Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Firing’

The Trump administration wants to make it easier to fire women who act too ‘masculine’

Tuesday, August 20th, 2019
Thirty years ago, in Price Waterhouse v. Hopkins, the Supreme Court held that “sex stereotyping” is forbidden by a federal law banning employment discrimination. “We are beyond the day,” Justice William Brennan wrote in the court’s plurality opinion, “when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”

Nevertheless, the Trump administration filed a brief last week asking the Supreme Court to bring back the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.

The Trump Justice Department’s position in R.G. & G.R. Harris Funeral Homes v. EEOC wouldn’t nuke Price Waterhouse entirely. But it would severely weaken protections against sex discrimination, and give employers broad new authority to fire employees who do not comply with stereotypes about how people of a particular gender should appear.

It would do so, moreover, in service of the broader goal of denying civil rights protections to transgender workers. The thrust of the Trump administration’s position in Harris Funeral Homes is that, if existing law is broad enough to protect trans workers from discrimination, then that law must be rolled back — even if doing so will legalize a fair amount of discrimination against cis women in the process.

“Because of . . . sex”

Harris Funeral Homes involves Aimee Stephens, a trans woman who was fired because of her decision to transition. Her former boss claims to “believe that the Bible teaches that a person’s sex is an immutable God-given gift.”

In response to her termination, Stephens sued under Title VII of the Civil Rights Act of 1964, which provides that employers may not “discharge any individual…because of such individual’s race, color, religion, sex, or national origin.”

Thus, as a textual matter, Stephens should have an easy case. Title VII’s language is capacious. It forbids any discrimination “because of” an employee’s “sex” (a term that, in this context, refers to gender). As the federal appeals court that ruled in her favor explained, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”

The entire reason why Stephens was fired is that her employer believes that she is a man, and that men must dress and act a certain way. That’s discrimination because of sex.

Stereotyping

Setting aside this simple, textual argument explaining why Stephens should prevail, she also benefits from the separate line of cases prohibiting sex stereotyping — or, at least, she does under those cases as they currently stand.

Price Waterhouse is a bit of a confusing decision because it did not produce a single majority opinion. Nevertheless, a majority of the Supreme Court clearly agreed that sex stereotyping is not allowed. Brennan concluded, on behalf of himself and three other justices, that “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’”

Meanwhile, Justice Sandra Day O’Connor said that the plaintiff in Price Waterhousecould proceed with her lawsuit because she proved that “stereotypical attitudes towards women [played] a significant, though unquantifiable, role” in her employer’s decision not to make her a partner. So Brennan’s opinion plus O’Connor’s opinion equals five votes against sex stereotyping in the workplace.

Significantly, Justice Anthony Kennedy wrote a dissenting opinion, in which he argued that “Title VII creates no independent cause of action for sex stereotyping.” Though Kennedy conceded that “evidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent,” his dissenting opinion denied that sex stereotyping alone is a valid basis for a Title VII lawsuit.

Which brings us to the Trump administration’s argument in is Harris Funeral Homesbrief:

Stephens’s and the Sixth Circuit’s sex-stereotyping argument rests on the incorrect premise that Price Waterhouse construed Title VII to prohibit sex stereotypes per se. But that case, which produced no majority opinion, merely recognized that a plaintiff can use evidence that an employer engaged in sex stereotyping to show that the employer discriminated because of sex under the ordinary Title VII rubric. It did not recognize sex stereotyping as a novel, freestanding category of Title VII liability.

See the problem here? This passage does not describe the majority’s view in Price Waterhouse at all. To the contrary, it’s the exact same view that Justice Kennedy took in dissent.

Having confused the majority’s view with a dissent, the Trump administration then claims that much of Price Waterhouse must be rolled back.

Indeed, it’s notable that the Trump administration is only able to cite one lower court opinion that supports its novel view of Price Waterhouse, and that opinion is a concurring opinion by Judge James Ho — a Trump judge known for writing aggressive opinions that read more like Fox News editorials than like judicial decisions. The Ho opinion that Trump’s Justice Department relies upon does not cite any other case that shares his reading of Price Waterhouse.

