Philadelphia Area Employment Lawyer

EEOC Finds LGBT Discrimination Violates Title VII

2013-04-11T18:33:00.002-04:00

The EEOC Determined in Mia Macy v. Eric Holder That Discriminating Against a Transgender Woman Violated Title VII

Women's Rights - So Yesterday...

This decision is a real sign of the times. Think about it.

Prior to the enactment of the Civil Rights Act of 1964 (now commonly referred to as "Title VII"), 1964, women and minorities had no protection against on the job harassment or discrimination.

Prior to the passing of the Age Discrimination in Employment Act in 1967, workers over the age of 40 had no protection against job discrimination based upon age.

First Beneficiaries Now in College!

Prior to the passage of the Family and Medical Leave Act in 1993, you could have been fired for having a baby, or nursing your wife or child through a serious illness.

Ramp Installed
23 years Ago

Prior to the ratification of the Americans With Disabilities Act in 1990, an employee could have been fired because he/she had AIDS, was wheelchair bound, or battling cancer.

Sign of Times:
Same-Sex Marriage Symbol

In March 2013, the U.S. Supreme Court heard argument on the constitutionality of California's Proposition 8, which bans same-sex marriage in California, and then on the legality of the Defense of Marriage Act, a federal law prohibiting the payment of federal benefits to spouses in same-sex marriages.

While the LGBT (lesbian, gay, bisexual, and ransgender) movement is gaining force, the fact is that, as of April 11, 2013, same-sex marriage is legal in only 9 states (plus D.C.), and is banned in 38 states (3 states,New Mexico, New Jersey and Rhode Island, have abstained on the issue).

BACKGROUND

Complainant, a transgender woman, was a police detective in Phoenix,

Arizona. In December 2010 she decided to relocate to San Francisco

for family reasons. According to her formal complaint, Complainant was

still known as a male at that time, having not yet made the transition

to being a female.

Complainant’s supervisor in Phoenix told her that the Bureau of Alcohol,

Tobacco, Firearms and Explosives (Agency) had a position open at its

Walnut Creek crime laboratory for which the Complainant was qualified.

Complainant is trained and certified as a National Integrated Ballistic

Information Network (NIBIN) operator and a BrassTrax ballistics

investigator.

Complainant discussed the position with the Director of the Walnut

Creek lab by telephone, in either December 2010 or January 2011, while

still presenting as a man. According to Complainant, the telephone

conversation covered her experience, credentials, salary and benefits.

Complainant further asserts that, following the conversation, the Director

told her she would be able to have the position assuming no problems arose

during her background check. The Director also told her that the position

would be filled as a civilian contractor through an outside company.

Complainant states that she talked again with the Director in January

2011 and asked that he check on the status of the position. According to

Complainant in her formal complaint, the Director did so and reasserted

that the job was hers pending completion of the background check.

Complainant asserts, as evidence of her impending hire, that Aspen of

DC (“Aspen”),FN. 2, the contractor responsible for filling the position,

contacted her to begin the necessary paperwork and that an investigator

from the Agency was assigned to do her background check. FN. 3

On March 29, 2011, Complainant informed Aspen via email that she was

in the process of transitioning from male to female and she requested

that Aspen inform the Director of the Walnut Creek lab of this change.

According to Complainant, on April 3, 2011, Aspen informed Complainant

that the Agency had been informed of her change in name and gender.

Five days later, on April 8, 2011, Complainant received an email from

the contractor’s Director of Operations stating that, due to federal

budget reductions, the position at Walnut Creek was no longer available.

According to Complainant, she was concerned about this quick change

in events and on May 10, 2011, FN. 4, she contacted an agency EEO counselor

to discuss her concerns. She states that the counselor told her that

the position at Walnut Creek had not been cut but, rather, that someone

else had been hired for the position. Complainant further states that

the counselor told her that the Agency had decided to take the other

individual because that person was farthest along in the background

investigation. FN.5 Complainant claims that this was a pretextual explanation

because the background investigation had been proceeding on her as well.

Complainant believes she was incorrectly informed that the position

had been cut because the Agency did not want to hire her because she

is transgender.

The EEO counselor’s report indicates that Complainant alleged that

she had been discriminated against based on sex, and had specifically

described her claim of discrimination as “change in gender (from male

to female).”

On June 13, 2011, Complainant filed her formal EEO complaint with the

Agency. On her formal complaint form, Complainant checked off “sex”

and the box “female,” and then typed in “gender identity” and

“sex stereotyping” as the basis of her complaint. In the narrative

accompanying her complaint, Complainant stated that she was discriminated

against on the basis of “my sex, gender identity (transgender woman)

and on the basis of sex stereotyping.”

On October 26, 2011, the Agency issued Complainant a Letter of Acceptance,

stating that the “claim alleged and being accepted and referred for

investigation is the following: Whether you were discriminated against

based on your gender identity sex (female) stereotyping when on May 5,

2011, you learned that you were not hired as a Contractor for the position

of [NIBIN] Ballistics Forensic Technician in the Walnut Creek Lab,

San Francisco Field Office.” The letter went on to state, however,

that “since claims of discrimination on the basis of gender identity

stereotyping cannot be adjudicated before the [EEOC], your claims will

be processed according to Department of Justice policy.” The letter

provided that if Complainant did not agree with how the Agency had

identified her claim, she should contact the EEO office within 15 days.

The Department of Justice has one system for adjudicating claims of sex

discrimination under Title VII and a separate system for adjudicating

complaints of sexual orientation and gender identity discrimination by

its employees. This separate process does not include the same rights

offered under Title VII and the EEOC regulations set forth under 29

C.F.R. Part 1614. See Department of Justice Order 1200.1, Chapter 4-1,

B.7.j, found at http://www.justice.gov/jmd/ps/chpt4-1.html (last accessed

on March 30, 2012). While such complaints are processed utilizing the

same EEO complaint process and time frames – including an ADR program,

an EEO investigation and issuance of a final Agency decision – the

Department of Justice process allows for fewer remedies and does not

include the right to request a hearing before an EEOC Administrative

Judge or the right to appeal the final Agency decision to the Commission.

On November 8, 2011, Complainant’s attorney contacted the Agency by

letter to explain that the claims that Complainant had set forth in

the formal complaint had not been correctly identified by the Agency.

The letter explained that the claim as identified by the Agency was both

incomplete and confusing. The letter noted that “[Complainant] is a

transgender woman who was discriminated against during the hiring process

for a job with [the Agency],” and that the discrimination against

Complainant was based on “separate and related” factors, including on

the basis of sex, sex stereotyping, sex due to gender transition/change

of sex, and sex due to gender identity. Thus, Complainant disagreed

with the Agency’s contention that her claim in its entirety could not

be adjudicated through the Title VII and EEOC process simply because of

how she had stated the alleged bases of discrimination.

On November 18, 2011, the Agency issued a correction to its Letter

of Acceptance in response to Complainant’s November 8, 2011 letter.

In this letter, the Agency stated that it was accepting the complaint

“on the basis of sex (female) and gender identity stereotyping.”

However, the Agency again stated that it would process only her claim

“based on sex (female)” under Title VII and the EEOC’s Part 1614

regulations. Her claim based on “gender identity stereotyping” would

be processed instead under the Agency’s “policy and practice,”

including the issuance of a final Agency decision from the Agency’s

Complaint Adjudication Office.

CONTENTIONS ON APPEAL

On December 6, 2011, Complainant, through counsel, submitted a Notice

of Appeal to the Commission asking that it adjudicate the claim that

she was discriminated against on the basis of “sex stereotyping,

sex discrimination based gender transition/change of sex, and sex

discrimination based gender identity” when she was denied the position

as an NIBIN ballistics technician.

Complainant argues that EEOC has jurisdiction over her entire claim.

She further asserts that the Agency’s “reclassification” of her

claim of discrimination into two separate claims of discrimination –

one “based on sex (female) under Title VII” which the Agency will

investigate under Title VII and the EEOC’s Part 1614 regulations,

and a separate claim of discrimination based on “gender identity

stereotyping” which the Agency will investigate under a separate

process designated for such claims -- is a “de facto dismissal”

of her Title VII claim of discrimination based on gender identity and

transgender status.

In response to Complainant’s appeal, the Agency sent a letter to the

Commission on January 11, 2012, arguing that Complainant’s appeal was

“premature” because the Agency had accepted a claim designated as

discrimination “based on sex (female).”

In response to the Agency’s January 11, 2012 letter, Complainant wrote

to the Agency on February 8, 2012, stating that, in light of how the

Agency was characterizing her claim, she wished to withdraw her claim

of “discrimination based on sex (female),” as characterized by the

Agency, and to pursue solely the Agency’s dismissal of her complaint

of discrimination based on her gender identity, change of sex and/or

transgender status. In a letter to the Commission dated February 9, 2012,

Complainant explained that she had withdrawn the claim “based on sex

(female)” as the Agency had characterized it, in order to remove any

possible procedural claim that her appeal to the Commission was premature.

Complainant reiterates her contention that the Agency mischaracterized her

claim and asks the Commission to rule on her appeal that the Agency should

investigate, under Title VII and the EEOC’s Part 1614 regulations,

her claim of discriminatory failure to hire based on her gender identity,

change of sex, and/or transgender status.

ANALYSIS AND FINDINGS

The narrative accompanying Complainant’s complaint makes clear that

she believes she was not hired for the position as a result of making

her transgender status known. As already noted, Complainant stated

that she was discriminated against on the basis of “my sex, gender

identity (transgender woman) and on the basis of sex stereotyping.”

In response to her complaint, the Agency stated that claims of gender

identity discrimination “cannot be adjudicated before the [EEOC].”

