Of Ducks and Men - Duck Dynasty and the Misunderstanding of Religious Discrimination and First Amendment Rights in the Workplace

Duck.jpgA&E recently suspended Duck Dynasty's Phil Robertson "indefinitely" for comments he made in a GQ interview regarding his views on homosexuality and race relations. 

This suspension and those comments have erupted into a cultural firestorm. The bulk of that discussion, however, is based on incorrect assumptions that have began to masquerade as legitimate claims about the First Amendment and Religious freedoms in the workplace.  

Duck Dynasty - Singing the Blues about Race and Gays  

Mr. Robertson offered a range of comments in his GQ interview. On the subject of race, he said, "I tell you what ... Pre-entitlement, pre-welfare, you say: Were they [blacks] happy? They were godly; they were happy; no one was singing the blues.”

 As to homosexuality, Mr. Robertson offered the following:

Everything is blurred on what’s right and what’s wrong. Sin becomes fine."

Question: What, in your mind, is sinful?

Robertson: “Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men."

Mr. Robertson also went on to articulate his (blunt) belief that homosexuality comes down to a choice of desirable preference:

It seems like, to me, a vagina — as a man — would be more desirable than a man’s anus. That’s just me ... I mean, come on, dudes! You know what I’m saying? But hey, sin. It’s not logical, my man. It’s just not logical.

In response to Mr. Robertson's suspension, politicians and special interests groups on both ends of the spectrum wasted no time in using it to push their respective agendas or to try and retain some degree of relevance. A GOP congressional candidate, Ian Bayne, went so far as to comparing Mr. Robertson to civil rights icon Rosa Parks and that these remarks should be protected against employer action.

Sadly, exploiting these sorts of matters is to be expected. But at a minimum, the discussion should at the very least use the correct factual and legal discussion about First Amendment and religious rights when it comes to private sector employees and their employers.    

First Amendment and the Private Sector Workplace

The first point that people need to understand is that First Amendment speech protections typically do not apply to private employers. Public employment, i.e., governmental jobs, is different in that there are generally First Amendment limitations on the extent to which public employers may regulate or prohibit employees’ speech. In fact, Michigan maintains a free speech statute for public employees.  

Mr. Robertson, like any other private sector employee, simply does not have First Amendment protections under these circumstances. 

Protections Against Religious Discrimination 

Mr. Robertson, like other employees does have protections against religious discrimination. Religious discrimination is actionable under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) and its federal counterpart Title VII.

Religious discrimination cases usually involve (i) disparate treatment; or (ii) an employer’s failure to reasonably accommodate the employee’s religious beliefs. But neither of these issues appears to be in play with respect to Mr. Robertson's situation

Mr. Robertson - A victim of Religious Discrimination - Not Likely. 

So does Mr. Robertson have a claim for religious discrimination? Probably not.

Mr. Robertson arguably made his anti-gay comments in the context of discussing his religious beliefs. But it does not appear that A&E took adverse action against him because of his religious views. Instead, A&E's decision seems to relate to the inflammatory anti-gay nature of the comments. In fact, it takes very little imagination to assume that if a Muslim, someone of the Jewish faith, or an atheist employed by A&E said equally offensive remarks about gays or any other group that the company would have taken similar action.  

It is also very likely that A&E's decision to suspend Mr. Robertson would be bolstered by a common contract provision often referred to as a "morals clause." Generally, morals clauses provide that if the employee acts or speaks in a manner that is insulting or disrespectful towards a religion, group, or person the employer reserves the right to suspend or terminate that employee. Further, employers with such clauses often reserve broad discretion to determining what speech or conduct violates the clause. 

And Mr. Robertson could have easily declined to agree to such a clause. However, it is easy to understand why he would not have; He and his family receive $200,000 per episode of Duck Dynasty. Whether you agree or disagree   

Closing Thoughts

I don't watch Duck Dynasty. I tried one time, but I couldn't make it to the next commercial. It just didn't appeal to me. In contrast, Duck Dynasty's millions of viewers must find the show entertaining or worthwhile. To each their own. That is should be one of the wonderful cornerstones of the U.S.  

I don't agree with Mr. Robertson's comments about homosexuals or his reinterpretation of the black experience prior to the civil rights movement. Again, a significant amount of the population believe homosexuality is inconsistent with their religious views and hopefully even less share his fond memories of the pre-civil rights era.

But when it comes to Mr. Robertson's suspension from his private sector employment, my preferences or views and those conflicting preferences or views really do not matter: There is no First Amendment protections when it comes to private sector employment and by all accounts the suspension was not based on religious discrimination and is probably consistent with Mr. Robertson's contract - a contract that has generously compensated Mr. Robertson.  

As an aside, a certain "Person of the Year" for 2013 who may not know much about duck calls but presumably knows a thing or two about religion was asked about homosexuals. He responded, “who am I to judge a gay person." Perhaps instead of judging Mr. Robertson or A&E or pushing a particular agenda, more attention should be given to this question. If not, at the very least, a proper understanding of the correct legal principles should be used in judging the situation in order to have a more meaningful discussion about the rights employees and employers have when it comes to First Amendment and religious issues in the workplace.     

