President Trump Not Responsible for Discrimination by Employers

Trump transgender discrimination Alabama Employment Law
President Trump’s transgender ban does not injure individuals who suffer discrimination from private employers.

A federal judge in Alabama ruled last week that President Donald Trump is not legally responsible for potential discrimination by private employers.  See Williamson v. Trump, No. 7:17-01490-LSC, 2017 WL 4536419 (N.D. Ala. Oct. 11, 2017).  On August 15, 2017, President Trump issued a Presidential Memorandum for the Secretary of Defense and Homeland Security.  That memorandum prohibits accession of transgender employees in the United States military and authorizes the discharge of such individuals.  Cassandra Williamson is a transgender veteran living in Tuscaloosa, Alabama.  Ms. Williamson sued, claiming that the memorandum violated her rights to equal protection under  the United States Constitution.

Ms. Williamson did not argue that she is a part of the class of military personnel directly affected by the memorandum.  Instead, she claimed that President Trump’s memorandum had an immediate and chilling impact on her “ability to get work,” because it was “seen by the community and prospective potential employers … as justification to not consider her for employment and to mistreat her when she goes out to get food, go to church, and deal with other issues in the community, or even to walk her dog.”

United States District Court Judge Scott Coogler dismissed Ms. Williamson’s complaint.  Judge Cooger relied upon a legal doctrine called “standing.”  In summary, the standing doctrine required Ms. Williamson to demonstrate that she was injured by President Trump’s memorandum, and that the court could prevent future injuries.  Ms. Williamson’s complaint failed to surmount that obstacle:  “Plaintiff’s allegations are that employers, not the President, have caused an injury to Plaintiff through employment discrimination.  Although the memorandum does order that the accession of transgender persons in the military eventually be ceased, it in no way directs the hiring practices of private individuals or companies.”

Ms. Williamson lost her case because she is not directly affected by the memorandum.  Several other law suits have been filed in other parts of the country directly challenging the ban on behalf of service members.  The United States Department of Justice filed a motion two weeks ago seeking to have one of those cases dismissed.  Here’s a link discussing that motion.  DOJ Moves To Dismiss Transgender Ban Lawsuit.

Judge Recognizes Gender Dysphoria as a Disability

gender dysphoria ADA
A federal judge recently recognized gender dysphoria as a disability.

A federal judge in Pennsylvania recently found that an employee with gender dysphoria could sue under the Americans with Disabilities Act.  See Blatt v. Cabela’s Retail, Inc., 2017 WL 2178123 (E.D. Pa. May 18, 2017).  Kate Lynn Blatt claimed that she was terminated by Cabela’s because of her sex and disability — gender dysphoria.  Cabela’s asked United States District Court Judge Joseph F. Leeson, Jr. to dismiss the ADA claims.

The ADA’s express language says that the term “disability” does not include “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”  42 U.S.C. §12211 (emphasis added).  And, Ms. Blatt claimed that she was diagnosed with “Gender Dysphoria, also known as Gender Identity Disorder.”  Blatt, 2017 2178123 at *2 (emphasis added).

While Ms. Blatt’s claim would appear to be barred by the ADA’s definition of a disability, Judge Leeson refused to dismiss the claim.  He found that the ADA intended to only exclude those people “identifying” with a different gender.  But, gender dysphoria “goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.”  Blatt, 2017 2178123 at *2.

Judge Leeson’s opinion appears to be an effort to avoid a constitutional question.  Ms. Blatt claimed that the ADA’s exclusion of gender identity disorders violated her Equal Protection Rights.  In order to avoid that issue, Judge Leeson found that Ms. Blatt was not excluded.  But, in avoiding the constitutional question, Judge Leeson may have extended the ADA beyond its intended scope.  The ADA, and its definition of “disability,” was passed by Congress in 1990.  At that time, the Third Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders merely used the term “gender identity disorder.”  But, in 1994, the Fourth Edition of that Manual replaced the term “gender identity disorder” with the more descriptive term “gender dysphoria.”  Kothmann v. Rosario, 558 Fed. Appx. 907, 908 n.2 (11th Cir. 2014).  Thus, Judge Leeson’s attempt to distinguish between “gender identity disorder” and “gender dysphoria” may be an error based on differences in time and definitions.

