SCOTUS Grants Writ of Certiorari for Three LGBT Employment Discrimination Cases

On April 22, 2019, the Supreme Court granted petitions for writs of certiorari in three LGBT employment cases. Each of the three cases addresses whether Title VII of the Civil Rights Act of 1964 offers protection against discrimination in employment on the basis of sexual orientation or gender identity.

In Bostock v. Clayton County, Georgia, the Plaintiff, Gerald Lynn Bostock, claims his sexual orientation as a gay man was the reason for his termination from Clayton County as a Child Welfare Services Coordinator. The District Court ruled that he had no viable claim because Title VII does not prohibit discrimination on the basis of sexual orientation. The Eleventh Circuit established the precedent that discrimination on the basis of sexual orientation is not a form of sex discrimination protected by Title VII.

In contrast, the Second Circuit Court of Appeals held in Zarda v. Altitude Express, Inc., that sexual orientation is protected under Title VII, because the Supreme Court has ruled previously that gender stereotyping violates the statute. The Second Circuit held discrimination based on sexual orientation was an “actionable subset of sex discrimination” because you cannot address sexual orientation without consideration of the individual’s gender and the related stereotypes.

In R.G. & G.R. Harris Funeral Homes v. EEOC, et al., the Sixth Circuit also held that Title VII protects employees who are transgender. Employee Aimee Stephens was terminated when she informed her coworkers that “she was undergoing a gender transition from male to female and intended to dress in appropriate business attire to work as a woman.” Two weeks later she was terminated because the funeral home owner thought he would be “violating God’s commands” by allowing Stephens to dress in women’s clothing. The federal Equal Employment Opportunity Commission (EEOC) filed a lawsuit on Stephens’ behalf, and the U.S. Court of Appeals for the 6th Circuit ruled for the EEOC and Stephens.

Minnesota Supreme Court Issues Landmark Disability Discrimination Decision

On February 27, 2019, the Minnesota Supreme Court issued a major decision in favor of employees. The case, Daniel v. Minneapolis, addressed whether an employee who is disabled as a result of a work injury can bring a claim under the Minnesota Human Rights Act (MHRA). For decades, such employees were prohibited from filing MHRA claims because of a prior supreme court ruling in Karst v. FC Hayer Co., Inc. (issued in 1989). Under Karst, disabled employees were prohibited from bringing human rights claims because they were preempted by Minnesota’s Workers’ Compensation Act. Consequently, any employee who experienced disability discrimination resulting from a work injury was left without any recourse to remedy the discrimination.

This led to absurd results. For example, if an employee suffered a disabling injury outside of work, she would be protected from discrimination under the MHRA. But if that same employee became disabled at work, she would have no protection from discrimination. Her employer would be free to fire her because of her disability and nothing more. This was bad policy for Minnesotans and was out of step with the rest of the country, with nearly every state rejecting similar interpretations of their own state laws.

In Daniel, the Minnesota Supreme Court corrected that problem and overruled the Karst decision. Writing for a 5-2 majority, Justice Margaret Chutich wrote, “Unlike the workers’ compensation act, the human rights act is a civil rights law that protects employees from unlawful employment discrimination.” The Court recognized the fundamental difference between the Workers’ Compensation Act, which is designed to remedy work injuries, and the MHRA, which is designed to protect disabled employees from discrimination. Because of these differences, neither law preempts the other. Instead, workers have rights under both.

Teske, Katz, Kitzer & Rochel lawyers Phillip Kitzer and Brian Rochel wrote on behalf of the Minnesota Chapter of the National Employment Lawyers Association in a “friend of the court” or amicus brief, asking the Supreme Court to overrule the Karst decision. “This marks a great step forward for all employees in Minnesota and corrects a decades-long error in the law,” said Phillip Kitzer. “Employees should not be treated differently and denied equal protection simply because they become disabled as a result of a work injury. That is not consistent with Minnesota’s strong history of protecting and advancing human rights,” added Brian Rochel.

If you have any questions about Daniel v. Minneapolis, disability discrimination, workers’ compensation retaliation, or employment law generally, please contact Teske, Katz, Kitzer & Rochel today.

Can A Whistleblower Keep Work Documents If She Is Terminated?

