Equal in love, but not yet equal at work—the next frontier of LGBT rights

Friday was certainly exciting. SCOTUS surprised everyone by releasing Obergefell v. Hodges [pdf] a day earlier than expected.

In case you missed it, in a 5-4 opinion authored by swing-vote Justice Kennedy, SCOTUS held that gay marriage as a nation-wide fundamental right:

The Court now holds that same-sex couples may exercise the fundamental right to marry…. State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

What is getting all the press, however, is the beautifully poetic closing paragraph of Justice Kennedy:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

What is next for LGBT rights? The right to be free from employment discrimination.

Shortly after Obergefell’s publication, Wonkblog published a stirring post calling for the end of all workplace discrimination against LGBT individuals. In that post, Wonkblog was kind enough to share this map (created by the Human Rights Campaign) of the current state of LGBT workplace-discrimination laws:

 

Where are we on this issue?

• 21 states and the District of Columbia ban workplace discrimination on the basis of sexual orientation.
• 18 of those states also ban workplace discrimination on the basis of gender identity.
• Per Executive Orders, the federal government, along with its contractors and subcontractors, are also prohibited from discriminating against their employees on the basis of sexual orientation and gender identity.
• 89 percent of the Fortune 500 include sexual orientation in their non-discrimination policies.

We have come a long way in just the past few years. Indeed, I believe that a majority of Americans now support the extension of all civil rights to the LGBT community. Yet, Congress has consistently failed to act on the Employment Nondiscrimination Act, which would extend Title VII’s coverage to sexual orientation and gender identity. SCOTUS’s ruling in Obergefell is a huge step in the right direction. Let’s hope it is a step that will lead Congress to passing the ENDA sooner rather than later.

My appearance on Stossel, now live on the Internet.

Special bonus on this fine summer Friday. If you missed my appearance on Stossel two weeks ago, Fox Business has posted the episode on its website.


You can watch it here. My segment starts at 18:39.

WIRTW #372 (the “bad work day” edition)

Next time you think you had a bad day at work, remember, at least you weren’t hit with an axe.

From Mediate:

During last Sunday’s broadcast of Fox & Friends, co-host Pete Hegseth tossed an axe to tease an upcoming segment on timbersports, missed the target, and hit a marching band percussionist standing in the distance.

Let’s go the replay:

Here’s the rest of what I read this week:

Discrimination

• Can Employee Display a Confederate Flag on Facebook as Free Speech? Or Can Employer Take Action? — via Dan Schwartz’s Connecticut Employment Law Blog
• A look at what has and hasn’t changed since the civil rights era — via Wonkblog
• The N-Word at Work: Jury Trial Edition — via Workplace Prof Blog
• Does a Supervisor’s Use of the Words “Historically” and “Old School” Prove Age Discrimination? — via Minnesota Employer
• Current User of Illegal Drugs Does Not Mean Actual Use When It Comes to a Recovering Addict — via Understanding the Americans with Disabilities Act
• What Managers Can Learn From Nasty Gal’s Pregnancy Discrimination Lawsuit — via Fast Company
• Tattoo-ism: Where Body Art Meets Employment Discrimination — via The Labor Dish
• Harassment “must-have” no. 5: No retaliation! — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• At the Office, Millennials Are the Boss When It Comes to Technology — via The Wall Street Journal
• Fired Millennials Most Likely To Vent Over Social Media — via Workplace Diva
• Mobile’s Role in Your Digital Workplace Strategy — via Forbes
• Unsecured Networks More Susceptible to Data Theft — via Trading Secrets
• The Next World War Will Be A Cyberwar — via Ride The Lightning
• Next Up: A Home Depot Data Breach-Related D&O Lawsuit? — via The D & O Diary
• Gone, But Not Forgotten - A Deactivated Facebook Account Can Be Discoverable — via The National Law Review
• The Guide to Social Media and Securities Law — via Socially Aware Blog
• Why Fitbit Doesn’t Do a Damn Thing For Wellness — via The HR Capitalist, Kris Dunn
• The “E” in E-Mail stands for Exhibit. As in Exhibit A. — via Eric Meyer’s The Employer Handbook Blog

HR & Employee Relations

• Why Employee Handbooks Matter — via ERC Insights Blog
• Why It’s Time to Turn the Workplace Inside Out — via Huffington Post
• When Millennials Rule The World Of Law — via Above the Law
• 10 Reasons You Should Absolutely Not Work This Weekend — via Evil HR Lady, Suzanne Lucas
• Online Application Systems Open a New Front in FCRA Class Actions — via Laconic Law Blog
• My Employee Came To Work Drunk — via Evil Skippy at Work
• When stupid HR results in new laws — via Mike Haberman’s Omega HR Solutions
• Non-Compete Legislation – The Jimmy John’s Backlash — via Smooth Transitions
• Corporate Divorce: Treat Your Employment Contract Like a Prenup — via Employment Matters Blog

