Lincoln voters will soon find out whether the Nebraska Family Alliance succeeded in forcing a city wide vote on striking sexual orientation and gender identity as protected classes within Lincoln’s municipal human rights ordinance. Their petition drive is in response to the Lincoln City Council finally voting to include sexual orientation and gender identity within the ordinance after first broaching the subject nearly a decade ago.

Supporters of the expanding Lincoln’s municipal human rights ordinance to include sexual orientation and gender identity describe the expansion as the fairness ordinance.

Arguments made by the organizers of petition to repeal the fairness ordinance are misguided. To be charitable, I assert that one contributing factor to the misapprehension is probably misunderstanding the substantive details of civil rights laws and how Lincoln enforces its human rights ordinance.

Here what I think are the misconceptions and misunderstandings about the expanded protection in Lincoln’s human rights ordinance when it comes to workplace law.

The new ordinance is a radical expansion of the law. Trump-appointee, Associate Justice Neal Gorsuch wrote the opinion in 2019 that held discrimination based on sexual orientation or gender identity constituted unlawful sex discrimination in the workplace. That ruling applies to employees with 15 or more employees. The expansion of Lincoln’s human rights ordinance now means the employers with between 4-14 employees can not discriminate on the basis of sexual orientation or gender identity.

The ordinance discriminates against Christians – Civil rights laws protect religious discrimination on the job. In fact, religious exemptions are one way employees can legally be exempted from vaccine mandates. Further, evangelical Christians have successfully sued non-Christian employers for religious discrimination.

The ordinance discriminates against conservatives – The 1^st Amendment doesn’t apply to private employers. Secondly, political ideology or belief isn’t a class protected by civil rights laws. So private employers have some ability to discriminate based on political belief in Nebraska.

The civil rights ordinance will be enforced by extra-legal means – The Lincoln Commission on Human Rights (LCHR) enforces Lincoln’s municipal ordinance on employment, housing and public accommodation.  Opponents of expanding anti-discrimination protections to the LGBT community portray the LCHR as some sort of over-woke star chamber looking to cancel conservatives and evangelical Christians for their beliefs. I served on the LCHR from March 2014 to December 2020. I can tell you that isn’t true.

According to the last annual report from the LCHR, the LCHR only found reasonable cause of discrimination in 3 of 44 cases in the last year. A reasonable cause finding doesn’t mean monetary penalties either. In order for that to happen, there is either needs to be a public hearing which amounts to a trial or a claimant can go to court.

I can tell you from personal experience that civil courts give little to no deference about what an agency like the LCHR or its commissioners believe about a case.  But even if parties go through the public hearing process, appellate courts can and sometimes do overturn decisions made by the LCHR.

In fact, the only way employees can sue their employer for discrimination if they work for an employee of 4-14 employees is to file with the LCHR. If they don’t file within 180 days, the employee can’t bring a claim. I believe these requirements to file administrative charges before suing actually protects employers.

However arguments made by opponents of legal protection of expanding civil rights based on gender identity under city law have some a sympathetic ear with an important audience – at least two current United States Supreme Court justices.

Why courts may agree with critics of Lincoln’s amended human rights ordinance

At least two Supreme Court justices, Neil Gorsuch and Clarence Thomas, believe that ordinances that prohibit public accommodation discrimination based on sexual orientation violate freedom of religion.  

In that case, Masterpiece Cake Shop v. Colorado Commission on Human Rights, a majority of the court overturned a finding against a business that refused to decorate a cake for a gay wedding because of comments made by state human right’s commissioners during proceedings to sanction Masterpiece.

I know when I served on the LCHR, commission staff used Masterpiece to cautions commissioners about how commissioners discussed cases during reasonable cause determinations. But I believe Masterpiece and its aftermath just re-enforces how courts freely disregard and second guess determinations made by human rights agencies such as the Lincoln Commission on Human Rights.

