Can an Employer Fire an Employee for Posing with a Nazi Symbol?

By Kathleen Jennings (kjj@wimlaw.com)

This past weekend, an alt-right rally in Charlottesville, VA featured numerous men (and some women) wearing white hoods, Nazi symbols, and other symbols of what they considered “white pride.” Many others consider these symbols of racial hatred, and there was a movement on social media to identify some of the attendees of the rally and ask their employers to fire them. Of course, that piqued the interest of this employment lawyer.

Can an employer fire an employee for posing with a Nazi symbol or other expression of racial and/or religious animosity? Even though this behavior occurred outside the workplace?

In an at-will employment state such as Georgia, a private employer can terminate an employee who does not have a written contract of employment at any time, for any reason, or no reason at all. So the answer is Yes. This power to terminate is limited by federal law, which means that an employment decision should not violate federal anti-discrimination laws (which generally apply to employers with 15 or more employees). In the case of the employee posing with the Nazi symbol, he will be hard-pressed to a show that his termination is motivated by discrimination. To show discrimination, he would need to show that similarly situated (i.e., posing with a known symbol of racial animosity) non-white employees were not terminated. The answer is still Yes.

Should an employer fire an employee for posing with a Nazi symbol? If the employee is a supervisor or manager, the answer is Absolutely Yes. That picture will forever carry a taint of racial animus that will affect any employment decision that the employee makes, including any decisions in his chain of command, and that taint will be imputed to the company.

If the employee is not a supervisor or manager, the answer is slightly less definitive. Has this employee shown any discriminatory attitudes or beliefs in the workplace? Has he had conflicts with other employees? Are other employees aware of his beliefs, and does that cause disruption in the workplace? Are others likely to associate this employee’s beliefs with the company? If the answer to any of these questions is yes, then he probably needs to go.

If the employer decides not to terminate the employee, it needs to set some ground rules. First, there needs to be a documented conversation with the employee about the company’s EEO policy and a reaffirmation that the company will not tolerate discrimination. Second, the employee needs to be made aware that he will not be considered for any supervisory or managerial positions. If the employee shows any resistance to either of these concepts, then it is not a good idea to keep him around.

Finally, there is no First Amendment “right to free speech” in a private (non-government) workplace. That means an employee may have to choose between posing with a Nazi symbol and keeping his job.

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

©2017 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.

 

 

The EEOC Frowns on Stereotyping of Older Applicants

By Kathleen Jennings (kjj@wimlaw.com)

A parking management company in Atlanta is facing a discrimination lawsuit filed by the EEOC because an operations manager told a 60-year-old female applicant for a valet job that she would not be successful as a valet because of the “physicality of the job.” Instead, the operations manager told applicant, Valerie Hayden, that she would be perfect for a customer service position and told her to come back the following week to attend orientation.

Then the company made things even worse: the day before she was scheduled to begin her new position, Hayden called to ask what time she should report. However, the operations manager told Hayden that the job had already been filled. The company’s records show that after Hayden was interviewed, it hired several male valets and customer service employees who were substantially younger than Hayden. After this kind of treatment, it is not surprising that Hayden went to the EEOC and filed a charge of discrimination.

The EEOC’s lawsuit asserts that this alleged conduct violates Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA). In the press release issued by the EEOC, Antonette Sewell, regional attorney for the Atlanta District Office, stated, “What is most disturbing about this case is that the hiring official automatically assumed that Ms. Hayden was not qualified to work as a valet or customer service parking manager because of her age and the fact that she is a woman. Such managerial behavior is not legal or acceptable in the 21st century.”

Do not make assumptions about a job applicant’s physical ability to perform a job based solely on age or gender. Consider this: Diana Nyad swam from Cuba to Florida at the age of 64. 92-year-old Harriette Thompson completed the San Diego Rock ‘N Roll Marathon in 2015 (and became the oldest person to complete a half-marathon 2 years later).

Pro tip: During the job interview process, an employer can ask an applicant if he/she is able to perform the essential functions of the job. Once a conditional job offer is made, the employer may ask more detailed questions about abilities and disabilities and require medical examinations as long as this is done for all entering employees in that job category.