Nevertheless, Blatt provides yet another reason for employers to proceed cautiously when disciplining transgender employees.  Under Title VII’s sexual discrimination provisions, employers must be careful to avoid disciplining transgender employees for failure to conform to gender stereotypes.  Discussion on Transgender Protections. Now, employers must also consider whether an employee’s gender dysphoria is a disability and entitled to protection.

Retaliation: Employees on Thin Ice Can’t Save Their Jobs with Discrimination Complaints

Thin Ice retaliation
Employees on thin ice can’t save their jobs by making insincere claims of discrimination.

People don’t like to get fired from their jobs.  Thanks to the wonders of the internet, many employees also know that several employment laws (like Title VII of the Civil Rights Act of 1964) prohibit retaliation for making complaints of discrimination.  As a result, employees who know that their jobs are in trouble will frequently make last-minute claims of discrimination in the hope that their employer will not fire them — for fear of a retaliation law suit.

This tactic has become so commonplace that the Eleventh Circuit Court of Appeals has developed a line of cases which protect employers from such retaliation law suits.  Those cases focus on the concept of causation.  As part of his/her case, an employee claiming retaliation must show that termination was caused by the discrimination complaint.  In most cases, close timing between the complaint and termination is sufficient to establish causation.   But, there are exceptions to every rule, and the Eleventh Circuit has created an exception to the general rule on causation.  Close timing “between the protected activity and the adverse action alone generally cannot show causation when the employer has contemplated the adverse action before the protected activity takes place.”  Tucker v. Florida Dept. of Transport., No. 16-10420, 2017 WL 443632 at *3 (11th Cir. Feb. 2, 2017).

In short, if an employer is contemplating termination before an employee claims discrimination, then the employee must show more than close timing if he/she wants to win a retaliation claim.  The Eleventh Circuit provides the following rationale for that rule:   “Title VII’s anti-retaliation provisions do not allow employees who are already on thin ice to insulate themselves against termination or discipline by preemptively making a [ ] complaint.”   Id.

As a practical matter, I strongly encourage any employer “contemplating” termination to have documentation in support of termination prior to making the decision.  Additionally, employers should also proceed cautiously any time an employee complains about discrimination.  Sometimes, even last-minute discrimination complaints have merit, and employers should ensure that no discrimination occurs in the workplace.


Belief “From the Heart” Cannot Prove Discrimination

Belief heart discrimination
A belief “from the heart” is insufficient to prove discrimination.

I frequently tell clients:  “There’s a difference between what you know and what you can prove.”  A quick internet search tells me that I’ve been stealing that line from Tom Cruise in “A Few Good Men.”  Even so, the maxim is really the foundation for our court system.  Even if you know something “in your bones” (as my Dad used to say), you have to provide admissible evidence in court.  The Eleventh Circuit Court of Appeals recently hammered that point home in a recent Title VII discrimination case: Mells v. Secretary Dept. of Veterans Affairs, No. 15-14251, 2017 WL 60387 (11th Cir. Feb. 15, 2017).

In Mells, an employee sued for racial discrimination arising from denial of a promotion.  The undisputed evidence showed that a four-person interview panel ranked Ms. Mells lower than other applicants.  Nevertheless, Ms. Mells argued that a biased supervisor selected the four-person panel.   Ms. Mells believed “in her heart” that there was a possibility that the interview panel was swayed by the biased supervisor.