For more information about this blog post or religious discrimination legal issues under federal or Michigan employment laws, contact attorney Jason Shinn. Since 2001, he has worked with employers and employees to address a full range of federal and Michigan employment legal issues.

The Cost of Workplace Bullying: Legal Risks and Workplace Disruption

Pig of a Businessman.jpgWorkplace bullying was front and center this week as the Miami Dolphins organization scrambled to address reports that its starting offensive tackle Jonathan Martin left the team indefinitely because of bullying from teammates.

ESPN reported that this bullying included Mr. Martin's teammate, Richie Incognito, leaving Martin the following (disturbing) voicemail after Mr. Martin was drafted by the Dolphins:

Hey, wassup, you half n----- piece of s---. I saw you on Twitter, you been training 10 weeks. [I want to] s--- in your f---ing mouth. [I'm going to] slap your f---ing mouth. [I'm going to] slap your real mother across the face [laughter]. F--- you, you're still a rookie. I'll kill you.

ESPN initially reported that Mr. Martin did not file a formal complaint against Mr. Incognito or the Miami Dolphins. However, NFL.com reported that the Dolphins were apparently aware of Mr. Martin's situation since the spring. Mr. Martin has since filed a formal complaint that is being reviewed by the NFL and Mr. Incognito has also been suspended.  

Workplace Bullying and Legal Risks

Certainly Mr. Martin's situation is an unfortunate and illustrates the acidic environment that is created by workplace bullying. Such mistreatment can range from verbal abuse, intimidation, humiliation, or outright sabotage. And an employee on the receiving end of such bullying may suffer a loss of self-esteem, long-term physical or mental health issues, and a loss of productivity.

But while workplace bullying is unfortunate, employment attorneys, including me, generally focus on eliminating or reducing workplace bullying mostly because of the threat of litigation that employers face - not to right every workplace wrong. Building on this point, the reality is that federal and Michigan employment law is not perfect and is certainly not intended to promote a utopian workplace. And not every instance of workplace bullying or mistreatment will be unlawful under federal or employment law. 

Workplace Bullying and Workplace Disruption

Even so, the reality for employers is they simply cannot afford to ignore the high cost of bullying. And it has a real and substantial cost to employers. Consider the following: 

  • Employees that experience workplace bullying often take time off to cope with the behavior. Case in point, Mr. Martin opted to not play against the Cincinnati Bengals last week and has left the team indefinitely. Prior to this incident, Mr. Martin had started all 21 games of his NFL career. 
  • The costs associated with disability leaves and absenteeism can be substantial and goes straight to the employer's bottom line. Returning to Mr. Martin, according to Spotrac, he signed a 4-year contract upon entering the league in 2012 worth $4.8 million with $2.9 million guaranteed. Mr. Martin was to be paid for the remainder of the 2013 NFL season $607,466. If Mr. Martin never returns to Miami and even if Miami is only out the guaranteed portion of this contract this is obviously a substantial financial investment lost on the part of the Dolphins organization because of workplace bullying. But it is far from clear, however, that Miami - under the circumstances - would limit its financial loss to the guaranteed portion of Mr. Martin's contract.    
  • On top of the salary issues, the Miami Dolphins will have to expend time and money on managing the public relations aspect of this situation. 
  • In addition to quantifiable monetary losses, Miami Dolphins, like any employer, compete for talent. And organizations that become known for having a bullying culture or are indifferent to such a culture should expect to be at a disadvantage in terms of recruiting and retaining that talent.

Workplace Bullying and Workplace Recommendations

For business owners, before losing a good worker or having the workplace environment deteriorate into an acidic one, it makes sense to include bullying - even conduct that may not be unlawful discrimination - into the standard human resource reporting and investigation procedure, along with conduct that may amount to unlawful discrimination. Setting aside the positive benefits of maintaining a bully-free workplace, it is unrealistic to assume that bullying or similar mistreatment will not cross over to unlawful workplace harassment.  

Additionally, management should be educated about being aware to proactively being on the lookout for inappropriate workplace misconduct. This is especially true as the Jonathon Martin case illustrates because not every employee will come forward to report workplace bullying. And while failing to take advantage of an employer's anti-harassment policies certainly provide legal defenses, employers still must deal with the internal disruption caused by such conduct, whether reported or not. Just ask the Miami Dolphins. 

For more information about the legal issues relating to workplace harassment, investigating workplace misconduct, or drafting anti-harassment policies and employee manuals, contact Jason Shinn. Mr. Shinn is a Michigan employment attorney. He routinely provides employment law counseling to companies and represents them and individuals in employment discrimination claims filed in federal and Michigan courts.  

EEOC Smacked Down in Rare Employer Win in Defending Claim of Unlawful Discrimination

Knockout.jpegThe Equal Employment Opportunity Commission (EEOC) was recently smacked down by the Sixth Circuit Court of Appeals in EEOC v Peoplemark, Inc. In that appeal, the Court agreed with a decision from the federal district court out of Western Michigan that awarded an employer its attorney's fees and expert fees in defending against a discrimination claim brought by the EEOC. The amount awarded to the employer totaled $751,942.48.

