What to do With Complaints When You or Your Coworkers Are Uncomfortable About the Boss’ Behavior

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When you’re building your career, it’s easy to get caught up in misconceptions. Errors in judgment can lead to being on the wrong end of abusive behavior by a supervisor. When these uncomfortable occurrences happen again and again, you wonder if you should you speak up and make a complaint. The more you work, the more experience you will gain. In the meantime, the more you learn, the more you’ll launch yourself ahead of the curve. You may wonder if the time for complaints is at hand or if should you just grin and bear it. It’s a good idea to learn what’s in your control legally and what’s not. It’s important to learn how a company’s culture or a bad manager can impact your professional goals. Learn when a manager steps over the line and creates a legally actionable situation.

Have Complaints About a Boss?

To learn more about abusive behavior and employee rights in the workplace, click on this link Employment Law. Kilgore & Kilgore has experienced employment law attorneys who may be able to answer your questions. To start the conversation, click here, fill in and send the form to us Contact Kilgore & Kilgore.

Dysfunctional Yes, But Is It Legally Actionable?

Sometimes, whether it’s a dysfunctional manager or culture, it’s not illegal. It’s just dysfunction. And when you look at the situation, it may be time for you to make a change and begin building your career elsewhere. It does not help your career growth to move from company to company too often. But on the other hand, strategic moves based on more responsibility or higher visibility are good for a career.

Variety in the Workplace May Result in Complaints

In today’s workforce, there as many as five generations engaged. These generations include traditionalists, Baby Boomers, Generation X, millennials, and Generation Z. Each generation brings its own talents, skills, experiences, and expectations to the workplace.

The longer you work, the more you learn and refine skills including interpersonal, problem-solving, teamwork, and business etiquette skills. Many of these workplace skills are learned only on the job. As Julius Caesar said, “Experience is the teacher of all things.”

Before such experience is acquired, younger employees often have questions about the place where they work and how employees are treated in that workplace. For example, if you have an unfriendly workplace, can you do anything about it legally as an employee? Are you subject to the whims of your manager’s moods? What if your supervisor yells at you when a project is late? Can you sue him or her?

What if your office culture falls on the other end of the spectrum? Perhaps your boss says that your workplace is like a family. After all, you celebrate birthdays and go to happy hours together, right? You know about each other’s kids and know the names of everyone’s pets. You spend more time with your co-workers than your actual family, so what’s the harm? What should you think when your manager describes your workplace as a family?

When Complaints Actually Become Legal Claims, You May Wish to Pursue

Let’s explore some common misconceptions and shed some light on them from a legal perspective. You may have a claim if your boss’s behavior Is so extreme and outrageous that it exceeds the bounds of civilized society.

The Mean Boss

You had a bad day at work. Your boss yelled at you because of a late project and acted like a jerk. This wasn’t the first time, and it probably won’t be the last. You feel you can’t continue working under these conditions. You want to fight back legally. You feel that no boss should be able to treat you this way. It’s just wrong. It’s not fair.

Unfortunately, having a jerk as a boss doesn’t give you the legal right to sue him or her. Just because you don’t think your workplace is fair, doesn’t mean you have a valid lawsuit. Your boss’s behavior may be unprofessional or intolerable. But it may not be illegal.

You may have a cause of action and can file a lawsuit if you’re working in a hostile work environment based on illegal behavior. Yelling and screaming at employees is not necessarily illegal, although you may think such behavior is. Your boss may get into legal trouble, though, if his or her hostile or harassing behavior:

  • Is directed solely at people in protected classes, based on race, religion, sex, age, national origin, disability, or other similar classifications.
  • Becomes a condition of continued employment.
  • Becomes severe enough that a reasonable person would consider the action to be hostile behavior or abusive behavior.

It is Important to Document Your Complaints

If your boss’s yelling bouts include sexist references, racial slurs, or other derogatory comments, then your boss’s behavior may justify a legal claim. But this behavior then must be so severe that it interferes with an employee’s ability to do his or her job. To pursue a legal claim, you must be able to produce evidence of such behavior and how it directly affected you in the workplace. It is also helpful to have witness testimony.

If you have a boss who is headed down this track, report the incidents to your human resources department. Be thorough and refer to any written notes or witnesses that you may have. Make sure your human resources department documents your complaints.

The Family Workplace may be a Fertile Situation for Abusive Behavior, or Maybe Not

Let’s now shift to the other end of the pendulum. Your boss assures you that at your workplace, It’s like family. Probably, there’s no menacing undertone from your boss. Most managers are attempting to create a model where their employees have a sense of belonging. With a family-like environment, managers hope to develop long-lasting, personal relationships with their employees, who in turn feel loyal to the company. Developing a family culture at work, however, can backfire. Often, boundaries are overstepped, and the dividing line between work and personal life becomes blurred.

Negative Results can lead to Complaints

Negative results could arise out of this blurring of the lines. For example, employees may be expected to work more extended hours out of loyalty, while overlooking cuts in pay or benefits. Additionally, a one-way street of loyalty could develop where the employees are expected to be loyal to the company, and the company does not return such dedication to the employees. This lack of support can extend beyond compensation and benefits to workload, praise, and career development, just to name a few. The employee could get the short end of the stick on the family approach to work.

Further, the term family is not a positive term for all employees. For some employees, it’s a warm, fuzzy, curl up by the window with a cup of tea type of word. For others, it means dysfunction. Family can be a loaded word.

A Winning Team Employs a Teamwork Approach

Better than a family-approach is a philosophy of teamwork. For example, sports teams work together to achieve one goal—to win. The make-up of the group may change over time, but the purpose and the goals of that team remain on track. Creating teams comprised of individual members is the best way for those employees to become successful, together and separately. Teams build loyalty, encourage each member to perform at the highest level, and work toward mutually beneficial goals. The employees who can’t keep up or play at the same level lose their position on the team.

Learn to Identify the Differences in Team Dynamics at the Job Interview

As a younger employee, what do you need to know about the terms family and team in the workplace? Evaluate whether using the term family automatically is a no-go. Or, determine if the term teamwork is an absolute yes. It’s not always clear and you may need further evaluation before taking that job. Don’t decide right away if you hear either of these words. Ask questions about what those words mean to your boss and to the company. When you hear those or similar words in an interview, the interviewer should want to emphasize communication, acceptance, caring, and commitment within the organization. These words typically are not a cue for dysfunction, such as inflexibility, working without purpose, or working without keeping your career goals in mind.