Price Waterhouse, moreover, is hardly an obscure case. It is a seminal decision that recognized an entire branch of American civil rights law. According to the legal research database Lexis Advance, 6,265 court decisions cite Price Waterhouse. The fact that Judge Ho (and the Trump administration) wasn’t able to find a single one that supports his reading of Price Waterhouse is compelling evidence that Ho is wrong.

It’s unclear just how drastically the Trump administration’s reading of Price Waterhousewould roll back protections for women generally, but one line in their brief suggests that the rollback would be quite significant. Unless Price Waterhouse is read narrowly, the Trump Justice Department warns, “a dress code that required men to wear neckties, for example, would be susceptible to challenge as predicated on sex stereotypes.”

Perhaps. A prototypical example of sex stereotyping is declaring that men must look a certain way and women must look another way (although some lower courts permit gender-specific dress codes so long as they are “equally burdensome” on men and women). At the very least, the Trump administration appears eager to strip all American workers of their right to keep their job even if they don’t tailor their appearance to their employer’s gender norms.

One lesson of Harris Funeral Homes, in other words, is likely to be that the fate of various civil rights plaintiffs are unavoidably linked. Denying trans workers the right to be free of employment discrimination means rolling back doctrines that protect other workers as well.

If the Supreme Court joins the Trump administration’s crusade against trans rights, the consequences will spill over to all workers.

This article was originally published by Ian Millhiser on August 20, 2019. Reprinted with permission. 

About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

Illegally fired for exercising your rights at work? You should be able to sue

Saturday, September 19th, 2015

Laura ClawsonThe new bill to strengthen penalties against employers who illegally fire workers for collective action that Sen. Patty Murray and Rep. Bobby Scott introduced in Congress on Wednesday would do more than just deter those illegal firings, argue the Century Foundation’s Richard Kahlenberg and Moshe Marvit: it would reframe union rights as civil rights.

The WAGE Act would give workers the same remedies as employees whose civil rights are violated:  the ability not just to get their jobs and back pay, which is the rule now, but to win punitive damages, to engage in legal discovery that gives lawyers access to an employer’s internal files, and win attorneys’ fees when workers prevail. Employees also can get a preliminary injunction to get their jobs back right away.

By giving workers a fresh way to think about becoming part of a union – as a civil right, rather than just joining a special interest – the idea has a chance to re-awaken a conversation that has languished in American politics. The decimation of the American labor movement has been catastrophic for the middle class, keeping wages down and weakening the voice of middle-class citizens in the political process.

As Kahlenberg and Marvit suggest, “the time may be right” for this idea to come up in the presidential campaign:

Hillary Clinton and Bernie Sanders have attacked inequality and offered good proposals, such as increasing the minimum wage, which will help move the poor into the working class. But only a strong organized labor movement – and new, alternative forms of worker representation — can help move large numbers of people from the working class to the middle class.  The WAGE Act is a simple, concrete proposal for change that would help both traditional unions and new, emerging organizations that represent workers. The presidential candidates should make it a central plank in their campaigns.

What a good idea. Ball’s in your court, Secretary Clinton, Sen. Sanders …

This blog was originally posted on Daily Kos on September 17, 2015. Reprinted with permission.

About the Author: The author’s name is Laura Clawson. Laura has been a Daily Kos contributing editor since December 2006  and Labor editor since 2011.

Cancer Victim Fired For Disclosing Brain Tumor Has Claim For Disability Discrimination

Monday, June 13th, 2011

ellen simonA U.S. District Court in Texas ruled that a  Houston P.F.Chang’s restaurant may have violated the Americans with Disability Act when it fired one of its restaurant managers three days after he disclosed that he had a brain tumor.

On June 8, 2009 Jason Meinelt was diagnosed with a brain tumor. He told his boss, Michael Brown, the same day and also told him that he would probably have surgery in August and could be out for six to eight months.  Brown was supervised by Glenn Piner.  Bown told Piner immediately about Meinelt’s condition.

Two days later, Piner began an audit involving  employee clock-out time punches.

The next day, Meinelt was fired for improperly editing employees’ time records. Meinelt testified that he was “completely baffled” and “shocked” about the firing and that editing time was a common practice among all of the managers including the ones who preceded him.