See Agency Letters of October 26, 2011 and November 18, 2011. Although it

is possible that the Agency would have fully addressed her claims under

that portion of her complaint accepted under the 1614 process, the

Agency’s communications prompted in Complainant a reasonable belief

that the Agency viewed the gender identity discrimination she alleged

as outside the scope of Title VII’s sex discrimination prohibitions.

Based on these communications, Complainant believed that her complaint

would not be investigated effectively by the Agency, and she filed the

instant appeal.

EEOC Regulation 29 C.F.R. §1614.107(b) provides that where an agency

decides that some, but not all, of the claims in a complaint should be

dismissed, it must notify the complainant of its determination. However,

this determination is not appealable until final action is taken on the

remainder of the complaint. In apparent recognition of the operation of

§1614.107(b), Complainant withdrew the accepted portion of her complaint

from the 1614 process so that the constructive dismissal of her gender

identity discrimination claim would be a final decision and the matter

ripe for appeal.

In the interest of resolving the confusion regarding a recurring legal

issue that is demonstrated by this complaint’s procedural history,

as well as to ensure efficient use of resources, we accept this appeal

for adjudication. Moreover, EEOC’s responsibilities under Executive

Order 12067 for enforcing all Federal EEO laws and leading the Federal

government’s efforts to eradicate workplace discrimination, require,

among other things, that EEOC ensure that uniform standards be implemented

defining the nature of employment discrimination under the statutes

we enforce. Executive Order 12067, 43 F.R. 28967, § 1-301(a) (June

30, 1978). To that end, the Commission hereby clarifies that claims of

discrimination based on transgender status, also referred to as claims

of discrimination based on gender identity, are cognizable under Title

VII’s sex discrimination prohibition, and may therefore be processed

under Part 1614 of EEOC’s federal sector EEO complaints process.

We find that the Agency mistakenly separated Complainant’s complaint

into separate claims: one described as discrimination based on “sex”

(which the Agency accepted for processing under Title VII) and others that

were alternatively described by Complainant as “sex stereotyping,”

“gender transition/change of sex,” and “gender identity”

(Complainant Letter of Nov. 8, 2011); by the Agency as “gender

identity stereotyping” (Agency Letter Nov. 18, 2011); and finally

by Complainant as “gender identity, change of sex and/or transgender

status” (Complainant Letter Feb. 8, 2012). While Complainant could

have chosen to avail herself of the Agency’s administrative procedures

for discrimination based on gender identity, she clearly expressed

her desire to have her claims investigated through the 1614 process,

and this desire should have been honored. Each of the formulations of

Complainant’s claims are simply different ways of stating the same

claim of discrimination “based on . . . sex,” a claim cognizable

under Title VII.

Title VII states that, except as otherwise specifically provided,

“[a]ll personnel actions affecting [federal] employees or applicants

for employment … shall be made free from any discrimination based

on …sex ….” 42 U.S.C. § 2000e-16(a) (emphasis added). Cf. 42

U.S.C. §§ 2000e-2(a)(1), (2) (it is unlawful for a covered employer to

“fail or refuse to hire or to discharge any individual, or otherwise

to discriminate with respect to his compensation, terms, conditions, or

privileges of employment,” or to “limit, segregate, or classify his

employees or applicants for employment in any way which would deprive or

tend to deprive any individual of employment opportunities or otherwise

adversely affect his status as an employee, because of such individual’s

. . . sex”) (emphasis added).

As used in Title VII, the term “sex” “encompasses both sex—that

is, the biological differences between men and women—and gender.” See

Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000); see also Smith

v. City of Salem, 378 F.3d 566, 572 (6th Cir. 2004) (“The Supreme Court

made clear that in the context of Title VII, discrimination because of

‘sex’ includes gender discrimination.”). As the Eleventh Circuit

noted in Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011), six

members of the Supreme Court in Price Waterhouse agreed that Title VII

barred “not just discrimination because of biological sex, but also

gender stereotyping—failing to act and appear according to expectations

defined by gender.” As such, the terms “gender” and “sex” are

often used interchangeably to describe the discrimination prohibited by

Title VII. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 239

(1989) (emphasis added) (“Congress’ intent to forbid employers to

take gender into account in making employment decisions appears on the

face of the statute.”).

That Title VII’s prohibition on sex discrimination proscribes gender

discrimination, and not just discrimination on the basis of biological

sex, is important. If Title VII proscribed only discrimination on the

basis of biological sex, the only prohibited gender-based disparate

treatment would be when an employer prefers a man over a woman, or vice

versa. But the statute’s protections sweep far broader than that,

in part because the term “gender” encompasses not only a person’s

biological sex but also the cultural and social aspects associated with

masculinity and femininity.

In Price Waterhouse, the employer refused to make a female senior manager,

Hopkins, a partner at least in part because she did not act as some of

the partners thought a woman should act. Id. at 230–31, 235. She was

informed, for example, that to improve her chances for partnership

she should “walk more femininely, talk more femininely, dress more

femininely, wear make-up, have her hair styled, and wear jewelry.”

Id. at 235. The Court concluded that discrimination for failing to

conform with gender-based expectations violates Title VII, holding that

“[i]n the specific context of sex stereotyping, an employer who acts

on the basis of a belief that a woman cannot be aggressive, or that she

must not be, has acted on the basis of gender.” Id. at 250.

Although the partners at Price Waterhouse discriminated against

Ms. Hopkins for failing to conform to stereotypical gender norms,

gender discrimination occurs any time an employer treats an employee

differently for failing to conform to any gender-based expectations

or norms. “What matters, for purposes of . . . the Price Waterhouse

analysis, is that in the mind of the perpetrator the discrimination is

related to the sex of the victim.” Schwenk, 204 F.3d at 1201–02;

see also Price Waterhouse, 490 U.S. at 254–55 (noting the illegitimacy

of allowing “sex-linked evaluations to play a part in the [employer’s]

decision-making process”).

“Title VII does identify one circumstance in which an employer may

take gender into account in making an employment decision, namely,

when gender is a ‘bona fide occupational qualification [ (BFOQ) ]

reasonably necessary to the normal operation of th[e] particular business

or enterprise.’” Price Waterhouse, 490 U.S. at 242 (quoting 42

U.S.C. § 2000e-2(e)). Even then, “the [BFOQ] exception was in fact

meant to be an extremely narrow exception to the general prohibition

of discrimination on the basis of sex.’” See Phillips v. Martin

Marietta Corp., 400 U.S. 542, 544 (1971) (Marshall, J., concurring).

“The only plausible inference to draw from this provision is that,

in all other circumstances, a person’s gender may not be considered in

making decisions that affect her.” Price Waterhouse, 490 U.S. at 242. FN. 6.

When an employer discriminates against someone because the person

is transgender, the employer has engaged in disparate treatment

“related to the sex of the victim.” See Schwenk, 204 F.3d at 1202.

This is true regardless of whether an employer discriminates against

an employee because the individual has expressed his or her gender

in a non-stereotypical fashion, because the employer is uncomfortable

with the fact that the person has transitioned or is in the process of

transitioning from one gender to another, or because the employer simply

does not like that the person is identifying as a transgender person.

In each of these circumstances, the employer is making a gender-based

evaluation, thus violating the Supreme Court’s admonition that “an

employer may not take gender into account in making an employment

decision.” Price Waterhouse, 490 U.S. at 244.

Since Price Waterhouse, courts have widely recognized the availability

of the sex stereotyping theory as a valid method of establishing

discrimination “on the basis of sex” in many scenarios involving

individuals who act or appear in gender-nonconforming ways. FN. 7. And since

Price Waterhouse, courts also have widely recognized the availability

of the sex stereotyping theory as a valid method of establishing

discrimination “on the basis of sex” in scenarios involving

transgender individuals.

For example, in Schwenk v. Hartford, a prison guard had sexually assaulted

a pre-operative male-to-female transgender prisoner, and the prisoner

sued, alleging that the guard had violated the Gender Motivated Violence

Act (GMVA), 42 U.S.C. § 13981. 204 F.3d at 1201–02. The U.S. Court

of Appeals for the Ninth Circuit found that the guard had known that the

prisoner “considered herself a transsexual and that she planned to seek

sex reassignment surgery in the future.” Id. at 1202. According to

the court, the guard had targeted the transgender prisoner “only after

he discovered that she considered herself female[,]” and the guard was

“motivated, at least in part, by [her] gender”—that is, “by her

assumption of a feminine rather than a typically masculine appearance or

demeanor.” Id. On these facts, the Ninth Circuit readily concluded

that the guard’s attack constituted discrimination because of gender

within the meaning of both the GMVA and Title VII.

The court relied on Price Waterhouse, reasoning that it stood for the

proposition that discrimination based on sex includes discrimination

based on a failure “to conform to socially-constructed gender

expectations.” Id. at 1201–02. Accordingly, the Ninth Circuit

concluded, discrimination against transgender females – i.e.,

“as anatomical males whose outward behavior and inward identity

[do] not meet social definitions of masculinity” – is actionable

discrimination “because of sex.” Id. (emphasis added); cf. Rosa

v. Park W. Bank & Trust Co., 214 F.3d 213, 215–16 (1st Cir. 2000)

(finding that under Price Waterhouse, a bank’s refusal to give a loan

application to a biologically-male plaintiff dressed in “traditionally

feminine attire” because his “attire did not accord with his male

gender” stated a claim of illegal sex discrimination in violation of

the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691–1691f).

