awareness that there are fundamental problems with them and more importantly that those problems can be addressed by rethinking some the principles at work behind them. No one needs to accept that “employment at will” is the default rule. No one needs to accept a non-compete. No one needs to work for unfair wages or in adverse conditions. No one needs to accept that bullying or harassment at work by an aggressive employer or co-worker is just, “the way it is.”
The day he took office, President Biden issued Executive Order 13988, on “Preventing and Combatting Discrimination on the basis of Gender Identity or Sexual Orientation.” The effect of this order was to undo seven months of hackneyed religious liberty arguments of the previous administration to justify transphobic and homophobic policies that circumvent the obvious application of the Supreme Court’s holding in Bostock v. Clayton County. In honor of Pride Month and Bostock’s first anniversary as law of the land, I present some thoughts on the intersection between the First Amendment’s free exercise clause and anti-discrimination legislation, as well as current attempts to curtail transgender rights.
But first, a few ground rules: This is not a peer-reviewed law journal article. It is an attempt to translate some complex legal issues into something a non-lawyer can read and think about. I have most definitely overlooked nuances, and I welcome thoughtful criticism. Further, I intend no disrespect to any religion, religious thought, or people of faith. I do, however, disrespect the use of one’s religious beliefs to limit the rights of others and my pet peeve, the ascribing of religious faith to intangible statutorily-created legal fictions like corporations.
Bostock: Discrimination Because of Sexual Orientation or Gender Identity IS Because of Sex
Bostock resolved a trio of employment discrimination cases, where the employees were fired when the employers found out the employees were homosexual or transgender. The Supreme Court acknowledged that discrimination based on a person’s sexual orientation or gender identity is included in prohibition against discrimination “because of … sex” in Title VII of the Civil Rights Act. The Court explained, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The employer who discriminates on the basis of sexual orientation or gender identity necessarily considers the behavior or appearance of the employee in comparison to how the employer believes a person of the employee’s sex should behave or appear and, therefore, discriminates because of the employee’s sex. The decision was groundbreaking and led to predictable backlash in the name of religious freedom.
Civil Rights Act of 1964 Prohibits Some Discrimination
Title VII of Civil Rights Act of 1964 makes it unlawful for an employer “to fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to his[/her/their] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Title VII of Civil Rights Act does not apply to “religious corporation[s], association[s], educational institution[s], or societ[ies] with respect to the employment of individuals of a particular religion.” This makes sense: Congress did not want a world in which I could sue a Jewish congregation for refusing to hire me, a non-Jew, as a religious education teacher. That would be silly and would infringe the congregants’ rights to worship as they choose.
The Former Guy’s Shot Across the Bow
On January 19, 2021, the day before Biden’s inauguration, the former acting head of the Civil Rights Division of the Justice Department, John Daukas, issued a spite memo declaring that Division should not extend the holding in Bostock to areas such as gender-based policies on bathrooms and sports teams. The memo states, “Unlike racial discrimination, the Supreme Court has never held that a religious employer’s decision not to hire homosexual or transgender persons ‘violates deeply and widely accepted views of elementary justice’ or that the government has a ‘compelling’ interest in the eradication of such conduct.”
Albeit true, I’m calling Balderdash! at Daukas’s lofty statement. First, the Civil Rights Act exempts “religious corporation[s], association[s], educational institution[s], or societ[ies]” from its prohibitions against employment discrimination. Churches can discriminate in its employment practices because of sex with abandon. (See Female Catholic Priests. Or, more to the point, don’t see them.) Second, Daukas intentionally misstates what the Supreme Court held in Bostock. The Supreme Court did not invent two more protected categories to Title VII; it explained that discrimination because of sex includes discrimination against homosexuals and transgender people. It is natural and expected, therefore, that “the Supreme Court has never held that … [failure to] hire homosexual or transgender persons ‘violates deeply and widely accepted views of elementary justice…’” because the Supreme Court decries discrimination because of sex.