Wage & Hour

• 3d Cir. on FMLA “Negative Certifications” and Right to Cure — via Phil Miles’s Lawffice Space
• After FMLA leave, watch timing of firing — via Business Management Daily
• Fourth Circuit Denies School Principal’s FMLA Retaliation Claim — via The Employment Brief
• Employee Benefits: New Momentum on Paid Leave, in Business and Politics — via The Upshot

Labor Relations

• Franchises fear “devastating” change to their business model — via Walter Olson’s Overlawyered
• Data Breach Leads to NLRB Filing Complaints — via Matt Austin Labor Law
• House, Senate Propose NLRB Budget Cuts and Policy Limitations — via Labor Relations Today
• NLRB: Decertification petition shouldn’t be processed — via Labor Relations Institute
• NLRB Declares “Conflict-of-Interest” Policy to be Unlawful on Its Face — via Ohio HR Law
• New union election rules yield much quicker elections — via EmployerLINC

A lesson in how NOT to respond to a harassment complaint

Diana Retuerto worked in the office of Berea Moving & Storage. She claimed that the company’s owner, Willard Melton, made “verbal advances” towards her, including comments about dreams he was having about her, her physical appearance, and questions about her makeup and hair. Over time, these advances escalated to professions of love, statements about his constant need for sex, and whispers in her ear that he could not stop thinking about her. He also allegedly would rub up against her and crawl under her desk. After Retuerto reached her limit, she quit and sued for sexual harassment.

In Retuerto v. Berea Moving & Storage, the Ohio appellate court had little trouble concluding that the trial court overstepped by dismissing Retuerto’s sexual harassment claim. Of particular note is the court’s comments about the company’s lack of prompt corrective action after it learned of the harassment.

At the time Retuerto reported Melton’s behavior to her supervisor [Hawthorn] in 2010, Retuerto had not yet received an employee handbook or attended sexual harassment training. After her initial complaint to Hawthorn, Hawthorn spoke to Melton and Melton apologized to Retuerto. There is no evidence that any disciplinary action was taken against Melton. After Retuerto made additional claims in 2012, there is no evidence that Berea Moving conducted an investigation into the matter or took any disciplinary action against Melton.… 

Retuerto also averred that Hawthorn had knowledge of Melton’s ongoing behavior. Hawthorn observed and heard some of Melton’s behavior and told Retuerto that Melton was going through a “mid-life crisis.”

Obviously, condoning acts of sexual harassment as a “mid-life crisis” is a horrible idea. So, that’s what you shouldn’t do in response to a harassment complaint. What should you do?

1. Be prompt. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct and stop from happening again.
2. Be thorough. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. The more egregious allegations, however, the more comprehensive of an investigation is called for.
3. Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
4. Communicate. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
5. Follow through. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear, for example. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through. 

And, please, please, please, make sure that your employee handbooks have an anti-harassment policy, and that you are training your employees on it. 

Yes, GINA covers cheek swabs, even ones to uncover employee misconduct

I’ve always said that employment law is a dirty job, and this case more than proves my point.

Atlas Logistics Group, a Georgia food-storage company, had a big problem. One of its employees began habitually defecating in its warehouse. (In case you’re curious, the scientific name for this disorder is voluntary encopresis, one who has control over when and where bowel movements occur and chooses to have them in inappropriate places.)

To solve its mystery, Atlas required its employees to submit to a cheek swab, after which a lab compared DNA samples from the employees’ swabs to DNA from the offending fecal matter. Two employees, Jack Lowe and Dennis Reynolds, whose DNA did not match, filed suit under the Genetic Information Nondiscrimination Act.

Last month, a federal court granted summary judgment in favor of the employees, concluding that 1) GINA unequivocally covers the DNA tests conducted on their cheek-swab samples, and 2) the employer violated the statute by requesting and collecting the employees’ genetic information.

With liability already established, earlier this month, the parties tried the employees’ damages claims. And, the jury came back with a big number — $2,225,000 — including $225,000 and $250,000 in compensatory damages for the two plaintiffs, and $1,750,000 in punitive damages.

