Series of promotions dooms gay brewery employee’s sex discrimination claim

Midland Brewing Company hired Ryan Boshaw to work as a server. Over the span of nine months, it promoted him three times, to an hourly managerial position, to floor leader, and ultimately to front-of-house operations manager (the second highest ranking position in the business). 

Shortly after Boshaw's final promotion, however, Midland terminated him following a series of performance-related issues and concerns. The brewery had issue with how he handled an issue with customers who found hair in their food. He deviated from his job assignments and interfered with how others performed their jobs. He brough the wrong resume to an interview of a prospective employee. The final straw for the brewery was Boshaw missing a mandatory meeting after texting a co-worker that the meetings were "such a waste of time," and then being no-call/no-show for his shift that evening. The brewery fired him the next day because of his "absence and failure to notify management" in addition to "other issues."

Where's the claim that supports Boshaw's federal lawsuit? 

The customer isn’t always right, especially when the customer wants you to discriminate

"I'm afraid we can't hire you because you won't mix well with our customers."

That's what the EEOC alleges a northern Minnesota furniture retailer told a transgender job applicant. It's also the reason that company has agreed to pay a $60,000 settlement. "Title VII does not permit discriminatory employment decisions based on customer preference," says the EEOC.

Transgender bathroom access remains a solution in search of a problem

Yesterday, the Supreme Court declined to hear the appeal of a school district challenging the right of a transgender student to use the bathroom that corresponded to his gender identity, leaving in place the landmark 4th Circuit opinion holding that transgender bathroom restrictions constitute illegal sex discrimination.

This decision falls in line with the EEOC's recent statement on this issue for employers.

Explaining the EEOC’s brand-new LGBTQ+ resources in three words

Yesterday, Bostock v. Clayton County—the Supreme Court decision which held that Title VII expressly covers and protects gay and transgender employees—celebrated its one-year anniversary. 

To commemorate this event, the EEOC released new resources on the issues of sexual orientation and gender identity workplace rights. These materials include a new landing page that consolidates the EEOC's information on these issues and a new technical assistance document to help explain Bostock and the EEOC's positions on it.

As sure as I believe love is love, I'm sure every BigLaw firm will be publishing detailed summaries about this new technical assistance document. 

I can summarize it, however, in three short words.

Let's meet employees where they are on their pronouns

In Meriwether v. Hartop, the 6th Circuit recently decided that a state university cannot force a professor to use students' preferred gender pronouns, and permitted the prof to proceed with his lawsuit challenging the school's discipline for his misgendering.

Civil rights is not a pizza

Among the litany of executive orders President Biden issued in his first two days in office was one on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. It's a beautiful statement adopting as the policy of the federal government the Supreme Court's decision in Bostock that Title VII's definition of sex explicitly includes LGBTQ employees.

“Religious freedom” ≠ freedom to discriminate (but sometimes it must be accommodated anyway)

The EEOC has sued an Arkansas Kroger after it fired two of its employees for allegedly objecting to its new dress code that required employees to wear an apron that contained rainbow-colored heart insignia. 

According to the EEOC, the women believed the insignia endorsed LGBTQ values, which contradicted their personal religious beliefs. As an accommodation, one offered to cover the insignia and the other offered to wear a different apron without it. The EEOC says that Kroger refused their accommodation requests, disciplined them, and ultimately fired them.  

Ohio legislature refuses to move on LGBTQ employment protections despite strong state-wide, bipartisan support to the contrary

There is no law in the state of Ohio that prohibits employers from discriminating against employees based on their sexual orientation or gender identity.

The Ohio Fairness Act—otherwise known as House Bill 369 and Senate Bill 11—seeks to change this legal abomination.

Gay man claims he’s the victim of intentional discrimination because of his sexual orientation … and that’s the least of his employer’s problems

Wesley Wernecke, an ex-employee of New York event planning company Eventique, claims in his recently filed lawsuit that the company intentionally alienated him, ostracized him, and shut him out of the business after its CEO learned Wernecke was gay.

NBC News shares the details of the allegations in Wernecke’s lawsuit.

“Tone down your gayness” = $20 million

A jury has awarded a St. Louis County police officer nearly $20 million over allegations that his superiors repeatedly denied him a promotion because they thought him too gay.

According to The Washington Post, the sergeant had more than 15 year of experience when he applied for a promotion. “The command staff has a problem with your sexuality,” he was told. “If you ever want to see a white shirt [i.e., get a promotion], you should tone down your gayness”, which was “way too out there.” The St. Louis Post-Dispatch adds that a captain had also referred to the plaintiff as “fruity.”

This is what sex discrimination will look like if the Department of Justice gets its wish to legalize sex stereotyping

Last week the Department of Justice (on behalf of its client, the EEOC), filed a brief asking the Supreme Court to conclude that “sex stereotyping by itself is not a Title VII violation.”

What might this look like if the DOJ gets its wish?

Consider the following story (as told on Reddit).

