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Biden Administration Unthreads Religious Liberty Needle of the Civil Rights Act

Biden Administration Unthreads Religious Liberty Needle of the Civil Rights Act

By Fran Slusarz

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.

Free Exercise of Religion

From the ratification of the Bill of Rights in 1791 until recently, the words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” was understood to mean we will not have an official religion in this country and individuals are free to worship as they choose. In recent years, a more interventionist interpretation has taken root; one that encompasses the freedom to impose one’s religion on others. Based on this aggressive interpretation of religious freedom, we have business organizations that experience reverence for that which is sacred and divine, government clerks who think they can establish a religion for the county even if the government can’t, and wedding cake bakers whose Christian faith prevents them from creating confections for same sex spouses even if the same scruples allow them to bake cakes celebrating non-Christian weddings of a man and a woman.

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

On May 10, 2021, the Department of Health and Human Services issued its Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972. The notification states that HHS will interpret and enforce Section 1557’s prohibition against discrimination on the basis of sex to include gender identity and sexual orientation.

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.

When you get down to it, all LGBT people ask is that you follow the golden rule – Be Excellent to Them, as You Would have Others Be Excellent Unto You.

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 info@capclaw.com.

Frances Codd Slusarz

Sexual Orientation and Transgender (LGBTQ)

Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

Equal Opportunity: Transgender Employees Are Protected Against Discrimination

The Long Overdue Death Of Non-Disclosure Agreements: Uncovering The Hidden Truth Of Employment Settlements…

The Long Overdue Death Of Non-Disclosure Agreements: Uncovering The Hidden Truth Of Employment Settlements…

By Chris Avcollie,

In an often-quoted line from the hit TV series Dexter, actor Michael C. Hall, who plays the title character said: “There are no secrets in life; just hidden truths that lie beneath the surface.” For those of us involved in the resolution of employment claims on behalf of employees, this quote has special meaning. Beneath the surface of most employment settlement agreements lie the undisclosed facts that led to the conflict and which often result in the messy end of an employment relationship. Recently proposed legislation in California seeks to ensure that those “hidden truths” do not remain hidden.

California Proposes New Law – Silence No More Act (SNM Act)

A new law proposed in California this week called the Silenced No More Act (SNM Act) is intended to prevent the enforcement of non-disclosure provisions in a wide variety of employment settlement agreements. The legislation, proposed by California State Senator Connie M. Leyva, will expand upon the 2018 STAND Act (Stand Together Against Non Disclosure) and will protect plaintiffs in cases of employment discrimination and harassment of all kinds who choose to speak out publicly about their experiences. Under the current provisions of the STAND Act, only plaintiffs in cases of gender discrimination or sexual harassment may avoid non-disclosure provisions. The new law will expand the STAND Act to prevent the use of non-disclosure provisions in employee severance agreements. Under the SNM Act, targets of discrimination based on race, national origin, religion, or gender identity will also now be free to ignore the contractual gag orders companies negotiate into their settlement agreements.

This legislation has been supported by employee rights groups in California including the California Employment Lawyer’s Association and the Equal Rights Advocates.  The new laws are seen as an end to the days when employer misconduct can be hidden from public view. Workers who have been targeted with harassment and discrimination will be free to speak their truth publicly. The perpetrators of this type of misconduct can no longer hide behind the veil of secrecy provided by their company. Non-disclosure and non-disparagement agreements will no longer be used to silence employees.  The hope is that the public disclosure of the details of these abusive work environments will prevent perpetrators from targeting other workers in the future.

STAND and SNM Could Influence Other States to Pass Similar Laws

Although STAND and SNM (if it is enacted) are or would be exclusively California laws, these statutes could ultimately have a broad national impact. Other states often follow California’s lead in employment matters. Further, the fact that so many large technology companies are headquartered in California gives these laws an outsized influence on the national conversation about non-disclosure agreements. In the wake of the STAND Act, a number of states have enacted some limitations on non-disclosure enforcement including Washington, New York, New Jersey, Vermont and Tennessee. Many more states are likely to see some version of this legislation in the future.

More Cow Bell – More Corporate Disclosure and Shaming = More Equality in the Workplace

As am employment attorney, I was very curious about how this new legislation might impact the ability of plaintiff’s lawyers to negotiate settlements for clients in employment discrimination cases. Often the best leverage plaintiffs have in the early stages of an employment case is the prospect of public disclosure of misconduct on the part of a company employee or manager. The reason many companies offer settlements to claimants is to avoid embarrassing public disclosures of uncomfortable truths about their corporate culture or work environment. Companies also have an interest in keeping settlements secret to avoid what they see as “encouraging” other claimants looking to “cash in” on potential claims. In other words, the concern is that the non-disclosure and non-disparagement provisions outlawed by the STAND Act and the SNM Act are the best tools to obtain fair settlements for employees who have been targeted with harassment or discrimination.

The STAND Caveat

Further examination of the proposed statute reveals that its scope is more limited than I had anticipated. These statutes are actually structured to encourage and not to discourage early settlement of discrimination cases. The STAND Act allows for use and enforcement of NDAs (non-disclosure agreements) in cases where there has not yet been any court or agency filings. So during the initial stage of the claim, when a demand letter has been issued but where claims have not yet been filed with state or federal human rights agencies (such as the Equal Employment Opportunities Commission or “EEOC” in federal discrimination cases or the Connecticut Commission on Human Rights and Opportunities or “CHRO” in Connecticut state discrimination cases) and no lawsuit had been filed, the companies may include NDAs in settlement agreements and they are enforceable.

This exception to the ban on NDAs is highly significant. Far from discouraging early settlements of discrimination claims, this feature of the proposed law offers employers a powerful incentive to settle employment discrimination and harassment claims early. If an early settlement is not reached then the agency filings will occur and the employer will lose the right to demand an NDA as part of the settlement agreement. In order to keep employee misconduct secret, employers will have to settle employment discrimination cases early and often. While some cases can be kept secret by early settlement negotiations, targets of discrimination who want to shed light on their experience can ensure their ability to speak out by filing their claims with state and federal agencies.