Finally, Daukas’ use of the term “religious employer,” signals that he is preaching to the interventionist religious freedom choir. No one questions the right of a religious organization to discriminate. Daukas wants individual employers and their business corporations to be able to discriminate against people based on their sexual orientation and gender identity.
The Civil Rights Division rescinded Daukas’s insightless memo two days later, as inconsistent with Executive Order 13988.
Bostock and Title IX of the Education Amendments of 1972
Title IX of the Education Amendments of 1972 states, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” On March 26, 2021, the Civil Rights Division of the Justice Department issued a memorandum concerning the Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972, concluding that the textual analysis of “because of” sex in Bostock applies to Title IX’s “on the basis of sex.” The Department of Justice’s conclusion that Title IX protects transgender students is backed by two post-Bostock appellate court decisions that reach the same conclusion. This is unlikely to cause widespread pushback from colleges and universities. The National Collegiate Athletics Association has supported transgender athletes for many years, publishing its handbook entitled, NCAA Inclusion of Transgender Student-Athletes in 2011.
In general, all colleges and universities that receive federal funding are covered by Title IX. Many high schools are covered as well. There is a religious exemption for private colleges and universities that are run or controlled by religious organizations. Fear-mongers can relax: Liberty University will not be forced to amend its Honor Code and admit openly homosexual or transgender students.
Bostock and Section 1557 of the Affordable Care Act
HHS’s interpretation and enforcement are limited by challenges concerning religious freedom. In the Religious Sisters of Mercy v. Azar, decided on January 19, 2021, the Northern District of North Dakota held HHS’s interpretation of Section 1557, which could require Catholic plaintiffs to provide gender-affirming surgery and/or insurance coverage for gender-affirming surgery, violated the plaintiffs’ sincerely held religious beliefs. It is likely that Courts of Appeals reviewing the same issue would affirm the decision. This makes sense: Catholic doctrine on issues of sexuality, birth control, abortion, and the procreative purpose of humankind is well-known. If Congress cannot establish a state religion and cannot infringe individuals’ rights to worship as we choose, it cannot force religious organizations or individuals with sincerely-held religious beliefs, to perform or pay for medical procedures that violate religious doctrine.
Rant alert: I’m talking about religious organizations, not business corporations. Applying this rule to business corporations is crazy talk, Hobby Lobby notwithstanding. I cannot get behind the idea that a business corporation has sincerely-held religious beliefs. Corporations are legal fictions created by state law. The purpose of a business corporation is to create a legal “person” that can sue and be sued, to protect human owners from liability. As amusing as the Wall Street Catechism might be, business corporations do not ponder the meaning of life or their roles in it: the meanings of their lives are inscribed on certificates of incorporation and imbued in mission statements. Corporations are intentionally not the human owners. Regardless of what the human owners may sincerely believe, business corporations are no more capable of religious thought than a stapler. And at least the stapler is tangible. Rant over.
Backlash from the States
Bathroom Bills have been covered extensively and are based on the fantastic belief that allowing transwomen to TCOB in the women’s bathroom will invite hordes of pedophilic men to touch your daughters. It’s ‘nad-baiting, simple and plain.
Tennessee has added a new twist, by requiring businesses to post which biological sex is allowed in multi-person public bathrooms. It’s an exciting new way for trans-inclusive businesses to blackball themselves without ever having to answer if they are now, or ever have been, courteous to transgender patrons.
It’s almost impossible to keep current with the anti-transgender athletics laws passing state legislatures and signed gleefully into law by governors surrounded by assorted daughters and females (because, you know, as fathers of daughters, they know what it’s like). I was going to call out Mississippi, Arkansas, and Tennessee for their laws banning trans girls from participating in girls’ sports, but then the fatheriest of fathers of daughters of them all, Florida’s Ron DeSantis, signed his very own ban on trans girls and women participating in girls’ and women’s sports on June 1. A very merry Pridemas to all!