Reach Out to Us

If you have questions about your employee rights in the workplace, then you should contact an experienced employment law attorney at Kilgore & Kilgore. To get the conversation started, click here and fill in and send the form to us Contact Kilgore & Kilgore.

An Employer May be Liable for Sexual Harassment of an Employee in the Workplace by a Non-Employee

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Typically, in a sexual harassment or hostile work environment case, an employee alleges that he or she experienced sexual harassment by a supervisor or by another co-worker. Can an employer also be liable if an employee experiences sexual harassment by a third-party non-employee at the workplace? The answer is yes.

If you believe you have a workplace sexual harassment claim to bring against an employer, you should learn about what constitutes a sexual harassment claim and the steps you should take to start the legal process. There are several sources of information on this topic based on the experience of Kilgore & Kilgore lawyers, who handle these and other types of employment law claims against employers. To read about sexual harassment claims in the workplace, click here Sexual Harassment Lawyers. Read on in this article to see if you have a viable sexual harassment or retaliation claim; if so, to contact us and hear from a Kilgore lawyer, click here Contact Kilgore & Kilgore.

Title VII Protects Employees from Sexual Harassment

Title VII of the Civil Rights Act of 1964 protects employees against sexual harassment and a hostile work environment when the misconduct is attributable to the employee’s sex or other protected characteristic, such as race or religion. The alleged sexual harassment or hostile work environment must be sufficiently severe or pervasive, and must alter the terms and conditions of the employee’s employment, and create an abusive working environment.

To Win a Claim, an Employee Must Prove that the Employer Knew About the Sexual Harassment but Allowed it to Continue

Unless the harasser is a supervisor, the employee must also show that the employer knew or should have known about the sexual harassment, allowed it to continue, and failed to take any corrective action. The ultimate issue in a Title VII case is the employer’s conduct.

Courts have held that an employer can be liable under Title VII when the harasser is a third-party nonemployee, such as a customer, restaurant patron, or casino gambler. For example, a restaurant could potentially be liable under Title VII if it knows that a waitress experienced sexual harassment by a patron, and the restaurant permitted the sexual harassment to continue, and failed to take any corrective action.

A Nursing Home Patient’s Sexual Harassment Led to a Claim of a Hostile Work Environment

The U.S. Court of Appeals for the Fifth Circuit decides appeals from the federal district courts in Texas, Louisiana, and Mississippi. It recently ruled that a jury should decide whether an assisted living facility in Mississippi is liable under Title VII for an alleged hostile work environment created by a nonemployee resident. The case is Gardner v. CLC of Pascagoula, L.L.C.

In Gardner, the plaintiff, a nursing assistant, provided care at the facility for an elderly patient who suffered from a variety of physical and mental illnesses. The facility knew that the patient had a history of violent behavior and sexual behavior toward other patients and staff. The plaintiff allegedly experienced the patient’s inappropriate sexual behavior every day for years. She and other co-workers reported the incidents to their supervisors.

In one incident, the patient allegedly groped and punched the plaintiff. After this incident, the plaintiff’s request to be reassigned was denied. The plaintiff then took three months of leave and was terminated after returning to work.

In Gardner, the Fifth Circuit determined that the frequency and nature of the patient’s violent behavior and sexual behavior would allow a jury to find that a reasonable caregiver would find the conduct sufficiently severe or pervasive under Title VII, even in light of the patient’s dementia.

In addition, the Fifth Circuit found that there was sufficient evidence to show that the plaintiff’s employer knew about the hostile work environment experienced by the plaintiff but failed to take any action to remedy her work situation. The employer, the Fifth Circuit stated, violated its duty to take reasonable steps to protect its employees once it knows that they are subject to abusive behavior.

The Federal Court Reversed the District Court’s Judgement and Remanded the Case

The Fifth Circuit reversed the district court’s summary judgment in favor of the employer. It concluded that the plaintiff’s hostile work environment and retaliation claims under Title VII should go to the jury. Thus, the case was remanded to the district court for further proceedings.

Reach Out to Kilgore & Kilgore’s Employment Law Attorneys

Kilgore & Kilgore understands this issue of workplace sexual harassment and has handled many such cases. Our attorneys have brought claims and won cases for victims of employer abuse. Read the testimonials from former clients who successfully brought their claims, then wrote to Kilgore & Kilgore to express their gratitude, click here Client Testimonials. If you have a viable sexual harassment or retaliation claim you wish to discuss, contact us and hear from a Kilgore lawyer, click here Contact Kilgore & Kilgore.

Arbitration Agreements in Employment Contracts May Affect an Employee’s Ability to Win Claims

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Does your employment contract contain an arbitration provision? Does your employment contract require you to pursue a claim you might have against your employer in a private and confidential arbitration proceeding rather than before a judge and jury in open court?

Arbitration Agreements Preferred by Employers

Employers often present their employees with employment contracts containing arbitration provisions often called arbitration agreements. Employers favor arbitration to resolve claims asserted by employees because arbitration is a private, fee-based proceeding, and unlike in a court case, there are no public records or hearings. Arbitration is less formal than a court proceeding, and the rules of evidence are applied very loosely, if at all.

The Arbitration Process

Arbitrators are usually selected by the parties from a list that is provided by an arbitration administrator such as the American Arbitration Association or JAMS (formerly known as Judicial Arbitration and Mediation Services, Inc., a US-based for-profit organization of alternative dispute resolution services). Arbitrators are typically attorneys in private practice, retired judges, or specialized providers of mediation and arbitration services. Often, preliminary hearings are held by telephone. The final hearing, in which witnesses testify, is typically held in a hotel conference room or at the arbitrator’s office in a law firm or office building.

Kilgore & Kilgore represents clients in arbitrations, mediations and jury trials. To learn more about our employment law practice, click here Employment Lawyer. To contact us for a free review of the facts of your case with an employment lawyer, click here Contact Kilgore & Kilgore.

Class Actions or Collective Actions are Possible in Arbitrations

Employees might be able to bring a class action or collective action against an employer under several different employment laws. For example, under the Fair Labor Standards Act (FLSA), a large number of employees could potentially opt in to a collective action in order to bring a claim for unpaid overtime wages against an employer.