What Opponents/Management/Defense Attorneys Say About Anti-NDA Legislation

Opponents of the anti-NDA legislation contend that restricting NDAs takes away a survivor’s choice to keep their case private and provides a strong incentive for employers to refuse settlement options and to defend themselves against a publicly disclosed allegation. According to Attorney Jill Basinger, an entertainment litigation partner and Michael L. Smith an associate at Glaser Weil in Los Angeles, “This harms survivors of sexual harassment and assault by removing their choice and forcing them to endure the hardship and uncertainty of a public trial as the only means of vindicating their claims.”[1] Once an agency filing occurs or a lawsuit is commenced, the NDAs become unenforceable. It seems as if these laws would remove a strong incentive for defendant employers to settle claims.

It appears, however, as if the STAND Act has resulted in an increase in pre-filing mediations in employment cases in California.[2] According to Mariko Yoshihara, the Legislative Counsel and Policy Director for the California Employment Lawyer’s Association, the predictions and fears over the STAND Act impairing the ability to settle have not borne out. According to Attorney Yoshihara, attorneys involved in this type of litigation have informally reported that the legislation has not lowered settlement amounts or impaired the settlement process. Additionally, according to Yoshihara, it has made it easier to advocate for employee rights from a public policy perspective because the targets of harassment and discrimination can make their stories public. While dispositive data on this point is not yet available, it seems as if the legislation is working in California.

Further, fears surrounding the forced public disclosure of the identity of the claimant are unfounded. Under the STAND Act there are specific provisions which protect the identity of the complaining employee in the context of a lawsuit. The STAND Act includes a specific provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, including documents and pleadings filed in court, at the request of the claimant. California Code of Civil Procedure 1001(c). Thus, the anti-NDA legislation does not force the disclosure of a claimant’s identity.

While many employer advocacy groups including various chambers of commerce and industry and trade associations have opposed legislation such as STAND and SNM, similar legislation should be considered by all state legislatures that have not already enacted similar laws.  When it comes to use of NDAs in employment discrimination and sexual harassment cases there is an unfair imbalance of power between the bargaining parties. The employers who are often defending the harasser or denying that the harassment occurred have an overwhelming advantage over the complaining employee in terms of investigative, legal, personnel, and financial resources. Employers are frequently holding all of the cards in a settlement negotiation. Legislation such as STAND and SNM will help to level the playing field at least with respect to NDAs.

More Power to the People/Employees – Shift In the Balance of Power

Placing the power over which aspects of the case can or will be made public in the hands of the targets of harassment and discrimination will help balance the power in the arena of employment settlement agreements. As evidenced by the initial success of the STAND Act, these laws can be an important tool in ending the culture of silence that has permitted harassing and discriminatory behavior to continue in the workplace for so long. In a recent opinion piece, the feminist writer and critic Marcie Bianco said: “If the societal change necessary for dignity and justice is to occur, we must move from awareness to accountability.”[3] This legislation should help bridge the gap between awareness and accountability. We need to see a whole lot more of those “hidden truths” lying beneath the surface of the American workplace.

If you would like more information about this article, please contact Carey & Associates, P.C. at info@capclaw.com or call 203-255-4150.

Christopher S. Avcollie

[1] Basinger, Jill and Smith, Michael L.; “How California’s NDA Restrictions Cause More Harm Than Good for Survivors” (Guest Column); Hollywood Reporter;  https://www.hollywoodreporter.com/news/how-californias-nda-restrictions-cause-more-harm-good-survivors-guest-column-1280922

[2] LeHocky, Mark, “Shining a Needed Light on Harassment and Discrimination Claims: The Collective Benefits from California’s Recent Secret Settlement Restrictions”, Contra Costa County Bar Association, March 2020;   https://www.cccba.org/article/shining-a-needed-light-on-harassment-and-discrimination-claims/

[3] Bianco, Marcie, “Britney fans angry at Justin Timberlake have a point.” CNN Opinion, February 10, 2021.

Employees, Not Independent Contractors: Closing a Loophole to Fair Benefits and Protections for Workers

The Covid-19 Catch-All: Why Your Recent Termination Might Have Been Unlawful

The Covid-19 Catch-All: Why Your Recent Termination Might Have Been Unlawful

A record 22 million people were laid off in one month since the coronavirus pandemic shut down large portions of the U.S. economy as of the week ending April 16, according to the Wall Street Journal. The estimated current employment rate is 13.5%.  But were all those layoffs really due to the corona virus or did employers use the pandemic as cover to get rid of employees for other reasons, maybe unlawful reasons.  This is the big question many unemployed Americans are now asking.  Please review the following frequently asked questions and see which applies to you.

FAQ:    Were you recently furloughed, laid off, demoted or terminated due to COVID, but your co-workers remain employed?

FAQ:    Is your Employer still operating and profitable, yet you were laid off or had your compensation reduced due to a business decision to reduce costs or eliminate your job position?

FAQ:    Were other younger employees retained, while you were furloughed, laid off, demoted or terminated?

FAQ:    Were you laid off or terminated and not offered any severance or insufficient severance?

FAQ:    Were your unemployment benefits interfered with?

FAQ:    If you were unable to continue to work because you were sick, because a family member was sick or because you have young children at home, were you permitted to take FMLA leave or were you instantly laid off or terminated?

FAQ:    Were you the only one furloughed, laid off, demoted or terminated or due to COVID, even though your Employer is calling it a “reduction in force”?

FAQ:    Do you think your Employer was looking for an excuse to get rid of you?

If you answered yes to any of the above, your seemingly straightforward COVID-based termination may be unlawful. Unfortunately, the majority of Employees in the U.S. are “at-will”. This means that employees are at the absolute and arbitrary whim of their employers and they may be demoted, terminated or otherwise treated adversely for any reason or no reason at all. The exception to the anything goes rule of an at-will employment arrangement is that employees may NOT be treated unlawfully.

