Fifth Circuit Considers Whether Sexual Orientation is Covered By Title VII–In A Case Filed By A Heterosexual

By Kathleen J. Jennings (kjj@wimlaw.com)

The issue of whether discrimination on the basis of sexual orientation is protected by Title VII is under consideration by several Circuit courts and may one day be decided by the U.S. Supreme Court. A case before the Fifth Circuit Court of Appeals has an interesting twist: the lawsuit was filed by a heterosexual married female employee who was terminated due to a post on Facebook objecting to transgender bathroom use. [Bonnie O’Daniel v. Industrial Service Solutions, et al, Docket No. 18-30136].

Ms. O’Daniel, an HR employee of Plant-N-Power Services, Inc. in Louisiana, made a Facebook post that she described as follows: “The post included a photo array of a man (or possibly a transgender woman) wearing a dress at Target[, a retail store]. The post expressed [O’Daniel’s] views on an ongoing public debate, specifically her discontent with the possibility of this individual being permitted to use a women’s bathroom and/or dressing room at the same time as [O’Daniel’s] young daughters.”

The President of Plant-N-Power Services, Inc., who is a member of the LBGTQ community, saw the post, and Ms. O’Daniel was disciplined and ultimately discharged. (Yet another cautionary tale about posting controversial things on social media).

Ms. O’Daniel alleged that she was terminated on the basis of her sexual orientation—heterosexual, and in retaliation for complaining that she was discriminated against on the basis of her sexual orientation (heterosexual). The District Court dismissed the lawsuit, finding that Title VII does not protect employees from discrimination in the basis of sexual orientation, and Ms. O’Daniel appealed to the Fifth Circuit.

The EEOC and several LBGTQ advocacy groups have filed Briefs arguing that Title VII does prohibit discrimination n the basis of sexual orientation. So the irony here is that a heterosexual ex-HR employee who publicly posted her objections to transgender bathroom use may be the person who convinces the Fifth Circuit Court of Appeals to recognize sexual orientation as a protected status. We’ll keep you posted on this.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Some Things Are Better Left Unsaid, At Least In An Email

By Kathleen J. Jennings (kjj@wimlaw.com)

A case out of Pennsylvania deals with an issue that keeps HR professionals up at night: emails giving direction to a supervisor with regard to handling the discipline of a long-time employee. In these emails, the HR manager advised the employee’s supervisor supervisor to follow every step of the company’s progressive discipline policy, even though company policy did not require him to do so. The HR manager also said that because the employee in question had been working for the company for more than 20 years and was in the “over 40 protected class,” all steps should be taken to avoid the risk of “a situation where this [could] potentially drag out longer with complications.”

The employee, who was eventually terminated, filed a lawsuit for age and disability discrimination. In that lawsuit, the employee’s attorney argued that the HR manager’s email was direct evidence of age-related bias. [In a discrimination case, direct evidence of discrimination is extremely harmful to the employer because it essentially shifts the burden of proof.]

The Court rejected that argument, instead finding that the emails showed that the employer was trying to avoid creating grounds for a potential age discrimination claim by the employee by skipping a step in its progressive discipline program. The Court also found that the employee could not prove that she was terminated because of her age or disability. Rather, she was terminated due to documented problems with her job performance.

The takeaway: There is a big evidentiary gap between acknowledging that an employee is over the age of 40 and proving that such knowledge equals discriminatory motive. Nevertheless, some things are better left out of an email or written communication (that is not covered by attorney-client privilege), and saying that “Employee is in a protected class and might sue us if we are not careful” is probably one of them. Although the Judge did not find the email in question to be direct evidence of discrimination, the employer had to expend resources fighting that argument. Sensitive matters such as possible legal action by an employee should be confined to written communications with counsel.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

No-Match Letters Are Coming Back—Are you Ready?

By Kathleen J. Jennings (kjj@wimlaw.com)

The Social Security Administration has announced that it will resume sending “no-match” letters to employers starting in 2019. [The SSA stopped sending “no-match” letters back in 2012.]

What is a “no-match” letter? It is a written notice issued by the Social Security Administration (SSA) to an employer, usually in response to an employee wage report, advising that the name or Social Security number (SSN) reported by the employer for one or more employees does not “match” a name or SSN combination reflected in SSA’s records. The letter cautions employers against taking any adverse employment action against a referenced employee based solely on receipt of the letter, and explicitly states that the letter makes no statement about the referenced employee’s immigration status. Rather, the letter simply reports an apparent error in either the employer’s records or SSA’s records, and seeks the employer’s and, if necessary, the employee’s assistance in conforming those records.

What action should an employer take upon receipt of an SSA no-match letter or other notice of a no-match? To confirm that a reporting or input error is not the cause of a no-match, an employer, with the assistance of the referenced employee, should confirm that the name and SSN reported accurately reflects the referenced employee’s name and SSN. If no error is discovered, the employer should then advise the referenced employee to contact the local SSA office to address the reported no-match. An employer should not use the no-match letter or other no match notice by itself as the reason for taking any adverse employment action against the referenced employee. In addition, employers should not use the receipt of a no-match letter or other no-match notice (or the fact that an employee raises any objection to the employer’s no-match response procedures) as a basis to either retaliate against the employee or otherwise subject the employee to heightened scrutiny. Doing so may violate the anti-discrimination provision of the Immigration and Nationality Act (INA), or other state or Federal equal employment opportunity or labor laws. While not required to do so, an employer may schedule (and document) periodic meetings or other communications with the employee during the resolution period to keep abreast of the employee’s efforts to resolve the no-match, and to determine whether the employee needs more time to resolve the no-match than initially contemplated.

Employers should not jump to conclusions when they receive these letters. If an employee’s name and SSN don’t match SSA’s records, this does not necessarily mean the employee is not authorized to work. There are many possible reasons for a no-match letter, many of which have nothing to do with an individual’s immigration status or work authorization. Because of this, an employer should not assume that an employee referenced in a no-match letter is not work authorized and should not take adverse action against the referenced employee based on that assumption. Such action could subject the employer to liability for discrimination under the antidiscrimination provision of INA. When in doubt, consult with counsel.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.