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Tag: termination

“Sex” Means “Sex”: SCOTUS Extends Anti-Discrimination To LGBTQ Employees

June 18, 2020

On June 15, 2020, the United States Supreme Court (SCOTUS), by a vote of 6-3, ruled that the ban on sex discrimination in Title VII protects gay, lesbian and transgender employees. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of sex”; however, members of the LGBTQ community have not enjoyed this protection through federal legislation because some courts, including the 11th Circuit in which Georgia courts sit, had interpreted “because of sex” to exclude sexual orientation and sexual identity.

The Bostock ruling is a landmark decision. LOSO, LLC, had appraised our readers about the Bostock case here. To summarize briefly, Mr. Bostock’s employment with Clayton County, Georgia was terminated when his employer discovered that he was a gay man. Both lower courts upheld the termination.

Upon appeal to SCOTUS, in the majority’s opinion, Justice Neil Gorsuch framed the question before the Court as a straightforward one:  “Today,” the Court stated, “we must decide whether an employer can fire someone simply for being homosexual or transgender.”  The Court found that the answer to that question “is clear.”  When an employer fires an employee “for being homosexual or transgender,” that employer “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.”

Justice Gorsuch explained that the Supreme Court generally interprets a law by looking at how the public would have understood the law when it was passed — “the ordinary public meaning” of the law.  The Court noted that the word “sex” means either male or female. Thus, under the plain terms of Title VII, then, an employer violates Title VII “when it intentionally fires an individual employee based in part on sex,” even if “other factors besides the plaintiff’s sex contributed to the decision” and even if “the employer treated women as a group the same when compared to men as a group.”  All that matters, the Court emphasized, is whether “changing the employee’s sex would have yielded a different choice by the employer.”

As an example, the Court cited the case of an employer with two employees who are both attracted to men and are, for purposes of comparison, identical but one is male and one is female. If the employer fires the male employee only because he is attracted to men, while keeping the female employee who is also attracted to men, the employer has violated Title VII by treated the sexes differently.

The Court rejected the idea that because Congress did not address sexual orientation or transgender status specifically in Title VII, the law does not protect LGBTQ employees. Instead, the Court made clear that discrimination against LGBTQ employees, “necessarily entails discrimination based on sex”.  The decision noted that if Congress establishes a broad rule of “sex” in all its variations, without any exceptions, then “courts apply the broad rule.”

The Bostock decision may not have an earth shattering effect on employers who are located in jurisdictions where protection for LGBTQ employees have already recognized. But for all others, Bostock requires an immediate revision company policy and accompanying training for managers and supervisors. Contact us to see how we can help.

Who Gets Severance Pay and How Is It Paid?

October 1, 2018

The United States of America is one of the few wealthy countries that do not require an employer to offer and pay a departing employee some sort of a severance payment. Were there such a federal requirement, it would most likely be couched in the Fair Labor Standards Act (FLSA) which governs wage and hour issues in all workplaces engaged in interstate commerce. But the FLSA includes no rules that entitle an employee to severance pay. 

Instead, severance pay is a contractual arrangement. Thus, as long as no discrimination is made based on prohibited grounds, who gets severance pay and how it is paid is generally at the discretion of the parties.

When a company has a formal severance pay policy, it will include the purpose of the severance plan and conditions for paying severance. Eligibility for and the amount of pay and/or benefits will be included therein and is primarily calculated by the length of employment or service tenure. Other factors are frequently considered such as: 

  • Reason for termination of employment (often termination for cause such as poor performance or misconduct will disentitle an employee from severance pay),

  • Re-employment of the employee by the same employer or its affiliates (this frequently triggers a claw back or termination of severance benefits), among other factors

  • Class of workers, for example, salaried workers may receive severance pay, but hourly employees may not. Executives are almost always offered some form of severance pay.

  • Company succession: severance agreement may stipulate that in the event the company is sold, acquired, mergers, etc. severance will not be paid unless an employee is involuntarily terminated.

Severance pay can be paid in a lump sum, or via regular pay periods for a specified duration, this is known as salary continuation. Depending on the circumstances, one or the other payment method might be preferred, for instance, if the separation arose from hostile circumstances it would be ideal to offer a lump sum and part ways with the departing employee immediately or if there are concerns about funding a large severance payment then salary continuation would be ideal. The payment method may affect the employee’s unemployment benefits and have tax liability consequences, so this is an important consideration for both parties.

An employment attorney can assist an employee in negotiating a severance package, especially if termination of employment was involuntary due to a group reduction in force. Even if the employee was wrongfully terminated, an attorney can advise on potential grounds for a wrongful termination lawsuit before the right to sue is waived or released in a severance agreement.

Due to the consequences of accepting a severance agreement and the potential benefits of having entered into a severance agreement, it is advisable to have an experienced employment attorney review the policy prior to executing any documents.

 

To Serve and Protect: Discrimination Against Veterans In Employment is Prohibited

May 21, 2018

On the last Monday in May, Americans celebrate Memorial Day to commemorate all the men and women who have died in military service to the US. But what about those who return from a military tour… and join, or re-join, the workforce. The federal government through Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, for this class of individuals to protect their right to work and to return to work.

USERRA prohibits discrimination against employees and potential employees based on their military service. It also imposes obligations on employers with respect to employees returning to work after a military tour of duty. The most unique characteristics of USERRA make it very different from other employment laws and civil rights law. Consider the following:   

  1. No Employer Bias: courts universally construe USERRA in favor of veterans, on the other hand, many with experience in the field will agree that most courts, especially the 11th Circuit and those within its jurisdiction (Georgia included) generally construe other employment related laws in favor of the employer.
  2. No Statute Of Limitations: USERRA has no statute of limitations for claims that accrued after October 10, 2008 and, in some cases, October 10, 2004. Other employment-related statutes have strict deadlines during which a claim must be brought such as Title VII and the ADA – one-hundred and eighty (180) days, the EPA – two (2) years, etc.
  3. No Minimum Employer Size: USERRA applies to all public and private employers, irrespective of size whereas laws like Title VII require a minimum of 15 employees, the ADEA requires 20, FMLA requires at least 75 employees within a geographic location
  4. No Termination Without Cause: USERRA creates a “for cause” termination standard for employees who return to work after one month or more of military service.  If an employee’s service was between thirty (30) and one-hundred and eighty (180) days, he or she may not be terminated without cause for up to six (6) months following his or her return to work.  And employees returning from more than one-hundred and eighty (180) days of service are afforded this protection from termination for a full year.  This is most relevant to states like Georgia where employees are terminable “at will” meaning that no cause for termination is required.

Note that in addition to USERRA, veterans may be protected under other employment statutes. For instance, an injury sustained during a military tour might make that individual a person with a disability and entitled to protections under the ADA. 

Happy Memorial Day!