To me, this employer’s actions are not all that outrageous or inappropriate. It asked employees who were in the area of the found feces to submit to swabs of their cheeks. It neither asked for stool samples or for them to bend over and cough. Could the employer have taken a less intrusive measure, like installing hidden cameras? Sure. But, it did what it thought was reasonable under the circumstances to catch its predator. Unfortunately, however, a DNA test is still a DNA test, which runs afoul of GINA.

While I’m not offended by these tests, the jury clearly was. Over $200,000 per employee in compensatory damages? For a q-tip in the mouth? And $1.75 million in punitive damages? Why was this jury so outraged? Because their sense of privacy was offended. While social media seems to be eroding the innate nature of what “privacy” means, this verdict tells us that medical and genetic information are different.

So, employers, tread lightly when dealing with your employees’ genetic information. One case does not make a trend, but $2,225,000 (albeit one that should be reduced to $600,000 per the civil-rights law’s damage caps) in enough to make any employer stand up and take notice that genetic information discrimination is here to stay.

Just because lone acts of harassment aren’t always actionable doesn’t mean you should ignore them

By now, you’ve likely heard of the furor over the Confederate flag following the horrific church massacre in Charleston, South Carolina. You haven’t? Well, watch this, from Last Week Tonight with John Oliver, and then let’s talk.

What are you to do if you have employees who like to display the Confederate flag at your workplace (think belt buckles, or do-rags, or maybe even small flags, or pictures thereof, in offices or cubicles)? Do you: a) permit it because solitary acts of harassment that are overtly severe or offensive likely are not actionable under Title VII; or b) prohibit it because it might make your African-American employees uncomfortable, or worse, offend them (heck, even South Carolina and Wal-Mart have relented on the issue)?
If we’re talking about a Confederate flag (or flags) as part of a deeper pattern of harassment, which includes other, more overt, acts, like nooses, monkeys, and racist language (like in this case), then it’s a no-brainer. You investigate, fire the offending employee(s), and institute some serious, heavy duty anti-harassment training. If you think you should do anything else, we need to have a serious talk.
But, if we’re talking just about a Confederate flag, without anything more, what are you to do? Ban, or not ban? 
I’m not suggesting you need a “no Confederate flag” policy, but, if you see, or learn of, an employee displaying this charged symbol, I suggest that you require its removal. You would not permit an employee to display a Nazi flag because of its very clear anti-Jewish meaning. For many African-Americans, the Confederate flag holds the same meaning. So, because you want a harmonious and inclusive workplace, you do the right thing, even if doing the wrong thing may not necessarily be illegal.

What’s next for Uber after independent-contractor loss?

In March, I reported on a lawsuit filed against Uber by a class of its drivers claiming that the taxi company mis-classified them as independent contractors. Apparently, that is not the only claim pending against Uber on this very issue. Earlier this month, a California Labor Commission hearing officer concluded that Uber had mis-classified one of its drivers. Uber has appealed the ruling. Frankly, I think Uber has a pretty good argument on appeal.

Here’s the full decision [pdf].

 
The hearing officer relied on the following factors to conclude that Uber’s drivers are employees, not independent contractors (with my critique in the parenthetical).

• Drivers must provide Uber their personal address, banking information, and social security number. (Doesn’t a company want contact info for anyone providing services for it, and doesn’t it need other information so it can pay its contractors?)
• Drivers cannot drive for Uber without a background check. (If a background check is the standard for an employee, then we might as well get rid of independent contractors all together.)
• Drivers must register their cars with Uber, which cannot be more than 10 years old (Cannot a company set reasonable standards for its contractors?)
• Uber monitors drivers’ ratings from passengers, and terminates the relationship if the rating falls below 4.6. (Contractors are not guaranteed contracts for life; if a contractor falls below certain standards, a company always has the right to terminate the relationship.)
• Uber requires drivers to use its app to drive, and they cannot drive without using it. (How is this different than a taxi company tracking its drivers via GPS and directing routes; if anything, Uber drivers have more independence because they can turn down the fare at any time.)
• Drivers are paid a set percentage of the total cost of each ride. (Isn’t this the hallmark of an independent contractor—pay by the job, not by the hour?)

Last week, I called for a “duck” test for independent contractors. Dear readers, Uber drivers absolutely look, swim, and quack like independent contractors. They control when and where they work; they are paid by the ride; they drive their own cars and are responsible for their own expenses; Uber does not supervise the drivers, but merely holds them to reasonable performance standards. If Uber’s drivers are employees, then what is left for independent contractors? Or, is this the beginning of the end of the ability of companies to use the services of contractors?