Employees who report illegal conduct by a company may be whistleblowers. A whistleblower may be entitled to substantial monetary awards for reporting fraud and is generally protected from retaliation. If whistleblowers do experience retaliation, they may have additional legal claims.

Frequently, when an employee discovers fraud at work or by their employer, they may seek to copy or retain documents to prove the fraud or seek legal advice. There are many documents that may be relevant, even necessary, to prove a whistleblower claim. Emails, invoices, statements, letters, or many other types of documents could show that a company acted unlawfully and may be able to prove a whistleblower claim.

However, the law is complicated regarding what information a current or former employee may be allowed to retain or copy. First, most employees have some type of agreement prohibiting them from keeping company information (which is typically defined very broadly and could include nearly any company document). Employees should always review any agreement they signed to understand their obligations. If an employee keeps documents they are not allowed to have, they could potentially be sued by their employer.

Second, state and federal law may prohibit employees from making copies or retaining certain categories of documents. Examples include trade secrets or communications protected by the attorney-client privilege. There are many more examples and the law in this area is complex.

While there are many agreements and laws that limit what documents or information employees are allowed to retain, whistleblowers have special protections. One example includes the “whistleblower immunity” contained in the U.S. Defend Trade Secrets Act of 2016 (“DTSA”). The DTSA contains an express carve-out for whistleblowers who disclose trade secrets to attorneys for the purpose of seeking advice about potential whistleblower claims. Under the right circumstances, an employee cannot be liable under the act for doing so.

One of the bill’s sponsors, Senator Charles Grassley, explained: “Too often, individuals who come forward to report wrongdoing in the workplace are punished for simply telling the truth. The amendment I championed with Senator Leahy ensures that these whistleblowers won’t be slapped with allegations of trade secret theft when responsibly exposing misconduct. It’s another way we can prevent retaliation and even encourage people to speak out when they witness violations of the law.”

At the same time, employees must be very careful about what information they retain, the manner in which it is retained, and to whom they disclose any such information. We strongly encourage employees and whistleblowers to seek legal advice from an experienced attorney before taking any action or retaining any documents that could be protected, trade secret, confidential or the like. If you have questions or would like to learn more, contact us today.

I received a severance agreement, should I contact an employment lawyer?

As lawyers representing employees, we are often asked when it is a good idea to have a lawyer review a severance agreement. The short answer is: almost always.

First, any severance agreement that releases legal claims (virtually all of them do) requires an employee to know whether they have any legal claims that they are giving up by signing the agreement. It is impossible to know the value of what you may be giving up without having a thorough evaluation of potential legal claims.

Second, most severance agreements are not clearly written and require employees to waive or limit rights that employees may not even understand. Frequently, severance agreements seek broad restrictions on the right to seek employment at other companies, to speak openly and truthfully, to pursue administrative claims, or to assist others who may seek legal action against a former employer, just to name a few examples. These terms limit the rights that employees otherwise freely enjoy.

Third, initial severance offers are frequently just that—an initial offer. Employers may be willing to negotiate the severance amount or offer other terms in addition to separation pay. The potential for negotiating terms of a severance agreement (including the total monetary payout) is well worth seeking sound legal advice.

The expertise of an experienced employment lawyer is valuable in understanding all of the terms in a separation agreement as well as in deciding how to respond to a severance offer. Nearly every severance agreement includes language that the employer encourages the employee to seek consult an attorney. That language exists for a reason. You can be assured that the company was advised by a lawyer; do not miss the opportunity and to seek sound legal advice of your own.

You must also act quickly, because nearly every severance offer has a time limit upon which an employer may withdraw the offer.

If you have received a severance agreement or have questions about your employment or separation from employment, contact Teske, Katz, Kitzer & Rochel today.

Equal Pay Laws Necessary Tool In Fight Against Gender Pay Gap

The “me too” and “time’s up” movements focus primarily on sexual harassment and abuse in the workplace. But the movements have also raised awareness of a problem that has persisted throughout U.S. history: gender pay disparity.