This case arose out of Peoplemark's employment application, which asked applicants whether they have a felony record. Peoplemark also conducted an independent investigation into the criminal records of all applicants.

The reason Peoplemark's policy was an issue is because the EEOC has taken the position that a blanket policy of using criminal history, including convictions for denying applicants employment may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964. This is a policy that has had "teeth" in the past as this blog previously reported that in 2012 Pepsi reached a $3.13 million settlement with the EEOC in relation to its use of pre-employment criminal background checks.  

Returning to the Peoplemark case, in 2005 a female African-American with a felony conviction submitted an application to Peoplemark’s Grand Rapids office. Peoplemark did not refer the job applicant for employment and because of this refusal, the applicant filed a charge of discrimination with the EEOC. The applicant alleged that Peoplemark denied her application because of her race and felony record.

It was interesting and for reasons not disclosed in the Court's opinion, early in the EEOC's investigation a person having the title of Vice President and Associate General Counsel for Peoplemark represented to the EEOC that Peoplemark had a companywide policy of rejecting felon applicants. However, Peoplemark later denied that such a policy existed and produced information from a database and other documentary evidence showing that it had referred felons to job opportunities in the past.

In light of this evidence, the trial court determined that the statements of the employer's vice president and general counsel were not supported by the facts. And in light of the facts and documents produced, the EEOC should have reassessed its claim: "From that point forward, it was unreasonable to continue to litigate [plaintiff's] pleaded claim because the claim was based on a companywide policy that did not exist." 

Take-Aways for Employers

I've never agreed with this particular EEOC initiative and it was good to see a court thoughtfully address the EEOC's  pursuit of this policy under the circumstances presented. But two issues should stand out for employers:

  • First, while under 42 U.S.C. § 2000e-5(k), a court may award the prevailing party in a Title VII action “a reasonable attorney’s fee (including expert fees)" such awards are generally not routine and certainly not in the amount in question. Accordingly employers should not expect to be so fortunate (if being sued could ever be considered "fortunate") if their hiring practices involve blanket policies against hiring felons. Follow this link for more information about using criminal background checks in your employee application process. 
  • Second, Peoplemark handled the EEOC investigation internally. And during the investigation, Peoplemark initially advised the EEOC that it had a companywide policy of rejecting applicants with felonies. This representation came from Peoplemark's vice-president. But after the EEOC filed suit, the company denied that representation. This should be a wake-up call for organizations and their management to make certain they understand the inner workings of the business organization before communicating with outside governmental agencies. Such communications should, at a minimum, first be screened by in-house counsel before being provided outside of the organization. Ideally, however, the organization should consider bringing in an experienced employment attorney who is well-versed with the nuances of federal or Michigan employment law.       

Also, for an insightful perspective on the shortcomings with the EEOC's policy initiatives regarding criminal background investigations in employment decisions and what Congress should do about it, see Jon Hyman's The High Price of EEOC Background Check Litigation

For more information about responding to an Equal Employment Opportunity investigation or charge of discrimination, contact Jason Shinn. Mr. Shinn works with business owners and companies to comply with federal and Michigan employment laws and, if necessary, represent those clients in employment discrimination and related lawsuits in state and federal court. 

Sexual Orientation Discrimination and Michigan Law - Is it a Time for a Change?

Rainbow Flag.jpgSexual orientation discrimination can be described as being treated differently or harassed because of a person's actual or perceived sexual orientation, which includes gay, lesbian, bisexual, or heterosexual orientation.

Unlike federal laws that protect people from workplace discrimination on the basis of race, national origin, religion, sex, age, and disability, there is no federal law that specifically prohibits workplace discrimination on the basis of sexual orientation.

Instead, in 1998, the United States Supreme Court confirmed that the main federal anti-discrimination law (Title VII, 42 U.S.C. § 2000e et seq.) that prohibits sex discrimination also extended to same-sex harassment. Prior to this ruling federal courts were sharply divided on this issue and under what circumstances, sexual harassment of an employee by a supervisor or colleague of the same sex as the employee was actionable under the Title VII. But even with this extension, discrimination based on one's sexual orientation is not prohibited - only discrimination based on sex.

Examples of situations that can establish a hostile-work-environment claim based on same gender harassment include where the harasser making the sexual advances is acting out of sexual desire, where the harasser is motivated by a general hostility to the presence of men or women in the workplace, or where there is comparative evidence regarding how the harasser treated members of both sexes in a mixed-sex workplace. Each of these examples is a mechanism for ascertaining an intent to discriminate based upon sex. 

If same-sex harassment "because of sex" sounds confusing, you're not alone. Court's continue to struggle to apply the current law to same-sex harassment claims. A prime example of this struggle is the recent en banc decision of the Fifth Circuit Court of Appeals in EEOC v. Boh Brothers. 

Ten of the sixteen judges on the panel ultimately reversed a prior ruling that had found no liability against the employer under Title VII where a supervisor found a subordinate insufficiently manly resulting in a daily routine of name calling (e.g., f*ggot, queer, princess, p*ssy, etc.) simulating sex acts whenever the employee bent over, and exposing himself on multiple occasions.