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

©2017 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.

Trump Administration Gives Us More Information On Where It Stands on LGBTQ Issues

By Kathleen Jennings (kjj@wimlaw.com)

This week, the Trump Administration gave us more information on where it stands on LGBTQ issues with a tweet and a Brief. The tweet came from the President wherein he stated that he plans to reinstate a ban on transgender individuals from serving “in any capacity” in the US armed forces. Whether this tweet will be formally put into practice remains to be seen.

Of more interest to private employers, however, is the Amicus Brief filed by the U.S. Department of Justice yesterday with the full U.S. Court of Appeals for the 2nd Circuit in New York in Zarda v. Altitude Express, a case filed by a now deceased skydiver who claimed that he was fired from his job because of his sexual orientation. In that Brief, the DOJ argues that discrimination on the basis of sexual orientation is not covered by Title VII of the Civil Rights Act of 1964, as amended.

The DOJ’s current position is contrary to the position of the Obama administration’s Justice Department as well as the Equal Employment Opportunity Commission. In its Brief, the DOJ noted that every Congress since 1974 has declined to add a sexual-orientation provision to Title VII, despite what it called “notable changes in societal and cultural attitudes.” The Brief also claimed that the federal government, as the largest employer in the country, has a “substantial and unique interest” in the proper interpretation of Title VII. Although the Equal Employment Opportunity Commission filed its own brief supporting Mr. Zarda, the DOJ Brief claimed that the EEOC was “not speaking for the United States.” “The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” the DOJ’s Brief said. “It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”

The takeaway: We have the DOJ and the EEOC, both federal agencies, taking opposite positions on the issue of whether discrimination on the basis of sexual orientation is covered by Title VII. This issue is currently being addressed by federal courts in the various Circuits, and may ultimately be resolved by the US Supreme Court. And that ultimate outcome could be determined by the ideological makeup of the Justices. We’ll provide more updates as things develop.

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

©2017 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.

 

 

 

Have You Audited Your Pay Practices Lately?

By Kathleen Jennings (kjj@wimlaw.com)

A Maryland county learned the hard way that attacking wage discrimination based on sex, race, and other protected characteristics is an EEOC enforcement priority. Last week, Prince George’s County, Maryland entered into a Consent Decree with the EEOC and agreed to pay $145,402 in lost wages, damages, and costs to settle an EEOC lawsuit for a female engineer who was paid thousands less per year than male employees doing substantially the same job. (EEOC v. Prince George’s Cnty., D. Md., No. 15-2942, consent decree entered 6/1/17). In addition, the County agreed to hire a consultant to ensure future wage parity between female and male employees who perform substantially similar work in the county’s Department of Environment, provide equal employment opportunity training for its managers and supervisors, file periodic reports with the EEOC, and post workplace notices about the settlement. The county also increased the female engineer’s annual salary from $82,294 to $107,017 to align her pay with her male counterparts.

The EEOC’s lawsuit alleged, among other things, that the County paid the female engineer less than male colleagues even though she did equal, and in some cases, more complex and superior work. In March, the Court ruled that the EEOC proved the county was liable under the Equal Pay Act by paying the female engineer a lower salary than male engineers performing substantially equal work. The EEOC and the county settled to avoid “the time and expense of continued litigation,” according to the Consent Decree.

Pro Tip: Have you audited your pay practices lately? Employers should regularly review their pay practices to make sure that they are not engaging in discrimination. If any differentials do exist, employers should make sure that they are based on legitimate and nondiscriminatory factors and supported by written documentation, and if they are not, they should correct them promptly. By doing so, employers may dramatically reduce the chance that they will be faced with a claim for wage discrimination.

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

©2017 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.

 

Does Title VII cover discrimination based on sexual orientation? The Seventh Circuit says yes, moving the issue one step closer to the U.S. Supreme Court.

