LegalMatch: Employment Law

Just How Common is Sexual Orientation Discrimination?

According to recent LegalMatch case data, sexual orientation discrimination is not as common as one might expect, but more common than anyone would like.

 

Based on our case data from the last 12 months, it appears that approximately 5% of the discrimination claims with which prospective clients approach our member attorneys involve discrimination based on sexual orientation.

 

While all employment discrimination based on immutable characteristics (such as race, gender, national origin, and, arguably, sexual orientation) irrelevant to a person’s ability to do a job is frowned upon by society and the law, the law on specific types of discrimination varies.

 

While the federal government and almost every state in the U.S. have laws that prohibit discrimination in employment on the bases of race, color, religion, sex, and national origin, the federal government has no law banning private discrimination based on sexual orientation. 32 states have some form of protection against employment discrimination based on sexual orientation. However, about half of those states only prohibit discrimination by public employers, leaving private entities free to engage in sexual orientation discrimination.

 

What does this data mean? Well, on the plus side for members of the LGBT community, it appears that reported cases of discrimination based on sexual orientation are relatively rare. On the other hand, it means that there are many other forms of discrimination occurring, if sexual orientation discrimination makes up such a small percentage.

 

Furthermore, it highlights the fact that a significant population of the U.S. live in states with no protection against sexual orientation discrimination. Unless a federal law addressing the issue is passed (which appears somewhat likely in the near future), or every state passes a law on the issue (far less likely), the situation should remain this way for quite some time.

 

While social attitudes toward LGBT rights are changing, and generally becoming more favorable, the fact that such discrimination continues to exist shows that we have a long way to go.

Wrongful termination.

The fear of being fired, canned, outsourced, or laid off is one that many workers tend to have in common. And termination is a fact of corporate life. People are fired every day for incompetence, for making mistakes, for slacking off or running late, and most of those firings are legally just. But there are also terminations that are not just—those are the ones we refer to as “wrongful terminations.”

Wrongful termination is divided into several categories:

• Discrimination,
• Retaliation,
• Contractual Employees,
• Illegal Acts,
• Family or Medical Leave, and
• Failure to Follow Established Termination Procedures

Complex?

Certainly. Which is why you can follow the “wrongful termination” link above for more detailed information. But let’s focus first on the issues brought up by the Social Security Disability Advocates Blog. Discrimination, our first category in the wrongful termination department, not only protects citizens from termination based on race or sex, but also extends a protective shield against age-based lay-offs. So, if you feel like you’ve been “let go” specifically because of your age, filing a wrongful termination claim might be a wise move.

In fact, one of the things that SS Advocates mentions is how easy it is to find a lawyer online. If you’re reading this, you’re probably already aware that LegalMatch provides free online legal matching. But SS Advocates also suggests searching for blogs or websites created by people who have dealt with legal issues similar to your own, and asking them who they went to when they needed help. 

Not a bad idea!  :)

by Kate Beall

$5.85M Awarded to Ex-Fresno State Coach Under Title IX Law.

Last week Lindy Vivas, a former volleyball coach for Fresno State, won $5.85 million in damages in a gender discrimination suit against the school.

Vivas was fired in 2004 after expressing the opinion that female athletes at Fresno State should have equal treatment and access to school facilities. The University’s claim that the former coach failed to meet performance goals did not acknowledge that, merely two years prior, she had led her team to the best season in its history.

According to the San Francisco Examiner, this may be the largest award “ever granted to a coach suing for retaliation under Title IX.”

 

What does Title IX mean for women?

The Title IX law is a federal law that was first put in place to abolish gender and sex discrimination in public schools, and is primarily used as a shield against programs that prioritize male success over that of their female counterparts. The establishment of this law followed a period where men were given preferred or exclusive access to academic and athletic resources.

As of today, we have just passed the 35^th Anniversary of the Title IX law's implementation, and the benefits are in the numbers. In an article titled “Title IX turns 35, yet hasn’t reached it’s prime,” The Seattle Times reports that since the Title IX law's inception:

“[…] Women's participation in college sports has jumped from 30,000 to 170,000, and, in high-school sports, from 300,000 to 3 million. Female athletes earn higher grade-point averages and report higher self-esteem than their nonathletic classmates. […] Increased physical activity also translates into a reduced risk of several life-threatening diseases, including breast cancer, obesity and cardiovascular disease.”

But even with numerous benefits at hand, women’s athletic programs are still struggling to recruit and support their female students. The article at hand notes that while almost 25% of Americans are aware of a recent situation in which female athletes were treated unfairly, 60% of that group wouldn’t know how to take legal action to amend it.

 

Take Action.

If you are aware of a violation of Title IX law, you can take action immediately by consulting with a gender and sex discrimination lawyer. Remember that, like Lindy Vivas, you are protected from wrongful termination by your employer—retaliatory termination is illegal under Civil Rights law.

Title VII of the Civil Rights Act further protects employees from discrimination on the basis of race, sex (including pregnancy and childbirth), religion, and national origin.

by Kate Beall

Pregnancy Laws.