One of the assorted daughters and females surrounding Governor DeSantis was Selina Soule, a plaintiff who sued to end Connecticut’s transgender inclusion policy. Ms. Soule talked about the pain of competing against talented athletes who are different from her. Her lawsuit, by the way, was dismissed as moot in late April since the two trans athletes who were ruining her life graduated from high school. The Heritage Foundation described presiding Judge Robert N. Chatigny as “activist” for his exercise of judicial restraint.
This is a hot-button issue, so let me put it out there right now – sports are supposed to be fun. Kids should just get to play. There is no evidence that a trans girl on hormone therapy has an unfair advantage over biological girls in sports. Indeed, the medical evidence says otherwise, as does indisputable fact: if the two trans athletes in the Connecticut case had an unfair competitive advantage, they would have come in first and second in every race. But they didn’t. They were beaten regularly by the named plaintiffs, each of whom is an extremely gifted athlete in addition to being a biological girl.
Nothing but the deepest respect for the law of unintended consequences has me wondering what the biological girls’ parents are thinking. (As minors, the girls cannot bring a lawsuit themselves, it must be brought by a parent or legal guardian on their behalf.) As much fun as “owning the libs” may be, the girls will be high school seniors soon enough. Have their parents considered how their daughters’ roles in transphobic political theater will look to Division I NCAA colleges? The NCAA “firmly and unequivocally” supports giving transgender athletes the opportunity to compete. Lawsuits are forever.
Back to the law, these states enacted their laws knowing perfectly well that they will be struck down, according to long precedent concerning the interpretation of “on the basis of sex” in Title IX cases. As long as the athletic programs are connected with federal funds, they have to comply with federal law. The Fourth and Eleventh Circuits have already applied the Bostock definition of “sex” to Title IX, and the Second Circuit will likely do so if the Soule case is ever decided on the merits. (The Plaintiffs appealed Judge Chatigny’s “activist”.)
Healthcare is the final, broad backlash category. The Arkansan legislature, in overriding Governor Asa Hutchinson’s veto, decided that it is in a better position to make healthcare decisions for adolescents in the state than the adolescents’ own medical doctors. Specifically, it decided it must save the youth of Arkansas from gender affirming medical care because it is far better that transgender youth commit suicide than receive hormone therapy.
Think I’m joking? Being histrionic for dramatic effect? Look up the stats for suicidality in transgender adolescents. And then look up the stats for homelessness and sex work among transgender adolescents. After your stomach settles, you can clear your conscience with a donation to the youth shelter of your choice.
But back to healthcare, much ink has been spilled by the prospect of medical doctors of conscience being forced to perform gender-affirming surgery or being forced to prescribe hormone therapies. This is utter nonsense. Doctors choose the field of medicine in which they practice. Gender-affirming surgery, while lifesaving, is not emergency surgery. Hospital residents don’t get awakened at 3:00 am for emergency top surgery.
If you don’t want to perform gender-affirming surgery, the solution is simple: don’t become a plastic surgeon specializing in gender-affirming surgery. If you don’t want to prescribe hormone therapy to trans people, don’t become an endocrinologist specializing in gender-affirming hormone therapy. Trust me, trans people aren’t looking for resentful jerks to perform surgery on them or to provide any other medical care. The community knows who the good and empathetic healthcare practitioners are. If you have to ask, it ain’t you so don’t worry about it.
As a basic matter of Constitutional, employment, and human rights law, no one can be forced to perform gender-affirming surgery in this country. The Thirteenth Amendment ended slavery. If your employer insists you perform gender-affirming surgery and you do not want to for any reason whatsoever, you can work somewhere else. If you have a sincerely-held religious belief that prevents you from performing gender-affirming surgery, and your employer decides that starting tomorrow you must perform gender-affirming surgery or you will be fired, you still don’t have to do it. If you get fired or demoted or your pay is cut or you get switched to a bad shift, you have tidy discrimination and retaliation claims against your employer.