A class action, or collective action as it is sometimes called, is an efficient way for employees to bring a claim against an employer. An employee’s claim for unpaid wages, individually, is often impractical to assert in a legal proceeding because of the amount of wages at issue and the legal expense. However, when many employees join together in a collective action, their claim for unpaid wages in the aggregate can be quite significant. Such an action may deter an employer from engaging in misconduct in the future.

Some arbitration provisions specifically prohibit employees from participating in a class action or collective action against an employer. Some arbitration provisions may instead require each employee to arbitrate his or her claim individually. In a recent case decided by the U. S. Supreme Court, these arbitration provisions were upheld as lawful.

The U. S. Supreme Court Upholds Clauses in Arbitration Agreements that Require Claims Be Made Individually

In a case known as Epic Systems Corp. v. Lewis, consolidated appeals from the Seventh, Ninth, and Fifth Circuits were heard. The U.S. Supreme Court held that employers, through contractual arbitration provisions, can require their employees to arbitrate their claims on an individual, piecemeal basis.

This opinion, written by Justice Gorsuch, is a big win for employers and a disappointment for employees. In Lewis, the U. S. Supreme Court reversed the Seventh and Ninth Circuits, both of which had previously held that the arbitration provisions at issue were unenforceable. In an earlier blog, we wrote about the Lewis decision by the Seventh Circuit. In that article, we indicated that there was a split among the federal circuit courts, and that the U. S. Supreme Court would probably decide the issue in the future. Click to see previous article Employers Use Arbitration to Resolve Employee Disputes. The U. S. Supreme Court has now spoken.

In Lewis, the U.S. Supreme Court determined that the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., requires an individualized arbitration proceeding if that is what the parties agreed to in their contract. The U. S. Supreme Court rejected the employees’ arguments that the saving clause in section 2 of the FAA and the concerted activities language in section 7 of the National Labor Relations Act (NLRA), 29 U.S.C. § 157, rendered the arbitration provisions at issue unenforceable.

The FAA Requires Enforcement of Arbitration Agreements

The FAA generally requires courts to enforce arbitration agreements. Section 2 of the FAA states that an agreement to arbitrate shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. It is usually quite difficult for an employee to avoid an arbitration agreement in a contract.

The U.S. Supreme Court Decision Further Limits Defenses to Enforce Arbitration Agreements

There are only a few defenses to enforcement of an arbitration agreement. The U.S. Supreme Court found that the saving clause in Section 2 of the FAA applied only to general contract defenses, such as fraud, duress, or unconscionability, not to a defense that specifically targeted individualized arbitration.

The U.S. Supreme Court also rejected the employees’ argument that section 7 of the NLRA made the arbitration agreement at issue unenforceable. Section 7 guarantees employees the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Employees Sought Their Right to Class Action or Collection Action but Lost

The employees argued that they had a right to class action or collective actions as protected concerted activities under section 7 of the NLRA. The U.S. Supreme Court was not persuaded by this argument. Instead, the U. S. Supreme Court decided that section 7 of the NLRA did not displace or conflict with the FAA. Section 7 of the NLRA, according to the Court, had no effect on the enforceability under the FAA of the individualized arbitration agreements at issue.

Thus, after the U. S. Supreme Court’s decision in Lewis, certain employees will have to assert their claims in individualized arbitration proceedings, rather than in class actions or collective actions, if required by their arbitration agreements.

If you have questions about your rights under an arbitration agreement provision in your employment contract, then you should contact an experienced employment law attorney at Kilgore & Kilgore. To get the conversation started, click here and submit a form Contact Kilgore & Kilgore.

Recent Case Focused on Workplace Sex Discrimination Claim Involving Gender-based Wage Disparity

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Discrimination based on an employee’s sex has been, and still is, illegal. Yet, it remains a serious problem in the workplace. Throughout history, women have been paid less than men for performing the same work. In 1963, Congress passed the Equal Pay Act (EPA), which specifically prohibits wage discrimination based on sex. The next year, Congress passed the Civil Rights Act of 1964. Title VII of the Civil Rights Act of 1964 also prohibits employment discrimination based on sex, as well as on other factors.

#MeToo Movement Triggers Interest in Sex Discrimination in the Workplace

The #MeToo movement has recently sparked a greater awareness of sex-based pay disparity in many industries. In an opinion filed in April, the U.S. Court of Appeals for the Ninth Circuit held that, under the EPA, a female employee’s prior salary alone, or in combination with other factors, cannot support a difference in pay between men and women for equal work. The case is Rizo v. Yovino.

Sex Discrimination Claims Start at the EEOC Office

The Equal Employment Opportunity Commission (EEOC) enforces claims under the EPA and Title VII. In order to pursue a claim under the EPA, an employee must first file a charge of discrimination with the EEOC. Strict deadlines apply to filing the charge. The lawyers at Kilgore & Kilgore handle a wide variety of employment discrimination claims. If you suffer from wage discrimination by your employer, click here to learn more about the EEOC process and how Kilgore & Kilgore can help you. EEOC – Kilgore & Kilgore.

Earnings and Sex Discrimination Defined Differently in the Statutes

Unlike Title VII, the EPA is narrowly aimed at prohibiting sex-based wage disparity. The Equal Pay Act makes it unlawful for an employer to discriminate between employees on the basis of sex by paying wages to employees…at a rate less than the rate at which [it] pays wages to employees of the opposite sex…for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.

Recoveries May Include Back Pay, Liquidated Damages and Attorney’s Fees

An employee who asserts a claim under the EPA must establish that even though she performs equal work to her male counterparts under similar conditions, her employer nevertheless pays different wages to men and women. An employee who prevails on an EPA claim can recover damages such as back pay for the difference in wages, liquidated damages, and attorney’s fees from her employer.

Some Wage Disparities Not Considered Sex Discrimination

The EPA, however, does allow an employer to pay different wages to men and women for equal work if the payment differential is made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any other factor other than sex.

Courts Are Still Divided on the Interpretation of the Laws Regarding Equal Pay for Equal Work

Many courts have examined the meaning of the catchall provision a differential based on any other factor other than sex. Many court have discussed whether or not a female employee’s prior salary could support a difference in pay between men and women for equal work.