By Kathleen Jennings (kjj@wimlaw.com)

This week, the full U.S. Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) ruled that Title VII’s ban on sex discrimination precludes employers from discriminating against lesbian and gay workers based on their sexual orientation. (Hively v. Ivy Tech Community, Coll. of Ind., 7th Cir., No. 15-1720, en banc decision, 4/4/17). With the 8-3 ruling, the Seventh Circuit becomes the only federal appeals court to hold Title VII covers sexual orientation bias.

Writing for the Seventh Circuit, Chief Judge Diane P. Wood said the court’s ruling “must be understood against the backdrop” of Supreme Court decisions addressing sexual orientation more broadly, as well as its employment discrimination cases. Those rulings, including the 2015 decision recognizing a constitutional right to same-sex marriage, reflect societal changes about the meaning of sex that can’t be ignored, the Court said. To that end, the Court stated that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”

Three-judge panels in the Eleventh and Second Circuits both recently held Title VII does not prohibit sexual orientation bias. The Seventh Circuit case holding otherwise creates a split in the Circuits, which makes it more likely that the U.S. Supreme Court will be called upon to resolve the conflict. However, the employer in the Seventh Circuit Hively case has said that it will not appeal that decision, so that decision will not be the one that the Supreme Court considers.

In the Eleventh Circuit case, which we discussed in a previous post, the plaintiff, Tameka Evans, has requested reconsideration by the entire Eleventh Circuit. If the entire Eleventh Circuit decides to reconsider the decision of the 3-judge panel, it is likely that Ms. Evans’ attorneys will use the Seventh Circuit opinion in the Hively case to try to persuade the Eleventh Circuit to rule in their favor. It is interesting to note that the Seventh Circuit utilized the gender non-conformity theory that Judge Rosenbaum also noted in her dissent in the Evans case. Under that theory, discrimination based on a person’s failure to conform to traditional gender stereotypes is a form of sex discrimination.

We will continue to monitor the developments in this area.

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

©2017 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.

 

Discrimination Based on Sexual Orientation and Discrimination Based on Gender Stereotypes–Is There a Difference? The 11th Circuit Says Yes, For Now.

By Kathleen Jennings (kjj@wimlaw.com)

Last week, the 11th Circuit Court of Appeals (which covers the states of Georgia, Florida, and Alabama) issued a decision regarding a claim of discrimination by a woman who worked as a security guard Georgia Regional Hospital. (Evans v. Ga. Reg’l Hosp., 11th Cir., No. 15-15234, 3/10/17). The plaintiff, Tameka Evans, alleged that she was discriminated against on the basis of her sex and targeted for termination because of her sexual orientation. The Hospital moved to dismiss the Complaint on the ground that discrimination on the basis of sexual orientation is not actionable under Title VII. The majority of the three judge panel of the 11th Circuit agreed, and made a distinction between discrimination based on sexual orientation and discrimination based on gender stereotyping. This distinction is critical because a 1989 U.S. Supreme Court decision held that discrimination based on gender stereotypes is a form of sex discrimination. In that case, the discrimination took the form of company managers telling a female financial professional that she did not act or dress feminine enough. In contrast, Title VII does not explicitly protect sexual orientation, and the majority opined that it is for Congress, not the courts, to amend Title VII to add any additional protected categories.

The dissent, however, argued strongly that any lesbian worker who alleges an employer discriminated because of her sexual orientation essentially is claiming the employer discriminated because she’s attracted to women and therefore doesn’t conform to gender stereotype

It should be noted that Ms. Evans brought the initial Complaint herself without an attorney. The Complaint was not very artfully drafted, and the court has given her an opportunity to amend it. Further, she has since had counsel appointed to represent her, and many observers believe that this case will be reviewed by the full 11th Circuit.

Ultimately, the issue of whether discrimination based on sexual orientation is actionable under Title VII may be decided by the US Supreme Court. We will continue to monitor this case.

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

©2017 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.

 

Does Your Company Have a Social Media Policy? A Cautionary Tale.