So, let’s talk about the true emergency situation. You arrive via ambulance in the emergency department of Religious Organization Hospital (which religious organization cleaves unto an unchangeable gender binary). You are unable to move one side of your body, experiencing altered states of consciousness, and a loss of balance. Your biological gender is relevant for the administration of anesthesia for your emergency cranial surgery, and it is important to disclose the medications you take.
There are probably more reasons to disclose your biological gender and hormone therapy – I’m not a medical professional – but the disclosures must be tied to your care. You should not be forced to answer endlessly invasive questions about your genitalia or to show your genitalia to all and sundry. You should not be misgendered or referred to by offensive terms. Simply, you should be treated with the same dignity-preserving respect as every person receiving medical care.
Providing emergency medical care to a transgender person does offend any legitimate religious doctrine I can think of, and I have to question the faith of anyone who claims their religion prevents them from preserving life.
If you are being treated unfairly at work, in school, or by medical professionals because of your gender identity or sexual orientation, please contact our employment attorneys at Carey & Associates, P.C. at email@example.com.
Employer Mandated Covid-19 Vaccinations for All Employees
By Mark Carey
Employers can now mandate all employees to get a Covid-19 vaccination as a condition of their employment without violating federal laws. This resolution was anticipated but it is unclear how the guidance will be followed after the population falls short of the so called herd immunity. On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance that allows all employers to require a Covid-19 vaccination in order to work, with two exceptions. Specifically, the EEOC guidance states for all employees entering back to the physical workspace, they must provide proof of vaccination. The guidance is just that, not a governmental mandate. The EEOC is the primary agency in charge of enforcing work related policies and statutes.
Direct Threat – Primary Rationale by Employers
In essence, the EEOC stated that if an employee refuses to show proof of vaccination, then the employer has the right to prevent the employee from coming to the physical workspace and terminate the employee if necessary. The primary rationale is that an unvaccinated employee poses a “direct threat” to the employer and its’ employees, which trumps the few employment rights employees already have. There are two exceptions. First, if the Covid-19 vaccination would interfere with the employee’s medical condition, including pregnancy, he or she has the right to request a reasonable accommodation under federal disability laws. Second, if because of religious reasons the employee does not want to become vaccinated, he or she again can request a reasonable accommodation from the employer. In both cases, the employee must provide supporting documentation that they qualify for the exemption. The employer is required to follow federal law and provide an interactive discussion regarding possible reasonable disability and religious reasonable accommodations.
Will the Government Mandate Vaccination to Win the War Against Covid-19?
Although I was interested in providing this newsworthy item, I was more interested in the future of how this guidance will be enforced once we have reached a national impasse where far too many employees refuse to vaccinate and the pandemic roils onward. Forget everything we now know, including politics, as these are unchartered waters. How do you require employees to vaccinate for Covid-19 against their will? Answer, by the force of the rule of law due to a national health emergency. I wrote about this issue recently, Employer Mandated Covid-19 Vaccinations- Can They Do that?. Remember, your individual rights are only as strong as the country you belong to, but if the country is under attack – guess what- the government takes over to defend us all. The governmental action will not come from the EEOC, but from an Act of Congress under the War Powers Act (War Powers Resolution of 1973).
The federal government will pass legislation requiring all employees to become vaccinated in order to finally bring an end to the pandemic and the overall infringement on our personal freedoms. I predict this will happen once we see a resurgence of Covid-19 cases in the unvaccinated population and it will be riding tandem with the end of the vaccination efficacy period for which data is still emerging, i.e. the date when the current Covid-19 vaccines wear off. These events might also coincide with a substantial decline of the Covid-19 vaccines efficacy against new highly contagious variants. If this perfect storm hits the U.S., consider it an act of war and the federal government will institute an unprecedented vaccination mandate requiring all employees, including the non-working population, to vaccinate. Our government is immensely powerful indeed, regardless of who is in power, and it can declare an act of war against foreign enemies; we just have not done so since 1942. It is not impossible. Covid-19 is that foreign enemy. Prepare yourselves, as this may get uglier before the enemy is finally defeated.