The Rizo v. Yovino Case

Aileen Rizo, the plaintiff, was a math consultant in the Office of Education for Fresno County, California. When Rizo was hired, Fresno County calculated her salary, in part, based upon her prior salary in Arizona. During lunch, Rizo learned that the male math consultants in her office had been hired at higher salaries. Rizo subsequently filed a lawsuit against the Fresno County Superintendent of Schools for a violation of the EPA, sex discrimination under Title VII, and other violations of California law.

Appeals Court Affirms the Trial Court’s Decision and Sends the Case Back

The Ninth Circuit en banc affirmed the trial court’s denial of summary judgment to Fresno County and remanded the case. The Ninth Circuit rejected Fresno County’s affirmative defense that Rizo’s prior salary in Arizona was any other factor other than sex for the purpose of the statutory exception to the EPA. Instead, the Ninth Circuit held that the statutory exception, any other factor other than sex, is “limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance.”

The Ninth Circuit determined that an employee’s prior salary could not be any other factor other than sex because an employee’s prior salary could have been tainted by the same sex-based discrimination that the EPA sought to prohibit. In addition, an employee’s prior salary is not a legitimate, job-related factor, according to the Ninth Circuit. Thus, prior salary is not included in the statutory exception and cannot be a basis for the payment of disparate wages to men and women for equal work. “Prior salary is not job related and it perpetuates the very gender-based assumptions about the value of work that the Equal Pay Act was designed to end,” the Ninth Circuit stated.

Sex Discrimination Occurs in Many Different Types of Situations

Perhaps you suffer from sex or wage discrimination in the workplace. If so, click here Contact Kilgore & Kilgore to connect with an employment lawyer for a free evaluation of the facts of your case.

Courts Split on Sex Discrimination Legal Doctrine Leading to Possible U.S. Supreme Court Involvement

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The Second Circuit U. S. Court of Appeals has recently decided that Title VII of the Civil Rights Act of 1964 protects against discrimination based on a person’s sexual orientation. In the case Zarda v. Altitude Express, Inc., the Second Circuit appeals court in New York, sitting en banc, overturned its prior precedent-setting decisions determining that claims for sexual orientation discrimination were not cognizable under Title VII.

Zarda Court Held That Sexual Orientation Discrimination Is a Subset of Sex Discrimination

Title VII makes it unlawful for an employer to discriminate against any employee with respect to the individual’s “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin ….” In Zarda, the Second Circuit appeals court determined that sexual orientation discrimination is a subset of sex discrimination and that claims for sexual orientation discrimination could therefore proceed under Title VII.

The lawyers at Kilgore & Kilgore handle a wide variety of employment discrimination claims. If you have suffered from sex discrimination by your employer, click here Contact Kilgore & Kilgore to connect with an employment lawyer for a free review of the facts of your situation.

The New York District Court Had Dismissed Zarda’s Sex Discrimination Claim

Zarda, a gay man, was a skydiving instructor. He told a female client with whom he was preparing for a tandem skydive that he was gay in order to make her more comfortable while strapped to his body. The client alleged that Zarda inappropriately touched her and disclosed his sexual orientation to try to excuse his conduct. After the jump, the client told her boyfriend about Zarda’s alleged behavior. The boyfriend informed Zarda’s boss who then fired Zarda.

Zarda filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) and subsequently filed a lawsuit in federal district court in the Eastern District of New York. In his lawsuit, Zarda asserted a claim for sexual orientation discrimination under New York law and a Title VII discrimination claim based on sex stereotyping. The district court, relying on the Second Circuit’s prior cases, granted summary judgment for the employer on Zarda’s Title VII claim. After losing at trial on his sexual orientation discrimination claim under New York law, Zarda appealed. Eventually the full Second Circuit heard the matter en banc, vacated the district court’s summary judgment, and remanded the case.

The EEOC and the Seventh Appeals Court Have Held That Sexual Orientation Discrimination is Sex Discrimination

While Zarda’s lawsuit was pending before the federal district court, in 2015, the EEOC held for the first time in the Baldwin matter that an allegation of sexual orientation discrimination is an allegation of sex discrimination under Title VII. In addition, in 2017, the Seventh Circuit appeals court sitting en banc held in the Hively case that sexual orientation discrimination is a form of sex discrimination for purposes of Title VII. Click here to see our previous blog on that ruling: Hively Sex Discrimination Case.

The Legal Doctrine Regarding Sexual Orientation Discrimination is Evolving

In Zarda, the Second Circuit appeals court relied on the evolving legal doctrine regarding sexual orientation discrimination found in the EEOC’s Baldwin decision and in Hively. The Zarda court agreed with both the EEOC and the Seventh Circuit appeals court that a claim for sexual orientation discrimination is a claim for discrimination “because of sex” under Title VII. The U.S. Department of Justice in Zarda disagreed with the EEOC and argued that a claim for sexual orientation discrimination is not cognizable under Title VII.

The Second Circuit appeals court concluded that sexual orientation discrimination is motivated, at least in part, by an individual’s sex because sex is a factor in sexual orientation. Sexual orientation, according to the appeals court, is a function of sex. Thus, sexual orientation discrimination is comparable to sexual harassment, gender stereotyping, and “other evils” that violate Title VII because of an individual’s sex.

The Second Circuit appeals court further reasoned that sexual orientation is a proxy for sex because an employee would be treated differently “but for” his or her sex. A gay man who is discriminated against because he is attracted to men would have been treated differently had he been a woman attracted to men. Thus, the court concluded that sexual orientation discrimination is a “subset of sex discrimination.”

Gender Stereotypes Are Another Form of Sex Discrimination

The appeals court also found that sexual orientation discrimination was rooted in gender stereotypes, another form of discrimination “because of sex.” The appeals court further determined that sexual orientation discrimination is a type of associational discrimination based on an employer’s opposition to an association between individuals of a particular sex in violation of Title VII.

The dissent in Zarda, although supportive of the prohibition of sexual orientation discrimination, argued that in 1964, Congress did not prohibit sexual orientation discrimination in Title VII. Instead, Congress chose to address specific social problems of the time in Title VII, but that did not include sexual orientation discrimination.

