Summer 2020 Lawnotes

LABOR AND EMPLOYMENT LAW SECTION – STATE BAR OF MICHIGAN TES NO LABOR AND EMPL OYMENT LAWNOTES LAW Volume 30, No. 2 Summer 2020 for certiorari, and that no other religious liberty claim was before TITLE VII PROTECTS the Court. HOMOSEXUAL AND The employers did argue that, when Title VII was passed, dictionaries defined “sex” in binary (i.e., a man and a woman) TRANSGENDER EMPLOYEES biological terms. The employers also argued that it would surprise the drafters of Title VII and the Congress that passed the act to Diane M. Soubly find that the act included protection for homosexual or transgender Butzel Long employees. In a single decision issued in three cases argued together last Even assuming that dictionary definition in 1964, the Court October 8th, the U.S. Supreme Court held on June 15 that Title VII focused on the specific language used in Title VII, which prohibits of the Civil Rights Act of 1964 protects individual employees from employers from discriminating against an “individual” on the intentional employer discrimination because of the individual’s basis of sex. Rejecting the employers’ position, the Court homosexuality or transgender status. 1 Bostock v. Clayton County, announced: Georgia, 2020 WL 314668. 2 Justice Neil Gorsuch wrote for the Today, we must decide whether an employer can fire six-person majority that also included Chief Justice John Roberts. someone simply for being homosexual or transgender. The employers in all three cases did not dispute that they had The answer is clear. An employer who fires an fired the employees simply for being gay or transgender. Title individual for being homosexual or transgender fires VII, the employers argued, did not prevent employers from that person for traits or actions it would not have intentionally discriminating against employees on the basis of questioned in members of a different sex. Sex plays a homosexuality or transgender status. necessary and undisguisable role in the decision, exactly The Individual Employees: Mr. Bostock, a long-term county what Title VII forbids. employee and child welfare advocate, had led his office to several The Court cautioned that “the limits of the drafters’ national awards. Clayton County discharged him for “conduct imagination supply no reason to ignore the law’s demands” or the unbecoming a county employee” after “influential members of “written words” of the statute. Recognizing that transgender and the community made disparaging comments about [his] sexual homosexual statuses are distinct concepts from “sex,” the Court orientation and participation in [a gay recreational baseball] pointed to “sexual harassment” as a distinct concept from “sex” but league.” 3 a concept accepted well after 1964 as falling within the scope of R. G. & G. R. Funeral Homes in Garden City, Michigan, fired Title VII liability. the late Ms. Stephens, a funeral director employed for six years Reviewing its Title VII cases from 1971 forward, the Court (who passed away on May 11th), when she informed the funeral noted its long history of remaining “unswayed” by employer home owner by letter that, after four years of therapy and arguments that their decisions had turned on generalized factors treatment for gender dysphoria and consistent with her clinicians’ other than sex. In Phillips v. Martin Marietta Corp., 400 U.S. 542 recommendations, she would return from vacation living and (1971) (per curiam), the Court rejected an employer’s defense that presenting as a woman. The funeral home fired her before she left it could presume the primary caretaker status of women with small on vacation, saying that “this is not going to work out.” 4 children to justify not hiring such women. In Los Angeles Dept. of Water and Power v. Manhart, Altitude Express fired Mr. Zarda, a skydiving instructor for 435 U.S. 702 (1978), the Court several seasons (who died in a skydiving accident before trial rejected the employer’s contention that mortality statistics in the some five years ago), after a female client complained to the aggregate showing that women lived longer than men justified employer that Mr. Zarda told her that he was gay, allegedly to demanding higher pension contributions from women than men, “preempt any discomfort the client may have felt in being strapped and that its policy was even-handed as to all members in each Price Waterhouse v. to the body of an unfamiliar man.” 5 group based on that factor. Instead, in Hopkins, 490 U.S. 228 (1989) (plurality opinion), and again in The Employers’ Arguments: The Court rejected each of the Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), employers’ arguments in turn and echoed in the opinion the the Court concluded that an employer who discriminates against an concerns expressed by Justices Ginsberg, Breyer, Sotomayor, employee on the basis of sexual stereotypes violates Title VII. The Kagan and Gorsuch during oral argument last October. Bostock Court cautioned that employers who discriminate against Although the