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How Title VII protects employees. What employers need to know – Mary T. O’Sullivan

By Mary T. O’Sullivan, MSOL

“We call upon all communities to be tolerant—to reject prejudice based on cast, creed, sect, religion, or gender. To ensure freedom and equality for women so that they can flourish. We cannot all succeed when half of us are held back.” -Malala Yousafzai

With employers scrambling to fill vacancies everywhere in the United States, it’s rare when people are let go. However, people are still subject to terminations when mergers and acquisitions take place, or new management appears on the scene. It’s not so easy to dismiss people these days, but sadly, many employers step over the line of the law when enacting terminations or layoffs. Employees are now protected more than ever, and organizations who don’t pay attention to the rules, pay a heavy price.

Employers seeking to terminate employees need to be cognizant of statutory protections adopted to safeguard from wrongful discharges. The consequences may result in liability compensation for compensatory and punitive damages. Various work environments pose their own unique policies which need to be observed to safeguard the organization from costly legal situations.

There are standard policies which should be adopted across employment workplaces regardless of union, federal contractors, and employment at will. Each of these diverse workplaces is subject to both federal laws and state statues. In addition, employers may be subject to legal action from vicarious liability. When an employer seeks to end the employment relationship, adherence to policies and statues will serve as a safeguard from retaliation lawsuits.

Universally, employers must adhere to federal and state laws enforced by the US Equal Employment Opportunity Commission. Lawsuits may be brought against employers who violate any of the applicable laws designed to protect employees against unlawful termination. One of the many laws in the books includes Title VII of the Civil Rights Act of 1964 (Title VII). This law makes it illegal to terminate or discriminate against someone on the basis of race, color, religion, national origin, or sex. The law also requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business. Cloutier v. Costco, is such an example. In this case, Kimberly Cloutier claimed that she had the right to live in accordance with her religion, the Church of Body Modification, by showing her facial piercings at all times.  Her employer, Costco’s dress code, which prohibits all facial jewlery discriminated against her.  The Court ruled that Costco had a legitimate interest in its dress code to present a professional appearance to the public. Further the accommodations available to Cloutier (replace the eyebrow ring with a discrete plastic spacer) were reasonable. In this case, the employer prevailed because found the employer’s interest supercedes the employee’s right to religion, especially since reasonable accommodation was afford the employee. Employers have not often fared as well in such cases. (EEOC, http://www.eeoc.gov/laws/statues/adea.cfm)

The Age in Discrimination Act of 1967 (ADEA) is another protection afforded to employees who are terminated due to age.  Far too often, people are terminated because an employer may have decided they are too old for the position.  This law also makes it illegal to terminate or retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.  Case law is scrutinizing employer retirement policies. In the case of E.E.O.C. v. Sidney Austin, the EEOC brought an age discrimination case against Sidney Austin LLP. This employer downgraded and expelled 32 former partners on account of their age. Some were also involuntarily forced to retire from the firm.  Although they had a retirement policy, the ADEA prohibits employers with 20 or more employees from making these kinds of decisions for employees over 40 years of age.  This also includes terminating employees based on their age and forcing employees over 40 to retire when they reach a particular age.  The U.S. Court of Appeals for the 7th Circuit in Chicago ruled that the U.S. EEOC had the authority to obtain financial relief for the expelled partners from the giant international Chicago law firm of Sidley & Austin because of their age.  It was a unanimous ruling, written by the Circuit Judge Richard Posner and joined in by other Circuit Judges which came in response to a Sidley application to appeal from a lower federal court.  The District Judge denied for the second time and held that the EEOC could obtain monetary relief for the partners expelled on account of their age were forced to retire. (E.O.C. v. Sidney Austin, LLP, 437 F.3d 695 (7th Cir. 2006)

Title I of the Americans with Disabilities Act of 1990 (ADA) makes it illegal to discriminate against a qualified person with a disability in the private sector or public sector and for that matter, anywhere else. The law also requires that employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer’s business. In the matter of Metzler v. Federal Home Bank, this case defined 3 requirements for plaintiffs citing disability discrimination from employers. “The plaintiff must show that: (1) he or she was engaged in a protected activity; (2) FHLB took an action that a reasonable employee would have found materially adverse and (3) there exists a causal connection between the protected activity and the adverse action.” (Metzler v. Federal Home Bank, 2006) 

Critical to the business of defense contractors is their employees’ ability to obtain a security clearance in order to maintain contractual relationships with the federal government. In termination cases, defense contractors must exercise caution to avoid using the employee’s failure to obtain a security clearance as a pretext to termination for a discriminatory reason. In the matter of Hossein Zeinali v Raytheon Company, Zeinali, an Iranian, sued the company on discrimination charges after he failed to obtain a clearance and was terminated. The court found that if Raytheon had not initiated termination procedures against other non-Iranian employees who also either failed to obtain a clearance or who had clearances revoked, then the company had no basis upon which to bring a termination action against Zeinaili. (Hossein Zeinali v Raytheon Company, 2011)

Unlike in the defense industry, private companies not beholden to defense contract are free to terminate employees at will, provided they do so within the boundaries of the law or state statutes. The doctrine of employment at will permit both private sector employee and employer to sever their relationship without obligation or penalty. The premise allows for both parties to free themselves without restraints. Skinner v. Maritz, Inc., C F.3d C (2001 WL 641556, 8th Circuit, 2001).  Skinner was an at-will employee of Maritz for 19 years when she was fired for unsatisfactory performance. She filed a claim based on discrimination for race and sex. The district court dismissed the suit, holding that at-will employees do not have contractual rights in the event of termination.  The claim required that a contract needs to exist, and since there was none, her cause of action must fail. 