Federal Circuit Courts of Appeals Are Split over Sex Discrimination Legal Doctrine

There is a split in the federal circuit appeals courts regarding whether or not sexual orientation discrimination is actionable under Title VII. The Seventh Circuit in Hively and the Second Circuit in Zarda have held that a claim for sexual orientation discrimination is a claim for sex discrimination and can proceed under Title VII. The Eleventh Circuit, on the other hand, has held the opposite. Thus, at some point in the future, the U.S. Supreme Court may have an opportunity to decide the issue.

Sex Discrimination Occurs in Many Different Types of Situations

Perhaps you suffer from sex stereotyping or sex discrimination and have experienced an adverse employment action in the workplace. If so, click here Contact an Employment Law Attorney at Kilgore & Kilgore for a free evaluation of the facts of your case.

Sabine Pilot Rule Expands Causes of Action: Whistleblower and Retaliation Laws Have More Causes of Action

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Would you have a cause of action if you refused to perform an illegal act at work and your employer fired you solely for that reason? If you are a whistleblower regarding an employer’s unlawful conduct, and your employer engages in retaliation against you, would you have a cause of action? State and federal laws apply to different situations and various industries. The Texas Supreme Court created an exception to the at will doctrine in 1985 with the Sabine Pilot case. This exception states that an employer in Texas may not legally terminate an employee for the sole reason of refusing to commit an illegal act.

Sabine Pilot and whistleblower cases can be complicated. If you have experienced either of these situations, you should contact an attorney to discuss the specific facts of your situation. You may or may not have a legal Sabine Pilot or whistleblower retaliation claim. To read about retaliation in the workplace, click here Dallas Employment Retaliation Lawyer. To read about whistleblower protection, click here Whistleblower Protection Attorney. Read on in this article to learn more about these topics.

Employment at Will

Texas is an employment at will state. This means that an employer in Texas can terminate an employee at any time and for just about any reason, unless a specific law or case is violated. Hence, an employer normally does not need cause to terminate an employee.

An Employment Contract Provides Protection

An employee who has a written employment contract for a specific term of employment would probably not be an employee at will. Typically, an employment contract specifies the kind of advance notice that must be given and the cause that the employer must have in order to terminate the employee before the employment term has expired. Thus, an employee can potentially gain some protection with an employment contract in place.

Employment Discrimination is Illegal

Of course, even under the permissive employment at will doctrine, an employer may not fire an employee for an illegal reason. For example, an employer cannot terminate an employee on the basis of an employee’s race, color, religion, sex, or national origin. Employment discrimination is unlawful under both state and federal law.

Wrongful Termination for Refusing to Perform an Illegal Act

An employer may not fire an employee in Texas solely because she or he refused to perform an illegal act. This is a narrow exception to the employment at will doctrine. The Texas Supreme Court created this exception in 1985 in the case known as Sabine Pilot Service, Inc. v. Hauck.

In this important case, commonly known as Sabine Pilot, Hauck was employed as a deckhand for Sabine Pilot. He testified that the company instructed him to pump daily the bilges of the boat that he worked on. Hauck noticed a placard on each boat stating that it was illegal to pump the bilges into the water, so he called the U.S. Coast Guard. The U. S. Coast Guard confirmed to Hauck that pumping bilges into the water was indeed illegal. So, Hauck refused to do so.

Hauck testified that the company fired him because he refused to illegally pump the bilges into the water. However, Sabine Pilot, through one of its officers, testified that Hauck was terminated for his refusal to swab the deck, man a radio watch, and other derelictions of duty.

In the Sabine Pilot case, the Texas Supreme Court held that an employer cannot discharge an employee for the sole reason that the employee refused to perform an illegal act. This decision was based on public policy. In order to have a cause of action, the employee must show that she or he was discharged solely because of her or his refusal to perform an illegal act, and not because of any other reason. This is a strict standard and a high burden of proof for an employee. In addition, the illegal act that the employee refused to perform must be subject to a criminal penalty.

Whistleblower Protections under Texas Law

A whistleblower is an employee who has witnessed illegal activity in the workplace and takes action. Typical actions might be reporting the unlawful conduct to a supervisor at work, to a governmental entity, or to a law enforcement authority. Certain whistleblowers are protected under specific state and federal laws. The Texas Whistleblower Act can be found in Chapter 554 of the Texas Government Code.

It protects an employee of a public, but not private, entity from retaliation if she or he in good faith reports a legal violation by the employer. The employer must be a governmental entity or a public employee and the report would have to be made to an appropriate law enforcement authority.

In addition, certain workers and professionals in nursing homes, mental health facilities, and hospitals are protected under Texas law against retaliation if they become whistleblowers.

Whistleblower Protections under Federal Law

Federal law provides protection to certain employees who become whistleblowers on violations of:

  • Securities laws at public companies,
  • Aviation laws and regulations,
  • Laws regulating the handling of toxic substances, and
  • Laws and regulations of the Occupational Safety and Health Administration (OSHA).

There are numerous other state and federal laws that provide protection to whistleblowers in particular professions and industries.

Reach Out to Kilgore & Kilgore’s Texas Retaliation Attorneys and Dallas Whistleblower Lawyers

Were you fired because you refused to perform an illegal act at work? Did you become a whistleblower on unlawful conduct at work? If your answer is yes, contact the employment lawyers at Kilgore & Kilgore to discuss the specific facts of your situation. Just click here, Contact Kilgore & Kilgore.

Do You Have a Workplace Sexual Harassment or Retaliation Claim in Texas?

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Allegations of sexual misconduct have recently surfaced against numerous powerful men including Hollywood mogul Harvey Weinstein, TV journalists Matt Lauer and Charlie Rose, and politicians including Senator Al Franken and Representatives. John Conyers, Jr. and Blake Farenthold. As a result of the widespread media coverage of these allegations, sexual harassment allegations in the workplace are likely to increase.

Workplace Sexual Harassment is Against the Law

Both federal and Texas law recognize sexual harassment as a form of sex discrimination. These statutes provide protection to workers at workplaces with 15 or more employees. Title VII of the Civil Rights Act of 1964 is the federal law that prohibits sex discrimination, including sexual harassment, in the workplace. Chapter 21 of the Texas Labor Code contains state law counterparts.