dissenting opinions and several amici addressed a transgender or gay employee simply because the employer is the potential for religious liberty claims if Title VII were transgender or gay violates Title VII in the same manner. interpreted to protect homosexual and transgender employees, the Nor did having “multiple intentions” save the employers who Court noted that Harris Funeral Homes had unsuccessfully had conceded their motivation in these cases. For the Court, if pursued a Religious Freedom Restoration Act (RFRA) claim changing an employee’s sex would have yielded a different choice below, but had declined to seek review of that issue in its petition (Continued on page 2) Page 2 LABOR AND EMPLOYMENT LAWNOTES (S UMMER 2020) TITLE VII PROTECTS HOMOSEXUAL CONTENTS AND TRANSGENDER EMPLOYEES Title VII Protects Homosexual and Transgender Employees . 1 (Continued from page 1) Demoted for Disloyalty: First Amendment by the employer, a Title VII violation occurs. In an inimitable Retaliation Against Public Employees . 3 example in an opinion replete with examples, the Court reasoned Considerations for Using Workplace Artificial that “[j]ust as sex is necessarily a but-for cause when an employer Intelligence Recruitment and Hiring Tools in the discriminates against homosexual or transgender employees, an Post-Covid-19 Workplace . 4 employer who discriminates on these grounds inescapably intends Is there a Zoom Mediation in your Future? . 5 to rely on sex in its decision-making”: Guide to Online Dispute Resolution with Zoom . 7 Reframing the additional causes in today’s cases as Stare Decisis and a Litigator’s Lament . 9 additional intentions can do no more to insulate the Navigating Unchartered Waters — employers from liability. Intentionally burning down a An Investigator’s Perspective . 10 neighbor’s house is arson, even if the perpetrator’s “Simple and Momentous” — Bostock v. Clayton County ultimate intention (or motivation) is only to improve the is a Landmark Victory for LGBTQ+ Equality . 11 view. For What It’s Worth . 12 Unanswered questions: Aside from the issues waived by the Supreme Court Update . 13 employers, the reach of the Bostock decision under Title VII will Judicial Deference and Enforcement of only become clear as federal courts (and perhaps some state Labor Arbitration Awards . 14 courts) attempt to apply its conclusions. Both the majority opinion MERC Update . 15 and the dissenting opinions provide example after example and roadmaps for arguments in future cases. The Truth is Rarely Pure and Never Simple . 17 MERC News . 19 —END NOTE— Giving an Effective Opening Statement 1This article adopts the terminology used in the Supreme Court opinions. in a Labor Arbitration . 20 2(SCOTUS No. 17-1658), reversing and remanding 723 Fed. App’x. 946, (11th Cir., May Dialogue on the Labor and Employment Law Section’s 10, 2018) (per curiam), en banc petition denied with dissenting opinion, 894 F.3d 1335 (11th Cir., July 18, 2018); affirming Altitude Express, Inc., et al. v. Zarda et al. Statement Against Racism . 21 (SCOTUS No. 17-1623), 883 F.3d 100 (2d Cir. 2018) (en banc) ; and affirming R. G. & Checklist of Factors to Consider when Choosing Between G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission Video and In-Person Mediation . 22 (SCOTUS No. 18-107), 884 F3d 560 (6th Cir. 2018). 32020 WL 314668 at *3. 4Id. STATEMENT OF EDITORIAL POLICY 5883 F.3d at 108. I Labor and Employment Lawnotes is a quarterly journal published under the auspices of the Council of the Labor and Employment Law Section of the State Bar of Michigan. Views expressed in articles and case commen- taries are those of the authors, and not necessarily those of the Council, the LOOKING FOR Section, or the State Bar. We encourage Section members and others inter- ested in labor and employment law to submit articles, letters, and other ma- terial for possible publication. Lawnotes Stuart M. Israel, Editor John G. Adam, Associate Editor Contributors! COUNCIL DIRECTORY Chair Lawnotes is looking for contributions of Michelle Crockett . Detroit interest to Labor and Employment Law Section Vice Chair members. John Runyan . Detroit Secretary Contributions may address legal develop - Keith Brodie . Grand Rapids ments, trends in the law, practice skills or Treasurer techniques, professional issues, new books and Heidi Sharp . Clinton Township resources, etc. They can be objective or opin- Council Members Nedra Campbell . Detroit ionated, serious or light, humble or (mildly) Mark Cousens . Southfield self-aggrandizing, long or short, original or Erin Hopper Donahue . Lansing Adam Forman . Southfield recycled. They can be articles, outlines, opinions, James Hermon . Detroit letters to the editor, cartoons, copyright-free art, or Mami Kato . Birmingham in any other form suitable for publication. Jennifer McManus . Royal Oak James Reid . Detroit For information and publication guidelines, Marlo Johnson Roebuck . Detroit Tad Roumayah . Southfield contact Lawnotes editor Stuart M.

Load more