Many states, including Missouri have carved out certain exceptions to the “at will” doctrine.  Under Missouri law, employers may discharge at-will employees without cause and without liability unless the employee falls within a statutory provision that provides to the contrary.  An at-will employee, employed without a written contract in an at-will relationship, has a “contract” within the meaning of civil rights statutes guaranteeing equal rights to make and enforce contracts.  Such contracts may not be affected by racially discriminatory conduct.  Her claim of racial discrimination in the employment relationship may proceed.  (The Journal of the DuPage County Bar Association).

Other situation where the doctrine of employment-at-will may not be applicable is in a unionized work environment. Unions often negotiate the terms of employment with the employer. This may include protecting employee rights in the workplace and negotiating salaries, benefits, training and other conditions of employment. While unions exist to protect employees, they also present several benefits for employers. Organizations with labor unions have the opportunity to reduce turnover, simplify their budgeting processes and reap several other benefits. Such is the case today with Starbucks and Amazon.

Unions get their legal standing from the National Labor Relations Act (NLRA) to provide collective bargaining leverage for workers with respect to workplace practices established by their employers. While an individual employee may not have much bargaining power, a union of employees has greater strength when negotiating with an employer as well as using structured grievance procedures for resolving disputes.

If your company’s workers form a union, then this presents a whole new set of legalities to deal with when terminating employees. This means the head of the union organization sat down with the company to negotiate terms of employment, terms of pay, as well as exact reasons that the company can fire an employee. If an employee is causing problems, but the company fails to list this problem as a reason for termination, firing this employee will be difficult. It will involve with major legal ramifications from the union organization.

Aside from unions, there are other exceptions to “at-will” termination.  Many states have passed their own anti-discrimination statutes, some of which provide greater protections than what is afforded under similar federal statutes.  Another exception is the public policy exception.  In many states, an at-will employee may bring a claim against an employer for wrongful termination if that employee was terminated in violation of a public policy (ex. reporting safety violations, reporting illegal conduct by the employer, etc.).  The third exception is an implied employment contract; this is any written or verbal statement made by members of the company that suggests company guarantees or promises about continued employment.  

Employers also have protection and recourse in defending against discrimination and other charges. Some avenues for employer defense may be in the ability to provide a rational reason for decisions made that may have adverse impact on employees including “Job relatedness, Bona fide occupational qualification, Seniority and Business Necessity” (Gomez-Mejia, Balkin and Cardy) to mention a few. 

If despite the best effort of employer and employee the relationship is still not workable, separation becomes inevitable. For most employers, firing employees is the last resort. In many instances, employers are often in a difficult situation when it comes to employee discipline. The legal landscape, social and economic environments make it unpalatable for employers to terminate employees. Yet, employees are terminated frequently. The reason is because the scale is more evenly balanced than most would imagine. Both employees and employers are afforded protections in the laws to dissuade abuse from either side. While it may seem that employers have the upper hand, many laws such as Americans with Disabilities Act, Equal Pay Act, Title VII of Civil Rights Act of 1964 and state statues serve to ensure employees genuinely discriminated against have a forum for grievance and recourse.

Significant to prevention of illegal actions by employers is a thorough understanding of federal and state guidelines. Employers should take the time to understand these statues, implement anti-discrimination policies and consistently apply policies to all employees. Having put these measures into place, an employer will be able to termination employment relationships without fear of negative consequences.

In conclusion, while Title VII and the EEOC offer protection under the law, both employer and employees need to exercise caution in bringing termination cases forward to a court of law.  Cases which appear on the surface to be obvious for one side or the other can in fact have unexpected outcomes. However, most of the success of a particular case over another often rests on the amount of specific documentation available to the court in deciding the case. The courts often hold to definitions, as “reasonable accommodations” in making decisions as in Cloutier v. Costco, as well as broad interpretations of “similarly situated” in Zeinali v Raytheon Company, “at-will” as in Skinner v. Maritz, Inc., and other similar discrimination suits. Also, the majority of cases result from sheer ignorance of the law both by the employer and employee. Most employees would benefit by paying attention to details of Title VII to begin the needed actions prior to potential termination proceedings taking place. Whether or not they win in court, employers do not benefit from such actions and in fact can become engaged in costly, prolonged proceedings, as well as jeopardize their reputations. A return to “doing the right thing because it’s right” and a renewed sense of loyalty and morality would go far in aligning employees and employers with the intentions and spirit of Title VII.

“I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities.” – Nelson Mandela

Connect with Mary:

www.encoreexecutivecoaching.com

www.visionaryleaderbook.com

https://www.linkedin.com/in/marytosullivan/

mary@encoreexecutivecoaching.com

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Read all Mary’s columns here: https://rinewstoday.com/mary-t-osullivan-msol-pcc-shrm-scp/

Mary T. O’Sullivan, Master of Science, Organizational Leadership, International Coaching Federation Professional Certified Coach, Society of Human Resource Management, “Senior Certified Professional. Graduate Certificate in Executive and Professional Career Coaching, University of Texas at Dallas.

Member, Beta Gamma Sigma, the International Honor Society.

Advanced Studies in Education from Montclair University, SUNY Oswego and Syracuse University.

Mary is also a certified Six Sigma Specialist, Contract Specialist, IPT Leader and holds a Certificate in Essentials of Human Resource Management from SHRM.

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