If you believe you have a workplace sexual harassment claim to bring against an employer, you should learn about what constitutes a sexual harassment claim and the steps you should take to start the legal process. Here are several sources of information on this topic based on the experience of Kilgore & Kilgore lawyers who handle these and other types of employment law claims against employers. To read about sexual harassment claims in the workplace, click here Sexual Harassment Lawyers. Read on in this article to see if you have a viable sexual harassment or retaliation claim; if so, contact us and hear from a Kilgore lawyer, click here Contact Kilgore & Kilgore.

Our Employment Lawyers Defend Clients Who Have Been Unlawfully Treated by Their Employers

The lawyers at Kilgore & Kilgore have extensive experience defending employees who have been unlawfully treated by their employers. For example, read the testimonial from a former client who pressed her sexual harassment and wrongful termination claim in 2012 and tells of that experience, click here Thanks from a Grateful Client.

Different Types of Workplace Sexual Harassment Claims

Sexual harassment claims in the employment context generally fall into two often-related categories. The first category is a hostile work environment sexual harassment claim. The second category is a quid pro quo sexual harassment claim. A related claim for retaliation could also arise if the employer unlawfully retaliates against the employee for engaging in protected activity.

Workplace Sexual Harassment in a Hostile Work Environment

Many people talk about a hostile work environment, which actually is a specific kind of sexual harassment claim. In order to bring a hostile work environment sexual harassment claim against an employer, the employee generally must meet several elements. These include:

  • That the employee with the claim belongs to a protected group;
  • That s/he was subjected to unwelcome sexual harassment;
  • That the harassment was based on the employee’s sex;
  • That the harassment affected a term, condition, or privilege of his/her employment; and
  • That the employer knew or should have known of the harassment and failed to take prompt remedial action.

The harassment must be either severe or pervasive in order to affect a term, condition, or privilege of the person’s employment. In order for an employer’s conduct to be severe, it must be extremely serious. Courts generally have determined that teasing, certain isolated incidents, and offhand comments do not meet the severe test. Likewise, one or two comments made by the employer probably will not satisfy the pervasive requirement.

If the sexual harassment is severe or pervasive, then an employee could potentially resign his/her position and assert a claim for constructive discharge. However, before resigning, an employee who intends to pursue a legal claim for a hostile work environment resulting in his/her constructive discharge should make sure that s/he can satisfy all of the legal elements of a claim for a hostile work environment. If an employee resigns but cannot satisfy all of the legal requirements, then any claim for a hostile work environment is likely to fail in court, leaving the employee without a legal remedy.

Quid Pro Quo Sexual Harassment

The second type of sexual harassment claim is for quid pro quo sexual harassment. In Latin, quid pro quo means something for something. In order to succeed on a quid pro sexual harassment claim, the employee must show that:

  • S/he suffered a tangible employment action, and
  • That the tangible employment action resulted from his/her acceptance or rejection of a supervisor’s, or possibly a co-worker’s, sexual advances.

A tangible employment action could include hiring, firing, failing to promote, a reassignment with significantly different job responsibilities, or a meaningful change in benefits. The employee must show that his/her acceptance or rejection of the supervisor’s, or possibly co-worker’s, sexual advances resulted in the tangible employment action against the employee.

Employment Retaliation as a Punishment

Sometimes, in the context of sexual harassment, a related claim for retaliation could arise. To establish a claim for retaliation, an employee must show that s/he:

  • Engaged in protected activity,
  • That there was an adverse action by the employer against the employee, and
  • A causal connection exists between the protected activity and the adverse employment action.

For example, to succeed on a retaliation claim, an employee would need to show that s/he got fired or demoted for filing a formal complaint or charge of sexual harassment.

How to Start a Workplace Sexual Harassment Claim in Texas

To assert a legal claim in Texas for sexual harassment or retaliation against an employer, an employee must first file a charge or complaint within a certain number of days following the occurrence of discrimination with either the Equal Employment Opportunity Commission or the Texas Workforce Commission, respectively. Generally, an employee must file a charge with the EEOC or the TWC within a certain number of days from the date of the adverse employment action. For greater detail about filing and processing claims in Texas, click this link Filing Claims and Procedures of the EEOC or TWC. Generally, only after all of the procedures at the EEOC or the TWC have been fully exhausted may the employee proceed to either federal or state court.

Reach Out to Kilgore & Kilgore’s Employment Law Attorneys

Kilgore & Kilgore understands this issue of workplace sexual harassment and has handled many such cases. Our attorneys have brought claims and won cases for victims of employer abuse. Read the testimonials from former clients who successfully brought their claims, then wrote to Kilgore & Kilgore to express their gratitude, click here Client Testimonials. If you have a viable sexual harassment or retaliation claim you wish to discuss, contact us and hear from a Kilgore lawyer, click here Contact Kilgore & Kilgore.

Probate Court Jury Found JP Morgan Chase Guilty of Mishandling an Estate Administration

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Estate litigation in probate court can sometimes lead to large jury awards. In a recent case in Probate Court No. 1 of Dallas County, Texas, a six-person jury awarded the surviving spouse and heirs of an estate more than $4 billion in punitive damages. This award also included approximately $4.7 million in actual damages. And, the plaintiff was also awarded $5 million in attorney fees in this case, Estate of Max D. Hopper, Deceased, Jo N. Hopper v. JP Morgan Chase Bank, N.A., et al.

If you have a question about an estate settlement matter in which you are or were involved, talk it over with an estate litigation attorney at Kilgore & Kilgore. To get the conversation started, click here and submit a request Contact a Kilgore Estate Litigation Attorney. To learn about Kilgore & Kilgore’s estate litigation law practice, click here to go to that website Texas Estate Litigation.

Probate Court Divided Up Hopper’s Estate

Max Hopper, the decedent, was a successful information technology executive. In 2010, he died intestate, without a signed will. In such a case, under Texas law, the community property is divided in half between a surviving spouse and any children of the deceased. During Hopper’s 28-year marriage, he had accumulated over $19 million. In the estate settlement, this amount was divided in half between his surviving spouse and his estate/heirs. Hopper had two children from a prior marriage. Because the assets were undivided at the time of his death, Hopper’s family hired JP Morgan Chase as the independent estate administrator. The estate administration assignment was to collect the assets, pay any debts, and distribute the remaining assets to the beneficiaries.