The remainder of the judges offered their own views in multiple dissenting opinions. Of particular note was the dissent by Judge Jerry E. Smith and joined by Judge Harold R. DeMoss, Jr. These judges expressed their concern that finding the employer liabile would result in the   

... American workplace [becoming] more like a prison than a place for personal achievement, individual initiative, and positive human interaction; one’s speech is chilled as a condition of keeping one’s job ... [and] 'portends a government-compelled workplace speech code' -- 'a code of civility’ [imposed] on the American workplace.' The hypersensitivity that is blessed unintentionally by the majority nudges the law in a direction that hastens cultural decay and undermines -- if even just a little bit -- an important part of what is good about private employment in the United States. 

The dissenting judges did not specify if they believed the routine use of homosexual epithets against an employee, the punctuated simulated homosexual acts in the workplace, the occasional exposure of the supervisor's genitals, or something else were examples of what they believe made private employment so "good", but their perspective that banning such conduct would "hasten" the cultural decay of the U.S. workforce is an interesting one; To each their own. 

In contrast to federal law, state law prohibiting discrimination based on sexual orientation is a dynamic patchwork with 21 states and the District of Columbia prohibiting sexual orientation discrimination. Michigan is not one of these states.

Michigan Courts, however, have followed federal law and concluded that the Michigan Civil Rights Act (the Elliott-Larsen Civil Rights Act) also extended to same-gender harassment claims. Thus, a plaintiff may bring a hostile-work environment claim even though the harasser may be the same gender. But again, sexual orientation discrimination is not prohibited under Michigan law. 

The Dismal Economics of Sexual Orientation Discrimination

The Detroit Free Press recently ran an editorial; The High cost Michigan Pays for Excluding Gay People, advocating to repeal the "mean-spirited" ban adopted in 2004 by Michigan against gay marriage. The editorial notes: 

In sanctioning discrimination on account of sexual orientation, Michigan sends a noxious message, not just to gay citizens, but also to a new generation of college-educated heterosexuals that finds exclusionary policies regressive and morally repugnant ...  there is a strong case to be made that perpetuating the hostility codified in Michigan’s 9-year-old ban could slow or even derail the economic recovery that GOP legislators insist is their highest priority.

The same reasons and rationale offered in the editorial by the Detroit Free Press for repealing Michigan's ban on gay marriage certainly apply to Michigan workplaces and public accommodations or services.

In this regard and as noted above, while the Michigan Civil Rights Act (ELCRA) prohibits employment, public accommodations, public services, education, and housing discrimination based on race, religion, color, national origin, sex, age, marital status, height, weight, and arrest record, it does not currently prohibit discrimination based on sexual orientation or gender identity/expression. This means that employers can fire or refuse to hire people, landlords can deny housing, and business owners can refuse restaurant service based on an individual’s actual or perceived sexual orientation or gender identity/expression and those individuals would have no means of legal redress.

A 2013 study by the Michigan Department of Civil Rights found that there were numerous ways that the lack of nondiscrimination protections for sexual orientation and gender identity/expression impact Michigan's economy and Michigan business' profits. For example, the report noted:

  • Employee productivity is particularly hard hit when an employer openly discriminates. Discriminatory environments for LG BT employees have also been shown to negatively impact the performance of heterosexual employees.
  • Businesses that support and promote inclusive business policies reported a high level of employee satisfaction, lower turnover rates, and increased consumer confidence.
  • Leaving Michigan was perhaps the most substantial effect of Michigan's lack of LGBT inclusive policies. Approximately 1/5 of the testimony the department heard referenced people leaving Michigan for reasons related to discrimination: "Professionals and college students, including students who identified as heterosexual, said that they plan to lead the state because they did not feel that Michigan values all of its citizens ... and stated that they would not stay unless the state became a "community for all people."

Conclusion

Certainly opinions and moral judgments about sexual orientation and its role in society have long dominated political and legal culture. But if you want to avoid passing judgment on judging the morals and opinions involved in judging sexual orientation, there are enough economical and pro-business reasons to provide compelling reasons for why Michigan's economy would likely benefit from restricting discrimination based on sexual orientation.

And such a restriction would certainly be consistent with Michigan's long-standing tradition of taking the lead in protecting individuals' civil rights. In fact, going back to 1955 - almost a decade before the federal government passed the federal civil rights act - the Michigan legislature passed the Fair Employment Practices Act, which guaranteed the opportunity of Michiganders to gain employment regardless of race, color, religion, or national origin. Also, as early as 1983 the Michigan Department Rights Commission issued a statement that the state's Civil Rights Act should be amended to prohibit discrimination based on sexual orientation.

I'm not one to normally advocate for more regulations when it comes to employers; My experience is that most companies want to do right by their employees and customers while making a profit. However, Michigan and its companies, like many states, are battling to attract and retain talented individuals. While it has lost the chance to be a leader in attracting such talent - at least in comparison to the 21 states that have already prohibited sexual orientation discrimination - it doesn't have to be weighed down by a policy that is detrimental to economic growth or that has no future under the current legal trends surrounding sexual orientation. 

