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Homosexual & Transgendered Employee Rights

****Editor's Case Alert****

     The U.S. Supreme Court, in a 5-4 decision, held that Sec. 3 of the federal Defense of Marriage Act (DOMA), that had the effect of barring the extension of federal benefits to same-sex couples who are legally married under state law by defining marriage and spouse as excluding same sex partners, was unconstitutional as a violation of equal protection under the Fifth Amendment. While this did not rule on whether there is a federal constitutional right to same sex marriage, it does mean that in instances where a state recognizes same sex marriages, those marriages must be treated the same as any other marriages for purposes of federal law. U.S. v. Windsor, #12-307, 2013 U.S. Lexis 4921. In another case decided the same day regarding a federal trial court decision that struck down a California state initiative Proposition 8, that put a halt to same sex marriage in California, the Court held by 5-4, that private parties had no standing to defend the constitutionality of Proposition 8 when state officials declined to do so. This had the effect of restoring same sex marriage in California. As a result of this and laws about to become effective in a number of states, same sex marriages will now be legally recognized in 13 states and the District of Columbia. Hollingsworth v. Perry, #12-144, 2013 U.S. Lexis 4919.

     Federal benefits coverage has been extended to a legally married same-sex spouse of a federal employee or annuitant, regardless of the employee’s or annuitant’s state of residency. OPM Benefits Administration Letter #13-203 (Jul. 13, 3013).

Political Activity/Patronage Employment

     A police department detective supported a candidate for mayor in a party primary. When the candidate lost, the detective talked to a reporter about the election. One day after these comments were published, the detective was reassigned to station duty officer, a more deskbound position. He sued for unlawful retaliation in violation of the First Amendment on the basis of his support for a political candidate, and for demotion and constructive discharge without due process. The defendants counterclaimed for abuse of process and malicious prosecution, and the trial court granted the defendants summary judgment on the plaintiff's claims and summary judgment to the plaintiff on the defendants' abuse of process claim but not on their malicious prosecution claim, which the parties subsequently agreed to be dismissed. The appeals court reversed on the retaliation claim, finding that there was enough evidence for a reasonable jury to conclude that the reassignment was motivated at least in part by a retaliatory motive, after which the defendants would have to try to show that they would have taken the same action even without the protected speech. Peele v. Burch, #12-3562, 2013 U.S. App. Lexis 13800 (7th Cir.).

Racial Harassment

****Editor's Case Alert****

     An African-American employee working for a university claimed that she was subjected to racial harassment by another employee who she contended was her supervisor. She sought to hold the employer vicariously liable for the other employee's actions. The U.S. Supreme Court held that an employee is classified as a supervisor for purposes of vicarious liability under Title VII only in circumstances where he or she is given authority by the employer to take "tangible employment actions" against the alleged victim. In this case, no such empowerment existed, so the other employee was not a supervisor. A tangible employment action is one that effects a significant change in "employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Vance v. Ball State University, #11-556, 2013 U.S. Lexis 4703.

Retaliation

     A former university employee of Middle Eastern descent claimed that he had been constructively discharged by racially and religiously motivated harassment and also that in retaliation for complaining about the harassment, efforts were made to interfere with a hospital's job offer to him, resulting in the offer's withdrawal. After a jury returned a verdict for the employee on both claims, a federal appeals court overturned the harassment/discrimination claim, but upheld the verdict on the retaliation claim. The U.S. Supreme Court vacated the ruling on the retaliation claim, finding that the legal standard to prevail had to be to show "but for causation," to prove that the harm would not have occurred in the absence of the alleged wrongful actions (unlawful retaliation) of the employer, not a lessened causation test used in an EEOC manual, requiring only a showing that retaliation was a motivating factor in the action taken causing the harm. Because the wrong legal standard was used, further proceedings were required. University of Texas Southwestern Medical Center v. Nassar, #12-484, 2013 U.S. Lexis 4704.