If you have recently suffered an adverse change in the terms and conditions of your employment amidst the COVID-19 crisis, you may still have viable claims against your employer for unlawful or wrongful treatment. COVID-19 is not and should not be a catch-all excuse or defense for employers’ bad behavior and even a crisis of this magnitude does not relieve employers of their obligation to treat employees lawfully at all times. If something does not feel right to you about the circumstances of your change in employment, it is prudent to speak to an employment attorney and review the fact pattern surrounding your work situation. It is in your best interest to discern whether your employer may be using COVID-19 as a sham or cover for otherwise unlawful behavior.

Unlawful or wrongful acts that may entitle an employee to monetary damages for claims against their employer will usually fit in one of three scenarios. Employers actions can be shown to be unlawful if they:

              1) violate or fail to comply with any legislative mandate, act or

              statute;

              2) breach a valid contract or agreement; or

              3) discriminate, harass or retaliate based on a protected class trait.

COVID-19 does not give employers a green light to violate laws, ignore contracts or discriminate against employees, and a termination under any one of those scenarios might be a wrongful one.     

Scenario 1 – Statutory Violations:

Employers must abide by all existing laws and statutes, especially as they apply to the COVID-19 pandemic. It is the employers’ obligation to stay abreast of and comply with all new mandates imposed and legislation enacted in response to COVID-19, including, but not limited to enhanced FMLA, the CARES Act and the expansion to the Unemployment Compensation Act. This is in addition the existing laws that have long protected employees from discrimination and retaliation such as Pregnancy, Sex Harassment, Sexual Stereotype, Disability, Age, Whistle Blowing and Family Medical Leave, to name just a few. Thus, any analysis of whether your termination was lawful and proper should begin with a review of the facts relative to the controlling law and any revisions and updates to those laws. If you identify any facts in the events leading up to your termination that just do not seem right, you may have uncovered the hidden basis for your termination.  For example, you got a good review last fall and received a bonus in January, but in March you were terminated without explanation.  The small window between the January bonus and March termination should be closely examined for any facts supporting bogus performance issues, favorable treatment given to other employees and not you and replacement by coworker who is substantially younger and lesser qualified.  The examples are endless, but you get the gist. See further discussion below.

Scenario 2 – Breach of Contract:

Even an at-will employment arrangement must be considered in light of any existing employment contracts or agreements between the employer and employee. In addition to or in the absence of a formal written employment contract, Courts may look to such documents as offer letters, on-boarding communications, employee handbooks, published severance plans and emails in order to demonstrate the existence of any enforceable covenants between the parties that may speak to such topics as causes for termination, compensation, bonus, healthcare, long term incentive compensation and severance. Thus, where a valid contract can be established as to any of your employment terms, your employer is bound by those terms and any deviation may be an unlawful breach for which you might be able to seek and recover damages. So, if you have been terminated or otherwise caused to separate from your employer, even if you are at-will and even amidst the COVID-19 crisis, it is imperative that you review all of your documents in order to discern that you are being treated lawfully according to the terms that were agreed upon and promised to you.

Scenario 3 (THIS IS THE BIGGIE) – Discrimination Claims:

Even if you are an at-will employee who was let go as a result of COVID-19, you may still have a claim for wrongful termination against your employer if their decision to let you go was at all based on discriminatory motives. Discrimination is unlawful and where an adverse act is taken against you because of such protected traits as your age, gender, pregnancy, race or national origin, disability, perceived disability, associational disability or sexual orientation, you may have legal claims against your Employer.

In the absence of direct evidence of discrimination or the smoking gun as we call it, discrimination can be shown if you are a member of the protected class and you were treated adversely (demoted, furloughed, laid off or terminated) under circumstances which give rise to an inference of discrimination, i.e. circumstances that show discrimination was the substantial motivating reason for the adverse act taken against you. The way an employer can defend itself against such a claim and rebut that inference is to show that there was a “legitimate” lawful reason for the termination, such as performance issues and other cause such as a business decision or reduction in force.

Certainly, you can all see where this is heading. COVID-19 and the related financial fallout provides your employer with the legitimate business reason it needs to “lawfully” terminate you.  However, this cannot be accepted at face value. In fact, if you are able to show that the supposed legitimate reason relied on by employer was a sham or cover for discriminatory motives, you may prevail on your claims against them in a severance negotiation. There are surely many situations where an employer, especially during these challenging economic times, needs to make a tough business decision to lay off employees or institute a reduction of force, and where their decision to do so is legitimate and truthful.

Employer May Have Used Covid-19 As An Excuse to Fire You

However, there are also many instances where certain employees are selected within the context of a business decisions, based on discriminatory motives. For example, the company makes the “business decision” to lay off only the older employees, or only the female employees or only the pregnant employees. In addition, there might not even be any explicit or formal business decision to reduce costs or a effectuate a reduction in force, but your employer may still feel safe engaging in discriminatory behavior knowing or hoping that any terminations taking place now will be viewed as a necessary and legitimate, due to the Covid-19 business climate. Again, we cannot allow employers to use this catch-all defense to what maybe culpable and unacceptable discriminatory behavior.  If you see something, say something to an employment attorney.

There is no doubt that both employers and employees are presently finding themselves in the most difficult and tenuous circumstances. However, employers, in response to COVID-19, seemingly have absolute power and new founded legitimacy to make discriminatorily targeted employment decisions against their at-will employees, under the guise of a business decision. And this is very concerning and unlawful. If you are in a protected class because you are over the age of 40 or fall into any of the other class of protected traits discussed herein, and have seen a change to your employment that you do not believe was made as the result of a good faith business decision, cost reduction, reduction in force in response to COVID-19, or other legitimate basis, we encourage you to speak to an employment attorney immediately. You may be entitled to reinstatement, severance or increased severance or settlement dollars relative to your discrimination claims for wrongful termination or other possible improper acts by your employer.