The gender pay gap is the gap between what men and women are paid. It refers to the average annual pay of all women compared to the pay men, when variables are taken into account (like equal jobs, amount of time worked, etc). Currently, the gender pay gap across the U.S. is 80%. That means that for every hour worked, a woman will be paid 80% of what a man is paid for the same work. In Minnesota, the pay gap is 82%.

This pay gap violates the law, yet it persists. By highlighting these laws and aggressively enforcing them in the courts, proponents of fair pay and women’s continue to work toward eliminating sex discrimination in employment.

The federal Equal Pay Act (EPA) requires that employers pay the same amount of compensation to every worker, regardless of gender or sex. That is, women and men should be paid the same amount for the work that they perform.

The EPA was signed into law in 1963 by President John F. Kennedy. In passing the EPA, Congress stated its intent to eliminate sex discrimination because the gender pay gap:

  • depresses wages and living standards for employees necessary for their health and efficiency;
  • prevents the maximum utilization of the available labor resources;
  • tends to cause labor disputes, thereby burdening, affecting, and obstructing commerce;
  • burdens commerce and the free flow of goods in commerce; and
  • constitutes an unfair method of competition.

Minnesota has a similar law with similar protections. Under Minnesota’s “Equal Pay for Equal Work Law,” employers cannot pay workers of one sex less than employees of another sex. Minn. Stat. § 181.67. Similar to the EPA, the Equal Pay for Equal Work Law prohibits differential pay when employees of different genders are performing work that requires equal amounts of skill, effort, and responsibility, and done under similar working conditions.

Most employees across the country are protected by the EPA, though there are important exceptions. In Minnesota, most employees are also protected by the Equal Pay for Equal Work Law.

If you have questions about pay disparity or discrimination, contact the experienced employment lawyers at Teske, Katz, Kitzer & Rochel today to discuss further.

 

Phillip Kitzer Participates on #MeToo Panel at FBA National Conference

On September 14, 2018, TKKR Employment Attorney Phillip Kitzer spoke on a panel sponsored by the Labor & Employment Section of the FBA at the Federal Bar Association’s National Conference in New York City. The panel, titled “#MeToo: Implementation and Administration of an Effective Anti-Harassment Policy,” discussed various legal issues arising out of the #MeToo movement, including addressing complaints in the workplace, effective training of employees and management, responding to EEOC charges, and recent tax law changes involving settlements of claims involving sexual harassment and abuse. The panel was moderated by Donna Currault of Gordon, Arata, Montgomery, Barnett LLC in New Orleans, LA, and included the Hon. Lisa M. Smith, U.S. Magistrate Judge for the Southern District of New York, and Mary A. Smith, Principal at Jackson Lewis, P.C. 

Employment Attorney Phillip Kitzer Presents on Sexual Orientation Discrimination in San Juan, Puerto Rico

On August 3, 2018, TKKR partner Phillip Kitzer presented at a half-day advanced labor and employment law seminar in San Juan, Puerto Rico. Mr. Kitzer presented on the changing law related to LGBT discrimination under Title VII of the Civil Rights Act of 1964. The presentation covered the history of “sex discrimination” since the bill’s passage, reviewed seminal cases such as Price Waterhouse v. Hopkins, and discussed recent watershed cases such as Hively v. Ivy Tech. Commt. College of Indiana and Zarda v. Altitude Express, Inc. In Hively, the 7th Circuit (en banc) found that sexual orientation is a form of sex discrimination, and therefore prohibited under Title VII. In Zarda, the 2nd Circuit (en banc) held the same.

The seminar was co-hosted by the Puerto Rico Chapter and the Labor and Employment Law Section of the Federal Bar Association. Mr. Kitzer currently serves as a board member for the Labor and Employment Law Section.

Phillip Kitzer & Brian Rochel Present on Disability and Leave Laws at Minnesota CLE

On July 24, 2018, TKKR attorneys Phillip Kitzer and Brian Rochel presented a webcast sponsored by Minnesota CLE as part of the Workers’ Compensation series. The webcast, titled The Intersection of Disability, FMLA and Workers’ Compensation Retaliation Laws, addressed the complicated employment issues that arise for employers and employees when dealing with a work-related injury, disabilities, and need for FMLA-protected leave of absences. The presentation focused on various theories of liability under each of the statutes, including new theories that have developed in the past several years.