Lessons From the Paula Dean Debacle: Balancing Truth Without Saying Too Much

Stone Balanced.jpgIt is no understatement that celebrity chef Paula Dean has seen her world fall apart after it was reported that she had used the “N-word.”

Her use of this racial slur came out when she testified (PDF) in an employment discrimination lawsuit filed by a former employee against Ms. Dean, her brother Bubba Hiers, and companies they both own. 

The employment discrimination lawsuit filed against Ms. Dean is a lengthy text-book example of how not to run a business when it comes to managing employees.

But for purposes of this post, Ms. Dean's testimony offers two very important lessons for any individual, manager, or business owner who may be required to testify in any legal proceeding - Tell the truth but only to the question asked and then shut-up.      

Telling the Truth - No Exceptions

As to the first point, Ms. Dean was asked in her deposition: 

Q. Have you ever used the N word yourself?

A. Yes, of course.

To Ms. Dean's credit, she answered the question truthfully. And while truth does not condone Ms. Dean's use of a such a hurtful racial slur, it is worth noting that she told the truth presumably with some appreciation that her admission would have significant negative consequences to her celebrity and business interests.

In contrast, how many times have political "leaders" said one thing, under oath or otherwise, only to later recant their testimony often after having gotten caught lying?

Similarly, but with less headlines, individuals routinely testify as to one thing in lawsuits only to have documents or other evidence prove that testimony is patently false. Worse and even more troubling, such questionable testimony is often offered under circumstances that call into question the integrity of the opposing attorney under whose watch the testimony was originally offered. More often than I would prefer I've had an opposing lawyer remind me of Bess Myerson's observation that "The accomplice to the crime of corruption is frequently our own indifference."  

Be Truthful But Only to the Question Asked

The second take-away from Ms. Dean's testimony is the importance of saying as little as possible in response to a question while still being truthful. 

In this regard, a little background is necessary: As noted above, Ms. Dean was testifying in an employment discrimination lawsuit against her and her brother. Evidence and testimony against Ms. Dean's brother, Bubba, showed or at least suggested that he frequently used the "N word" to refer to staff, as well as frequently viewed and shared pornography at work.

When questioned about such misconduct, instead of simply answering the questions, Ms. Dean offered a long-winded confessional-like explanation:

Attorney: Well, have you done anything about what you heard him admit to doing?

Ms. Dean: My brother and I have had conversations. My brother is not a bad person. Do humans behave inappropriately? At times, yes. I don't know one person that has not. My brother is a good man. Have we told jokes? Have we said things that we should not have said, that -- yes, we all have. We all have done that, every one of us.

This all may be true, but the answer has nothing to with the question asked and offers so many paths for the opposing lawyer to go down. But Ms. Dean, like most people, wanted to explain. And this is especially likely to happen where the actual answer may not be entirely favorable.

A deposition, however, is not the time to offer an explanation. In fact, it is almost always true that no good can come from offering any extended commentary in response to an adverse lawyer's question. This is because you must understand the ultimate purpose for why that lawyer is asking you questions at a deposition. 

To put it bluntly, if your words were a rope, that lawyer is hoping you give him or her enough rope so that at some point in the lawsuit those words can be twisted around your neck in order to hang you or your company. In other words, you should always expect that if your words can be used against you, they will. So give as few words as you can while still truthfully answering the question actually asked.

Conclusion

The Dean debacle is an all too common snapshot of situations employers and employees often find themselves in when it comes to employment discrimination claim. But when it comes to "game-day" if you can only remember two things, make sure it is to always tell the truth but only to the question asked and then shut-up.

For more information about employment discrimination, contact Jason Shinn who is a Michigan employment attorney. He has represented individuals and Michigan businesses since 2001 in the areas of complying with federal and Michigan employment laws, noncompete agreements and litigation, as well as business lawsuit.    

Proposed Michigan Bill to Prohibit Pay Discrimination - A Problem that Continues

Business Professionals.jpgA proposed amendment to Michigan's Elliott-Larsen Civil Rights Act was introduced this week. The primary sponsor for this bill is State Representative Gretchen Driskell. This amendment is part of a package of bills intended to promote pay equity in Michigan. For more information about the other bills in this package follow this link.

As to the motivation for this proposed amendment, Representative Driskell noted on her webpage that:

In Michigan, women make about $13,000 less than men on average. That makes our state 44th in pay equity. Too many families are already struggling. Equal pay will help hard-working Michigan women make ends meet.

As to the bill, it would amend Michigan's Elliott-Larsen Civil Rights Act to include as a violation an employers failure or refusal to provide equal compensation because of religion, race, color, national origin, age, sex, height, weight, or marital status. 

The Persistent Wage Gap Between Men and Women

The need for a statutory enforcement mechanism for equal pay is somewhat remarkable given that efforts to remedy pay discrepancies date back to 1963 when women were paid 59 cents for every dollar paid to men.  In that year, President Kennedy signed the Equal Pay Act, making it illegal for employers to pay lower wages to women doing substantially the same work as their male counterparts.

