Tag Archives: Title VII

Fast and Federal: How LGBT Nebraskans should sue for discrimination on the job

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In a somewhat surprising 6-3 decision, the United States Supreme Court held firing an employee because of sexual orientation or gender identity is illegal under federal law.

This meaningful decision was even more meaningful in Nebraska. Nebraska lacks state laws that prohibit workplace discrimination based on gender identity and sexual orientation.

So, how do gay, lesbian and transgender individuals seek justice for workplace discrimination in Nebraska?

180 days to file with EEOC

If you want to sue your employer for sexual orientation or gender identity discrimination in Nebraska, you should file a charge with the federal Equal Employment Opportunity Commission. The charge must be filed within 180 days of when you were fired or your employer took adverse action against you. This is the safest way to bring a case.

Filing a charge of discrimination against your employer is not the same as suing your employer. But under federal law, you should file a charge of discrimination before you can sue your employer. Federal law also requires you to file in federal court. You have 90 days from getting this written permission, called a right to sue, to file in federal court.

Nebraska law normally allows you 300 days to file a charge of discrimination. Charges filed within the 300 days under state law are normally timely under federal law as well. But since Nebraska doesn’t formally cover gender identity or sexual orientation, it is uncertain whether the Nebraska Equal Opportunity Commission (NEOC) would accept that charge. It is also uncertain or whether the EEOC would accept a charge filed after 180 days.

I believe any charge of discrimination based on gender identity or sexual discrimination filed after 180 days would be challenged. as untimely.

How you win your case

I’ve read a lot of misinformation on social media (no surprise) about how discrimination cases work. First, as Justice Gorsuch makes clear, gender identity or sexual orientation does not need to be the sole reason you were fired. Sexual orientation or gender identity just need to be part of the reason you were fired.

Second, the vast majority of discrimination cases are proved by circumstantial evidence. Just because your employer doesn’t tell you that you were being fired for being gay or transgender doesn’t mean you can’t win your case. In a related note, your employer making up a reason to fire you isn’t a defense either. In fact, this would help your case as making up a reason to fire someone as cover for a real reason is defined legally as pretext. Pretext is circumstantial evidence you were fired for an unlawful reason.

Finally, being fired for poor performance or breaking a rule at work may not be a defense to a discrimination case. If your employer tolerated the same misconduct by a similarly situated heterosexual or cisgendered co-worker, that would also prove discrimination.

After 180 days but before 300 days

Nebraska law does not require that you file a charge of discrimination with the NEOC to sue your employer for illegal discrimination.  But Nebraska has a 300 day statute of limitations on filing a civil suit against an employer for discrimination. In other words, under state law in Nebraska, you can circumvent the NEOC altogether.

But why would you file a state law claim when state law doesn’t expressly include gender identity and sexual orientation?

The answer is that courts in Nebraska tend to follow federal law in interpreting our state’s anti-discrimination laws. So, you could file a case within 300 days and still succeed under Nebraska state law. But there is no guarantee the Nebraska Supreme Court would follow the United States Supreme Court. Even if the Nebraska Supreme Court found in your favor, the employer would be almost certain to appeal. Appeals can be costly and time consuming. They can also delay resolution of a case.

Bad employees can win discrimination cases, but…

Finally any employee suing their employer for gender identity or sexual orientation discrimination under current Nebraska state law would be acting as a test case. In practical terms that means you need to have a very strong case. All three cases in the United States Supreme Court decision fit that description. Nebraska law doesn’t include an “so-so” or “mediocre” employee exception to our workplace discrimination laws. But in practical terms, a court may be tempted to dismiss a test case involving a sub-par employee.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Why civil rights laws tolerate racial discrimination in the workplace

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The murder by Minneapolis Police of George Floyd sparked clashes between protesters and police this weekend in Nebraska and nationally. Elected officials in Lincoln and Omaha imposed almost unprecedented curfews attempting to quell violence.

The protests focused some attention on the problems with civil rights laws in remedying police violence against people of color. But, civil rights laws are also flawed when it comes to discouraging discrimination on the job.

“But for” and “motivating factor”

An employee must show their employer used race as motivating factor to win a racial discrimination case under state or federal law. The law distinguishes “motivating factor” from the more permissive “contributing factor” standard. Legally an employer could get away with being sort of racist in making an employment decision, so long as they weren’t too racist.

The United States Supreme Court recently increased the quantum of legally tolerated racism towards African-Americans. In the Comcast decision, the Supreme Court held African-Americans must prove race was a “but for” factor to win under 42 USC 1981. Plaintiff’s face an even steeper burden of proof in proving a “but for” factor rather than a motivating factor.