JP Morgan Chase Botched the Job and Ended up in Probate Court

Among other findings, the jury found that JP Morgan Chase was in breach of its fiduciary duties owed to the surviving spouse and the heirs stemming from its administration of Hopper’s estate and the distribution of assets. According to a press release from the plaintiff’s lawyers, “the bank took years to release basic interests in art, home furnishings, jewelry, and notably, Mr. Hopper’s collection of 6,700 golf putters and 900 bottles of wine.” In addition, according to the press release, “bank representatives failed to meet financial deadlines for the assets under their control.”

This Estate Litigation Case Continues in Probate Court

The probate court has not yet entered judgment in this case. The parties are currently filing post-trial motions. The probate court will be conducting hearings during the first few months of 2018. The family members, on the one hand, will argue that final judgment should be entered for them in accordance with the verdict of the jury. JP Morgan Chase, on the other hand, will argue that the jury findings on liability and damages were improper.

Challenges to an Estate Administration May End up in Probate Court

When someone wants to challenge how an estate was administered, she or he can commence estate litigation with the help of an attorney. Challenges start with basic questions such as whether a will exists or not, and if so, whether the will is valid. Many people establish a will in order to set forth their wishes about how their assets should be distributed upon death. How estate litigation proceeds depends upon the situation. For example, an heir who did not receive an inheritance may want to legally challenge how the estate was distributed, especially if the inheritance went to a person unrelated to the decedent. An estate litigation attorney can help guide the decision about whether or not to pursue estate litigation.

Probate Courts in Texas

Whether a will is present or not, estate administration may take place in probate court. There are three specialized probate courts in Dallas County, Texas, for these kinds of cases. Other Texas counties, such as Harris County, Bexar County, and Travis County have specialized, statutory probate courts.

Trust Litigation Involves Family Trusts Which May Be Outside the Probate Court

Having a family trust is a way of distributing assets of a decedent without going through a probate court. A family trust can help keep the distribution of assets out of the public eye. Trust litigation may involve a challenge to the distribution of assets through a trust. When someone with a trust passes away, a previously appointed trustee takes over management of that trust. The trustee is also responsible for distributing the trust funds according to preferences set forth by the person who set up the trust.

Beneficiaries of a trust may ask a trust litigation attorney to challenge a trustee when the trustee’s actions fall short of legal requirements. There are strict legal obligations known as fiduciary duties for the trustee that sets forth a legal standard for a trustee’s behavior. When those standards are not met, a beneficiary may take legal action.

Kilgore & Kilgore’s Estate Litigation and Trust Litigation Attorneys Can Help

If someone has passed away and you are not satisfied with the administration of the estate or trust, contact Kilgore & Kilgore to sort out the details and see if you have a legal case to pursue. Don’t let the estate administration process throw you off. It’s complicated and takes times to sort out the estate of a decedent. To learn more about Kilgore & Kilgore’s estate litigation and trust litigation practice, click here Texas Estate Litigation. To discuss the facts of your situation with a Kilgore attorney, get the conversation started by clicking this link and submitting a request Contact Kilgore & Kilgore.

Religion in the Workplace – New Guidelines from the U. S. Attorney General

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Title VII of the Civil Rights Act of 1964 protects employees from workplace discrimination on the basis of their race, color, religion, sex, or national origin. In addition, Title VII requires an employer to reasonably accommodate an employee’s religious beliefs and observances.

On October 6, 2017, U.S. Attorney General Jeff Sessions issued a memorandum for all executive departments and agencies concerning federal law protections for religious liberty. The memorandum guides all U.S. administrative agencies and executive departments in the execution of federal law.

In order to uphold the foundational principle of religious liberty, the memorandum states that “to the greatest extent practicable and permitted by law, religious observance and religious practice should be reasonably accommodated in all government activity, including employment, contracting, and programming.” The memorandum then set out 20 broad principles of religious liberty to guide administrative agencies and executive departments in implementing this objective. Some of these principles discuss religion in the workplace.

If You Experienced Discrimination at Work, Reach Out to Us

To learn more about our employment discrimination law practice in Texas, click here Employment Discrimination Law Practice.

Title VII of the Civil Rights Act of 1964 Prohibits Discrimination Based on Religion

The sixteenth principle in the memorandum states that Title VII of the Civil Rights Act of 1964, as amended, prohibits covered employers from discriminating against an employee because of his/her religion. This prohibition is found in 42 U.S.C. § 2000e-2(a). A private employer must have 15 or more employees in order to be covered under Title VII.

Title VII defines religion broadly to include all aspects of religious observance, religious practice, and belief. The seventeenth principle in the Attorney General’s memorandum states that an employer must reasonably accommodate an employee’s religious observance, religious practice, or belief unless to do so would impose an undue hardship on the employer’s business.

For example, according to the memorandum, an employer that is covered under Title VII must adjust employee work schedules if any employees desire to observe the Sabbath, religious holidays, or other religious observances, unless doing so would create an undue hardship on the employer’s business. The employer must establish any undue hardship with specificity; general assumptions are insufficient.

EEOC Wins Religious Discrimination Lawsuit Against Employer for Constructive Termination

The Fourth Circuit case EEOC v. Consol Energy, Inc., which was discussed in a previous blog dated September 12, 2017, is a religious accommodation case under Title VII. To read that blog about an employer’s liability for failing to accommodate an employee’s core religious beliefs, click here EEOC Wins Religious Discrimination Lawsuit.

Guidelines on Religious Expression in the Federal Workplace in 1997 Spelled Out Employee Freedoms

President Clinton issued Guidelines on Religious Exercise and Religious Expression in the Federal Workplace in 1997. According to the Attorney General’s memorandum, these Guidelines explained that federal employees could keep religious materials on their private desks and read them during breaks. They could discuss their religious views with other employees, subject to the general limitations for employee expression. They could display religious messages on clothing or wear religious medallions. They could also invite others to attend worship services at their places of worship, unless such speech becomes excessive or harassing. The eighteenth principle in the memorandum states that President Clinton’s Guidelines can be useful to private employers in determining the reasonable accommodation of the religious observances and religious practice of employees.

Religious Employers Exempted from Religious Discrimination in the Workplace

Special legal rules apply to religious employers. Qualifying religious organizations are exempted from Title VII’s prohibition on religious discrimination in the workplace. Under the special protections granted to them, religious organizations, according to the memorandum, may employ only persons who share the same religious beliefs, faith, or code of conduct.