Is it worth it to sue your employer? Answer: Maybe. Oh honey. You weren’t expecting a straight answer from a lawyer, were you? First, this is not a decision for a lawyer to make. We can only show you the door. You are the one who has to walk through it.
Second, there are many things for you to consider before you sue your employer, and you are the only person who can weigh the pros and cons to decide what is best for you. Best for you could be total war, or it could be quietly stewing for years while maintaining a placid façade until you deliver a sweet, sweet cold dish of revenge. (Not that I would know, of course. From my first paper route at age 12, I’ve had nothing but affirming and revelatory employment experiences.)
As I was saying, here are the main factors to consider:
Is it Your Current or Former Employer?
Trick question. If you decide to sue your current employer, it will become your former employer when all is said and done. The only possible exception is if you work for the government.
Employment discrimination and whistleblower laws prohibit retaliation for filing complaints/blowing the whistle – what we call “protected activity – but that does not change the two overwhelmingly likely outcomes: (a) your employer will ignore the prohibition against retaliation and will terminate your employment, thereby giving you a new, strong claim against the employer; or (b) ending your employment is part of a settlement agreement.
It is true that your former employer can reinstate you and pay lost wages to resolve your complaint, but it is the Loch Ness monster of remedies: it is in the statutes and very smart people have written much about it. Some claim to know someone who has seen an employer offer reinstatement. Personally, I am skeptical. I’ve never seen it and I have a hard time believing the reinstatement truthers (which is to say, if there were such a thing as ReinstatementTruthers).
As a practical matter, do you think you would be welcome with open arms by the people whose actions caused you to sue your employer? Even if they’re gone, do you want to work along side people who may not like that you complained and think you got someone disciplined or fired? Of course not. And lawyers, for our parts, want any settlement to mean the end of the possibility of history repeating itself. This means the employer pays you to leave.
Bottom line: if you are going to sue your current employer, you must accept that it will become your former employer when all is said and done.
Time, Time, Time
The claim will take longer than you ever thought possible. Even for the most blatant claim, it will take longer than you think. Let’s say you tell your boss you are pregnant, and he fires you on the spot saying, “When did you get married? I won’t have no preggo dames working for me. You should be home taking care of your husband like a good wife, not taking the space of a deserving man.” This is blatant, over-the-top sexism, pregnancy discrimination, misogyny, presumptuous patriarchal nonsense from 1957, when my momma lost her job as a bank teller because she started “showing.” Easy win, right?
Yes, it is. But the employer still has a right to defend itself. No judge is going to look at your complaint and declare you the winner because our adversarial court system does not allow it. Generally speaking, we can expect your employer to act rationally and recognize that it is not 1957 and it will be damaging to the business for the public to find out the ridiculous things spouted by Mr. Dinosaur Bank Manager, but there is no guarantee. The employer could be irrational and spend two years requesting documents and taking depositions to test your stamina.
Paying the Piper
Hiring an employment lawyer to bring your claim is either going to cost money or attention. You may not have a choice but, if you do, you must decide whether to hire someone who charges by the hour and will give your case all the attention it needs, someone who takes cases on a contingent fee basis and may not have the time to give your case the attention it needs, or someone who does a combination with a lower hourly rate and a piece of your award.
Why don’t all employment lawyers work on a contingent fee basis like personal injury lawyers? Because the business model is not well-adapted to this kind of work.
Let me explain in English (or as close as possible). Every automobile accident case is run the same way. The lawyer meets with the potential client and immediately has a good idea of what the case is worth (a multiple of medical costs, usually), whether it will settle and, if so, when it is likely to settle, and whether it will go to trial. She hands the case off to her paralegal to gather medical records and contact auto insurance companies and submit claims. If there are early settlement negotiations with the insurance company, she gets involved. If not, the paralegal lets her know when it is time to file a complaint, writes the complaint from a form, gets the lawyer to sign it, and takes care of getting it filed. And on it goes. The same processes and forms for all cases and predictable outcomes. This means a personal injury attorney can run a successful volume business without charging clients by the hour for her time.