42 USC 1981 outlaws racial discrimination in contracting – including employment. But Section 1981 does not require claimants to file an administrative charge and has a four year statute of limitations. Title VII has a 300 day statute of limitations and requires claimants to file a charge of discrimination with a civil rights agency. Weakening the substantive protections of 1981 undercuts the procedural advantages of bringing a 1981 claim.

Reasonable inference or speculation?

Civil rights laws still pack some punch in stopping racial discrimination at work. The law tolerates some level of racial discrimination in employment. But it is up to a jury to weigh how important racial discrimination was in an employment decision. That is an expensive and risky proposition for an employer. A judge shouldn’t dismiss a case on summary judgment, if an employee shows race was a contributing factor in their termination.

On summary judgment, judges are supposed to give employees the benefit of reasonable inferences. But what one person views as reasonable inference another might view as speculation. Speculation won’t beat a summary judgment motion.

Contributing factor causation would take the guesswork out of summary judgment motions in employment discrimination cases.  The increased likelihood of a jury verdict in a racial discrimination claim would force employers to increase vigilance in preventing racial discrimination in the workplace.

Implementing contributing factor causation in employment discrimination cases and abolishing qualified immunity in police brutality cases won’t make racism disappear. But those proposals are at least concrete measures that would lessen the effects of racism in this country.

I believe it’s important to state that appellate court judges have written these causation standards into civil rights laws. But what judges do, legislators can undo. I hope the undoing starts in Lincoln and Washington DC soon.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Will the employment at-will doctrine sink LGBTQ rights under Title VII?

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The Supreme Court will hear arguments Tueday about whether Title VII of the Civil Rights Act of 1964 expressly prohibits discrimination based on sexual orientation and gender identity. What you probably won’t hear about is the importance of the employment at-will doctrine in how the case is decided

The case for including sexual orientation within Title VII is based on the“sex plus” theory of discrimination which prohibits gender stereotyping. More broadly the equal protection arguments underlying the 2015 decision legalizing same-sex marriage would also support the inclusion of sexual orientation and gender identity within federal civil rights law.

In a brief the United States Department of Justice (DOJ) argued against expanding TItle VII protections to sexual orientation and gender identity based on a narrow reading of Title VII. Though the DOJ brief doesn’t mention the concept or doctrine of employment at-will expressly, its influence is felt strongly.

Employment at-will is judge-created or, according to an authoritative essay written by attorney Ronald B. Standler, a law professor-created doctrine created in the late 19th century. Employment at-will is a doctrine that holds an employer is free to fire an employee without cause at any time, for any reason without notice. On the flip side an employee is free to quit at any time. (Of course, employment at-will doesn’t stop employers from whining about employee ghosting. Employers also seek to enforce non-compete agreements against employees who quit)

One consequence of employment at-will, as pointed out on this blog, is that courts will narrowly interpret any exceptions to employment at-will doctrine.

Civil rights laws are exceptions to employment at-will. But opponents of expanding Title VII expressly to sexual orientation and gender identity are arguing to narrowly construe Title VII. The employment defense bar makes these types of arguments, often successfully, on a routine basis.

In a way the argument over whether to include sexual orientation and gender identity within Title VII is both groundbreaking and routine. I scratch my head when strong advocates of employment at-will  get apoplectic about the DOJ’s brief narrowly interpreting Title VII. All the DOJ is doing is narrowly interpreting an exception to employment at-will doctrine.

I also don’t understand the argument that laws prohibiting LGBTQ discrimination are economic development tools. I read an interesting article that could explain this idea.  The article was a critical exploration of the philosophy of Supreme Court Justice Clarence Thomas. Thomas, the second African-American Supreme Court justice has been critical of policies such as affirmative action. The article pointed out, somewhat sympathetically, that Thomas sees affirmative action as a matter of aesthetics among elites. In other words, the elite gets to chose what the elite looks like without having their power challenged. Inclusion is a form of marketing.

I think the idea of elite aesthetics explains how the professional-managerial class and their defenders can support LGBT rights in the workplace and employment at-will. Even if sexual orientation and gender identity are included within Title VII, those cases will still be difficult to win. Employers will still have what amounts to private sovereign immunity through exhaustion of remedies requirements. The National Labor Relations Board will still be making it harder for employees to form unions and not be subject to employment at-will.

But not all management-types are so willing to let their socially liberal instincts override their support of employer power in the workplace to create more exceptions to employment at-will. There are also many in the business community who don’t share socially liberal sentiments. I suspect this side may prevail in the argument over whether sexual orientation and gender identity are covered by Title VII.

Would it be logically inconsistent to allow same sex marriage but allow discrimination based on sexual orientation? Yes, but the importance of the employment at-will doctrine would at-least give that seeming inconsistency some logical explanation.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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What Both Sides Miss in the ‘Duck Dynasty’ Debate

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Duck DynastyComments made by “Duck Dynasty” star Phil Robertson, in an interview with GQ magazine, have set off a social media and cable news firestorm about the role of free speech in the employee-employer relationship. But neither side in the Duck Commander debate is telling the complete story. In short, while private employees do not have First Amendment protections in the workplace, Title VII provides some protections for religious belief and practice in the workplace.

