It’s not uncommon to make a job offer conditional on the results of a pre-employment background check. But, how often do you deny an otherwise good job applicant a job because something unexpected came back in the background check? How do you go about informing this applicant—who you told had the job (subject to the results of the background check)—that he or she is now not going to be considered for employment?
Despite the “#MeToo” Movement, it’s still not uncommon for workers to make comments concerning a co-worker’s sexual practices. Nor is it uncommon for employers to successfully defeat sexual harassment claims based on such conduct by citing the well-established case law that discrimination statutes do not mandate a pristine work environment – shop-talk is not actionable.
California’s intermediate appellate state court recently ruled in Terris v. County of Santa Barbara that a county employee failed to demonstrate that alleged vulgar, derogatory remarks about homosexuals made by her former employer’s CEO were connected to her termination of employment. As a result, the court upheld summary judgment in favor of the employer and against the former employee in her wrongful termination action.
The area of LGBT rights in the workplace has garnered a great deal of attention in recent years as a split has grown among the courts and among federal agencies as to whether Title VII prohibits sexual orientation discrimination. Under the Obama Administration, the Department of Justice argued that Title VII’s prohibition on sex discrimination also included sexual orientation and gender identity. Recently, however, the Trump Administration’s Department of Justice filed an appellate brief in the Court of Appeals for the Second Circuit in which it argued that Title VII does not apply to sexual orientation.
Over the past several months, allegations of sexual misconduct have dominated headlines in all walks of celebrity life – including Hollywood, national newsrooms, business boardrooms, and even the halls of Congress. These revelations of widespread harassment have fueled the rise of the “#metoo” movement, which strives to raise the curtain on the pervasiveness of sexual harassment and assault in both the workplace and everyday life. Indeed, Time Magazine has collectively named “The Silence Breakers” as its 2017 Person of the Year. In many cases, and as is common in the American workplace, accusers of the alleged perpetrators now in the news had been required to sign agreements requiring arbitration of any employment-related disputes.
On December 4, 2017, the Supreme Court of the United States heard oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, more popularly known as the “gay wedding cake case.” At issue in this case are competing interests in First Amendment freedoms of expression and religion and the same-sex couples’ rights to equal, nondiscriminatory treatment.
The U.S. Equal Employment Opportunity Commission (“EEOC”) is the government agency tasked with the responsibility to enforce the federal laws prohibiting discrimination in all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits. Typically, the first steps for individuals seeking to file a charge of discrimination with the EEOC are an initial inquiry and intake interview. These first steps are now made easier through the recently launched EEOC Public Portal. The EEOC Public Portal was piloted in five U.S. cities – Charlotte, Chicago, New Orleans, Phoenix, and Seattle – for six months before it was made available nationwide on November 1, 2017.
From the time Congress passed the Civil Rights Act of 1964 until earlier this year, federal courts have consistently held that the Act’s protections against employment discrimination did not apply to discrimination on the basis of sexual orientation. However, in March, the Seventh Circuit Court of Appeals (which covers Wisconsin, Illinois, and Indiana) became the first court to rule the other way, holding that Title VII of the Civil Rights Act’s prohibition against discrimination on the basis of sex includes discrimination based on sexual orientation. What has occurred in federal courts in the wake of that decision, however, has only muddied the waters.
Although it has been more than two years since the Supreme Court of the United States (“SCOTUS”) issued its Obergefell v. Hodges opinion and more than four years since its US v. Windsor opinion, the law is still evolving as it concerns same-sex marriage. It is important for employers who wish to minimize their litigation exposure to determine what “rights, benefits, and responsibilities” same-sex spouses should be extended in the same manner as opposite-sex spouses. While SCOTUS has indicated its belief that Obergefell’s holding and application are clear, recent rulings indicate otherwise . . . which means employers would be well-advised to stay tuned.