Masterpiece Cakeshop: Maintaining the Status Quo

In agreeing to review Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the U.S. Supreme Court faced questions involving both constitutional protections for LGBTQ rights and the free exercise of religious beliefs. In the end, the Court followed the facts of this particular case, making a decision that was narrower than anticipated while still upholding both rights.

In 2012, a same-sex couple visited Masterpiece Cakeshop, a custom bakery in Colorado, to order a wedding cake. The shop’s owner, Jack Phillips, refused because of his religious opposition to same-sex marriages, saying that he would make any other kind of cake, such as a birthday cake. At the time, Colorado did not recognize same-sex marriages since the Court had not yet handed down Obergefell v. Hodges. The couple filed suit with the Colorado Civil Rights Commission alleging discrimination on the basis of sexual orientation in violation of the Colorado Anti–Discrimination Act (CADA). CADA makes it unlawful to discriminate in public accommodations or “place[s] of business engaged in any sales to the public and any place offering services … to the public.” (Colo. Rev. Stat. § 24–34–601(1) (2017)).The Commission determined there was probable cause that discrimination had occurred. Unwilling to ignore his religious beliefs, Phillips stopped selling wedding cakes altogether and his profits fell forty percent. Eventually, Phillips brought his lawsuit to the Supreme Court.

The Court faced two issues: Continue reading »

Update on the EEOC and the Prohibition of Sexual Orientation and Gender Identity Discrimination

In an article in the inaugural issue of DMPC’s Employment News You Can Use, EEOC: Discrimination Based on Sexual Orientation and Gender Identity is Prohibited, we discussed the state of the current contradictory precedent out of the Missouri Courts of Appeals.

As of the date of this post, the uncertainty of whether employment decisions based on sexual orientation are prohibited remains; however, limited movement was made by the Western District’s Court of Appeals when it reversed a summary judgment ruling in Lampley v. Missouri Commission on Human Rights.

Harold Lampley alleged his employer, the State of Missouri, Department of Social Services Child Support Enforcement Division, discriminated against him based on sex because his behavior and appearance contradicted the stereotypes of males held by his employer and managers. Lampley argued that because he did not conform to the stereotype of males, his employer treated him differently from other employees who conformed with gender stereotypes. Lampley postured his sex discrimination case as supported by evidence of sex stereotyping. It is important to note that Lampley brought his lawsuit against his employer for sex discrimination, not discrimination based on sexual orientation. Continue reading »

Salaries Speak Louder than Words: The Ninth Circuit Holds that Prior Salary Cannot Justify Wage Disparities

In April 2018, the Ninth Circuit Court of Appeals held in Rizo v. Yovino that an employee’s pay history is not a legal justification for a wage disparity under the Equal Pay Act.

The Equal Pay Act (the “Act”) stands for a principle as simple as its title: men and women should receive equal pay for equal work, regardless of sex.  While sex-based wage discrimination has been prohibited under the Act for over fifty years, the pay gap between men and women continues to be a disconcerting reality in our society.

The Act provides that an employer may justify wage disparities if it is able to prove that it relied not on sex, but on one of the following exceptions: (i) a seniority system; (ii) a merit system; (iii) a system that measures earnings by quantity or quality of production; or (iv) a differential based on “any factor other than sex.” It is the last “catch-all” exception that was the subject of Rizo v. Yovino. Continue reading »

The EEOC Catches the Flu: A Cautionary Tale for Employers With Mandatory Flu Vaccination Programs

After enduring one of the worst flu seasons in nearly a decade, there is no question why more employers are instituting mandatory flu vaccination programs. In fact, mandatory flu vaccination programs are increasingly popular for healthcare employees.

No current laws in Missouri or Illinois mandate all health care employees to be vaccinated against the flu. That being said, nursing home employers in Missouri are required to either offer the flu shot to all employees and volunteers who have direct contact with residents, or provide the employees and volunteers with information about how they can obtain the flu shot independently. Similarly, health care employers in Illinois are required to provide all employees with education on influenza, as well as the opportunity to receive the vaccine. Some states, such as California and Maryland, require hospitals to publish their employee vaccination rates to the public.