The next year, Title VII of the Civil Rights Act of 1964 was enacted, making it illegal to discriminate, including in compensation, on the basis of sex, race, color, religion, and national origin. However, almost 50 years after the Equal Pay Act became law, estimates still identify women as being paid an average of 77 cents for every dollar paid to men.

Conclusion

The employment attorneys at Shinn Legal, PLC will continue to monitor this package of amendments. To stay on top of these and other Michigan employment law matters, we encourage you to subscribe to this Blog as well as connect with us on TwitterFacebook, or on our Google + page.

Or if you are old-fashioned, you can also contact Jason Shinn directly about your particular employment law question. Jason Shinn is an experienced employment law attorney, having worked with national and local companies to address federal and Michigan employment law issues since 2001, as well as defending them against agency charges of discrimination or employment discrimination lawsuits.

Customers May be able to Discriminate, But that Doesn't Mean Your Business Can and Other Misconceptions

Pig of a Businessman.jpgLast week this blog reported about a recent lawsuit filed by an African-American nurse against her employer, Hurley Medical Center in Flint, Michigan. The lawsuit claimed the defendant hospital agreed to a man's request that no African-Americans care for his newborn baby and went so fare as to even post a sign to this effect.  

For any number of reasons these allegations - assuming them to be true - revealed the significant legal and evidentiary issues the hospital faced in responding to the employment discrimination lawsuit. And presumably that trouble contributed to a quick settlement of the case, which was announced on February 22, 2012 (See Dominic Adam's reporting on this settlement). A second lawsuit (PDF), however, was filed by another African-American nurse and this case is still pending.

Regardless of what happens with this second suit or the reasons the first settled, both provide a number of points that employers and employees should understand when it comes to discrimination based on customer preferences.

This lawsuit also revealed a significant amount of frustration and misunderstanding among people following this story. Consider the following comments posted on the Detroit Free Press website (all comments are provided verbatim)

  • this is rediculous !!! the racist is a horrible person. but so what. he is paying for a service.he can request anything he wants. how is the nurse at a loss for anything ?? THERE WAS NONE !! this is truely unbelievable !!!! B. Holtslander
  • She was not allowed to care for a specific child. Did she lose hours? NO. Did she lose pay? NO While the father's request was dispicable, what was the real harm to this nurse? D. Markham
  • As much as I disagree with the father's racist views on African-Americans, they are his views. In health care, we are taught to put aside our beliefs and respect other people's culture and views, and not to judge. In that sense, the Hospital did the right thing. They respected the beliefs and culture of the father, and followed his wishes. As weird as that sounds, it was the right thing to do. A nurse of 25 years should be insulted by the racist father, but she should also realize that part of the job is respecting the culture of others, as weird as that feels with regards to a racist. R. Burchett
  • Being a racist aside, he probally does have the right to decide who cares for his child. No win situation. Get sued by a nurse who could have moved on and cared for another patient or get sued by the father. C. Cunningham
  • Truth be told, female patients often request care from female nurses and aides, and are probably quietly accommodated. Shhhhh. R. Rustbelt

Misconceptions About Discriminatory Customer Preferences and Employers 

First, the Hurley Hospital Lawsuit illustrates the difficult situation employers are in when a customer makes a request that would constitute unlawful discrimination under Michigan or federal law. Specifically, businesses need to keep their customers happy. They also need to comply with state and federal anti-discrimination laws. Sometimes achieving both goals is a management challenge, because customers may not always have respectable beliefs or be model citizens.

And while the Hurley litigation involved race, customer preference issues can arise under other circumstances. For instance, imagine a company's major client representative is a man who likes to be entertained at clubs with "strip" in their title. It would be discriminatory to remove a female from this account under the belief that a “guy” would be more suited to take the male customer representative out to such clubs. 

The second point to realize is that employers cannot make discriminatory decisions motivated by considerations such as race, religion, or gender based upon a customer's preference under either Michigan or federal anti-discrimination laws. 

Third, while employers have obligations under the preceding laws, a person has the the right to their beliefs and opinions, even if those beliefs and opinions are widely considered to be racist, objectionable, or otherwise discriminatory. But going back to the preceding point, an employer subject to state or federal discrimination laws cannot facilitate the carrying out of those opinions that would unlawfully discriminate against individuals.  

Fourth, both Michigan and federal anti-discrimination laws recognize that in certain limited circumstances, an employer may have a legitimate reason to seek an employee of a particular gender or religion, even though such a preference would ordinarily be illegal. These are called bona fide occupational qualifications ("BFOQ"). A critical determination in assessing the appropriateness of a BFOQ is whether a customer preference involves fundamental rights such as privacy. 

Examples of such privacy issues and when an employer may legitimately make a BFOQ when it comes to customer preference issues include a patient objecting to being bathed by caregivers of the opposite sex, janitors assigned to clean restrooms that cannot be closed during cleaning, or security guards assigned to perform strip searches. 

But employers must understand that under both Michigan and federal anti-discrimination laws, racially motivated decisions are not going to be considered a BFOQ. 