The Eleventh Circuit rejected that argument:  “Although Ms. Mells may be inclined to follow her heart, we, like the district court, are required to follow the evidence.”  The Court found no evidence that the interview panel was biased or swayed by the supervisor.  As a result, the Court affirmed dismissal of her claims.  Notably, the Eleventh Circuit rejected these matters of the heart on the day after Valentine’s day, but there is no reference to Valentine’s in the opinion.

Mells provides two lessons.  First, it demonstrates the benefits of using interview panels in hiring and promotion decisions.  If an applicant later attempts to sue for discrimination, they face a heavy burden to show bias of the entire panel.  Second, in every case, employees (and employers) must present more evidence than mere “belief” if they want to win.

Gay Police Officer’s Discrimination Case Goes Forward

Homosexual discrimination under Title VII
Gay Police Officer’s Discrimination Claim Goes Forward

An Alabama United States Magistrate Judge recently declined to dismiss a discrimination claim filed by a homosexual police officer.  Smith v. City of Pleasant Grove, No. 2:16-cv-00373-JEO, 2016 WL 5868510 (N.D. Ala. Oct. 7, 2016).

According to the complaint, Lance Smith was hired by the Pleasant Grove Police Department in 2014.  After he was offered the position, he informed his supervisor that he is homosexual.  The supervisor suggested that he should reconsider working at the department, but later sent an email saying that his homosexuality would not be an issue.  After starting work, he was paid a salary $5,000 less than promised by the supervisor.  Mr. Smith was supposed to attend a three-week filed training course, where he was assigned to ride with a Field Training Officer.  But, he was assigned to work on his own after less than two weeks.  Two months after starting work, Mr. Smith was told that he was “not going to work out,” and told that he would be grounded, suspended and fired if he did not resign.

Mr. Smith resigned from employment and filed suit under Title VII of the Civil Rights Act of 1964.  He alleged that he was constructively discharged because of his sexual orientation and because of sexual stereotypes associated with his gender.

The City of Pleasant Grove moved to dismiss the complaint and argued that discrimination based upon sexual orientation is not actionable under Title VII.  Magistrate Judge John Ott declined to dismiss the complaint.  Judge Ott recognized that the Eleventh Circuit Court of Appeals has consistently rejected Title VII claims based upon sexual orientation.  Nevertheless, he also recognized that trend might be changing.  The United States Equal Employment Opportunity Commission and at at least one federal court in Alabama have recently recognized that sexual orientation claims are actionable under Title VII.  See Isaacs v. Felder Servs., LLC, 143 F.Supp. 3d 1190, 1193 (M.D. Ala. 2015).

Judge Ott was able to side-step the issue of conclusively deciding whether sexual orientation claims are actionable under Title VII.  Instead, he relied upon an established line of Eleventh Circuit cases holding that Title VII protects employees who allege discrimination based upon failure to conform to sex and gender stereotypes.  See Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011).  Judge Ott found that Mr. Smith’s complaint contained sufficient allegations to allow him to proceed with discovery to support his gender stereotyping claim.

Judge Ott’s ruling appears to be a proper application of the existing federal law in Alabama regarding gender stereotyping.  I previously wrote about the issue of gender stereotyping here:  Emerging LGBT Issues  Unquestionably, the City of Pleasant Grove will move for summary judgment at the conclusion of discovery.  It will be interesting to see if Judge Ott directly tackles the  issue of sexual orientation discrimination at that stage.

EEOC Issues Final Rule on ADA and Wellness Programs



Yesterday, the United States Equal Employment Opportunity Commission issued its final rule discussing the interaction of employee wellness programs, the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). The EEOC’s press release can be found here:  EEOC Press Release on Wellness Programs

Wellness programs provide a compliance dilemma for employers.  Generally, those programs are a good thing, because they encourage better health and lifestyle choices for employees.  Nevertheless, the ADA and GINA both generally prohibit employers from obtaining and using information about employees’ health conditions. Both acts contain exceptions that allow employers to ask health-related questions as part of a voluntary wellness program.