Similarly, in Smith v. City of Salem, the plaintiff was “biologically

and by birth male.” 378 F.3d at 568. However, Smith was diagnosed

with Gender Identity Disorder (GID), and began to present at work as a

female (in accordance with medical protocols for treatment of GID). Id.

Smith’s co-workers began commenting that her appearance and mannerisms

were “not masculine enough.” Id. Smith’s employer later subjected

her to numerous psychological evaluations, and ultimately suspended her.

Id. at 569–70. Smith filed suit under Title VII alleging that her

employer had discriminated against her because of sex, “both because

of [her] gender non-conforming conduct and, more generally, because of

[her] identification as a transsexual.” Id. at 571 (emphasis added).

The district court rejected Smith’s efforts to prove her case using

a sex-stereotyping theory, concluding that it was really an attempt

to challenge discrimination based on “transsexuality.” Id.

The U.S. Court of Appeals for the Sixth Circuit reversed, stating that

the district court’s conclusion:

cannot be reconciled with Price Waterhouse, which does not make Title

VII protection against sex stereotyping conditional or provide any

reason to exclude Title VII coverage for non sex-stereotypical behavior

simply because the person is a transsexual. As such, discrimination

against a plaintiff who is a transsexual—and therefore fails to

act and/or identify with his or her gender—is no different from the

discrimination directed against [the plaintiff] in Price Waterhouse who,

in sex-stereotypical terms, did not act like a woman. Sex stereotyping

based on a person’s gender non-conforming behavior is impermissible

discrimination, irrespective of the cause of that behavior; a label,

such as “transsexual” is not fatal to a sex discrimination claim

where the victim has suffered discrimination because of his or her gender

non-conformity. Accordingly, we hold that Smith has stated a claim for

relief pursuant to Title VII’s prohibition of sex discrimination.

Id. at 574–75. FN. 8.

Finally, as the Eleventh Circuit suggested in Glenn v. Brumby, 663 F.3d

1312 (11th Cir. 2011), consideration of gender stereotypes will inherently

be part of what drives discrimination against a transgendered individual.

In that case, the employer testified at his deposition that it had fired

Vandiver Elizabeth Glenn, a transgender woman, because he considered it

“inappropriate” for her to appear at work dressed as a woman and that

he found it “unsettling” and “unnatural” that she would appear

wearing women’s clothing. Id. at 1320. The firing supervisor further

testified that his decision to dismiss Glenn was based on his perception

of Glenn as “a man dressed as a woman and made up as a woman,” and

admitted that his decision to fire her was based on “the sheer fact

of the transition.” Id. at 1320–21. According to the Eleventh

Circuit, this testimony “provides ample direct evidence” to support

the conclusion that the employer acted on the basis of the plaintiff’s

gender non-conformity and therefore granted summary judgment to her.

Id. at 1321.

In setting forth its legal reasoning, the Eleventh Circuit explained:

A person is defined as transgender precisely because of the perception

that his or her behavior transgresses gender stereotypes. “[T]he

very acts that define transgender people as transgender are those that

contradict stereotypes of gender-appropriate appearance and behavior.”

Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title

VII, 95 Cal. L. Rev. 561, 563 (2007); see also Taylor Flynn, Transforming

the Debate: Why We Need to Include Transgender Rights in the Struggles

for Sex and Sexual Orientation Equality, 101 Colum. L.Rev. 392, 392 (2001)

(defining transgender persons as those whose “appearance, behavior, or

other personal characteristics differ from traditional gender norms”).

There is thus a congruence between discriminating against transgender and

transsexual individuals and discrimination on the basis of gender-based

behavioral norms.

Accordingly, discrimination against a transgender individual because of

her gender-nonconformity is sex discrimination, whether it’s described

as being on the basis of sex or gender. Glenn v. Brumby, 663 F.3d 1312, 1316–17

(11th Cir. 2011). FN. 9.

There has likewise been a steady stream of district court decisions

recognizing that discrimination against transgender individuals on the

basis of sex stereotyping constitutes discrimination because of sex.

Most notably, in Schroer v. Billington, the Library of Congress rescinded an

offer of employment it had extended to a transgender job applicant after

the applicant informed the Library’s hiring officials that she intended

to undergo a gender transition. See 577 F. Supp. 2d 293 (D.D.C. 2008).

The U.S. District Court for the District of Columbia entered judgment

in favor of the plaintiff on her Title VII sex discrimination claim.

According to the district court, it did not matter “for purposes of

Title VII liability whether the Library withdrew its offer of employment

because it perceived Schroer to be an insufficiently masculine man,

an insufficiently feminine woman, or an inherently gender-nonconforming

transsexual.” Id. at 305. In any case, Schroer was “entitled to

judgment based on a Price-Waterhouse-type claim for sex stereotyping

. . . .” Id. FN. 10.

To be sure, the members of Congress that enacted Title VII in 1964

and amended it in 1972 were likely not considering the problems of

discrimination that were faced by transgender individuals. But as the

Supreme Court recognized in Oncale v. Sundowner Offshore Services, Inc.:

[S]tatutory prohibitions often go beyond the principal evil [they

were passed to combat] to cover reasonably comparable evils, and it

is ultimately the provisions of our laws rather than the principal

concerns of our legislators by which we are governed. Title VII

prohibits “discriminat[ion] . . . because of . . . sex” in

. . . employment. [This] . . . must extend to [sex-based discrimination]

of any kind that meets the statutory requirements.

523 U.S. at 79-80; see also Newport News, 462 U.S. at 679–81 (rejecting

the argument that discrimination against men does not violate Title

VII despite the fact that discrimination against women was plainly the

principal problem that Title VII’s prohibition of sex discrimination

was enacted to combat).

Although most courts have found protection for transgender people

under Title VII under a theory of gender stereotyping, evidence of

gender stereotyping is simply one means of proving sex discrimination.

Title VII prohibits discrimination based on sex whether motivated by

hostility, FN. 11, by a desire to protect people of a certain gender, FN. 12, by

assumptions that disadvantage men, FN. 13, by gender stereotypes, FN. 14, or by

the desire to accommodate other people’s prejudices or discomfort. FN. 15

While evidence that an employer has acted based on stereotypes about

how men or women should act is certainly one means of demonstrating

disparate treatment based on sex, “sex stereotyping” is not itself

an independent cause of action. As the Price Waterhouse Court noted,

while “stereotyped remarks can certainly be evidence that gender

played a part” in an adverse employment action, the central question

is always whether the “employer actually relied on [the employee’s]

gender in making its decision.” Id. at 251 (emphasis in original).

Thus, a transgender person who has experienced discrimination based

on his or her gender identity may establish a prima facie case of

sex discrimination through any number of different formulations.

These different formulations are not, however, different claims

of discrimination that can be separated out and investigated within

different systems. Rather, they are simply different ways of describing

sex discrimination.

For example, Complainant could establish a case of sex discrimination

under a theory of gender stereotyping by showing that she did not get

the job as an NIBIN ballistics technician at Walnut Creek because the

employer believed that biological men should consistently present as

men and wear male clothing.

Alternatively, if Complainant can prove that the reason that she did

not get the job at Walnut Creek is that the Director was willing to hire

her when he thought she was a man, but was not willing to hire her once

he found out that she was now a woman—she will have proven that the

Director discriminated on the basis of sex. Under this theory, there

would actually be no need, for purposes of establishing coverage under

Title VII, for Complainant to compile any evidence that the Director

was engaging in gender stereotyping.

In this respect, gender is no different from religion. Assume that an

employee considers herself Christian and identifies as such. But assume

that an employer finds out that the employee’s parents are Muslim,

believes that the employee should therefore be Muslim, and terminates

the employee on that basis. No one would doubt that such an employer

discriminated on the basis of religion. There would be no need for the

employee who experienced the adverse employment action to demonstrate that

the employer acted on the basis of some religious stereotype—although,

clearly, discomfort with the choice made by the employee with regard to

religion would presumably be at the root of the employer’s actions.

But for purposes of establishing a prima facie case that Title VII has

been violated, the employee simply must demonstrate that the employer

impermissibly used religion in making its employment decision.

The District Court in Schroer provided reasoning along similar lines:

Imagine that an employee is fired because she converts from Christianity

to Judaism. Imagine too that her employer testifies that he harbors no

bias toward either Christians or Jews but only ‘converts.’ That would

be a clear case of discrimination ‘because of religion.’ No court

would take seriously the notion that ‘converts’ are not covered by

the statute. Discrimination “because of religion” easily encompasses

discrimination because of a change of religion.

577 F. Supp. 2d at 306.

Applying Title VII in this manner does not create a new “class” of

people covered under Title VII—for example, the “class” of people

who have converted from Islam to Christianity or from Christianity

to Judaism. Rather, it would simply be the result of applying the

plain language of a statute prohibiting discrimination on the basis

of religion to practical situations in which such characteristics are

unlawfully taken into account. See Brumby, 663 F.3d at 1318–19 (noting

that “all persons, whether transgender or not” are protected from

discrimination and “[a]n individual cannot be punished because of his

or her perceived gender non-conformity”).

Thus, we conclude that intentional discrimination against a transgender

individual because that person is transgender is, by definition,

discrimination “based on . . . sex,” and such discrimination therefore

violates Title VII. FN. 16.

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FOR THE COMMISSION:

April 20, 2012

______________________________

Bernadette B. Wilson

Acting Executive Officer

FOOTNOTES

1. The facts in this section are taken from the EEO Counselor’s Report

and the formal complaint of discrimination. Because this decision

addresses a jurisdictional issue, we offer no position on the facts

themselves and thus no position on whether unlawful discrimination

occurred in this case.