Duck Commander detractors are correct to point out that the First Amendment does not apply to private employers* like A&E Networks and that employers are free to fire employees at will.* But what the largely urban, progressive and educated Duck Commander detractors largely fail to realize is that religion is a protected class under federal anti-discrimination law.

Conservative, evangelical Duck Commander supporters also fail to realize that federal anti-discrimination laws protect them as well. In the case of Ollis v. HearthStone Homes, an evangelical Christian successfully sued his employer for discrimination and retaliation for firing him in retaliation for failing to participate in “New Age” religious practices. The Ollis decision gives a good guide on what constitutes religious discrimination:

To establish a prima facie case of religious discrimination, a plaintiff must show he (1) has a bona fide religious belief that conflicts with an employment requirement, (2) informed the employer of such conflict, and (3) suffered an adverse employment action. If the plaintiff establishes these elements, the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. Thereafter, the burden shifts back to the plaintiff to show the reason offered by the employer is pretextual.

Assuming that Robertson was an employee, it might be difficult to argue that his religious beliefs conflicted with an employment requirement. Even if he could make that argument, his employer could argue that how he expressed his comments about gays could be legitimate reason for termination. Finally, regardless of Robertson’s comments about gays, his comments about race relations in the South could likely provide any employer with a legitimate reason for termination.

 

*Robertson is likely not an employee of A&E Networks and likely has an a contract with A&E so Title VII is probably not applicable in this case

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Offered Severance? Questions for Hurt Workers to Ask

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Getting hurt at work and getting fired are two of the most stressful occurrences for an employee. Oftentimes, these stressors are combined when an injured worker receives a severance agreement. This article provides five questions an injured worker who gets a severance agreement should ask:

  1. Does signing a severance agreement settle your workers’ compensation claim? Connecticut courts recently ruled that a severance agreement does not release a workers compensation claim. However, Florida courts have held the opposite. My state of Nebraska generally does not allow workers’ comp claims to be released in severance agreements. Consult with a lawyer in your state to get a good answer. Most lawyers who do workers’ compensation work on a contingent fee basis are generally happy to spend a reasonable amount of time answering questions from injured workers faced with a severance agreement. Don’t let fear of cost deter you from contacting a lawyer.
  2. What does your state’s workers’ compensation act cover? Some workers’ compensation statutes, like Ohio and Texas, also cover retaliatory discharge cases. My state of Nebraska makes wrongful discharge a separate civil claim. The consequence of that for injured workers in Nebraska and other states with so-called “common law” retaliatory discharge causes of action: a severance agreement would close out that case along with most other claims under fair employment statutes like the ADA, FMLA and Title VII. If you are in a state where retaliatory discharge is covered under your workers’ comp statute, then that case may not be released in a severance agreement in a comp claim if your state doesn’t allow comp claims to be settled in severance agreements.
  3. What are your chances for receiving unemployment benefits?  Finding out your chances of receiving unemployment is critical – again, especially if you are forced to choose between severance and workers’ compensation. The key questions to ask for eligibility for unemployment are 1) whether you earned enough wages to be covered 2) whether you quit without good cause or were fired for misconduct and 3) whether you are able and available for work. Of course, if you have an ongoing workers’ compensation claim, the fourth question is how receiving unemployment would affect your workers’ compensation claim. If you chose to negotiate your severance agreement, either by yourself or with a lawyer, try to include a provision where the employer chooses not to oppose your application for unemployment benefits.
  4. Do you get benefits like vacation pay, even if you don’t sign a severance agreement? In some states, including my state of Nebraska, an employee should receive vacation pay or paid time off regardless of whether they sign a severance agreement or not. Again, if you live in a state where an employer can release a workers’ compensation claim through a severance agreement, your eligibility for vacation pay along with unemployment benefits should help you decide whether it make sense for you economically to pursue your workers’ compensation claim if you have to pick between severance and workers’ compensation. This also holds true for severance agreements in general if you an employer is asking to you to release a strong fair-employment claim for a low-ball severance amount.
  5. Did you contact a lawyer who is knowledgeable about workers’ compensation? This is a critical period and critical especially if you live in a state where comp claims can be released by severance agreements. An experienced workers’ comp lawyer can value your comp claim. Some ways to evaluate whether a workers’ compensation lawyer is knowledge is to check whether they are a member of the Workers’ Injury Law & Advocacy Group (WILG). Another is to see if you can search them on your state’s workers’ compensation court website or through free legal research services like FindLaw and Google Scholar. A knowledgeable workers’ compensation lawyer in your state should also be able questions 1-4.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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