Phillip and Brian are both experienced litigators and have each represented hundreds of employees throughout their careers. If you have questions about your rights under disability laws or have questions about workers’ compensation retaliation or the FMLA, contact our office for a consultation today.

 

Free Speech in the Workplace?

Many people mistakenly believe that an employee cannot be fired for exercising their rights to free speech. For most employees, that is simply not true.

The First Amendment to the United States Constitution generally protects citizens from government retaliation for speech. It provides that “Congress shall make no law . . . abridging the freedom of speech.” Private employers, however, are not prohibited by the First Amendment from terminating the employment relationship based on speech. In fact, many employers do terminate employees for engaging in “free speech.” Because nearly every state in the country is an “at-will employment” state, employers are generally entitled to terminate the employment relationship “at will,” or for any reason they wish. While there are exceptions to the “at-will” doctrine (such as race discrimination or firing someone for certain types of whistleblowing), firing an employee for what they say outside of work is usually not illegal.

In the private sector, unions have historically provided the “rights” that many employees believe they have at work. When unions negotiate contracts on behalf of many employees, they usually negotiate that employers are limited in the reasons they can terminate an employee. Likewise, certain high-level employees are often provided employment contracts that restrict the reasons for terminating an employee. But because only around 6% of private-sector employees belong to unions, and very few employees have an employment contract, most employers can legally terminate an employee because of what they say outside of work.

Ask Juli Briskman. Ms. Briskman became famous for a photograph taken of her when she gave the President a one-finger salute as he drove past in his motorcade. Her employer, Akima LLC, terminated Ms. Briskman’s employment for violating the company’s social media policy. Ms. Brisman sued Akima by arguing that a public-policy exception should exist to the at-will employment doctrine. But the Virginia Court dismissed her case for failure to state a legal claim.

Similarly, a white nationalist was fired from his job as a welder and mechanic after appearing in the New York Times at a white nationalist rally in Charlottesville, Virginia. The company, Limestone & Sones Inc. posted a statement on its Facebook page stating they “would like to take this time to assure our friends and customers that we do not condone the actions of people involved in this horrific display that has taken place in Charlottesville.”

This is not to say that employers can never be held liable for terminating an employee for “free speech.” Many states, including Minnesota, prohibit an employer from terminating an employee for reporting, in good faith, violations of the law to the police. While some employers may feel tempted to retaliate against an employee for speaking with the police about its own policies or practices, such retaliation would likely violate the law. Likewise, an employer who terminates an employee for protesting race discrimination may itself face a lawsuit for race discrimination.

If you have been fired for engaging in “free speech,” and would like to know more about your rights, contact an attorney at Teske Katz Kitzer & Rochel today.

Super Lawyers Names Vildan Teske a Top 100 Lawyer and Top 50 Women Lawyer, and Phillip Kitzer and Brian Rochel Rising Stars

We are excited to announce that, once again, Teske Katz Kitzer & Rochel partners have been named to the annual Super Lawyers and Rising Stars lists. Vildan Teske has been named one of the Top 100 Lawyers and one of the Top 50 Women Lawyers in Minnesota. This is a very high distinction reserved for the top attorneys under the Super Lawyers rating system–and is especially impressive given that there are more than 25,000 attorneys in Minnesota. 

Phillip Kitzer and Brian Rochel were both again named to the list of Rising Stars honorees as well. Vildan Teske was named a Super Lawyer in the “Class Action/Mass Torts” category, while Phillip Kitzer and Brian Rochel were named Rising Stars honorees in the “Employment Litigation: Plaintiff” category.  

Each year, only a select few attorneys are honored as Super Lawyers or Rising Stars. Only 5% of the attorneys in Minnesota are recognized as Super Lawyers, and only 2.5% of attorneys are named as Rising Stars (for attorneys in their first 10 years of practice or under the age of 40). The award is based on a combination of  objective criteria,  peer nominations, and a blue ribbon panel review

For individual profiles and to see Teske Katz Kitzer & Rochel’s firm profile, visit the Super Lawyers website. To view the full digital Super Lawyers magazine with the complete list, click here.

Teske Katz Kitzer & Rochel is proud of all of its attorneys, and grateful to the legal community for this recognition.