2. It appears from the record that Aspen of DC may be considered a

staffing firm. Under the Commission's Enforcement Guidance: Application

of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies

and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997),

we have recognized that a “joint employment” relationship may exist

where both the Agency and the “staffing firm” may be deemed employers.

The Commission makes no determination at this time as to whether or not

a “joint employment” relationship exists in this case as this issue

is not presently before us.

3. On March 28, 2011, Complainant received an e-mail from the contractor

asking her to fill out an application packet for the position. It is

unclear how far the background investigation had proceeded prior to

Complainant notifying the contractor of her gender change, but e-mails

included in the record indicate that the Agency’s Personnel Security

Branch had received Complainant’s completed security package, that

Complainant had been interviewed by a security investigator, and that the

investigator had contacted Complainant on March 31, 2011 and had indicated

that he “hope[d] to finish your investigation the first of next week.”

4. In the narrative accompanying her formal complaint, Complainant asserts

she contacted the Agency’s EEO Counselor on May 5, 2011. However,

the EEO Counselor’s report indicates that the initial contact occurred

on May 10, 2011.

5. The Counselor’s Report includes several email exchanges with various

Agency officials who informed the counselor of the circumstances by

which it was decided not to hire Complainant.

6. There are other, limited instances in which gender may be taken into

account, such as is in the context of a valid affirmative action plan, see

Johnson v. Santa Clara County Transportation Agency, 480 U.S. 616 (1987),

or relatedly, as part of a settlement of a pattern or practice claim.

7. See, e.g., Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1041

(8th Cir. 2010) (concluding that evidence that a female “tomboyish”

plaintiff had been fired for not having the “Midwestern girl look”

suggested “her employer found her unsuited for her job . . . because her

appearance did not comport with its preferred feminine stereotype”);

Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3rd Cir. 2009) (an

effeminate gay man who did not conform to his employer’s vision of how

a man should look, speak, and act provided sufficient evidence of gender

stereotyping harassment under Title VII); Medina v. Income Support Div.,

413 F.3d 1131, 1135 (10th Cir. 2005) (involving a heterosexual female

who alleged that her lesbian supervisor discriminated against her on the

basis of sex, and finding that “a plaintiff may satisfy her evidentiary

burden [under Title VII] by showing that the harasser was acting to

punish the plaintiff’s noncompliance with gender stereotypes”);

Nichols v. Azteca Rest. Enters., 256 F.3d 864, 874–75 (9th Cir. 2001)

(concluding that a male plaintiff stated a Title VII claim when he was

discriminated against “for walking and carrying his tray ‘like a

woman’ – i.e., for having feminine mannerisms”); Simonton v. Runyon,

232 F.3d 33, 37 (2d Cir. 2000) (indicating that a gay man would have a

viable Title VII claim if “the abuse he suffered was discrimination

based on sexual stereotypes, which may be cognizable as discrimination

based on sex”); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d

252, 261 n.4 (1st Cir. 1999) (analyzing a gay plaintiff’s claim that

his co-workers harassed him by “mocking his supposedly effeminate

characteristics” and acknowledging that “just as a woman can ground

an action on a claim that men discriminated against her because she

did not meet stereotyped expectations of femininity . . . a man can

ground a claim on evidence that other men discriminated against him

because he did not meet stereotypical expectations of masculinity”);

Doe by Doe v. City of Belleville, 119 F.3d 563, 580–81 (7th Cir. 1997)

(involving a heterosexual male who was harassed by other heterosexual

males, and concluding that “a man who is harassed because his voice

is soft, his physique is slight, his hair is long, or because in some

other respect he . . . does not meet his coworkers’ idea of how men

are to appear and behave, is harassed ‘because of’ his sex”),

vacated and remanded on other grounds, 523 U.S. 1001 (1998).

8. See also Barnes v. City of Cincinnati, 401 F.3d 729, 741 (6th Cir. 2005)

(affirming a jury award in favor of a pre-operative transgender female,

ruling that “a claim for sex discrimination under Title VII . . . can

properly lie where the claim is based on ‘sexual stereotypes’” and

that the “district court therefore did not err when it instructed

the jury that it could find discrimination based on ‘sexual

stereotypes’”).

9. But see Etsitty v. Utah Trans. Auth., No. 2:04–CV–616, 2005

WL 1505610, at *4–5 (D. Utah June 24, 2005) (concluding that Price

Waterhouse is inapplicable to transsexuals), aff'd on other grounds,

502 F.3d 1215 (10th Cir.2007).

10. The district court in Schroer also concluded that discrimination

against a transgender individual on the basis of an intended, ongoing,

or completed gender transition is “literally discrimination ‘because

of . . . sex.’” Schroer, 577 F. Supp. 2d at 308; see also id. at

306–07 (analogizing to cases involving discrimination based on

an employee’s religious conversion, which undeniably constitutes

discrimination “because of . . . religion” under Title VII).

For other district court cases using sex stereotyping as grounds for

establishing coverage of transgender individuals under Title VII, see

Michaels v. Akal Security, Inc., No. 09-cv-1300, 2010 WL 2573988, at * 4

(D. Colo. June 24, 2010); Lopez v. River Oaks Imaging & Diag. Group, Inc.,

542 F. Supp. 2d 653, 660 (S.D. Tex. 2008); Mitchell v. Axcan Scandipharm,

Inc., No. Vic. A. 05-243, 2006 WL 456173 (W.D. Pa. Feb. 17, 2006);

Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-CV-0375E(SC), 2003 WL

22757935 (W.D.N.Y. Sept. 26, 2003); Doe v. United Consumer Fin. Servs.,

No. 1:01 CV 111, 2001 WL 34350174 (N.D. Ohio Nov. 9, 2001).

11. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)

(recognizing that sexual harassment is actionable discrimination

“because of sex”); Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75, 80 (1998) (“A trier of fact might reasonably find such

discrimination, for example, if a female victim is harassed in such

sex-specific and derogatory terms by another woman as to make it clear

that the harasser is motivated by general hostility to the presence of

women in the workplace.”).

12. See Int’l Union v. Johnson Controls, 499 U.S. 187, 191 (1991)

(policy barring all female employees except those who were infertile from

working in jobs that exposed them to lead was facially discriminatory

on the basis of sex).

13. See, e.g., Newport News, 462 U.S. at 679–81 (providing different

insurance coverage to male and female employees violates Title VII even

though women are treated better).

14. See, e.g., Price Waterhouse, 490 U.S. at 250–52.

15. See, e.g., Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 912

(7th Cir. 2010) (concluding that “assignment sheet that unambiguously,

and daily, reminded [the plaintiff, a black nurse,] and her co-workers

that certain residents preferred no black” nurses created a hostile

work environment); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77

(9th Cir. 1981) (a female employee could not lawfully be fired because

her employer’s foreign clients would only work with males); Diaz v. Pan

American World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971) (rejecting

customer preference for female flight attendants as justification for

discrimination against male applicants).

16. The Commission previously took this position in an amicus brief

docketed with the district court in the Western District of Texas

on Oct. 17, 2011, where it explained that “[i]t is the position of

the EEOC that disparate treatment of an employee because he or she is

transgender is discrimination “because of . . . sex” under Title

VII.” EEOC Amicus Brief in Pacheco v. Freedom Buick GMC Truck,

No. 07-116 (W.D. Tex. Oct. 17, 2011), Dkt. No. 30, at page 1, 2011

WL 5410751. With this decision, we expressly overturn, in light of

the recent developments in the caselaw described above, any contrary

earlier decisions from the Commission. See, e.g., Jennifer Casoni

v. United States Postal Service, EEOC DOC 01840104 (Sept. 28, 1984);

Campbell v. Dep’t of Agriculture, EEOC Appeal No. 01931703 (July 21,

1994); Kowalczyk v. Dep’t of Veterans Affairs, EEOC Appeal No. 01942053

(March 14, 1996).

201-2008-2572

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Washington, DC 20507

130120120821

http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt

Stabbing Spree at Texas Community College

2013-04-09T14:31:00.002-04:00

Stabbings at Lone Star Community College Near Houston, Texas

At least 14 students were stabbed by what appeared to be a fellow student wielding an exacto knife at Lone Star Community College near Houston today.

A student, identified only as James, said that the suspect was wearing all black including a cap, and appeared to have hearing aids, according to James. He also said the suspect used what appeared to be an Exacto-knife to stab people

An Aerial View of Campus From the LSCC Brochure

Another student, Margo Shimfarr-Evans, has reportedly stated that the incident took place in a lab at the Health Science Center

Reportedly, a suspect is in custody.

Click Here for live coverage from ABC News.

Lone Star bills itself as "the largest institution of higher education in the Houston area."

Is the True Unemployment Rate Really 14.3%?

2013-04-09T13:25:00.000-04:00

The Line Continues to Form...

What is the True Unemployment Rate in April 2013?

According to a recent article from Robert Lenzner posted n Forbes.com, the true unemployment rate is not 7.7% as reported, but rather 14.3%.

Here is an excerpt from that article:

"The unemployment rate is 7.7%. But, there is another 0.6% of discouraged workers,(about 800,000) mainly the young, minorities and those without the all-necessary high school diploma. Another 0.9% are only marginally employed (whatever that means) and have mostly stopped looking for a job recently. More crushing is the 5.1% of the workforce most impacted by the 2008 downturn, who are working only part-time and would prefer to have a full-time position. That 5.1% part-time workers total 8 million people, who mostly are having trouble making ends meet and most likely have no health plan from their employer..."

I am not surprised by, nor do I take issue with, Mr. Lenzner's conclusions, or his math.

We have recently noted that more than 250,0000 recent College Graduates are working for minimum wage, and that 50% of 2012 College Graduates are currently unemployed or underemployed.