Carey & Associates, P.C. is currently providing complimentary consultations for potential new clients who are experiencing any employment related issues or believe they might have possible employment claims, as a result of the COVID -19 pandemic. Feel free to contact our office if you need help with that or any of your employment matters.

Protecting Your Job During Coronavirus Two Things Employees Should Look Out For

Protecting Your Job During Coronavirus Two Things Employees Should Look Out For

By Liz Swedock

Protecting Your Job During Coronavirus Two Things Employees Should Look Out For. COVID-19 is interrupting everyone’s lives these days, worldwide, and for many of us it is negatively impacting our jobs.  Even while we are trying to achieve the work-from-home revolution, an unprecedented number of workers are experiencing frightening job stressors, including drastically reduced workload, changes in job responsibilities, dropped job responsibilities, and job loss.  While not every negative impact can be fixed, there are a few legal protections that all workers should be aware of.

Is your job being impacted in a way that is unethical, or possibly illegal?

The sad reality is that the global recession is going to quickly motivate employers to start firing people.  Businesses are panicked right now about their financial bottom line, and those salaries for all the people who aren’t in the office are looking daunting.  While it may be legal for employers to lay people off due to purely financial concerns, all employees should be their own watchdog for any layoffs, terminations, demotions, or changes in responsibilities that appear to be unfairly – or unequally – happening.

What is unfair or unequal?  Often the answer is discrimination.  These days most people are aware of the protected classes of employees.  They include older individuals (over 40), disabled individuals (physical or mental), gender, race, national origin, religion, and others.  It is illegal for employers to single out any of these classes of individuals for negative treatment.

It’s often not obvious if an employee is being illegally discriminated against, which is why workers should arm themselves with what to look for.  Sometimes illegal mistreatment is blatant, such as bullying and inappropriate remarks.  But it can also be done through much more subtle means, like removal of responsibilities, being taken off projects or sidelined, exclusion from important meetings, or old-fashioned favoritism.

We all know what’s coming.  As the economy is disrupted, companies are going to be forced to start eliminating employees.  So, keep your eyes and ears open and watch out for anything that seems wrong.  Did an entire project get cancelled or an entire team laid off?  That kind of activity might be perfectly legal.  However, does it seem like only the older employees or those with medical conditions are suffering the consequences?  Has your multi-gendered and multi-national team suddenly become, well, a lot less diverse? These types of selective actions could be crossing a line into illegal territory.

Are you being denied rights that you are entitled to, particularly medical leave or accommodations?

The headlines are warning us that a huge percentage of the population should expect to catch COVID-19, a/k/a Coronavirus.  This means that an even larger number of people can expect to be impacted by the virus, including if family members get sick.

If you or an immediate family member gets sick, you may be entitled to take medical leave while your job is protected – meaning, you cannot be demoted or fired.  Federally, the Family and Medical Leave Act (FMLA) guarantees employees up to 12 weeks of leave per year if you’ve been an employee for at least one year and worked a minimum of 1,250 hours over the prior year.  FMLA leave is unpaid, which means your employer is not required to pay you while you are on leave, but is required to hold your job for you until you return.  Any negative impact on your job, such as by giving your work away or demoting you because you took leave, is illegal.

In Connecticut, this protection is expanded to 16 weeks of leave for any employee who works 1,000 hours during the prior year.  In New York, since 2018, employees may be entitled to up to 10 weeks of paid family leave, up to 60% of their average weekly pay.  This is one of the strongest protections in the country.

Can you take FMLA leave any time you or a family member gets sick?  For a simple illness, such as a cold or the flu, the answer is usually no.  However, you are entitled to leave for any “serious health condition,” which is defined as “an illness, injury, impairment, or physical or mental condition” which involves  “inpatient care” or “continuing treatment by a health care provider.”  Sound confusing?  It is.  Put quite simply, it’s not a black-and-white rule about when legal protections kick in for any individual medical situation.  The bottom line is that if you, or a family member, has a medical problem that requires repeated, or ongoing, medical treatment, you probably qualify for protected leave.

It’s also important to know that individuals can take this medical leave in pieces, or “chunks.”  This is called “intermittent leave.”  What this means is that if you qualify for leave, but you can work sometimes, you can still be eligible for the protections provided under these laws, most importantly that you cannot be fired or demoted while utilizing your leave.  This is extremely important for people who have ongoing medical conditions that require short periods of treatment.

Lastly, every employee with a medical issue should understand how the law defines “disability” and what an “accommodation” is.  Legally speaking, disabilities can be temporary! You can be legally disabled if you have a medical condition that “substantially limits one or more major life activities,” and “major life activities” includes working.  Of course, this means that many people who qualify for FMLA medical leave will also qualify under the law as disabled.

So, what protections do you have if you are legally disabled?  A complete answer here would require far more space and time than I’m tackling in this article.  However, the short answer is that your employer is required to cooperate with you so that you can do your job.  In legal terms, this is called an “accommodation.”  If you can do your job with a reasonable accommodation, then it is illegal for your employer to fire you, demote you, or do anything else to hurt your employment.

Just like with medical leave, it’s different for each person.  However, an example how these legal systems work might be something like this – Person A contracts Coronavirus.  Unfortunately, person A has the aggressive symptoms of the virus and needs to be hospitalized for a week, and then required to quarantine at home for a few more weeks.  While they are hospitalized, Person A would be entitled to FMLA (and state) leave while they are in the hospital, and, most likely, while they have to self-quarantine at home.  At the same time, Person A would most likely also qualified as disabled.  This means Person A would have the following protections: the employer has to hold Person A’s job while person A is out, and, while Person A is recovering, the employer is required to offer Person A accommodations so that Person A can do Person A’s job.  In other words, Person A cannot be fired, and must be given options to enable Person A to perform the job.