 For more information about compliance with anti-discrimination statutes, as well as federal or Michigan employment discrimination issues, contact Jason Shinn

 

 

Beginning a Racist Request with "please" does not make it any less Racist or Discriminatory Even if Asked for the Benefit of an Employer's Customer

Discrimination Underlined.jpgIs An Employer Liable for Harassment by non-employees? This question was inspired by a recent discrimination lawsuit (PDF) filed by a Michigan nurse against her employer, Hurley Medical Center in Flint, Michigan. The lawsuit claims the employer agreed to a man's request that no African-Americans care for his newborn baby.

While most parents of newborns would be more concerned about a nurse or medical provider's qualifications, schooling, experience, training, etc., this new father is alleged to have bypassed these details and told the charge nurse that no African Americans were to take care of his newborn. In support of this request, it is alleged the man then showed the charge nurse a swastika tattoo on his arm. It is not clear if this showing was intended to substantiate the man's request or the ignorance behind the request.  

The Complaint further alleges that the employer accommodated the racist request and that at some point, hospital personnel expressly noted in the chart of the newborn the following, "Please, no African-American nurses to care for ... baby per dad's request" (as an aside, beginning a racist request with "please" does not make it any less racist). 

 Based on these allegations, the plaintiff nurse sued her employer for claims related to racial harassment and discrimination under Michigan and federal law by the employer in accommodating the father's racist request.

Can Employers be Liable for Hostile Environments and Discriminatory Acts of its Customers?

The short answer to the preceding question is "yes," but it is a very long, factually intense, and nuanced analysis that employers need to understand in order to determine their liability and responsibilities for addressing workplace harassment or discrimination by customers or non-employee third parties.  

Overview of Hostile Work Environment Legal Issues

Generally an employer will be liable for a hostile work environment if the employee/plaintiff can establish the following elements:

  1. The individual is a member of a protected class; 
  2. The individual was subjected to harassment, either through words or actions, based on race; 
  3. The harassment had the effect of unreasonably interfering with the employee's work performance and creating an objectively intimidating, hostile or offensive work environment; and 
  4. There exists some basis for liability on the part of the employer. 

Additionally, harassment must meet both an objective and a subjective test. This simply means that the at issue conduct must be so severe or pervasive as to constitute a hostile or abusive working environment both to a reasonable person and the actual individual.

Workplace Harassment and Discrimination by Non-Employees

In order for alleged harassment by non-employees, e.g. patients and visitors, to be actionable against an employer, the individual plaintiff must show that the defendant employer failed to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.

Closing Thoughts on Employer Liability for Discriminatory Conduct of Non-employees

The case against Hurley Medical Center was only filed earlier this week and, therefore, it is too premature to assess whether the employer will be held liable for the racist and discriminatory request of a non-employee. Certainly the allegations do not paint a factually favorable picture for the employer. But if you don't have the facts on your side, then argue the law. And legally speaking, it will be interesting what, if any, evidence plaintiff will be able to point to showing a discriminatory animus on the part of management and supervisory personnel of the hospital.  

Further, this blog has previously discussed a lawsuit for discrimination based on similar facts against a hospital by its employee (also a nurse) involving discrimination and a hostile work environment created by non-employee patients. In that case, Rawls v. Garden City Hospital, the employee claimed that patients and visitors created a hostile work environment by using racial slurs.

The Rawls case, however, was dismissed in favor of the employer (PDF) and in reaching this decision, the court specifically discussed the reasonable and immediate corrective action taken by the employer. Those actions included removing or offering to remove the plaintiff nurse from the situation by temporarily assigning her to another area of the ER and then quickly treated and discharged the patients. The defendant employer successfully argued that its actions ensured that, on one hand, the plaintiff was no longer subject to further encounters with those patients or visitors, while on the other hand, the patients and visitors received necessary medical treatment.

While the plaintiff was clearly dissatisfied with her employer's response, the Court agreed with the employer that it acted appropriately to remedy or prevent alleged harassment of plaintiff by non-employee patients and visitors.

Regardless of who wins the lawsuit, it is clear that the likely loser in this matter is the baby of the the father who ignited the discrimination lawsuit in the first place. Hopefully that kid will be able to overcome his dad's "values." If not, maybe they will at some point take fashion advice from Mr. Steven Colbert (watch through to the end of the video for the advice). 

Marissa Mayer's Pregnancy: An Interesting Window into Women, Pregnancy, and the Workplace

Pregnant Executive.jpgMarissa Mayer was recently named the new CEO of Yahoo. She is a former vice-president of Google who has amassed plenty of professional accolades and otherwise seems to be really smart (I love this interview she gave to Fast Co., especially point No. 7). 

But I found it more interesting that news outlets mostly bypassed leading with her professional achievements and focused on Ms. Mayer's pending pregnancy. Consider for example this sampling: 

The coverage that Ms. Mayer's pregnancy received highlight two points relative to employment and pregnancy. 

The Media Can Make a Big Deal about a Pregnant Employee; Employers Shouldn't. 

First, any employer that announced hiring decisions or made employment decisions based on pregnancy would make headlines for all the wrong reasons. 