According to the Attorney General’s memorandum, for example, a Lutheran secondary school can choose to employ only practicing Lutherans, only practicing Christians, or only those individuals who adhere to a code of conduct consistent with the precepts of the Lutheran community sponsoring the school. The nineteenth principle of the memorandum states the special protections that apply to religious organizations. However, some critics are concerned that religious employers could potentially rely on the broad language in the memorandum to discriminate illegally against employees.

The Attorney General’s memorandum, for the most part, relies on broad and established general principles of religious liberty. The memorandum emphasizes that an employer must accommodate an employee’s religious observance, religious practice, or belief unless to do so would impose an undue hardship on the employer’s business. It also reiterates that religious organizations are granted certain special protections and exemptions for some employment practices.

Workplace Discrimination Occurs in Many Different Types of Situations

Perhaps you have suffered from workplace discrimination, wrongful termination, retaliation for making a benefits claim, or some other adverse action by your employer. If so, please click here Contact an Employment Law Attorney at Kilgore & Kilgore for a free evaluation of the facts of your case.

Is Telecommuting a Reasonable Accommodation for Workers with Disabilities?

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In order to pursue a claim for disability discrimination against your employer in Texas, you must first file a complaint or charge of discrimination with either the Texas Workforce Commission (TWC) Civil Rights Division or the Equal Employment Opportunity Commission (EEOC). The employer must employ 15 or more employees to be covered under the ADA or the Texas anti-discrimination law. Generally, you must either file a complaint with the TWC Civil Rights Division or a charge with the EEOC within 180 days or 300 days, respectively, of the adverse employment action. After you receive a right to sue notice from the investigating agency, you may file a disability discrimination lawsuit in either state or federal court. If you have received a right to sue letter from the TWC or EEOC, contact an employment law lawyer at Kilgore & Kilgore to learn the best way to proceed with your case. Please click here to reach out to us Contact an Employment Law Lawyer.

The ADA Provides Workers with Disabilities Certain Rights and Protections

The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., was signed into law in 1990 by President George H.W. Bush. It provides individuals with disabilities certain federal rights and protections, including protection from discrimination in the workplace. Chapter 21 of the Texas Labor Code provides similar workplace protections under state law to individuals with disabilities.

The ADA Requires Some Employers to Make Reasonable Accommodation for Workers with Disabilities

Under the ADA, a covered employer is required to make a reasonable accommodation for a qualified individual with a known disability. To be a qualified individual with a disability under the ADA, the employee must be able to perform the essential functions of his or her job with or without reasonable accommodation. If an employee cannot show that he or she is a qualified individual as a threshold matter, then any claim in court for disability discrimination will fail.

Recent Case Examines Telecommuting as a Reasonable Accommodation

In the case Credeur v. Louisiana, the U.S. Court of Appeals for the Fifth Circuit examined what it means to be a qualified individual under the ADA. Appeals from the federal district courts in Texas, Louisiana, and Mississippi are decided by the Fifth Circuit.

In its June opinion in Credeur, the Fifth Circuit gave great deference to the employer in determining the essential functions of the employee’s job and ultimately decided that the employee was not a qualified individual for purposes of the ADA.

In this case, the plaintiff, Renee Credeur, was a medical malpractice litigation attorney with the Office of Attorney General for the State of Louisiana. She had developed serious health problems due to complications from a kidney transplant.

Employer Offers Alternative Accommodation

The employer had initially accommodated the plaintiff by allowing telecommuting for performance of her work. However, after several months of telecommuting, the employer denied the plaintiff’s request to continue working from her home. The employer provided an alternative accommodation with certain conditions. The plaintiff rejected this alternative accommodation. After the plaintiff asked again to work from home, the employer once again denied her request. The plaintiff eventually returned to the office to work and voluntarily resigned about four months later.

Prior to returning to work, Credeur sued her employer, the State of Louisiana, for failing to accommodate her disability, disability-based harassment, and retaliation. The federal district court in Baton Rouge granted summary judgment for the State on all of the plaintiff’s claims, and the Fifth Circuit affirmed.

Under the ADA the Employee has to Perform With or Without Reasonable Accommodation

In order for Credeur to be a qualified individual under the ADA, she had to be able to perform the essential functions of her job as a litigation attorney with or without reasonable accommodation. The Fifth Circuit examined the ADA itself and the regulations of the EEOC. It determined that the employer’s judgment must be given the most weight in determining the essential functions of a job.

Definition of Telecommuting as a Reasonable Accommodation for Workers with Disabilities

Credeur’s employer contended that an essential function of her job as a litigation attorney was regular office attendance due, in part, to the interactive and team-oriented nature of her position. The Fifth Circuit gave hardly any weight to Credeur’s subjective testimony about the essential functions of her job. It found that she could not create a fact issue to defeat the State’s motion for summary judgment. An employee’s personal judgment regarding the essential functions of a job, without additional evidence, is insufficient to defeat summary judgment, according to the Fifth Circuit. Employees with disabilities will not be able to telecommute indefinitely, according to the Fifth Circuit. “Construing the ADA to require employers to offer the option of unlimited telecommuting to a disabled employee would have a chilling effect [on their telecommuting policies],” the Fifth Circuit stated.

Plaintiff Was Unable to Prove She Could Perform Her Job With or Without Reasonable Accommodation

The Fifth Circuit concluded that Credeur was unable to show that she was a qualified individual under the ADA. According to the court, she was unable to show that she could perform the essential functions of her job with or without reasonable accommodation. Thus, the court affirmed the summary judgment in favor of the State on Credeur’s failure to accommodate claim.

Plaintiff Was Unable to Prove Harassment or Retaliation

On her other claims, the court found that Credeur had neither experienced actionable harassment based on her disability nor retaliation. Thus, the Fifth Circuit affirmed the summary judgment in favor of the State on all of the plaintiff’s claims.

Discrimination against Workers with Disabilities Occurs in Many Different Types of Situations

Perhaps you suffer from a disability and have experienced an adverse employment action in the workplace. If so, please click here Contact an Employment Law Attorney at Kilgore & Kilgore for a free evaluation of the facts of your case.