The takeaway here is to know your rights and stand up for yourself! Don’t expect your HR department to know the law or give you good advice.  Even the most well intentioned employers or human resources people often don’t know how this process works, or what they are legally required to provide to you.  You need to speak to an employment attorney to get the right advice, especially now during this Coronavirus pandemic.

Protecting Your Job During Coronavirus Two Things Employees Should Look Out For. If you have questions or concerns about this article, please contact one of our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or by email at info@capclaw.com.

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History in the Making Today Sexual Orientation Discrimination is Illegal

History in the Making Today Sexual Orientation Discrimination is Illegal

By Mark Carey

History in the Making Today Sexual Orientation Discrimination is Illegal. Sexual Orientation discrimination is being argued today before the United States Supreme Court in the combined cases of Bostock v. Clayton County George and Altitude Express, Inc. v. Zarda. The Court is also holding argument in a similar transgender discrimination case of Harris Funeral Homes, Inc. v. EEOC. The trio of cases are as important as the same sex marriage equality issue ratified by the Court in Obergefell v. Hodges.  These cases are history in the making and I predict the Court will hold that sexual orientation discrimination and discrimination based on transgender status constitute sex discrimination under Title VII of the 1964 Civil Rights Act because adverse employment decisions discriminating against the LGBTQ community are being made “because of sex” of the employee.

The controversy around the cases has more to do with “perceived politics” infecting the bench than whether sexual orientation discrimination falls within current federal law “because of sex”, which it does.  Although the Court’s majority now leans to the conservative side, the Court cannot ignore prior precedent written by Justice Scalia in Oncale v. Sundowner Offshore Services.  In Oncale, the Court held,

“Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct com-parative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive           sexual connotations, but actually constituted ‘discrimina[tion] … because of … sex.’”

The Court does record oral arguments and posts them to the Court’s website at the end of each argument week.  I encourage you to listen to the case, especially because the Trump Administration is arguing that Title VII does not cover sexual orientation discrimination, even though the U.S. EEOC has ruled that it does fall within the statute.

History in the Making Today Sexual Orientation Discrimination is Illegal. If you would like more information about sexual orientation discrimination and transgender discrimination, please contact employment attorney Mark Carey at 203-255-4150 or info@capclaw.com.

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Sexual Harassment Simplified Are You a #MeToo?

Sexual Harassment Simplified Are You a #MeToo?

Sexual Harassment Simplified Are You a #MeToo?

Interestingly, although I have subtitled this article “Are YOU a #MeToo?”, a much more fitting and powerful subtitle would have been “Is it #Time’s Up For Your Employer?” I did not chose that subtitle, because I, like many, have always used the hashtag terms interchangeably and was not focused on any distinguishable meanings between the two phrases. Admittedly, even as an established employment attorney, I was not as up as I should have been on the subtle yet ever so important difference these two viral hashtags and relied solely on #MeToo in reference to my clients’ sexual harassment claims and experiences.

#Times Up Relates to Employment Only

However, as the number of incoming phone calls involving sexual harassment cases began to soar at my firm, it was time for me to dig deeper and contemplate the nuances in the social media phenomena. While I was well versed on the law, I needed to now be equally schooled in the sexual harassment social media vernacular and how I could use it to my clients’ best advantage. And that is when I learned that #MeToo is relevant to all victims and survivors of sexual harassment of any type, in any environment, while #Times Up is specifically meant to address sexual harassment IN THE WORKPLACE!

To further explain the difference between these two hashtags, #MeToo is a movement that deals generally with sexual violence and provides a platform and voice for ending sexual violence and for survivors of sexual violence. The #MeToo movement had been around for years before it started gaining national attention after allegations of sexual harassment by Hollywood producer Harvey Weinstein captured the headlines. The movement was created in order to encourage “millions to speak out about sexual violence and harassment”, according to the #MeToo website, and to promote healing and empowerment. To say it has been successful in this initiative, is an understatement. In contrast, #Time’s Up was founded on the premise that everyone, every human being, deserves a right to earn a living and to provide for themselves and their families, free of the impediments of harassment and sexual assault and discrimination at work. #Time’s Up is specifically focused on workplace issues involving fairness, safety and equity in the workplace. As such, #Time’s up was meant to indicate to an employer guilty of such behavior that their time is up and action will be taken. BINGO!

As a result of this simple, yet vital distinction between the underlying purposes of these two hashtags, imagine how powerful and compelling it would be to have an employer receive a formal letterhead communication from our firm with the phrase #TIMES UP _______(INSERT NAME OF EMPLOYER HERE) printed in bold large font  at the top of a sexual harassment claims letter, on behalf of one of our clients. That is exactly what we do and needless to say, it is most effective.

What Is Sexual Harassment In the Workplace?

But let’s take a step back and first understand if you might have a sexual harassment case in the first place. In order to get a better grasp on that, here is your sexual harassment made simple tutorial. Harassment in the workplace is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964 and the laws in many states, including, Connecticut and New York. According to The US Equal Employment Opportunity Commission (EEOC), it is unlawful to harass a person because of that person’s sex. The law defines sexual harassment as unwelcome verbal, visual, non-verbal or physical conduct of a sexual nature or based on someone’s sex, that it is severe or pervasive, creating a hostile working environment or affecting working conditions. This definition covers a wide range of unwanted comments and behaviors directed towards the victim, but the acts will usually be of a sexually charged tenor, including unwelcome sexual advances, requests for sexual favors, and other verbal comments or physical harassment of a sexual nature. In a workplace context, the victim may not only be an employee, but also an applicant. In addition, both victim and the harasser may be either a woman or a man, and the victim and harasser may even be the same sex. Lastly, the harasser may be a manager, supervisor or person in power, a colleague or co-worker, or even a vendor. In any of those scenarios, the employer may be found liable if they caused the behavior,  knew about the behavior and did not take steps to correct and stop it, or if they should have known through the exercise of reasonable care. Lastly, employers should have strong written policies in place against sexual harassment and clear procedures set forth for reporting and addressing sexual harassment. In fact, in some states, including Connecticut, employers of a certain size, are required to provide sexual harassment training for supervisors.