By Kathleen Jennings (kjj@wimlaw.com)

Harriet the Human Resources Manager is sitting at her desk at Acme Corporation on Monday morning enjoying a cup of coffee when the email arrives from Will E. Kyote. Harriet is aware that Will is a frequent purchaser of Acme’s products. Harriet figures his latest order was forwarded to her by mistake.

This email, however, is not an order. In it, Will states as follows: “I have attached a screenshot of a comment by your employee, Rhoda Runner, on a social media page of a local news station. I clicked on her picture, and the link showed her to be a supervisor at your company. I am disgusted and I will no longer do business with Acme.”

The screenshot shows a news story about immigration, and shows several comments, including one by Rhoda that states: “I am so tired of hearing the Mexicans speak Spanish at work all day. If they can’t speak English, they need to go back to where they came from!” Will has also sent a screenshot of Rhoda’s Facebook page which shows that she identifies herself as a supervisor at Acme.

To make Harriet’s morning worse, she sees that Acme’s President was copied on the email. Sure enough, the President calls Harriet and tells her, “We cannot allow our employees to represent our company with these kinds of statements. It is disrespectful to our employees. It is disrespectful to our customers. We have lost one customer already. Make sure it does not happen again.”

Harriet calls Rhoda to her office. Rhoda also invites Rhoda’s supervisor to the meeting as a witness. Harriet asks Rhoda if she posted the statement on a social media page. Rhoda admits that she did, adding, “I just got caught up in things. I probably should not have said it.” Harriett asks Rhoda if the difference in language prevents the Spanish-speaking workers from doing their jobs. Rhoda admits that it does not because there are several bilingual line leaders and supervisors available to translate.

Harriet shows Rhoda Acme’s Social Media policy, as well as a copy of Rhoda’s signed acknowledgement of receipt of the policy. “I’m sorry, Rhoda, but your statement is a clear violation of this policy. As a supervisor, you represent the company. Acme does not tolerate these kinds of statements. You are suspended without pay for 1 week, you are being demoted to a non-supervisory position and your pay will be reduced accordingly, and you will be required to attend diversity training. Any further incidents of this type will result in your immediate termination.”

Rhoda is stunned. “How can you do this; I didn’t say this at work?! I have a right to express my opinions on social media.”

Harriet responds: “Rhoda, the Company’s Social Media Policy clearly states that

All of Company’s policies, as well as the terms of any agreement between you and Company, apply to communications (“posts”) made on social media. This includes for example, policies regarding discrimination, sexual harassment, non-violence, confidentiality, use of Company’s electronic systems and use of company time, as well as contractual provisions regarding disclosure of confidential information and restricting competitive activities. Sexual harassment, confidential information and other terms defined by other policies and agreements between you and Company have the same meaning as in those policies and agreements. ”

“Rhoda, while you may have the ability to express your opinion publicly, when those opinions violate our discrimination or harassment policies, we have to take action. We do not tolerate those kinds of statements by any employee, and especially not by a supervisor. That kind of statement also can undermine your effectiveness as a supervisor of a diverse workforce.”

Thereafter, Rhoda sent an email to all company employees reminding them of Acme’s Social Media Policy as well as its EEO Policy and its Policy Against Harassment. She also sent an email to Will thanking him for his email and assuring him that Rhoda’s words did not reflect the views of Acme. Will responded shortly thereafter, thanking her for a prompt response to his concern.

The moral of the story: Can a private company like Acme really take action against an employee for making a statement on social media? Yes—a private company has a right—and a duty– to manage how its employees represent themselves and communicate on social media. The dissemination of a written social media policy puts employees on notice of the company’s expectations. A private employer can take action against an employee for making statements on social media that are contrary to the Company’s policies and values. The statements of supervisors and/or managers can be imputed to the Company and can be used against the Company in legal proceedings, so it is especially important for those persons to understand the parameters of the Company’s social media policy and the consequences of speech the Company deems improper or harmful.

If your company needs a Social Media policy, or wishes to update an existing policy, please contact one of the attorneys at Wimberly, Lawson, Steckel, Schneider & Stine, P.C. for assistance.

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

©2017 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.