This is because under Michigan law, pregnancy discrimination is prohibited. To prove pregnancy discrimination, a plaintiff must show that the employer discriminated against the employee on the basis of a pregnancy. MCL 37.2202(1)(a) (Technically, the Michigan statute prohibits employment discrimination because of sex and MCL 37.2201(d) defines "sex" to include pregnancy). 

In addition to the headlines, is the cost of discrimination. The Equal Employment Opportunity Commission reported at the beginning of 2012 that "53,865 charges alleging pregnancy discrimination" had been made over the past 10 fiscal years. These charges resulted in $150.5 million in monetary benefits for charging parties.

One reason for the number of filings may relate to the consistently high percentage of mothers in the U.S. workforce with children under 18 years of age. The chart from the Catalyst, a nonprofit organization focused on expanding opportunities for women and businesses, illustrates this point: 

LABOR FORCE PARTICIPATION RATE OF MOTHERS (WITH CHILDREN UNDER 18)

chart

On the one had, these numbers are encouraging in that women with children have the opportunity to remain in or return to the workforce. But on the other hand, it is worth noting that the U.S. is one of only a few countries on the planet where employers are not required to offer mandatory maternity leave. In contrast, countries like Canada and Norway provide 40 weeks or more of paid maternity leave.

Women - Young and Old - Still Underrepresented in the Ranks of CEOs. 

Second, it was also reported that Ms. Mayer is one of the youngest female CEOs. But you could drop "young" from that headline and it is still newsworthy.

This is because women significantly remain underrepresented when it comes to the rank of CEO.

Consider for example these numbers from a 2009 article from Harvard Business Review:  

When we studied the leadership of 2,000 of the world's top performing companies, we found only 29 (1.5%) of those CEOs were women, an even smaller percentage than on the Fortune 500 Global list (2.6%).

Closing Thoughts

While the workplace has certainly evolved to be gender-blind (most of the time) it is interesting that outside of the workplace women still face greater scrutiny in the media and public discussions when they decide to have a career and have children.

And it is a scrutiny that simply does not exist for men. Take Google co-founder Larry Page; He was expecting his second child two months after he took the CEO title at Google. That is probably news to most because there were no headlines, social media discussions, or debates about whether he could lead a technology giant and still be a father. 

Unfortunately, Mr. Page had it much easier than Ms. Mayer's circumstances: Google vs. Yahoo (do you need to say anything more?) and no one questioned his decision to be a father and CEO. Aside from dealing with the occasional guilt experienced because you make more for no other reason than gender, being a guy is a really good gig.   

For more information regarding avoiding pregnancy discrimination and other employment law claims, contact Jason Shinn.  

Changing Gears in Reverse Discrimination Claims: Differences under Michigan and Federal Law

Changing Gears.jpgA Flint jury recently awarded $535,000 to a white former employee wrongfully fired after making a racial comment. This verdict also highlights important differences when it comes to reverse discrimination claims under Michigan and federal law.

For background, Mr. Craig Hecht, a former charter school teacher, was fired from Linden Charter for undisputedly telling another employee that “white tables are better than brown tables and brown tables should be burned.” 

At trial, however, Mr. Hecht was able to show that black staff members at Linden Charter Academy also made racial jokes but were never punished like him. 

Reverse Discrimination under Michigan and Federal Law

Reverse discrimination generally refers to discrimination experienced by a member of a class that has not historically been disadvantaged.

Under both Michigan and federal employment discrimination law, an employment plaintiff - minority and non-minority - must generally satisfy a burden-shifting framework (commonly called the McDonnell Douglas test) to establish a prima facie case of discrimination by showing the plaintiff:

  1. Was a member of a protected class; 
  2. Suffered an adverse employment action; 
  3. Was qualified for the position; and 
  4. Was replaced by someone outside the protected class or was treated differently than similarly-situated, non-protected employees.

Duch v. Mich. Dep't of Corr. (E.D. Mich. Feb. 15, 2011).

Reverse Discrimination Differences under Michigan and Federal Law

In addition to the preceding test, under federal law, a reverse discrimination plaintiff must also demonstrate "background circumstances" to support the suspicion that the defendant is that unusual employer who "discriminates against the majority." 

In contrast, Michigan law diverged from federal law in 2004 on this point. Specifically, in Lind v. City of Battle Creek, 470 Mich. 230, 232-233 (2004), the Michigan Supreme Court abolished the different standards for minority and non-minority plaintiffs. In this regard, the Court reasoned that the Michigan Civil Rights Act simply protected all persons from racial discrimination equally, with uniform burdens of proof, regardless of the race or races involved. 

Closing Thoughts

Mr. Hecht's verdict is a good reminder of three important points:

  • Employers must have a clear policy prohibiting discrimination in employment. That policy should also define prohibited discrimination and provide multiple avenues for making complaints of perceived discrimination; 
  • A policy is only as good as its enforcement. And even the best policy that is not followed or (worse) applied inconsistently can result in an expensive head-on collision with a jury; and
  • There are a number of similarities between federal and state employment law. But there are also significant differences. It is, therefore, critical to understand these similarities and leverage the strategic value or work to minimize the disadvantages offered to one side or the other, i.e., the employer or individual employee.