Despite these general guidelines and laws, sexual harassment can take many forms and courts have interpreted what constitutes sexual harassment on a case by case basis. As such, if you feel or believe that you have been a victim of any behavior in the workplace, by anyone in the workplace, that may be sexual harassment, we encourage you to seek counsel immediately as there are statutory deadlines within which claims must be filed. We will listen to and analyze your fact pattern, in order to determine whether you might have sound legal grounds for a sexual harassment claim. It is too often the case where if something feels wrong, it is wrong, and we urge you to speak up and make this right for yourself and others.

Start Your Own Investigation: Documents and a Written Narrative

Along with seeking immediate counsel, we also instruct you to maintain a narrative of everything that takes place, including dates, times and witnesses, and to also maintain copies of all written and verbal communications between you and the harasser/employer. In addition, it is crucial to report the harassment to your employer’s Human Resources department as well as to your direct boss or supervisor.

Increased Number of Sexual Harassment Claims Filed

It is no surprise that with the #MeToo and #Time’s Up movement, the amount of sexual harassment cases has greatly increased in the past year. The data in Connecticut mirrors national trends. The EEOC’s 2018 sexual harassment data shows more than a 50% increase in suits challenging sexual harassment over 2017.  Charges filed with the EEOC alleging sexual harassment increased by more than 12% over the same time period. Anecdotal information regarding the number of sexual harassment complaints filed with the Connecticut Human Right’s Office (CHRO) in the current year suggests an even more dramatic rise in the number of these claims in the first half of 2019. No doubt, the increase in sexual harassment claims and complaints based on sex discrimination coincides with the explosion of media headlines and high profile sexual harassment cases which sparked the #MeToo movement.

The simple fact is that sexual harassment is against the law and should not to be tolerated anywhere, but particularly in the workplace where employees should have the right to do their jobs and earn their livings free from abuse, discrimination, and mistreatment. Just because Connecticut does not generate the type of celebrity fueled headlines seen in other large cities, does not mean we do not have our share of victims, and in fact the data above shows that we do.

Sexual Harassment Simplified Are You a #MeToo? If you believe you are the victim of sexual harassment, it might be time to have us put your employer on notice that their TIME IS UP and seek to help you recover monetary damages relative to your legal claims for sexual harassment and discrimination. Feel free to contact  us at the number below, if you believe you have been subject to sexual harassment situation at work, or for any of your workplace needs.

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Controlling the Psychology of Working to Your Advantage

Controlling the Psychology of Working to Your Advantage

Controlling the Psychology of Working to Your Advantage

No one discusses the psychology of work and the enormous role it plays in your everyday life.  I have researched and watched this issue for more than twenty years, from discrimination bias to contract negotiation.  I comb through client fact patterns looking for every psychological angle emanating from all the cast of characters in order to position the client to achieve success or to resolve a dispute. Why aren’t you doing this?

The Psychology of Your Manager

I know you think you know your manager, but I doubt you really know how your manager thinks and what motivates them. Psychology plays a direct and important role in such things as how your manager makes decisions regarding what jobs or tasks to assign employees and your career advancement.   Managers evaluate employee strengths and weaknesses, i.e. perceived psychology, and selectively assign tasks.  Employees are also chosen to advance based on their perceived psychology about whether they will be effective in handling the responsibilities of the new position. If you are blind to the role of psychological analysis, get your head out of the sand and in the game! Think of your job like a chess or strategy game, you need to consider every conceivable variable that will impact your chosen goals, both positively and negatively.  If you are not evaluating your opponent, i.e. your boss or coworker, you will not advance in your current position or your career.  I am not asking you to confront your boss with your new found psychological intelligence, keep it to yourself and use it to guide you when making critical decisions to your benefit. Successful employees and executives do this every day.

Here is what to look for when evaluating your boss’s psychology in order to gain an advantage:

(1) Evaluate facial and body cues that may show a degree of nervousness or over aggressive micromanaging (polar opposites), facial and body cues are one of the most important signals to read when assessing your opponent. (2) Examine the person’s prior work conduct toward yourself and other employees and the reaction those individuals had in relation to the decision being made. Was there a consistent logic flow or arbitrary selection decision making process without basis? (3) Go beyond the email language and check if the person really intended what was stated, email can be misleading. (4) Examine the individuals the person promotes and if they are a logical fit or the result of office favoritism and worse, discrimination. (5) Examine the potential for personal issues being brought to the office and determine if they are playing a role in the person’s work life. This list is by no means exhaustive of the possible variables impacting your opponent’s decision making.

The Psychology of Your Coworkers and Yourself

When you arrive at work, you walk into an office workspace filled with a multitude of personal psychologies.  There is no control other than the corporate mind speak dished out by the company or what you believe the proper protocol to acting professional is.  There is no discussion about how to manage yourself or others while at work. Sure, there are rules regarding behavior, but in reality, employees are thrown into the workplace and are just expected to know how to act and react moment by moment. Short of being fired for poor misconduct, how do you navigate the psychological warfare of the office? The solution is to become aware or mindful of your interactions with co-workers, including supervisors, especially when you are having a bad day.  Take a week and just observe the behaviors of others but don’t be reactive, just observe.  While you’re observing various office behavior, listen to your inner voice, you know the voice that is talking inside your head right now as you read this.  The more you become aware of this inner voice, the more self-control you will have during moments you need it most.  That inner voice is the reactive brain and not your conscious brain, it just keeps on talking at you over and over all day long.  Listen to your conscious brain, the one you make decisions with and the one you use to learn new information. Notice that the conscious brain does not ramble on at you, it is more concise and logical, not dramatic and overblown. Another method of handling the office psychology is to observe the expectations you set for yourself and others. Stop working from those expectations and focus on the current issue you are experiencing.  Your own expectations may be causing the problem you may be experiencing but you just don’t know it.  We pre-imagine how events in our work life should result, but we never really think about how we created those expectations in the first place. When the crap hits the fan and our expectations are dashed, we tend to blame ourselves or others in a knee-jerk reaction.  We never stop to think about our own thought processes, we just accepted what our mind (inner voice vs. conscious mind) said to us. As employment attorneys, we confront the end product of psychology in the workplace and are requested to find solutions.