In employment law, every case is fact-intensive. The lawyer has to dig deep into the background of the case to know every fact that is helpful or potential harmful. It is hard to predict when and if cases will settle, and the value of settlement depends on the client’s income and the skill of the attorney to present the facts to the employer in a way that maximizes the employer’s perceived risk of the facts becoming public. This means the lawyer must be involved every step of the way, cannot delegate running the case to a paralegal, and really should not handle the volume of cases a PI attorney can.
Oh, those empty threats from our youth! There is no permanent record telling the world how you cut Italian several times per week in favor of breakfast sandwiches because you had an awesome teacher in junior high, mediocre teachers in high school, and you didn’t have to learn anything else to pass the Regents Exam. Hypothetically speaking, of course.
Filing a lawsuit, on the other hand, creates a public record that anyone can find online if they know where to look. If your case is newsworthy, finding your case online can be a simple Google search. And if you work in a relatively small industry, word of your lawsuit will spread.
I don’t want to overstate the significance of this, but neither do I want to pretend its all flowers and unicorns and joy. All sizeable companies have had situations arise where an employee behaved badly and a lawsuit resulted, and all sizeable companies have had situations arise where something was blown out of proportion and a lawsuit resulted.
You just have to accept that bringing a lawsuit against a former employer can have the unintended consequence of casting you in a negative light to a future employer. Smart employers will dig a little deeper before making a judgment, but not all employers are smart.
Know the Upside
Damages in employment cases are most often tied to your income. This means the more you earn, the higher your potential damages. This is awful in many ways because the same horrible behavior can be worth little if done to the lowest paid employees who are least likely to hire an attorney to fight for them, but worth a lot if done to highly paid employees who are more likely to have resources to survive without a regular paycheck and are more likely to hire an attorney.
This isn’t going to change – damages in employment law are tied to the employee’s losses, and the employee’s losses are a function of their rate of pay.
Employees also have a duty to mitigate damages, meaning you must look for another job and anything you earn will reduce your potential damages from the bad acts of your former employer. For example, if you get fired from your $50,000/year job at Company X as Social Media Manager, Widgets, because of discrimination, your damages aren’t $50,000/year until you hit 65. Instead, your damages accrue at the same rate as if you were still employed, minus any unemployment you receive, and minus any income you earn from work. If Company Y hires you at $100,000/year as Senior Widgets Influencer six months after Company X fired you, your damages stop accruing because you are earning more than you would have if you weren’t fired by Company X. Your maximum damages are the $25,000 you did not earn in the six months you were unemployed.
Potential clients usually call us before they have a new job, so they cannot predict when their damages will stop accruing. Still, it is important to understand how damages accrue so you can weigh how long it is likely to take to land a job comparable to the one you lost. This information will tell you the likely upside so you can decide if you want to fight for it, and how hard.
Anti-discrimination laws and some whistleblower laws provide for an award of your attorney fees, but that only comes up after you win at trial. It is very rare that an employer will agree to pay the employee’s attorneys fees as part of a settlement, so you should never add attorney fees reimbursement to your upside. There is hope here, you can deduct attorneys’ fees spent pursuing employment discrimination cases. Click HERE for information about IRS Publication 525 wherein you will learn you can deduct the total amount of attorneys’ fees, whether by judgment or settlement, from the gross income above the line on Form 1040.
Your Dignity and Sense of Justice
Finally, you have to consider how you will feel about yourself if you don’t bring the lawsuit. Can you live with “letting them get away with it,” or will it upset you for a long time that your employer did terrible and unlawful things and was never held accountable? I would caution against bringing a lawsuit solely to satisfy a sense of justice, but feeling some vindication after suffering a harm has a healing quality to it. And that’s not nothing. One final note, that manager or coworker who discriminated against you, well, he/she/they etc., will have to read every word of your sworn affidavit and complaint. Defense lawyers will require it. Imagine the shame and embarrassment the idiot will feel when doing the required reading. I mean, no one is immune from this sort of payback!