When instituting a mandatory flu vaccination program, however, an employer should be aware of the possible ramifications of denying or terminating employment for refusal to comply with a mandatory flu vaccination program on the basis of religious beliefs.  Continue reading »

Employment News You Can Use

Welcome to the inaugural issue of “Employment News You Can Use,” Danna McKitrick’s Employment Law Educational Alliance newsletter.

After a busy legislative session, employers may find several reasons to be encouraged.

• “Motivating Factor” Standard Replaces “Contributory Factor”
  The standard for liability has moved from proof that the discriminatory conduct was a “contributing factor” to “the motivating factor.” Read more

• Preventing Sex Discrimination: The Case for Implementing More Guard Rails
  Business owners should consider a few guards rails to create an environment where sexual harassment or sexual discrimination less likely to happen. Read more

• Is a LinkedIn Offer to Connect a Violation of a Non-Solicitation/Anti-Raiding Agreement?
  In our world of mobile devices and social media, business owners may need to revise existing non-solicitation and non-complete agreements. Read more

Continue reading »

“Motivating Factor” Standard Replaces “Contributory Factor”

Over the past decade, Missouri has been viewed as a plaintiff-friendly state in workplace discrimination lawsuits. Effective August 28, 2017, Senate Bill 43 was signed into law by Missouri Governor Eric Greitens, which amends the Missouri Human Rights Act (MHRA). The law changes the applicable standard for liability of an employer and more closely aligns Missouri law with federal policies and law. The standard for liability has moved from proof that the discriminatory conduct was a “contributing factor” to “the motivating factor.”

Under the more strict “motivating factor” standard, a plaintiff must prove, not only that the accused employer was unlawfully biased against the plaintiff’s protected classification, but also that this bias had a “determinative influence” on the employer’s decision to terminate the plaintiff. (Missouri Revised Statutes 213.010(19) 2017). The MHRA specifies that only employers are considered entities, not individuals, subject to liability for proven discrimination.

Also important, the MHRA changes language of the Act and now requires that a complaint must be formally filed by the victim within 180 days of any alleged discriminatory offense. Previously, in Missouri, a victim could file a complaint of discrimination within 300 days of the alleged discriminatory conduct. Continue reading »

Preventing Sex Discrimination: The Case for Implementing More Guard Rails

One of the hottest topics today is the accusations of some form of sex discrimination – which includes sexual harassment and sexual assault – related to employment. From the entertainment industry to media organizations, professional services firms, restaurants, venture capital firms, legislative bodies, and many others, the problem is widespread – but it is not new. It is just an age-old story with new players.

Lawyers are brought in after the allegations are made. Those burning allegations must be dealt with very quickly under the law. The intent is to contain the fire by creating legal closure which, in most cases, involves settling the subject claim(s) through release agreements that contain confidentiality agreements and non-disparagement clauses. With respect to  advice to prevent sexual harassment in the future, lawyers often recommend a myriad of actions including  installing new leaders, overhauling management, conducing outside legal reviews into unreported claims, creating employee advisory committees, updating sexual harassment policies, offering  more employee services, and providing more training and education to employees. Depending on whether the ultimate decision maker sincerely “walks this talk,” this all could be simple symbolic noise.

Setting aside the allegations and rumored settlements, the common threads are as follows: Continue reading »

Is a LinkedIn Offer to Connect a Violation of a Non-Solicitation/Anti-Raiding Agreement?

Today, marketing and sales are yoked through digital channels. Leads and customer relations are created and maintained on LinkedIn, Facebook, Twitter, Blogs, email, video calls, and chat rooms. Your salespeople use these tools to sell your products. Yet, change happens. Valuable salespeople with critical customer relationships and employee friendships will leave your company. Hopefully, when those employees leave your employ, you have non-competes and non-solicitation clauses in place which prohibit them from directly or indirectly soliciting employees or customers for a period of years after termination of employment.