But, if an employer offers a financial incentive to employees to join a wellness program, is the program “voluntary”?  The EEOC’s final rule permits employers to ask health-related questions and also offer employees incentives of up to 30 percent of the total cost of self-only coverage.  The rule also implements notice requirements to employees and limitations on the amount of information sharing between the programs and employers.

The new rule goes into effect in 2017.  If you sponsor an employee wellness program, carefully review the new rule to ensure compliance.

Insufficiency in FMLA Paperwork is Not Grounds for Denial of Leave


Leave of Absence

A recent case from the Northern District of Alabama demonstrates the dangers of denying FMLA leave based insufficient FMLA paperwork.  Hayes v. Voestalpine Nortrak, Inc., No. 2:14-cv-2322-AKK (May 5, 2016).

In Hayes, the employee submitted an FMLA certification from his doctor which said that the employee:  (1) was seen “too many times to list — monthly since 2009”; (2) had impairments expected to continue throughout his life; and, (3) would need follow-up treatment appointments.  Nevertheless, the employer’s Human Resources Director denied the request for FMLA leave because the certification failed to indicate whether the employee would be incapacitated for any period of time or if the employee needed a reduced work schedule.

United States District Court Judge Abul Kallon denied summary judgment for the employer and sent the case to trial.  Judge Kallon particularly faulted the employer for failure to notify the employee in writing of deficiencies in the FMLA paperwork.  The FMLA’s implementing regulations require:

The employer shall advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete or sufficient.  A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed.  A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous, or non-responsive.

29 C.F.R. § 825.305(c).

Because the employer failed to notify the employee in writing of deficiencies in the paperwork, Judge Kallon found a jury issue “about whether the failure to engage in the certification dialogue constituted interference with Hayes’ FMLA leave.”  Hayes, 2016 WL 258791 at *4.

Hayes could be a dangerous case in the future, because of its reference to a “certification dialogue.”  There is no requirement for a “dialogue” under the FMLA, but I expect that some employee-friendly lawyers will argue that employers are required to notify employees of the exact weaknesses in a doctor’s certification, and engage in a “dialogue” to get the certification in a form that will permit FMLA leave.  I don’t believe that there is any such requirement.  Instead, if a physician’s certification is clear on its face, and does not satisfy the requirements for establishing a “serious health condition,” then employers should be able to deny FMLA leave without any further “dialogue.”

Hayes should stand for a much narrower proposition.  An exchange of information with the employee may be required if the doctor’s certification:  (1) has entries that have not been completed; or, (2) is vague, ambiguous or non-responsive.  29 C.F.R. § 825.305(c).  In any event, Hayes provides employers with a cautionary lesson about denying FMLA leave based upon deficiencies in an FMLA certification.


EEOC Weighs In On Transgender Bathrooms



The United States Equal Employment Opportunity Commission (“EEOC”) has issued a Fact Sheet on Bathroom Access for Transgender Employees.  It can be found here: Fact Sheet On Bathroom Access for Transgender Employees

The EEOC’s Fact Sheet seems to be a response to laws recently passed by States and even local governments.  Among other things, those laws restrict the ability of transgender people to use restrooms consistent with their gender identity.  Thus, the EEOC plainly warns that “state law is not a defense” to a transgender discrimination claim under Title VII of the Civil Rights Act of 1964.

Other than providing a warning to governmental entities, the Fact Sheet basically provides a summary of the EEOC’s previous rulings on transgender discrimination, which hold:


  • denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
  • an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
  • an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

In addition to the EEOC’s Fact Sheet, President Obama’s Executive Order 13672 prohibits transgender discrimination by federal contractors.  The Department of Labor’s Fact Sheet interpreting that order provides:

Under the Final Rule, contractors must ensure that their restroom access policies and procedures do not discriminate based on the sexual orientation or gender identity of an applicant or employee. In keeping with the federal government’s existing legal position on this issue, contractors must allow employees and applicants to use restrooms consistent with their gender identity.

