Frequently Asked Questions About Employment Law
The Bernard Law Firm in Cleveland provides experienced representation in a wide range of employment law matters. I am attorney Dale Bernard, and I help workers determine if they have a case and how to proceed if they do. You can rely on my three-plus decades of experience and my commitment to each case I take.
Read on to Get Answers to Your Employment Law Questions
Does it Matter if the Sexual Harassment is Committed by a Supervisor or Coworker?
The Sixth Circuit Court of Appeals held that it does. The Sixth Circuit determined that when the sexual harassment is committed by a supervisor, the employer is vicariously liable for the hostile work environment. However, the Court further said, when the sexual harassment is committed by a coworker, the employer is liable only “if it knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action.”
I Recently Read That it Is Now Unlawful for Employers to Discriminate on the Basis of Sexual Orientation or Gender Identity. Did Congress Recently Create New Law to Now Make LGBTQ Employment Discrimination Unlawful?
No, Congress did not enact new law prohibiting LGBTQ discrimination. In fact, a dissenting Judge in the 2020 U.S. Supreme Court case of Bostock v. Clayton City argued that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin” and that neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, the dissenting Justice reasoned, bills have been introduced in Congress to add “sexual orientation” to the list, and in recent years, bills have included “gender identity” as well, but to date, none has passed both Houses. Thus, how could the Court rule as it did, making LGBTQ employment discrimination unlawful? The Bostock Court majority reasoned “[w]e agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” Thus, the U.S. Supreme Court held that LGBTQ employment discrimination was really another form of sex or gender discrimination, which has been rendered unlawful in the workplace since 1964.
Does a Pregnant Employee Need to Prove in a Wrongful Termination Pregnancy Case a Supervisor or Manager Made a Statement Showing a Desire To Terminate the Employee Due to Her Pregnancy Before She Can Bring a Claim for Pregnancy Discrimination?
No. While a statement showing pregnancy was the reason a pregnant employee was terminated is of course important evidence, it is not necessary if other sufficient evidence exists. So called “indirect evidence” showing the employee was pregnant, was qualified for her job, suffered an adverse employment action and a nexus or connection between her pregnancy and the adverse employment action would then instead be initially required. The employer then needs to show it had “a legitimate, nondiscriminatory reason” for terminating the pregnant employee. The pregnant employee then needs to show the employer’s proffered reason for termination was a “pretext”–or cover-up–for discrimination. The pregnant employee can then establish pretext by showing that the employer’s proffered reasons for terminating her (1) have no basis in fact; (2) did not actually motivate the action; or (3) were insufficient to warrant the action.
Doesn’t Pregnancy Discrimination Laws Just Give Women More Rights Than Men and Just Result in Discrimination Against Men?
No. Pregnancy discrimination laws do not require an employer to treat a pregnant employee better than males or other non-pregnant females. Rather, such laws require an employer not to treat a pregnant employee worse than males or other non-pregnant females.
My Supervisor Ridiculed My Accent in My Review and Then I Was Fired. Do I Have a Case for National Origin Discrimination?
Maybe, but the factual scenario of each case must be evaluated contextually. If your accent has no effect on your job performance, then you should have your case evaluated for a national origin discrimination claim. On the other hand, if your employer can prove that your accent affects your ability to perform your job effectively, then perhaps your employer has a legitimate reason other than discrimination. Just saying it, however, is not proving it, so the evidence being relied upon by your employer in such circumstances would have to be evaluated.
What Recourse Do I Have if My Employer Doesn’t Allow Me FMLA Leave I Am Entitled To or Fires Me For Seeking FMLA Leave?
Courts allow different claims covering both scenarios. The “entitlement” or “interference” theory is used if an employer wrongfully denies an employee FMLA leave. On the other hand, if an employer terminates an employee in retaliation for seeking or taking FMLA leave, then an employee may pursue a claim under a “retaliation” or “discrimination” theory, even if the employer allowed the employee FMLA leave. Thus, an employer does not discharge its FMLA obligations just because it allowed an employee FMLA leave if it turns around and retaliates against the employee.
Should I Advise My Employer About My Religion?
While every employee’s situation is different, the Sixth Circuit Court of Appeals has held that before an employee can bring a failure to accommodate claim of religious discrimination, an employee needs to first be able to prove that he or she: (1) holds a sincere religious belief that conflicts with an employment requirement; (2) informed the employer about the conflict; and (3) he or she was discharged or disciplined for failing to comply with the conflicting employment requirement.
While there is more to show than this, it is obvious that an employer who does not know about the employee’s religion would likely have a defense to such a religious discrimination failure to accommodate claim. Likewise, an employer who does not know an employee’s religion would likely have a defense to the employee’s religious discrimination wrongful termination claim. Thus, while an employee may not want to divulge his or her religion, there are times when it is necessary, including when seeking a religious accommodation.