There is some good news. More than 25,000 jobs are currently being posted by 15 of the World's very best companies.

Here is hoping things trend upwards....

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, Independent Contractor/Self-Employment issues, Referee Hearings, severance issues…

Click Here to e-mail John directly.

Thanks for checking in with us.

What is ERISA, Anyway?

2013-04-08T10:41:00.002-04:00

ERISA Stands for the Employee Retirement Income Security Act

ERISA is a very complex federal statute, so a simply synopsis of all of its features and benefits is not easily accomplished.

Interested in a comprehensive overview of ERISA and the claims and processes discussed below? Click Here.

However, there are a number of common ERISA disputes which we summarize here.

ERISA Plan = Contract

What Does ERISA Govern?

In short order, ERISA governs company-sponsored retirement plans. While companies are not required to have such plans, if they choose to do so they must follow the rules of ERISA. If they do have a plan covered by ERISA, then employees have what amounts to a contractual right to enforce those policies and obtain benefits to which they are entitled thereunder.

What Are Defined Benefits Plans?

Defined Benefits Plans ("DBPs") are retirement plans drafted by companies and approved by the IRS as having met the requirements of ERISA. DBPs may provide for a wide variety of benefits, often including long-term disability, severance and retirement payments.

Misclassified Workers
Have ERISA Rights

Who is Entitled to Participate in a Defined Benefit Plan?

Only company employees.

NOTE: If you have been misclassified as an independent contractor while in fact under the law you are actually an employee, you may file an ERISA claim for benefits.

What Are Common Claims Under ERISA?

Here are a few:

Severance Common in DFPs

* Being deprived of Long-Term Disability benefits under the DBP;

* Being deprived of severance under the DBP; and,

* Being deprived of retirement benefits under the DBP;

How Do I File Suit Under ERISA?

An ERISA suit must be filed in Federal Court, since ERISA is a Federal law.

Prior to filing such a suit, though, you must first exhaust all of your rights to administrative appeal under the DBP. This process involves filing a claim for benefits with the DBP "Plan Administrator", and then appealing the initial denial by the Plan Administrator.

Typically, it takes about 6 months to exhaust your administrative rights under a DBP, after which you may file an ERISA suit.

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here to e-mail John directly.

Thanks for checking in with us.

Employee Misclassification Answers: Am I Entitled to Severance, Disability Pay or Retirement Benefits if I Have Been Misclassified as an Independent Contractor?

2013-04-08T10:12:00.002-04:00

Misclassified Workers May Be Entitled to Long-Term Disability Payments, Severance Pay, and/or Retirement Benefits

Misclassified?

If you have been misclassified as a 1099 independent contractor when in fact you were a W-2 employee, you may sue for benefits that you earned but were not paid.

Many companies provide severance, retirement benefits, etc. to their employees. Independent Contractors are not entitled to share in the benefits of such plans, since they are not employees. However, if you have been wrongly classified as an independent contractor, you may well have a right to such benefits.

Click Here to find out more about the factors to be considered in determining true employment status, and the benefits you may recover if you have been misclassified.

To recover such benefits, you must file suit in Federal or State Court, and prove: 1) you are in fact an employee and not independent contractor; and, 2) you otherwise meet the requirements for participation and/or benefits under the pertinent company policy.

NOTE: Some company plans are governed by ERISA, and in such case you must first exhaust all administrative remedies under such plans prior to filing suit.

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here to e-mail John directly.

Thanks for checking in with us.

Misclassification Answers: Can I Get Overtime if I Have Been Misclassified as an Independent Contractor?

2013-04-08T10:04:00.000-04:00

W-2 or 1099?

Misclassified Workers May Sue for Overtime Benefits

If you have been classified as an independent contractor even though you are in fact an employee, you may sue for overtime compensation that you earned but were not paid.

Click Here to find out more about the factors to be considered in determining true employment status, and the benefits you may recover if you have been misclassified.

You must file suit in Federal or State Court, and prove: 1) you are in fact an employee and not independent contractor; and, 2) you are not exempt from receiving overtime under applicable State or Federal law.

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here to e-mail John directly.

Thanks for checking in with us.

Let's Review the Tape: Did Fired Rutgers Coach Mike Rice Create a Hostile Work Environment?

2013-04-03T12:41:00.003-04:00

Former Rutgers Basketball Coach Mike Rice

Rutgers Fires Basketball Coach Mike Rice

Today, Rutgers fired Men's Basketball Coach Mike Rice, after video of his abusive actions during team practice surfaced, and was widely criticized by New Jersey Governor Chris Christie.

Click Here to read the story from CNN.com and to view the video.

Christie: Throwing his Weight Around

The video shows Rice pushing players, throwing basketballs at them and and yelling homophobic slurs such as "You f**king fairy... you're a f**king fa**got."

You may wonder, "What if my boss did those things to me, would that be an illegal hostile work environment?"

Ok, the key to your question is the word "illegal."

Without question, Rice created a "hostile work environment." However, I am reasonably confident that he did not create an ILLEGAL hostile work environment.

To understand what constitutes an illegal HWE, you must start at its genesis, Title VII, the Civil Rights Act of 1964.

Bullying OK

Here is the key where Title VII is concerned: Title VII prohibits only negative employer actions undertaken because of the race, sex, age, national origin, religious beliefs or disability of the employee. A HWE exists where an employer treats an employee badly BECAUSE the employer does not like the employee's race, age, national origin, etc.

Title VII does NOT prohibit bullying.

Now, let's analyze Rice's behavior through this prism.

Under Title VII, it is NOT Illegal to Bully Employees

Let's start with the pushing of players and the hurling of basketballs. Such actions do not, in and of themselves, violate Title VII. Title VII does not prohibit hitting employees or throwing objects at them. While such behavior may be criminal, it does not violate Title VII. That is that.

Now, Title VII would prohibit such actions if the employer is doing it because it dislikes the employee's age, sex, race, etc. Here, however, that is clearly not the case. I am sure that Coach Rice did not actually believe his players were gay; he did not push them and throw balls at them because he thought they were gay and hated gay people. He just did it because he was a jerk. Being a jerk is not illegal under Title VII.

Under Title VII, it is NOT Illegal to Call Employees Bad Names

Now, we look at the epithets and name calling. Again, slurs invoking the sex, race, national origin, etc. of an employee may certainly constitute an illegal hostile work environment PROVIDED THAT the employer is saying those things because it dislikes the subject qualities of an employee.

So, while calling a 60 year-old employee "old man" may be unlawful, calling a 30 year-old the same is not.

Calling an employee who is known to be a in perfect health a cripple because he comes to work one day with a twisted ankle is not illegal. Saying the same thing to a wheelchair-bound employee is another matter.

Here, calling the players gay slurs was not illegal because Rice did not say those things because he thought they were gay.

The New Same Sex Marriage Symbol

Oh, and one more bit of food for thought: As currently configured, Title VII does not prohibit discrimination based-upon sexual orientation. So, under existing federal law, it is not illegal to fire someone because he/she is gay.

NOTES:

21 States (plus D.C.) prohibit discrimination based upon sexual orientation

9 States allow gay marriage

38 States prohibit gay marriage

Obviously, the anticipated Supreme Court decisions in the Proposition 8 case and Defense of Marriage Act case, expected within the next several months, will lend further clarity to certain gay rights issues.

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here to e-mail John directly.

Thanks for checking in with us.

250,000 - That is the Number of College Graduates Working for Minimum Wage

2013-04-02T10:36:00.001-04:00

This.....

How Many College Graduates are NOT Using Their Degrees?

A strikingly disappointing, albeit not shocking, article from Huffington Post cites various sources in reporting that roughly 250,000 college graduates are currently working for the minimum wage. Here are two excerpts from the article I found striking:

About 284,000 Americans with college degrees were working minimum wage jobs last year, according to the Wall Street Journal. That’s 70 percent more college grads working for the minimum wage than 10 years ago.

Use to Mean This....

Nearly half of the college graduates in the class of 2010 are working in jobs that don’t require a bachelor’s degree and 38 percent have jobs that don’t even require a high school diploma, according to a January report from the Center for College Affordability and Productivity. The report called into question whether too much public money is being spent on providing students with degrees that make them overqualified for the only jobs that are available.

This follows a similarly bleak article from Forbes.com stating that roughly half of 2012 college graduates are currently unemployed or underemployed.

Not This....

However, there is hope out there. Unemployment rates continue to fall, and 15 of the world's best companies currently have nearly 25,000 available positions posted.

In the grandest tradition of this great country, we just need to keep pushing, just as we did when we settled the West, survived the Civil War and VietNam, and established equal rights for women and minorities. We can do it, but it seems as though nothing easy will be handed to the Millennials or Generation Y.

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.

Thanks for checking in with us.

RIDICULOUS: No Workers Compensation for Lousville's Kevin Ware?

2013-04-01T10:36:00.001-04:00

Godspeed, Mr. Ware

The Medical Bills of Kevin Ware Should Be Paid by NCAA and/or Louisville

As per an article from Forbes.com published today, Louisville's Kevin Ware, who suffered a truly horrific ankle injury during yesterdays Elite 8 match up between Louisville and Duke, is ineligible for workers' compensation benefits.

Before I continue, let me say this: Godspeed for a full recovery, Mr. Ware.

What Are Workers' Compensation Benefits and How Could They Help Kevin Ware?

All employees in the United States are eligible for workers' compensation benefits.

NOTE: Independent Contractors are not.

Workers' compensation benefits are for employees who suffer work-related injuries, and fall into two categories: 1) indemnification for medical bills incurred as a result of the injury; and, 2) wage reimbursement for wage losses resulting from lost time at work due to injury.