That fact sheet can be found here:  DOL Fact Sheet on LGBT Discrimination


I previously discussed LGBT issues here:  EMERGING LGBT ISSUES IN THE WORKPLACE.  The EEOC is clearly looking to enforce Title VII to prohibit discrimination on the basis of gender identity or sexual orientation.  At this point, the best advice for employers is to ensure that transgender employees are provided equal access to restrooms consistent with their gender identity.


General Complaints About “Harassment” Are Not Protected By Title VII

Harassment in its Many Forms and Types
Harassment in its Many Forms and Types

On April 18, 2016, United States District Court Judge David Proctor confirmed that generalized complaints by employees about “harassment” are not protected by Title VII.  Instead, the “harassment” complained about must be harassment that is prohibited by Title VII.  See Ellison v. City of Birmingham, No. 2:14-CV-00154-RDP, 2016 WL 1554927 (N.D. Ala. Apr. 18, 2016).

In Ellison, the employee sued for retaliation under Title VII of the Civil Rights Act of 1964, alleging that she was terminated for complaining about being harassed.  But, when complaining about harassment, an employee can only succeed if she possesses “a good faith, objectively reasonable belief that such harassment was unlawful under Title VII.”

While the employee in Ellison unquestionably complained about the way she was treated at work, Judge Proctor found that she did not complain about treatment that violated Title VII.  Instead, she complained about being: deemed a “troublemaker,” called a “devil” for “keeping up mess,” and called “baby duck” for following around behind a friend of hers.  Judge Proctor found that those complaints were merely about “unspecified personal conflict” and “wholly unrelated to Title VII.”

Judge Proctor’s decision simply reinforces the well-established principal that Title VII is not a “workplace civility code.”  Thus, not all “harassment” violates Title VII, and merely complaining about “harassment” does not grant protection under Title VII.  Instead, only complaints about harassment based upon a protected characteristic are entitled to protection.


Race Discrimination Claim for Failure to Promote Limited to Two Years


Statute of LImitations

On March 31, 2016, United States District Court Judge Karen Bowdre enforced a two-year statute of limitations in a failure to promote claim asserted under 42 U.S.C. Section 1981.  See Barclay v. First National Bank of Talladega, No. 1:14-cv-01573-KOB, 2016 WL 1270519 (N.D. Ala. Mar. 31, 2016).  Section 1981 prohibits race discrimination in the making, enforcement performance, modification, and termination of contracts.

Statute of limitations issues in Section 1981 claims can be complex.  Until 1991, the statute of limitations was unquestionably two years.  But, in 1991 Congress amended Section 1981 to make new discrimination claims available under that statute.  And, Congress required that any new claims under Section 1981 must receive a four-year statute of limitations.

Prior to 1991, an employee could only sue for failure to promote under Section 1981 if “the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer.”  Patterson v. McLean Credit Union, 491 U.S. 164, 185 (1989)(emphasis added).  As a result, there is a lot of litigation on the issue of whether a promotion creates a “new and distinct relationship” between the employer and employee.

If a “new and distinct relationship” would be created by the promotion at issue, the historical two-year statute of limitations applies.  If the promotion only involves “routine increases in salary or responsibility,” the four-year statute of limitations applies.

In Barclay, the plaintiff was employed as an Assistant Manager of Data Processing, and claimed that she was denied a promotion to the position of Bookkeeping Supervisor.  Judge Bowdre imposed the two-year statute of limitations because that promotion would have created a new and distinct relationship between the plaintiff and her employer.  In particular, Judge Bowdre relied upon the fact that the plaintiff would receive additional supervisory duties and would have been elevated from a non-management to a management position.  Barclay filed her law suit more than two years after the failure to promote.  Therefore, Judge Bowdre dismissed the claim as untimely.