The EEOC asks the Supreme Court to legalize sex discrimination

This fall, the Supreme Court will hear argument in three cases to decide whether Title VII’s coverage of sex discrimination also implicitly protects LGBTQ employees from discrimination. Last week, the EEOC filed its brief in the cases, making a startling argument in favor of legalizing not just LGBTQ discrimination, but all sex discrimination.

“Sex stereotyping by itself is not a Title VII violation”

Government sanctioned discrimination is abhorrent and we, as a nation, should be ashamed

Trigger warning: today’s post is not for everyone. If, however, you are offended by what I am about to say, then today’s post is specifically for you.

Yesterday, the Department of Labor’s Office of Federal Contract Compliance Programs, the federal agency that regulates and governs federal contractors and subcontractors, proposed regulations to clarify the scope and application of the religious exemption contained in section 204(c) of Executive Order 11246.

Supreme Court grants review in three cases to decide, once and for all, whether Title VII protects LGBTQ employees from discrimination

Yesterday, the Supreme Court agreed to hear appeals in three cases, to decide whether Title VII's prohibition against "sex discrimination" expressly includes prohibitions against LGBTQ discrimination.

Does Title VII protect heterosexuals from discrimination?

So meet, ROBERTa! Shopping in the women’s department for a swimsuit at the BR Target. For all of you people that say you don’t care what bathroom it’s using, you’re full of shit!! Let this try to walk in the women’s bathroom while my daughters are in there!! #hellwillfreezeoverfirst

Suppose you own a company, and one of your employees posts this rant on her personal Facebook page. Further suppose that in addition to owning the company, you are also a lesbian, and take offense to the employee's views. If you discipline the employee for her Facebook post, and later fire the employee after she complains about the discipline, can the employee sue for retaliation under Title VII? In other words, does Title VII protect heterosexuals from discrimination in reaction to anti-LGBTQ speech?

In O'Daniel v. Industrial Service Solutions, the 5th Circuit said no.

The case put the plaintiff, unabashedly and vocally anti-LGBTQ (as expressed in the at-issue Facebook post), in the position of arguing that Title VII protects against discrimination on the basis of sexual orientation.

The Court held that under its own precedent, O'Daniel could not move forward on her claim.

O'Daniel claims in essence that she was retaliated against because she "opposed" discrimination perpetrated against her on the basis of her heterosexual orientation.… Title VII in plain terms does not cover "sexual orientation." … Because the law in this circuit is clear, we cannot accept O'Daniel’s … suggestions that this panel either overrule the precedents or assume arguendo that the "trend" has upended them.

Thus, because the 5th Circuit does not recognize sexual orientation as class Title VII protects, and employee's complaints about her employer discriminating against her because she is heterosexual could not support a retaliation claim: "Title VII protects an employee only from retaliation for complaining about the types of discrimination it prohibits."

Two points to make about this opinion.

First, if Title VII equates LGBTQ discrimination to "sex" discrimination (as I, like many other courts and the EEOC, believe it does), then logic says that it must also protect heterosexuals from discrimination at the hands of the LGBTQ community because of their sexual orientation. Any other result is logically inconsistent.

Secondly, this employee was not fired because she complained about discrimination. She was fired because she exhibited extremely poor judgment through her Facebook rant. As the concurring opinion succinctly and correctly states: "Simply put, Title VII does not grant employees the right to make online rants about gender identity with impunity." If the employee ranted against interracial marriage, and the company's African-American owner fired her, would anyone think she has a valid claim? This case is no different. The law protects the employee from discrimination and retaliation, but it does not protect the employee's right to express bigoted views, on her personal Facebook page or otherwise.

* Photo by Jim Wilson on Unsplash

What's good for the goose? "Reverse" LGBTQ discrimination

If, like me, you believe that Title VII's definition of "sex" includes sexual orientation and gender identity, then what do you do with the claim of a heterosexual employee who claims discrimination because of her anti-LGBTQ views?

Job applicant told, "Your sexuality may be an issue with the atmosphere of the office environment."

I found the following story posted to the legaladvice subreddit. It's titled, "Turned down for a job, asked what the issues were. Told 'your sexuality may be an issue with the atmosphere of the office environment'."

Why the federal government's culture war against LGBTQ rights might not matter

You would do well to remember just how fluid is gender

"Second Wave Goodbye," War on Women

According to the New York Times, the Trump administration is poised to wage war on transgender rights.

The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth….

Cuyahoga County bans LGBTQ discrimination

Cuyahoga County, Ohio, my home county, has lately been on the receiving end of some bad press. Season 3 of Serial just landed on your podcast app of choice, and it does not portray my county's criminal justice system in the most positive of lights.

So, today, I thought I'd share something positive from Cuyahoga County.

Yesterday, the County Council passed legislation prohibiting LGBTQ discrimination in employment, as well as housing and public accommodations.

Keep an eye on this 8th Circuit LGBT-discrimiation case

The 8th Circuit Court of Appeals has been asked to decide if Title VII expressly protects gay, lesbian, and bisexual employees.

The case—Horton v. Midwest Geriatric Management—involves an individual who lost his conditional job offer after, he claims, the owners of the company discovered his sexual orientation.

The 8th Circuit will be the 5th federal circuit to rule on this issue.