P.F. Chang’s first argument, that Meinelt’s brain tumor was not a disability, was rejected by the Court. Under the ADA, a disability is a “physical or mental impairment that substantially limits one or more major life activities.”  The ADA was amended in 2008, and the amendments specifically included cancer in its definition of what may be considered a disability. As the Court noted,

Under ADAAA, “a major life activity includes the operation of a major bodily function, including but not limited to,… normal cell growth .. [and] brain .. functions. 42 U.S.C. s. 12102(2)(B). The disability test can be met by actually suffering an impairment that substantially limits a major life activity or “being regarded as having such impairment.”

Therefore, since Meinelt was terminated after the ADA Amendments Act of 2008 came into effect, he was covered under its “more expansive definition” of disability according to the Court. As to P.F. Chang’s contention that Meinelt was fired because of the time entries, the Court had this to say:

[T]here is undisputed evidence of the temporal coincidence of Meinelt revealing his medical condition and the employer’s decision to fire him. The record contains ample evidence supporting an inference that Piner’s belief that Meinelt had improperly edited time was not the reason he terminated Meinelt. Piner fired Meinelt only tree days after Brown told Piner about Meinelt’s tumor. ..(citations omitted)

Summary judgment on the ADA claim is denied.

This decision means that Meinelt has the opportunity to take his case to the jury but it has broader implications.  It’s another victory for cancer victims who have been discriminated against by their employers.

Before the ADA amendments, these types of cases were routinely thrown out by courts which narrowly interpreted the ADA and held that the employees with cancer were not disabled — and therefore not protected from disability discrimination. Those same arguments, raised by P.F. Chang’s in this case, failed and it’s about time. For another case on point  see here. For more about cancer discrimination and the workplace, see here. For the Meinelt opinion, see here.

This blog originally appeared on Employee Rights Post on June 10, 2011. Reprinted with Permission.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. Today, Ellen offers legal advice to individuals with legal problems surrounding employment rights, age/gender/race or disability discrimination, workplace retaliation and sexual harassment.

The “F” Word

Monday, April 18th, 2011

Image: Bob RosnerWhen I started networking after I was fired, yes, I actually follow the advice that I’ve been writing about for the last sixteen years, I came across an interesting issue. Do you use the “F” word with potential employers? You know, fired.

My initial tendency was to avoid it. I moved on, I was let go. Things didn’t work out. You know all these euphemisms. But I decided as part of the “Fired in real time” project, I would describe myself as being fired and see what would happen.

I got a call from a possible vendor. I needed to explain what happened, so I described myself as being fired. He seemed to take it in stride.

It was only days later, when a mutual friend called, that I learned that the vendor had called him to ask about me. Or, more specifically, to find out if I was “legit.”

Okay, it might not be a scarlet letter on my forehead, but it definitely is a stain on your credibility to be fired.

I did it a few more times, with a colleague, with the person sitting next to me at Rotary and with  someone who worked in a store where I was shopping. Okay, I’m not the type of guy who usually tells his life story to retail clerks, that’s the job of my seven year old daughter, but when the clerk asked why I was shopping in the middle of the day, I thought I’d drop the “F” word on her to see what would happen.

I’d like to say that the clerk immediately steered me away from the wool suits to the polyester section of the store. But I don’t even think that polyester is part of the Nordstrom vocabulary.

What I did observe was a variety of reactions, roreheads crinkle, eyes bear down on you harder and you can see someone’s brain kick into a higher gear. In short, people just check you out closer than usual. You’re not quite guilty, but not exactly innocent either. I think in Catholicism they call it “limbo.” In between.

At this point I have to tell you, I’ve all but dropped the “F” word. It’s just got too much baggage attached.

Ironically one person told me that I was brave to say it. She even told me a long story of the time that she was fired from a job. But then she said to me that I shouldn’t ever tell anyone that I was fired ever again. It’s just not something that people need to hear.

One of my favorite quotes is from Groucho Marx, “I wouldn’t ever want to belong to any club that would have me as a member.” Kind of reminds me about telling someone that you’re fired. It’s a club with millions of members, but no one wants any part of it.

My a-ha: Honesty is the best policy, except when you’re fired.

Next installment: Getting back in the game


About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.org. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via bob@workplace911.org

Your Rights Job Survival The Issues Features Resources About This Blog