     A police officer claimed that he was unlawfully denied time-off awards in retaliation for engaging in protected activity, filing an earlier employment discrimination claim that was settled. The time-off awards gave an employee paid leave on five occasions over the next three months. He claimed that certain actions he had performed in the prior three months, following the settlement of his discrimination claims, merited the time-off awards, such as making an assault arrest, pulling a person out of an overturned car, etc. The fact that other employees were also involved in some of the same incidents and that no one else was commended for these actions either undermined his retaliation claim. He failed to show his entitlement to the awards, and therefore, the failure to nominate him for them did not materially affect the terms of his employment. Bridgeforth v. Jewell, #12-5015, 2013 U.S. App. Lexis 13467 (D.C. Cir.).

Search and Seizure

     During an investigation of a state employee, New York state investigators attached a global positioning system (GPS) device to his car, to look into suspicions that he was submitting false time reports. Based on the evidence gathered, he was fired. The highest court in New York ruled that the attachment of the device was a search not requiring a warrant and was within the workplace exception to the warrant requirement. At the same time, the search was not reasonable, as the employee's movements were tracked on evenings, weekends, and when he was on vacation, rendering it excessively intrusive. The employer failed to make a reasonable effort to avoid tracking the employees movements outside of business hours, rendering the entire search unreasonable. The evidence was ordered suppressed. Cunningham v. State Dep't of Labor, #123, 2013 N.Y. Lexis 1729.

     A drug suspect frisked by officers claimed that they stole money from him. At headquarters, the officers learned that an internal affairs complaint had been filed and they were taken to an office where they did not feel free to leave. They were instructed to stay in the office and not use their cell phones, and later told to remove their jackets, pull out their pant legs, pull down their socks, and open their wallets. Fearing discipline and loss of employment, they obeyed. They were then questioned and allowed to leave. Their lockers were allegedly also searched. Ruling on a federal civil rights lawsuit by the officers, a federal appeals court upheld summary judgment for the defendants. Police administrators who engage in employment-related, non-criminal detentions do not seize officers for Fourth Amendment purposes. The searches in question were reasonable. Gwynn v. City of Philadelphia, #12-2208, 2013 U.S. App. Lexis 12453 (3rd Cir.).

Telephone & Pager Monitoring / Audio & Video Taping

     A former police officer and his wife sued the city he used to work for alleged violation of a section of the Federal Wiretap Act in using emails between the plaintiffs to conduct an investigation into the alleged misuse of the Law Enforcement Agencies Data System to discover information about who owned certain cars. While one section of the Act allows lawsuits against a person or entity for violations, the section the plaintiffs sued under only allows lawsuits against "persons." As a municipality is not a person for purposes of that section of the statute, there could be no viable claim against a city for intentionally disclosing or using communications intercepted in violation of the statute. Seitz v. City of Elgin, #13-1045, 2013 U.S. App. Lexis 12883 (7th Cir.).

Workers' Compensation

     A firefighter also worked for an auto company, and earned only 11 percent of his income as a firefighter and 89 percent from the auto company. He was injured on the job as a firefighter and applied for workers' compensation benefits. His employing township paid him the maximum weekly wage loss benefits under worker's compensation and he also received benefits under a disability insurance policy provided by the township. The township could have, but did not, reduce its workers' compensation liability by coordinating the workers' comp benefits with his disability benefits. The township sought reimbursement from the Second Injury Fund, which pays a portion of an injured worker's benefits when the employment at which he was injured provided 80 percent or less of his employment income. The basis of the reimbursement request was the firefighter's dual employment and the uncoordinated amount of wage loss benefits. The Michigan Supreme Court held that when the employment in which the injury was suffered provides less than 80 percent of the employee's wages, the fund was only required to reimburse its portion of the coordinated amount of benefits. Such coordination was mandatory, not discretionary and reduced the employer's obligation to pay weekly wage loss benefits as a matter of law. The township improperly did not coordinate its benefits and the fund would not reimburse it for the uncoordinated result. Smitter v. Thornapple Township, #144354, 2013 Mich. Lexis 912.

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     Statistics: "Justice Expenditure and Employment Extracts, 2010 - Preliminary," by Tracey Kyckelhahn and Tara Martin (July 1, 2013 NCJ 242544).

Reference:

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