Controlling the Psychology of Working to Your Advantage.  If you would like more information about this issue, please contact our employment lawyers at Carey & Associates PC at 203-255-4150 or email to info@capclaw.com.

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NY Times The Daily The Rampant Problem of Pregnancy Discrimination Part 2

NY Times The Daily The Rampant Problem of Pregnancy Discrimination Part 2

NY Times The Daily The Rampant Problem of Pregnancy Discrimination Part 2

Many women are passed over for promotions and raises when they become pregnant. Part 2 of this series examines the subtle sidelining of pregnant women and mothers in corporate America. Guests: Natalie Kitroeff, who covers the economy for The New York Times, and Erin Murphy, who alleges that she was denied opportunities by her employer, Glencore, once she became a mother. For more information on today’s episode.

The issue of pregnancy discrimination at work will not go away…unless you raise your voice and stop remaining silent.  Erin Murphy chose to speak out.  We should all speak out and end this devastating form of discrimination. We all came from someone.  Would you treat your mother like Erin Murphy was treated by Glencore.

To read Erin Murphy’s June 18, 2018 federal complaint against her current employer Glencore click here Murphy Complaint As Filed 6.18.18

NY Times The Daily The Rampant Problem of Pregnancy Discrimination Part 2. If you need help with your employer because you are experiencing pregnancy discrimination, contact us or email to info@capclaw.com.

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A Few Very Good Reasons Why You Can’t Trust Your Employer

A Few Very Good Reasons Why You Can’t Trust Your Employer

A Few Very Good Reasons Why You Can’t Trust Your Employer

We all build relationships based on trust.  Some relationships require more trust than others. For example, marriage, medical professionals and hiring lawyers.  We all take the time to explore whether these relationships are the right fit for us.  We even memorialize these important, sometimes life-changing, relationships with contractual agreements.  But when it comes to the relationship with your employer, you might as well start hand feeding piranhas.

Meet Your Antagonist: Your Employer

An antagonist is someone who actively opposes or is hostile to another; an adversary.  Does this describe your current or former employer? In my role as the employment attorney, I do not hear very many people say they trust their employers. In fact, the opposite is true.  According to a Harvard Business Review article, “In both your personal life and your work life, you’re bound to encounter people who take advantage of you, and these painful experiences can make you cynical.”
You have several reasons to be cynical about your employment relationship.  Your employer is not interested in whether you are happy at work, fulfilled in your career aspirations, concerned about your personal responsibilities at work or anything remotely realistic to a nurturing relationship.  In fact many employees have a low level of trust in their employers.  The 2016 Trust Barometer report from Edelman revealed that a third of employees do not trust their employers. Employees reported a lack of engagement, short term profit seeking, lack of belief in the company mission, poor product quality, unethical behavior, bad corporate reputation, invisible CEOs and lack of corporate communication to employees.

At-will Employment is Bad for You

When you are employed at-will, as most of you are, you might as well be on a first date for the next several years.  You would think that after knowing your employer for three or more years, you’d just settle down and get engaged to be married. However this is not so.  Unless you have a coveted and rare employment contract with a “for cause” termination provision, your employer can bounce you with little or no notice.  Many of you have felt this scorned feeling from prior jobs.  So where is the trust in the at-will workplace if you can never predict your future with a reasonable certainty on a day-to-day basis? There is none.  Ouch!

Somehow, we have just grown accustomed to this dysfunctional at-will relationship and let employers manipulate us with unenforced corporate codes of conduct, lofty corporate double speak and fear.

Management by Fear Does Not Create Trust

The most common corporate management practice today is to maintain a consistent level of passive-aggressive practices which propagate employee fear and insecurity. From my vantage point, I see a persistent pattern by employers accusing employees of subjective performance issues while their objective performance criteria are “meets” or “exceeds expectation”.  Employers use performance management techniques such as performance improvement plans and coaching to force out undesirable employees.  No one ever remains long after being managed this way. I also see cases of overt ruthless conduct, where a supervisor discriminates against pregnant employees as having “baby brain.” Saying things like, “I don’t want another woman working on the desk” or “If you’re being honest with yourself, do you really think you could do this job?”  And the comments get even worse. “I don’t want to hear any complaining from you, you and [spouse] did this to yourselves.” Only a supervisor with intentions to rid themselves of pregnant employees will make discriminatory statements like this to push the employee to quit out of fear of reprisal.

Discrimination Does Not Create Trust

The absence of trust becomes more noticeable when employees experience discrimination in the workplace or need to take time off due to health issues affecting themselves or a family member.  For these employees, their career with their particular employer has taken an abrupt turn for the worse.
For example, you become pregnant while employed and take a maternity/paternity leave under company policy and FMLA.  When you return, your job duties have changed and so has the person you reported to.  Pregnancy discrimination is one of the most perverse examples of a lack of trust an employee can encounter.  The employer has a maternity leave policy and you take a leave under said policy with no resistance.  However, upon returning to work you face pregnancy discrimination when your employment is terminated.  The employer will jump at an opportunity to replace you rather than reinstate you.  We would all agree, this is not an ideal trust building experience at any company, yet pregnancy discrimination continues to persist.

If you complain to your employer about issues of discrimination or whistle blowing, you will immediately cause your employer not to trust you.  You have a legal and moral right to complain about these issues, but do not expect reciprocation from your employer.  You just threw yourself off or under the company bus.  This equals your spouse cheating on you and then pointing the finger at you as the cause for why they had the affair.  Your employer’s Human Resources Department will not help you when you are down and have complaints about coworkers or your supervisor.  I am sure the folks in HR are nice people, but their “job” is to protect the employer, not you! Don’t make the mistake in confiding with human resource personnel, unless absolutely necessary to build a case for retaliation.