Is It Worth It to Sue Your Employer? There are many factors to weigh before deciding to sue your employer. If you would like more information about the factors at issue in your employment dispute, please contact Carey & Associates, P.C. at firstname.lastname@example.org
Feedback Responses to Cancel Culture is Illegal At Work
When I decided to write the first article (Cancel Culture is Illegal At Work!) I knowingly anticipated immediate judgment and backlash. In essence, I knew I was going to be canceled. That was the point. I was inviting debate about the entitlement mentality – to cancel others at will. What I knew to be true was the lack of legal substance to the argument in favor of cancel culture being used and defended at work. How could there be. In order for any legitimate social/political argument to arise to future public policy and statutory initiation, there would need to be a foundation based on prior legal precedent. Without legal precedent, cancel culture supporters are just acting arbitrarily based on social passions. Passions and emotions are high certainly. It is not my intention to criticize cancel culture, but to show the negative consequences of unfettered and arbitrary bias and the impact legally. Yes, it is still illegal to cancel at work and I invite any argument to support why it is not. I am listening but are you listening to my question here? To ignore me is to cancel me. To accept opposing viewpoints is only wise, as it will convince opponents there may be a sliver of justification for cancel culture. All of our American legal developments that address social concerns always follow this same process – seeking a foothold in the rule of law, as discussed below.
Angry Feedback Without Legal Foundation
In response to my first article I received several angry email responses informing I was wrong about what is cancel culture and accused me of perpetuating whiteness. But none of the objections to the article provided a legal basis to support the continued use and protection of cancel culture at work. This is my point. Proponents of cancel culture are not even understanding the legal issues or just ignore them entirely in order to perpetuate their narrative. Social movements must have a footing in the rule of law, otherwise they do not and will not survive. Advocates of cancel culture never cite any legal basis to support its existence but for the fact it just “IS” and we should all heed to it.
The Future of Cancel Culture at Work
The future of cancel culture at work will definitely result in lawsuits against individuals based on reverse discrimination. Now currently, only a select number of federal statutes provide individual liability, particularly 42 USC 1981. Section 1981, as it is commonly referred to, is a post-civil war reconstruction statute to protect and enfranchise early African Americans to own land of their own and to contract for business purposes, both of which did not previously exist. Today, employment lawyers, including myself, use Section 1981 to combat race discrimination in the workplace of any kind, whether Brown, Black, White, Hispanic, LatinX, Asian. Congress and the courts have never specified which race was protected by the statute; actually the word race was never mentioned in the statutory wording. Although it did set the standard to measure against, “as is enjoyed by white citizens”. 42 USC Section 1981 states specifically,
“(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.”
Individual Liability for Employees Who Pursue Cancel Culture at Work
Most people who pursue cancel culture at work do not realize they can be sued individually for race discrimination under Section 1981. This is commonly referred to as reverse race discrimination, but that phrase too is also not mentioned in the statutory language. To be clear, reverse race discrimination can apply to any race.
Courts are responsible for this development and the use of Section 1981 to protect all races against invidious race discrimination. Cancel culture IS invidious race discrimination. There is no legal argument to be used to say that it is not. In fact, the point of this article is to demonstrate the utter lack of foundational legal support behind cancel culture at work. After all, we derive our individual rights, liberties and protections from the “rule of law”. In order for cancel culture to rise to its assumed zenith, it must first ground itself in the rule of law. What do I mean by this? Let’s assume a cancel culture event occurred at work and the employee perpetrating the canceling seeks to vindicate his “legal” right, not social right, to cancel another employee. The employee must assert legal “standing” to do so. Standing is a legal term that defines the right or opportunity to contest a legal interest. Where is the standing to “cancel” another employee at work? I have yet to hear any cogent argument to support cancel culture standing in the legal, not social, context. There are none. Cancel culture at work is illegal. I predict cancel culture will not survive because it is legally flawed.