RebKell's Junkie Boards

[Genero36]

Supreme Court rules existing civil rights law protects LGBTQ workers

[toad455]

YES!!!!

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LET'S GO LIBERTY!!!!!!

Twitter: @TBRBWAY

[jammerbirdi]

About time. And speaking of timing.

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Every woman who has ever been presented with a career/sex quid pro quo in the entertainment industry should come forward and simply say, “Me, too.” - jammer The New York Times 10/10/17

[Howee]

This was a very serious concern, to me. A different outcome could have easily signaled a sea-change in social attitude on this front. Given the Christian Right's most recent signaling, this is pretty profound.

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Oregon: Go Ducks!
"Inévitablement, les canards voleront"

[Genero36]

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I'm all for the separation of church and hate.

[Genero36]

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I'm all for the separation of church and hate.

[GlennMacGrady]

[taropatch]

This ruling is only for employee protection and has nothing to do with baking wedding cakes, correct? You may end up in court, but you can still refuse to bake a wedding cake for a gay couple. Its my understanding that the latter is still a fuzzy area as the Colorado ruling was for that specific case only.

[Howee]

[Genero36]

<embed><iframe width="640" height="360" src="https://www.youtube.com/embed/2Kor5WhSUCg" frameborder="0" allow="accelerometer; autoplay; encrypted-media; gyroscope; picture-in-picture" allowfullscreen></iframe></embed>

https://youtu.be/2Kor5WhSUCg

"In the constitution...America's constitution literally says, all this dope shit that we wrote about rights, about owning land, about having guns, about equality, is only applicable to land owning White men."

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I'm all for the separation of church and hate.

[Genero36]

Howee

You certainly have more patience than I do because I don't bother to entertain those who use being willfully obtuse as an artform.

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I'm all for the separation of church and hate.

[justintyme]

[pilight]

Alito is a hack. He'll apply whatever philosophy leads to the Republican position.

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I'm a lonely frog
I ain't got a home

[PUmatty]

[CamrnCrz1974]

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against any individual in employment “because of such individual’s race, color, religion, sex, or national origin.” Prior to this decision, U.S. Circuit Courts of Appeals split as to whether the language “because of sex” included workplace protections for discrimination against gay or transgender people.

The Court wrote:

Today we must decide whether an employer can fire someone for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

The decision makes clear that “homosexuality and transgender status are distinct concepts from sex.”

However, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

[CamrnCrz1974]

[CamrnCrz1974]

Generally speaking....here is a (not so) quick, bare bones summary of employment discrimination law.

"At-will" employment essentially means you can quite a job at any time for any reason or be fired from a job at any time for any reason (just not an illegal or impermissible one).

This means that classified/civil service employees (typically found in the public sector) cannot be terminated without just cause or due process (notice and opportunity to be heard, typically followed by an appeal or hearing). With employees subject to an employment agreement, the terms of contract govern (though you still cannot terminate someone for an illegal reason). For non-classified employees not subject to any employment agreement, you cannot be terminated in violation of federal and state laws covering the following protected categories (among others):

Age (ADEA)
Color (Title VII)
Disability (ADA)
Gender Identity (Title VII)
Genetic Information (GINA)
Military Service (USERRA)
Protected Leave (e.g., FMLA)
National Origin (Title VII)
Pregnancy (Title VII/PDA)
Race (Title VII)
Religion (Title VII)
Sex (Title VII)
Sexual Orientation (Title VII)

Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for employers subject to the statute to discriminate against any individual with respect to “compensation, terms, conditions, or privileges of employment” because of that person’s race, color, sex, religion, and national origin. 42 U.S.C. § 2000e-2(a)(2). The statute also prohibits segregating or limiting employees/applicants based on one of the mentioned protected categories in any way that deprives them of employment opportunities. 42 U.S.C. § 2000e-2(a)(2).
NOTE: The statutory citations were before yesterday's SCOTUS decision - Bostock v. Clayton County.

An employee/claimant in an employment discrimination case can proceed under two theories of discrimination: “disparate treatment and disparate impact.” Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 811 (9th Cir. 2004) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993)).

“Disparate treatment" is demonstrated when the employer simply treats some people less favorably than others because of a protected characteristic (e.g., discrimination, harassment, etc.). Examples of this type of theory are things like failure to hire, failure to promote, termination, or other alleged workplace actions impacting the terms and conditions of employment based on a protected category.

“Disparate impact” is demonstrated when employment practices or policies that are facially fall more harshly on one group than another and cannot be justified by business necessity. Here, an employee/claimant attempts to demonstrate that specific practices (and not the cumulative effect of the employer's selection practices) have adverse effects on a protected group. Examples of relatively recent case law in this area include lifting/physical requirements discriminating on the basis of sex or criminal background processes discriminating on the basis of race.