You hear through the grapevine that your former super salesperson who just quit has an updated job status on LinkedIn. Now some of your employees and customers know where the former super salesperson is now employed. To add insult to injury, your former super salesperson has asked several of your employees to connect via LinkedIn. You are afraid of the Pied Piper effect and that more of your employees will leave you. Plus you paid good money for your lawyer to draft the darn non-solicitation agreement and you want your money’s worth!

How can you as an employer determine if your former salesperson is legally violating the non-solicitation agreement?

1. Passive solicitation. Is the activity passive and what is the content and substance of the message conveyed? Most courts that have considered this issue have found that an update to an individual’s LinkedIn account is passive. But what about a new request to connect?In Bankers Life and Casualty Company v. American Senior Benefits, Bankers Life sued a former sales manager for updating his LinkedIn account and asking three former co-workers – current employees of his former employer – to connect. Bankers Life argued that asking existing employees to connect was targeted and it would uncover job listings of current employer. The sales manager argued that the connection request was a LinkedIn generic email simply asking to form a professional networking connection on social media. The court noted that the generic emails did not contain any discussion of Bankers Life, no mention of the new employer, and no suggestion that a job description be reviewed. Further, current Bankers Life employees had a choice whether or not to respond and connect, click on the former co-worker’s profile, or review job postings for the salesperson’s new employer. Accordingly, the mere act of asking someone to connect on a social network via a generic email generated by the network itself did not violate the non-solicitation agreement. In Pre-Paid Legal Services v. Cahill, the court held that posting on Facebook that an employee has moved and touting the new employer’s product did not constitute evidence of unlawful solicitation.Courts have also ruled that posting a job opportunity on a LinkedIn is not a solicitation and becoming “friends” with former clients on Facebook does not in and of itself violate a non-compete clause (Enhanced Network Solutions Group, Inc. v. Hypersonic Technologies Corp and Invidia and LLC v. DiFonzo).

Continue reading »

Working From Home as a Reasonable Accommodation Under the ADA: Credeur v. State of Louisiana

In today’s hyper-connected society, there are an increasing number of employers who have instituted policies permitting their employees to work from home in certain circumstances. The U.S. Court of Appeals for the Fifth Circuit, however, held that is not the case for litigation attorneys.  In-office attendance is an “essential duty” for a litigation attorney in the context of the American with Disabilities Act (ADA).”

Renee Credeur, a litigation attorney working in the Attorney General’s office in Louisiana was granted a temporary accommodation to work from home following a kidney transplant. After approximately six months, her supervisor denied her continuing request to work from home and Credeur filed a lawsuit alleging, among other claims, failure to accommodate under the ADA. The District Court for the Middle District of Louisiana granted summary judgment in favor of the Attorney General’s office and Credeur appealed. Continue reading »

EEOC: Discrimination Based on Sexual Orientation and Gender Identity is Prohibited

In its list of protections against discrimination, Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity. However, the Equal Employment Opportunity Commission (EEOC) interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.

As its legal basis for concluding that sexual orientation and gender identity are covered by Title VII, the EEOC uses Supreme Court case Price Waterhouse v. Hopkins, which holds employment actions motivated by gender stereotyping are unlawful sex discrimination, along with more recent court decisions(Chavez v. Credit Nation Auto Sales, L.L.C.; Baker v. Aetna Life Ins., et al.; Fabian v. Hosp. of Central Conn; Lewis v. High Point Regional Health Sys.; Hively v. Ivy Tech Cmty. Coll. of Indiana). Although Congress has not amended Title VII to specifically include sexual orientation and gender identity as protected, the EEOC has applied existing Title VII precedents to sex discrimination claims raised by LGBT individuals. The EEOC states these protections apply regardless of any contrary state or local laws; however, the Missouri Court of Appeals appears unfazed. Continue reading »