A recent posting in the Labor Law Talk Blog summarizing various US state Pregnancy Laws highlights the lack of specific laws providing benefits new parents or outlining the rights of pregnant employees in many states, such as Florida and Wyoming. Rising social awareness of Pregnancy Discrimination and women's rights are leading to an increase in Pregnancy Discrimination litigation, a body of law that closely parallels actions taken in Gender and Sex Discrimination matters. 

The federal Family and Medical Leave Act of 1993 requires that some employers offer unpaid leave for serious medical conditions for employees or members of their immediate family.  Eligible employees may receive up to 12 weeks of unpaid leave during any 12-month period from qualifying employer.

Two primary federal laws guide most state Pregnancy Laws. The Pregnancy Discrimination Act (PDA) protects parents-to-be; this came into federal law as an amendment to the Civil Rights Act of 1964.  Passed by Congress in 1978, the PDA makes it illegal for employers to refuse to hire, fire, or deny a promotion to women who are pregnant.  The law also provides that employers must treat a pregnant woman the in the same manner as it would treat any other employee that becomes ill or temporarily disabled. More legal information about these laws and other employment and hiring issues can be found at LegalMatch.com in their LegalCenter Law Library 

The Age of the At Will Employee.

If you aren’t a contract employee you most likely are an at will employee. These days it seems like we are all at will employees. You may be asking: what is an at will employee? At will employment means that an employer can fire an employee for any reason the employer sees fit as long as it is not for an improper reason. This cuts both ways. Employees are also allowed to terminate their employment at any time for no stated reason.

What about 2 weeks notice? An employee is generally not required to give advance notice before quitting unless such notice is required. Read your employee handbook or company policy prior to giving no notice. Some policies or handbooks require notice and if no notice is given there may be consequences such as forfeiting accrued vacation time. This varies from state to state so make sure you are familiar with your state laws.

Even if you are an “at will” employee, if you are fired for any of the reasons below you may have a claim for Wrongful Termination:

 

• Discrimination – This includes race, color, gender, creed, national origin, religion and in some states sexual orientation and gender identification.
• Retaliation – This includes whistle-blowing or filing any other claim against your employer.
• Contractual Employee – If you have a contract to work for a specified time frame then you cannot be terminated in this manner.
• Illegal Acts – Refusing to commit illegal acts for your employer are not grounds for termination
• Family and Medical Leave Act – You cannot be fired for taking leave under this act.
• Written Termination Procedures – If your employee handbook or another document outlines termination procedures than those must be followed.

So how do you prove that you were fired because of one of these reasons? Good question. Most, if not all states do not require the employer to state a reason for termination. Proving discrimination or retaliation is often quite difficult without a direct admission or statement to a third party. In cases such as these it is usually a totality of the circumstances that makes the case. For example, if you feel you have been terminated because of your age you may be able to show that the company has an unwritten policy that anyone over the age of 45 is terminated. Or maybe you have emails hinting that your age might be a factor for your “poor performance.”

Many people will tell you that you just know when you have been fired for a specific illegal reason. We have all seen the movie Philadelphia (and if you have not seen it you should). That attorney was obviously fired because he had AIDS but look at the lengths he had to go to trying to prove this obvious fact. If you feel you have been wrongfully terminated contact an attorney.

By Lisa Zanassi

Sexual Harassment in the Workplace.

Many employees want to know… What is sexual harassment?  There are two types of sexual harassment in the workplace.  The first type is called Quid-Pro-Quo harassment.  Quid Pro Quo harassment is when an employer makes sexual conduct a prerequisite for obtaining something in the workplace i.e. a promotion.  The second type of sexual harassment, Hostile Environment, involves situations in which an employer or coworker makes the victim feel uncomfortable in the workplace because of his or her sex.

Sexual harassment in the workplace has remained steady over the years.  Recently there has been a slight decrease in sexual harassment complaints with the Equal Employment Opportunity Commission.  Employers credit their efforts for the decrease in filings. 

The United States Supreme Court has created a two part test to be used by employers in defense of a sexual harassment charge.  The first part of the test requires employers to show that they took reasonable care to prevent and correct any sexual harassment behavior within their workplace.  The second part requires the employer to show that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. 

To satisfy the two part test, employers have implemented policies to avoid these situations.  Many employers have a sexual harassment/discrimination policy.  This policy is typically distributed through an interoffice memo or explained in an employee handbook.  You will most likely have to sign this policy so that your employer has proof that you received the policy.  Second, employers offer employees different avenues in which to make complaints about harassment in the workplace.  Some avenues include calling the human resource department or talking to a gender specific supervisor who you feel comfortable speaking with.  Some employers conduct sexual harassment training that all employees are required to attend.  This type of training explains what sexual harassment is and often shows examples that many would not think would be construed as sexual harassment.  Meetings are conducted annually to discuss sexual harassment with supervisors and upper management.  Yearly surveys also assist employers in knowing what is truly going on at their business.  All of these policies are imperative in creating a safe work environment. 

If you are being harassed by a coworker, upper management or a supervisor you should seek advise from an attorney.  Your employer may be directly or strictly liable for the type of harassment that you are suffering at your place of employment.

If you are an employer being accused of sexual harassment you will want to act quickly.  You are not automatically liable and do have defenses to such a charge.  You will also want to contact an attorney for advice and representation. 

By Lisa Zanassi