No Comp for Medical Bills? Really?!

If Mr. Ware was eligible for these benefits, he would not have to worry about his medical bills, and could be in line for compensation for the financial losses which he may suffer if his pro basketball career is derailed.

Thanks to the "Simply Russdiculous" play of Russ Smith, Louisville is headed to the Final Four. Louisville is the most profitable team in college basketball. The University stands to make far more as a result of its current March Madness run than it would cost to take care of Mr. Ware.

We'll Be Back After a Commercial Break

For its part, the NCAA will receive more than a BILLION DOLLARS in television ad revenue for
this year's tournament alone.

Putting all other player compensation issues aside, shouldn't collegiate players who are injured during competition at a minimum be entitled to indemnification for their medical bills? That seems fair to me. The current scheme, on the other hand, is Simply Ridiculous.

POSTSCRIPT: According to a report published today (April 2, 2013) in USA Today, Kevin will not have any out of pocket medical expenses! It appears that where, as here, a student-athlete has insurance of his/her own, Louisville becomes the athlete's co-insurer. In addition, the NCAA apparently has a plan in place that provides for up to $90,000 in medical expense reimbursement for student-athletes injured during post-season tournaments.

Still, it appears that Louisville's policy applies only if the student has his/her own insurance, and the NCAA applies only to post-season events. While then news for Kevin is truly wonderful, it does not solve the overall problem: collegiate student-athletes injured while competing for their schools do not get workers' compensation insurance benefits.

Further, while it appears that Mr. Ware's medical bills will be paid, what happens if his professional career is derailed by this injury?

This Injury Cost Marcus Lattimore Millions

It happens. For example, South Carolina running back Marcus Lattimore was almost certain to be picked high in the first round of the NFL Draft before suffering two serious injuries. Now, he is projected to go much later in the draft. He has lost millions in lost wages as a result of his injuries. If there was workers' compensation insurance for him, he could have recouped quite a bit of his losses.

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.

Thanks for checking in with us.

15 Great Companies - 25,000 Job Openings in April 2013

2013-04-01T10:00:00.002-04:00

Great Job Opportunities Out There!

Click Here to see the full list, as per Forbes.com.

Among the great companies with current job openings are Amazon, Microsoft, Apple, General Dynamics and IBM.

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.

Thanks for checking in with us.

The 15 Companies Hiring the Most in April 2013

2013-04-01T09:51:00.005-04:00

As per Forbes.com, the companies are as follows:

1. Amazon: 2,407 openings
2. Oracle: 2,350 openings
3. Microsoft: 2,089 openings
4. Dell: 1,862 openings
5. JPMorgan Chase: 1,761 openings
6. IBM: 1,755 openings
7. PwC: 1,571 openings
8. SAIC: 1,537 openings
9. CRST International: 1,378 openings
10. Apple: 1,374 openings
11. Deloitte: 1,343 openings
12. AT&T: 1,341 openings
13. HP: 1,327 openings
14. Henderson Trucking: 1,324 openings
15. General Dynamics: 1,296 openings

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.

Thanks for checking in with us.

Drug Testing and Pennsylvania Unemployment Law

2013-04-01T09:44:00.000-04:00

Can I Be Fired if I Refuse to Take a Drug Test in PA?

Yes, if the test is required pursuant to company policy.

Not Much Work Around

Usually, company policies state that existing employees can be tested: 1) randomly; or 2) if there is a reasonable suspicion of drug use.

So, in general, the only way to fight a request for a drug test is if you can prove that you were singled out for testing, and that the employer did not have a reasonable basis for believing that you were using drugs when it did so.

Will I Get Unemployment in Pennsylvania if I am Fired Because I Failed a Drug Test?

No, unless you can prove that the test was not required in accordance with company policy. See discussion below.

Will I Get Unemployment in Pennsylvania if I am Fired Because I Refused to Take a Drug Test?

No, unless you can prove that the test was not required in accordance with company policy.

This is covered under Pennsylvania 43 P.S. Section 802(e.1), which states that an employee is ineligible for UC benefits where the discharge is:

          due to failure to submit and/or pass a drug test conducted pursuant to an
          employer’s established substance abuse policy, provided that the drug test
          is not requested or implemented in violation of the law or of a collective
          bargaining agreement.

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.

Thanks for checking in with us.

In Trouble at Work? Some Things to Ponder

2013-03-29T15:11:00.002-04:00

I am in Trouble at Work - What Can I Do?

First, you must consider your employment status. Then you must HONESTLY assess the reasons for your precarious position. Finally, you must understand the way various laws work, and how you may be able to use them to your advantage, or to at least minimize the damage.

We explore each of these propositions below.

NOTE: We are not discussing discrimination, hostile work environment, unlawful retaliation, wrongful termination, etc., in this Post. Click Here for the full rundown on all such employment laws.

There is a Word for At-Will Workers
Who Do This: "Fired!"

You Are Probably an At-Will Employee

First thing to understand is that, with few exceptions (Unions, Government employees, executives with contracts), you are employed at-will. That means you may be fired for good reason (repeated violation of work rules after warning, insubordination, true poor performance, sleeping on the job, coming to work under the influence, etc.), a bad reason (petty politics, being falsely accused of misdeeds, perceived poor performance, etc.) or no reason at all (i.e. loss of job through no fault of your own such as layoff, reduction in force, etc.).

What this means, in a nutshell, is that neither management nor your fellow employees are legally obligated to treat you fairly, with respect or in an honest fashion. Moreover, management is free to favor one employee over another (unless due to unlawful motives, discussed Here) and there are no laws that require otherwise.

Basically, if you are an at-will employee, you are at the mercy of your employer if you find yourself in hot water. There is no "authority," beyond management within your company, that can help you.

They Won't Come if You Call
About an Unfair Situation at Work

CONSIDER: If after being awakened one night by an intruder you call the police, they will come and assist you. However, there are no "civil police" that you can call who will come to your office if the boss is being mean, or if a co-worker is lying about you behind your back.

Why Are You in This Predicament?

This is the hard question. Burnout could certainly be a factor. Click Here to read a superb article from Lisa M. Gerry of Forbes.com discussing the burnout phenomenom.

My experience is that people who believe that they are being treated unfairly at work often complain to management, believing that the company will support them and treat them fairly. Problems escalate when the company does not respond in a way the complaining employee feels is appropriate. Soon after, the employee begins to feel disfavored, excluded and targeted. That is when I am usually called to provide guidance.

Here are some realities for an at-will employee, based upon my experience since 1991:

* HR will almost always side with your manager/boss/supervisor;

* Management will always expect you to respect its decisions and to follow its orders;

* Companies do not like people who complain, and will often target them for termination, or try to make them quit;

Working With Adults No Different

* If your co-employee is out to get you, it is best to find a solution with him/her. The rules of the playground control at work. If you complain about your co-worker, you will often fall out of favor withe management. Hold your friends close, and your enemies closer;

* If the situation seems unmanageable and beyond repair, it probably is. Best to lay low and start looking for a new job.

I am sure all of these notions strike many of you as harsh and unfeeling. However, twenty-plus years of working with management and employees have made clear to me that, like it or not, the above-principles are largely immutable.

That is reality, unfortunately.

What Can You Do/What Should You Not Do?

If your job is salvageable, it is most likely salvageable only if you "kiss the ring" of your employer by acknowledging that you recognize that you need to be a better job as an employee. Meanwhile, try and build bridges with the supervisor or co-worker(s) causing you trouble.

Don't Let Them Make You Quit

If you believe that your job cannot be saved, then DO NOT QUIT. Make them fire you. Do your
best job, do not do anything "stupid" and make them fire you. That is the best way to increase your chances for a severance package (people who quit almost never get severance pay) and unemployment benefits.

In some situations, you may want to take Family and Medical Leave (for stress, etc.) in order to give yourself an opportunity to seek a new job while you are still officially employed.

These are admittedly complicated situations, and I have met with many troubled workers to help them navigate through these difficult situations.

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.

Thanks for checking in with us.

50% of 2012 College Grads Unemployed or Underemployed

2013-03-29T10:06:00.003-04:00

Class of 2012: What Percentage of Recent College Graduates Are Unemployed or Underemployed?

An article in the HuffPost today disclosed that 50% of all recent college graduates are unemployed or underemployed (i.e. working in jobs that they couldf have gotten without their college degree).

From HuffPost:

Hang in there, Kids!

While there's strong demand in science, education and health fields, arts and humanities flounder. Median wages for those with bachelor's degrees are down from 2000, hit by technological changes that are eliminating midlevel jobs such as bank tellers. Most future job openings are projected to be in lower-skilled positions such as home health aides, who can provide personalized attention as the U.S. population ages.

Taking underemployment into consideration, the job prospects for bachelor's degree holders fell last year to the lowest level in more than a decade.

As a father of one recent college grad (who is underemployed), and one soon to be a 5th year senior (maybe not the worst thing in the world), I surely hope that this trend turns soon....

Solicitation of Former Clients or Customers: Surefire Way to Get in Hot Water on Non-Compete Agreements in Pennsylvania

2013-03-28T15:19:00.000-04:00

In Pennsylvania, if You Have a Non-Compete Agreement and Solicit Former Clients or Customers, You Are Asking for Trouble

Focus on New Customers

If you have a non-compete agreement, and nevertheless go to work for a new company that competes with your former employer, you will likely be all right UNLESS you try and take customers or clients away from your former employer.

Why is that?