Disparate treatment claims must proceed along the lines of the praxis laid out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its progeny. Under a disparate treatment theory, claims of discrimination based on circumstantial evidence are analyzed under the McDonnell Douglas burden shifting framework:

An employee must carry the initial burden to establish a prima facie case that creates an inference of discrimination.
If the employee has justified a presumption of discrimination, an inference of discrimination arises and the burden shifts to the employer to produce a legitimate, nondiscriminatory reason for its employment action.
If the employer does so, the burden shifts back to the employee to prove that the employer's explanation is a pretext for discrimination.

To establish a prima facie case of sex discrimination, an employee must allege and demonstrate:

He/she was a member of a protected class;
He/she was performing his/her job satisfactorily or was qualified for a position sought;
He/she was discharged or otherwise suffered an adverse employment action; and
Similarly-situated individuals outside his/her protected class were treated more favorably or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.

Once a claimant establishes a prima facie case, the employer must provide a legitimate explanation for its decision (the adverse employment action) that is non-discriminatory.

If the employer demonstrates a legitimate, non-discriminatory reason for the adverse employment action, the employee/claimant can prove discrimination if he/she can demonstrate this proffered reason is actually pretext for discrimination.

The overall burden of proof for the employee/claimant in disparate treatment employment discrimination claims is by a preponderance of the evidence.

Note that the ADEA and ADA also apply the McDonnell Douglas burden-shifting framework in analyzing claims of discrimination under those respective statutes.

[CamrnCrz1974]

Other Statutory Requirements & Issues

Title VII does not provide a cause of action against supervisors or individual employees. Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587-88 (9th Cir. 1993).

In terms of numerosity requirement, Title VII requires 15 or more employees in each of 20 or more calendar weeks during the current or preceding calendar year, as does the Americans with Disabilities Act (ADA). 42 U.S.C. § 2000e(b); 42 U.S.C. § 12111(5)(A). By contrast, the Age Discrimination in Employment Act (ADEA) has a threshold requirement of 20 or more employees for 20 calendar weeks during either the year in which the alleged discriminatory act occurred or the preceding year. [url=]29 U.S.C. § 630(b)[/url]. One caveat regarding the ADA - in 2018, SCOTUS ruled that all states and political subdivisions regardless of the number of people the public entity employs. Mount Lemmon Fire District v. Guido, 586 U.S. ___ (2018).

The employment discrimination statutes (Title VII, ADEA, ADA) prohibit claims by applicants/employees against employers --- not independent contractors, not subdivisions or departments, etc.

In general, a department/division of an employer is a non-jural entity.

As examples, departments and subordinate entities of municipalities, counties, and towns are not separate legal entities or bodies and do not have the capacity to sue or be sued, absent specific statutory authority to do so. So an employee wanting to bring a claim of sex discrimination resulting from employment with the Phoenix Police Department would properly bring the claim against the City of Phoenix, not PPD -- the City is the employer; PPD is a department and a subpart of the City of Phoenix, not a separate entity for purposes of suit. The department or agency is only amenable to suit if it has registered as such or been designated as a jural entity through some other means.

[CamrnCrz1974]

Circumstantial Evidence Cases

If an employer claims discrimination and an employer claims termination for a non-discriminatory reason, this is where the circumstantial evidence comes into play. Examples of things that can constitute circumstantial evidence in employment discrimination cases that involve termination:

Personnel evaluations of employee versus those of employees outside the protected category;
Suspicious timing of the termination;
Employer treatment of other employees in the same protected category;
Evidence that similarly-situated employees (e.g., same job, same job category, same job duties, etc.) to the terminated employee who are not in the same protected group received systematically better treatment;
Witness statements/testimony from co-workers regarding management treatment of employees in a protected class, as pertaining to hiring, retention, advancement, and other terms and conditions of employment; and/or
Ambiguous statements made by the employer (especially in reference to an employee’s work performance and in performance evaluations and then later on as part of termination process or in reference to why an employee was qualified for a position but was replaced or passed over in favor of someone outside the employee’s protected group)

[CamrnCrz1974]

As a supplement to my (many) posts in this thread regarding the SCOTUS ruling and employment discrimination cases generally, two follow-up points should be mentioned regarding the Bostock v. Clayton County decision:

SCOTUS indicated that its decision does not reach into any bathroom, locker room, or dress code questions that may be raised as a result of this opinion. Rather, the ruling that Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of sexual orientation or transgender status.

SCOTUS also declined to address how the decision might affect religious employers, as that issue was not before the Court.

[GlennMacGrady]

[CamrnCrz1974]

[Howee]