Arbitration and Noncompete Agreements Don’t Create Trust

Arbitration and non-competition agreements and employer trust are like oil and water with a sprinkling of gasoline for added flare.  The U.S. Supreme Court’s further endorsement of employer arbitration agreements cemented in stone the future of employee litigation and the permanent role of arbitration in your career. Listen, don’t be fooled, arbitration agreements are bad for you, your rights, your claims, the economy and are only good for employers.  Noncompetition agreements are even a better example of a lack of employer trust.  When your employer is finished with you and terminates your employment, they sink a big fishing hook in you and reel you back in at their whim each time you land a new position.  The employer cries foul, complaining you are single handedly destroying the company via working for the competitor.  These two forms of employment agreements represent the worst in every company that mandates them.  An arbitration agreement is a tool to conceal bad corporate acts from employment attorneys like myself and non-competition agreements are used to threaten competitive employers in the market place.

Rise Up and Demand More Trust

It is time to call an end to bad corporate practices- the deceit, the greed, the lies and the double speak.  Employees should demand more from their employers.  Rise up and unite together and tell your employer you would trust them only if they demonstrated trust to you first.  Trust begets trust.
Have questions or think you’ve been discriminated against at work?

A Few Very Good Reasons Why You Can’t Trust Your Employer. Let our employment law attorney’s help you get justice, contact Carey & Associates PC at 203-255-4150 or email to info@capclaw.com.

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Pregnancy Discrimination Reviewing Lactation Legalities

Pregnancy Discrimination Reviewing Lactation Legalities

Pregnancy Discrimination Reviewing Lactation Legalities

Central to any present-day discussion of pregnancy discrimination is the issue of lactation and nursing moms in the workplace. The practice of breastfeeding has expanded in recent years and various legal issues have accompanied this development.

The law is designed to protect moms who breastfeed in almost all 50 states, Connecticut included.

The Patient Protection and Affordable Care Act (P.L. 111-148, known as the “Affordable Care Act”) amended section 7 of the Fair Labor Standards Act (“FLSA”) to require employers to provide, “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”

Employers must provide as many breaks as are needed by the employee. Employers are also required to provide, “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

Therefore, the Federal statute ensures that employers provide nursing employees with a time and a space to “express milk” if there is an employee with this need and the employer is made aware of the need.  Moreover, all employers covered by the FLSA must comply with the break time and private place provision for nursing mothers. Small businesses with less than 50 employees, who are not covered by the FLSA may be exempt from the FLSA provisions if they can demonstrate that compliance with the provision would impose an undue hardship.

How does all of this apply to employers and nursing employees in Connecticut?

The FLSA requirements for nursing mothers to express breast milk does not preempt state laws. And in fact, state law in Connecticut actually provides greater protections to nursing employees. The Connecticut Breastfeeding Coalition joined with the Departments of Public Health and Labor, and the Commission on Human Rights and Opportunities to create the, “Guide to Connecticut Breastfeeding Nondiscrimination and Workplace Accommodation Laws.” A closer look at the guide and the law in CT will show CT to be a state that gives great deference to, and places high public importance on, the protection of breastfeeding moms in the workplace.

Michele Griswold, chairperson of the Connecticut Breastfeeding Coalition said, “Most people want mothers and infants to be healthy, but not all understand the connection between breastfeeding and improved health outcomes. Taking steps to remove barriers for breastfeeding mothers and their children is a win-win situation for everyone. Increased breastfeeding rates ultimately mean healthier communities.”

Specifically, in the state of Connecticut, ALL businesses, regardless of the size, must provide breastfeeding protection in the workplace. Conn. Gen. Stat. Section 31-40 (along with the Patient Protection and Affordable Care Act, amending Section 7 of the Fair Labor Standards Act) requires employers to provide a reasonable amount of time each day to an employee who needs to breastfeed or express breast milk for her infant child and to provide accommodations where an employee can do so in private. And these CT laws apply to all businesses in CT regardless of their size or number of employees.

Sec. 31-40 entitled CT Breastfeeding in the Workplace reads as follows:

(a) Any employee may, at her discretion, express breast milk or breastfeed on site at her workplace during her meal or break period. CT case law has expanded this provision to mean, when possible this milk expressing activity should occur on your meal or other work break, but if it occurs at another time the employer is not obligated to pay you during the pumping break.

(b) An employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where the employee can express her milk in private.

(c) An employer shall not discriminate against, discipline or take any adverse employment action against any employee because such employee has elected to exercise her rights under subsection (a) of this section.

(d) As used in this section, “employer” means a person engaged in business who has one or more employees, including the state and any political subdivision of the state; “employee” means any person engaged in service to an employer in the business of the employer; “reasonable efforts” means any effort that would not impose an undue hardship on the operation of the employer’s business; and “undue hardship” means any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, its financial resources and the nature and structure of its operation.

This requirement in CT is a much harder standard to meet than the Federal statute as it defines undue hardship as posing a, “significant difficulty” for the employer.
It is also important to note that whereas the Federal statute defines the protected activity as “expressing milk” in the workplace, the State of CT law is unique in that it protects and allows mothers to actually breastfeed their babies in the workplace, and/or express milk/pump.

Remember: A CT business is not permitted to discriminate against, discipline or take any adverse employment action because you’ve elected to exercise your right to breastfeed or express milk at work.

Pregnancy Discrimination Reviewing Lactation Legalities. If you are a mother returning to work after pregnancy and believe that your employer is failing to provide you with the breastfeeding protection you are owed under Federal and State law, please feel free to reach out to the employment lawyers at Carey & Associates, P.C. for help in this area, or for help with any other matters involving pregnancy discrimination in the workplace.

#metoo Sexual Harassment Laws Are Broken

 

 

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