Also critics of civil rights laws have long argued that these laws violate the first amendment. Further religious employers have fairly broad protections against civil rights laws even in classes that wouldn’t directly seem to implicate religious practices such as disability discrimination.

Super Bowl Monday should be a national holiday.

At least one company, Heinz, gives their employees Super Bowl Monday or “Smunday” as a paid holiday.

I found out about “Smunday” when I was writing a blog post in 2017 about an eclipse that became a de facto holiday in Nebraska. The thesis of my post was that the eclipse was a way for hard-working Americans to take some time off work.

That post cited studies showing Americans worked the most hours of any industrialized country. Americans even worked about two weeks a year longer than the Japanese who coined a word, “karoshi” which means death by overwork.

The link to the study I cited in the post disappeared but I found more studies that confirm how Americans work much longer hours than citizens in other wealthy democracies. But not only do Americans work longer hours they work without guaranteed paid leave and with less job security under the employment at-will doctrine.

So yeah, Super Bowl Monday as a paid national holiday is the least we could do. Next month there will be stories about how the NCAA Men’s Basketball tournament costs business billions in “productivity.” Why not make March Madness a holiday too? Even if we did that, the average American would still work an average of 45-50 hours longer than their Japanese counterpart.

The so-called Great Resignation shows that many workers are fed up with their jobs. Lincoln Public Schools gave teachers Fridays off in January in part to give teachers and school staff a mental health break due to the stress of teaching during the pandemic. Time off is good for worker and physical health.

Nebraska has the second highest labor force participation rate in the country. This is a hard-working state, but even in Nebraska events like the state high school basketball tournaments in March and the College World Series in June become de facto holidays. People need a break. Super Bowl Monday as a paid holiday is the least we can do.

Supreme Court Chief Justice John Roberts described judging as calling “balls and strikes”. Last week we may have seen how one potential replacement for Associate Justice Stephen Breyer sees the strike zone on labor and employment law issues.

Last week, District of Columbia Court of Appeals Circuit Court Judge Ketanji Brown Jackson struck down the application of a management friendly “substantial impact” standard for a more employee-friendly “de minimus” standard when it came to the obligation of the federal government to bargain with employee unions over changes to working conditions.

Technically, the decision turned on the Federal Labor Relations Authority acting in an arbitrary and capricious manner in changing from the de minimus to the substantial impact standard. But in a bigger sense, the case reflects broader themes in employment law: what harms to employees done by employers can be legally actionable?

Wage and hour law: Is $125 per year “de minimus”?

The de minimus language in the federal labor case reminded me of a post I wrote in October about a wage and hour case involving Nelnet call center employees in Nebraska. The 10^th Circuit Court of Appeals reversed a District Court decision finding wage loss of $125 per year due to unpaid time booting up computer and phone systems was “de minimus” and not covered by the federal Fair Labor Standards Act.

One assumption of civil litigation is that if a party doesn’t suffer economic harm, then they don’t suffer harm period. However that is not the case, at least according to black letter law.

Title VII and adverse action

In order for an employee to bring a discrimination claim an employee needs to show that an adverse action was taken by their employee. Here the standard is it doesn’t necessarily have to hit an employee in the pocket book,  but it has to do more than merely make them angry. In the context of retaliation case, the retaliation has to be sufficient that it would deter a reasonable person from taking the same so-called protected activity.

Broken windows employment law?

Employment law allows employees to bring cases for small and non-existent financial damages. That’s one reason why civil rights and wage and hour laws award attorney fees to prevailing parties. Another reason supporting employees bringing suits for small and non-existent money damages is similar to the broken windows theory of policing made popular in the 1990s. Under the broken windows theory, cracking down on minor crimes deterred more major crimes. The same logic should apply when it comes to civil litigation.

But the judiciary is reluctant to bring that philosophy to employment law. The reason is the employment at-will doctrine which was created by judges in the late 19^th century and has the force of law in every state except Montana. The influence of the employment-at will doctrine can influence the judiciary to overlook what they perceive to be minor harms to employees even if they are motivated by unlawful purposes.