Pennsylvania courts generally do not want to enforce non-compete agreements against Joe/Jane Average Employee simply because he/she is working for a competitor of his/her former employer. Non-compete agreements are enforced only where doing so is necessary to protect the legitimate business needs of the former employer. Simply stated, the average employee working for a competitor of his/her former employer does not pose a true threat to the former employer's legitimate business needs.

Click Here for our answers to your FAQs about Pennsylvania non-compete agreements.

NOTE: If you posses knowledge about a true trade secret maintained by your former employer, then you are NOT Joe/Jane Average. For example, Thomas's English Muffins closely guards its formula for how to put the nooks and crannies in its muffins. Only 7 people within the company know the secret. When one of those 7, Senior VP Chris Botticella, left and joined Hostess, his non-compete agreement was enforced.

Soooo good. And so Very Secret!

Odds are, you do not have such a trade secret. If you do, however, your non-compete agreement will be enforced even if you never solicit a former client or customer.

Under Pennsylvania Law, Soliciting Clients or Customers of Your Former Employer Does Pose a Threat to Your Former Employer's Legitimate Business Interests

Indirectly = No Straw Parties

However, if you utilize the contacts you made with clients or customers during your previous employment, and use those contacts to take business away from your former employer after you leave, a Pennsylvania court will usually stop you immediately if such conduct is forbidden in your non-compete agreement.

So, my advice is, stay away from those former customers! By the way, you cannot get around this problem by using a third-party, a straw person if you will, to solicit those former customers on your behalf. Almost all non-solicit agreements clauses say that you cannot "directly or indirectly" solicit former customers. Using a straw person is exactly what they mean by "indirectly."

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.

Thanks for checking in with us.

Pennsylvania's Unemployment Compensation Board of Review

2013-03-28T14:40:00.002-04:00

What You Need to Know: Appealing the Decision of an Unemployment Referee to the Pennsylvania Unemployment Compensation Board of Review

WHAT IS THE UCBOR?

UCBOR: Very Fair, in my Experience

The Pa Unemployment Compensation Board of Review (“UCBOR”) is the first level of appeal from Decisions rendered by Referees. I believe it is fair to say that UCBOR considers and decides thousands of appeals per year. If one disagrees with the UCBOR’s decision, the next step is an appeal to the court system, and specifically to the Commonwealth Court.

UCBOR – WHO ARE THESE PEOPLE?

The UCBOR is comprised by three people who are appointed by the Governor of Pennsylvania to 5 year terms. In 2013, those three people are:

Richard W. Bloomingdale - Chairperson
Eileen B. Melvin - Member
Larry Dunn - Member

These 3 have been the UCBOR since at least 2006, so they have a lot of experience – they have seen it all! Their appeal decisions are not published anywhere (there would be tens of thousands, I am sure), so there is no way to track “precedent” where UCBOR decisions are concerned.

Therefore, the only way to determine what one’s odds are for winning a case is to examine decisions from Pennsylvania’s Commonwealth Court, which decides all appeals taken from UCBOR decisions.

Despite the absence of UCBOR precedent, it is possible to get a sense as to the UCBOR’s predilections (i.e. possible lean towards employer versus employee), by examining the credentials of the Board Members themselves. So, let’s do that.

Richard W. Bloomingdale - Chairperson is an interesting person, a labor union activist who has served as President of the Pennsylvania AFL-CIO since 2010. I believe he is from the Carlisle, since he lectures at the War College there. He was appointed to the UCBOR by Governor Rendell(R). He has been the Chairman of the UCBOR since 2005. One would think he is liberal where employee rights are concerned.

Eileen B. Melvin - Member has served on UCBOR since 2002. She identifies herself as a businesswoman and President and CEO of UMF Medical since 2009. This company is located in the Johnstown area, and makes medical equipment for health care facilities. It does well, apparently.

She was appointed to UCBOR by Governor Schweiker(R) in 2002 and reappointed by Governor Rendell in 2007. It has been reported that in 2012, Governor Tom Corbett(R) appointed her as Chairman of the UCBOR, but as of this date (12/5/12), Mr. Bloomingdale serves in that capacity.

In 1996, Melvin was unanimously elected Vice-Chair, and later Chair of the Republican State Committee of Pennsylvania, serving a total of 10 years through numerous victories, including the election of Governor Ridge, U.S. Senators Rick Santorum and Arlen Specter, and winning majorities of the PA Congressional delegation, State Legislature, and Appellate Courts. She was appointed by Senators Specter and Santorum to the Federal Judicial Nominating Committing and served for 12 years.

Given her career arc, status as business owner and political affiliations, it may be fair to assume that Ms. Melvin leans towards employers.

Larry Dunn is from Delaware County and, like Mr. Bloomingdale, is an employee advocate who has been involved with unions. He was appointed to UCBOR by Governor Rendell in 2006; at that time, he was president of the Philadelphia Metropolitan Regional Council of Carpenters, was secretary of the Philadelphia Joint Apprenticeship Committee and served as an alternate delegate to Team Pennsylvania Foundation's Executive Committee, which fosters public-private collaboration for building a business-friendly economic environment in the commonwealth. Presumably, Mr. Dunn was subsequent to 2011 reappointed to an additional 5 year term on UCBOR by Governor Corbett.

All in all, an evaluation of the UCBOR suggests that it is at a minimum fair to employees. That has been my experience as well.

HOW DOES THE UCBOR WORK?

I must confess that I am not sure! It seems apparent, given their locations and vocations, that they do not gather together in Harrisburg to decide appeals. So I am guessing, and it is only a guess, that they have a staff of paralegals/clerks/assistants who review appeals in Harrisburg and make recommendations to the Board Members about how cases should be decided, which are then approved by the Board, or subject to further analysis and discussion among Board Members. That is probably the best explanation for how the 3 Members of the UCBOR can make thousands of decisions per year while gainfully employed in their own careers.

HOW DOES THE PENNSYLVANIA UNEMPLOYMENT COMPENSATION BOARD OF REVIEW DECIDE APPEALS FROM REFEREE DECISIONS?

First thing that you must understand is that this is a paper review. That is, the UCBOR never, ever conducts a hearing, and always bases its decision on 1) what was said at the Referee Hearing; 2) the evidence presented at the Referee Hearing; and, 3) the law as decided by the Pennsylvania’s appellate courts on cases involving similar facts and evidence.

The Board must follow the law – the law established by its higher authorities, the Commonwealth Court and, above that, the Pennsylvania Supreme Court. So, the best way to determine your chances for winning an appeal from a Referee’s Decision are to find and examine cases dealing with similar facts decided by the Commonwealth Court. Of course, while this may be like finding a needle in a haystack for the average Claimant, this is precisely the type of research that lawyers conduct on a regular basis.

There are two ways to appeal a Referee Decision to the UCBOR. The first is to simply file an Appeal and do nothing more. In that case, the UCBOR will review the transcript and exhibits from the Referee Decision and make a decision as to whether to uphold the Referee without any further input from you.

The second is to file an Appeal, request a copy of the transcript and exhibits, and then file a Brief after review of same, citing relevant evidence presented at the Hearing and applicable precedent in your favor.

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.

Thanks for checking in with us.

The 38 United States That Ban Same Sex Marriage

2013-03-27T15:05:00.003-04:00

The 38 States that Ban Same-Sex Marriage ("SSM")

SOURCE: USA Today. Click Here for USA Today's interactive map on this issue.

States that Ban SSM

States that Allow SSM

States That Neither Ban Nor Permit SSM

Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming

Also, Washington, D.C. permits same-sex marriage.

Same-Sex Marriage Symbol

Of the 38 state laws that ban gay marriage, only one, Proposition 8 out of California, has been considered by the Supreme Court. We await word on the outcome of the argument in that case held on March 26, 2013. Should SCOTUS overrule Proposition 8, then all of the red states above will change to orange states.

Then, as the years go by, it is presumed that many will become green states...

If, on the other hand, SCOTUS upholds Proposition 8, the red states and green states will presumably stay as they are for the foreseeable future, and the orange states will either stand pat, or make a final decision on this issue.

SCOTUS is also considering the legality of the the Federal Defense of Marriage Act ("DOMA"). Click Here for our analysis of the DOMA issue before the U.S. Supreme Court.

Name the 3 States That Neither Permit Nor Forbid Gay Marriage

2013-03-27T14:27:00.003-04:00

There Are 3 States in America That Neither Forbid Nor Permit Gay Marriage

The 3 states that neither allow or forbid gay marriage are: New Mexic, New Jersey and Rhode Isalnd.

Click Here to view interactive map on gay marriage issue.

What 9 States Allow Gay Marriage?

2013-03-27T14:23:00.002-04:00

There Are Only 9 States in America That Permit Gay Marriage

They are: Washington, Iowa, New York, Maine, Massachussetts, New Hampshire, Vermont, Connecticut and Maryland.

The District of Columbia (Washington, D.C.) also allows gay marriage.

Click Here for interactive map identifying laws of each state where gay mnarriage is concerned.

What is at Stake in SCOTUS Decision on Defense of Marriage Act?

2013-03-27T13:32:00.001-04:00

The Rights Denied to Same-Sex Marriage Partners Under the Defense of Marriage Act ("DOMA")

Today, the U.S. Supreme Court ("SCOTUS") heard argument on the legality of DOMA. To quote an article posted today on Cnn.com, the rights at stake in this case are as follows:

"Under the law, federal tax, Social Security, pension and bankruptcy benefits, along with family medical leave protections and other provisions do not apply to gay and lesbian couples legally married in states that recognize such unions."

Let me break down some of these key issues.

Under DOMA, Same-Sex Marriage Partners Are Not Covered Under the Family and Medical Leave Act

One of the key benefits under FMLA is the right to take leave to care for a spouse who has a physical injury or illness. Under DOMA, same-sex marriages are not recognized, so a spouse in a same-sex marriage is not entitled to leave under FMLA to care for his/her spouse.

Under DOMA, Same-Sex Partners Are Not Entitled to Social Security Benefits Accrued by Their Spouse in the Event of the Death of Their Spouse

Under the Social Scurity Act ("SSA") if a spouse dies, the other spouse is entitled to Social Security benefits that were earned by his/her spouse prior to death. Under DOMA, they get nothing.

Under the SSA, the amount of benefits to which a disabled citizen is entitled increases if the worker is married, has a family, etc. Under DOMA, no increase is afforded, because a spouse in a same-sex marriage is not recognized as married.

The same principles apply to federal employees who have accrued pension and death benefits in the course and scope of their employment.

Married - Filing Jointly - uh, No

Under DOMA, a Same-Sex Couple May Not File Taxes Jointly

Our tax code provides for lower tax rates/obligations for a married couple as opposed to someone filing as single. This benefit was meant to encourage the creation and maintenance of the marriage institution.

Under DOMA, a same-sex married couple is not recognized as married, and therefore may not file a joint tax return as a married couple.

My Forecast (For What It's Worth!)

SCOTUS: Will Kennedy Be Swing Vote?

My prediction? SCOTUS will throw out DOMA. Does that mean that same-sex married couples will automatically be afforded the rights discussed herein? I am not an expert in this area, but my answer to this question is - "Sometimes."

My guess is that same-sex couples married in one of the 9 states that sanction such marriages (plus D.C.) will be entitled to such benefits. However, for couples who have "Common Law Marriages" (i.e. who have lived together for X years and held themselves out to be married, but do not have actual state-sanctioned marriage certificates), the answer will be - "No federal benefits."

Click Here to read our analysis of the Scotus consideration of the constitutionality of California's Proposition 8, which bans same-sex marriage. Argument on that case was heard on March 26, 2013.

Decisions on both DOMA and Proposition 8 will likely be issued together by SCOTUS within the next 3 months or so.

Can I Win My Pennsylvania Unemployment Hearing By Proving I Was a Good Employee?

2013-03-27T10:58:00.004-04:00

Generally speaking, no. Click Here for a full examination of this issue.

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.

Thanks for checking in with us.

The Burden of Proof in a Pennsylvania Unemployment Hearing

2013-03-27T10:44:00.004-04:00

In Willful Misconduct Cases

Your former employer must prove that you did something wrong. This may be a single act or set of circumstances (i.e. you stole money, had a physical altercation with a co-worker, refused a direction from your boss, etc.) or that you violated a work rule after having been warned about prior violations of that rule (i.e. repeated lateness, repeated failure to clock-in/out, etc.).

Who Must Carry the Water?

So, in these cases, it is the employer that must submit competent evidence of your wrongdoing. If they do not meet this burden, you will win.

What is competent evidence? Testimony by a witness who actually saw your alleged actions. This often implicates the rules of Hearsay. Bear in mind though, that if you do not object to Hearsay evidence, it will be admitted into evidence. If such evidence is admitted into evidence, it will be hard for you to win the case, since the witness in question will not be there for you to cross examine!

Employers often rely upon Hearsay at Hearings. A qualified lawyer can exclude that evidence, which will leave the employer with no competent evidence of your alleged wrongdoing, That is how I win many of my cases!

Click Here to check out our Video on Hearsay.

Will My Record of Outstanding Past Performance Help Me Win My Willful Misconduct case?

No. The issue is not what you did over the 20 years of your employment in a willful misconduct case. rather, it is what you did on the date of the incident that led to your termination that matters. Click Here for further discussion on this issue.

In Voluntary Quit Cases

The burden is on you to prove that you had a necessitous and compelling reason to quit your job.

In Independent Contractor Cases

The presumption under the law is that all workers are employees (i.e. paid W-2 wages). The burden is on the employer to prove otherwise, i.e. that you were an independent contractor (paid 1099 wages).

Why is the Burden of Proof Important?

Well, the party who has the burden of proof must prove their case. If the party cannot do so, the other party automatically wins the case, and does not need to introduce any evidence. Thus, the party with the burden of proof always testifies first in a hearing, and the other party only needs to put on evidence if their opponent satisfies their burden.

I win many cases by stopping employers from meeting their burden of proof by eliminating hearsay, excluding documents that are not authenticated, etc. In those situations my client, who was expecting that he/she would have to prove that they did "a good job" or that they were "innocent of the charges," really says little more than that they did their job to the best of their ability and, Whoolah!, we win.

Easy as pie (fpor a lawyer!).

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.

Thanks for checking in with us.

Performance Appraisals, Performance Evaluations and Character Evidence at a Pennsylvania Unemployment Hearing?

2013-03-27T09:34:00.000-04:00

Should I Introduce My Performance Appraisals at My PA Unemployment Hearing?

If your Hearing relates to Willful Misconduct, it typically will revolve around one of three issues:
1) a single event or circumstance that (allegedly) led to your termination; 2) a violation of a work rule after having received a warning about prior violation(s) of that rule; or, 3) your were fired for poor performance.

Let's discuss the first scenario first; in doing so I will use a simple example that will prove my point.

Presidential Decree for You!

All Hail Your Service Record

Assume that on January 1, you are selected as the "Best Employee in America" by the President of the United States. The Pope seconds your selection, as does the United Nations. Your accomplishment is publicized on the front of the N.Y. Times and the Wall Street Journal.

On February 1, you are caught on videotape at work stealing $10,000 in cash from the company. You are fired, and a Hearing ensues.

This is Willful Misconduct!

Do you believe that your outstanding record of past performance will help you win that case? Of course not, you were fired for stealing money, that is clearly willful misconduct, and your past record has absolutely no bearing on the Referee's thinking or decision-making process.

In essence, that example holds true for the second issue as well. If you were warned about being late on 4 prior occasions, and then were an hour late the next day, your otherwise stellar record will have zero bearing on whether you engaged in willful misconduct by repeatedly violating a reasonable work rule after warning.

Will My Performance Evaluations Help Me at My PA Unemployment Hearing?

Now, the third situation, that involving alleged poor performance, is a whole different kettle of fish. Logically, one would believe that your record of past performance would be relevant in a Hearing centered upon your alleged poor performance.

However, you do not need to worry about proving that you were, in fact, a good performer during your employment in such a case, because poor performance is not willful misconduct under Pennsylvania Unemployment Law. In other words, if the employer states that you were fired for poor performance, you will not be disqualified from receiving unemployment benefits because, under Pennsylvania law, poor performance is not conduct that disqualify your right to receive such benefits.

So, if you are involved in a poor performance Unemployment Hearing in Pennsylvania, do not worry about proving you were a good performer; rather, simply say that you worked to the best of your ability and you should be just fine.

Click Here for our discussion on the Burden of Proof at Unemployment Hearings. This is very important to understand.

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.

Thanks for checking in with us.

"Drug-Crazed She Devil" Amanda Knox Ordered to Stand Trial Again

2013-03-26T18:01:00.001-04:00

Italian High Court Orders New Trial for Amanda Knox and Raffaele Sollecito

"Foxy Knoxy"

Amanda Knox, nicknamed "Foxy Knoxy" by the Italian press, and called a "Drug-Crazed She Devil" by Prosecutor Giuliano Mignini during his closing argument in her first trial, today was ordered to stand trial for a second time by Italy's Supreme Court, known as the Court of Cassation.

Sometimes Forgotten Victim Meredith Kercher

Ms. Knox and Raffaele Sollecito were initially found guilty of the brutal murder of Meredith Kercher by an Italian trial court. That conviction was overturned by an Italian appellate court. Now, Ms. Knox and Mr. Sollecito will be required to stand trial for a second time.

Sollecito

Prosecutor Mignini

Click Here for our comprehensive coverage of this shocking turn of events, including a Timetable of Events, and links to a variety of sources, including the influentional Rolling Stone article on the Kercher tragedy published in 2011.

Supreme Court "Reluctantly" Takes Argument on Same-Sex Marriage Rights

2013-03-26T13:34:00.002-04:00

Supreme Court 2013

At issue in today's argument was whether states have a right to prohibit same-sex marriages. All told, 38 states ban same sex marriages, 9 permit them (as does Washington, D.C.) and 3 have remained non-committed on the issue.

The case before SCOTUS was filed by two couples seeking to overturn California's Proposition 8 ban on same-sex marriages. Tomorrow, the Court will consider a challenge to the federal Defense of Marriage Act, which denies financial and other benefits to legally married same-sex couples.

The New Same-Sex Marriage Symbol

Legally, if the Court should overturn the California ban, then it seems logical to conclude that the
laws in the other 37 states that forbid such marriages would cease to have effect. All 38 states previously banning gay marriage would then become "non-committed,"and would have to decide thereafter whether to remain pat or join the 9 states that permit gay marriage.

With regard to the federal Defense of Marriage Act, it no longer has any support from Washington, D.C. Indeed, President Obama has publicly stated his view that same-sex marriages should be allowed. Yet, it is unclear what the impact would be should the Court strike down the DOMA as unconstitutional. Would that mean that married same-sex couples would be entitled to the same federal benefits afforded traditional married couples? We address that issue Here.

Click Here for a full report from Washington, courtesy CNN.com.

The Scene in Washington

Click Here to review a map of identifying the laws relating to same-sex marriages in our 50 states, along with a comprehensive examination of the issues from USA Today.

Click Here for our analysis as to the possible outcomes of the decision by SCOTUS on Proposition 8.