EEOC: Sexual Orientation Discrimination Barred by Title VII

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 In a July 16, 2015 decision involving a federal employee, the EEOC has held that the existing Title VII prohibition on discrimination based on “sex” applies equally to claims of discrimination based on sexual orientation. The decision sets out detailed reasoning for the Commission’s conclusion, which is contrary to the view of a number of federal courts. It also is contrary to the procedures of many federal agencies, which have handled sexual orientation claims under different processing rules than for ones based on gender.

Look for the Supreme Court ultimately to decide this  question. In the meantime, opponents of such discrimination are lobbying to get Title VII amended so such a decision would become unnecessary, due to explicitly adding sexual orientation as one of the barred considerations for making employment decisions.

EEOC’s decision can be accessed here: https://s3.amazonaws.com/s3.documentcloud.org/documents/2167512/complainantvfoxx.pdf.

You may contact David at 800-892-1506 ext. 1 or DavidS@ThisLawFirm.com if you have a federal employee claim (nationwide) involving discrimination issues or are a Texas employer with related questions.

Thanks! (more client praise)

We were grateful to recently receive these two comments from clients whose matters we resolved:

Client 9 (January 2015): “You gave me a voice when I needed it most. Knowing that I had you helping me gave me the strength to hang in there.  I can’t believe I ended up with most everything I asked for. I even got some things that I never dreamed I would get back!”

Client 8 (January 2015): “Just wanted to say thank you for your help with the letter. You are truly a godsend. Not only are you knowledgeable but also genuinely caring to a stranger. We need more attorneys like you in this world.”

Read praise from seven other clients here.

Each dispute is different and its outcome depends on the underlying facts as well as factors beyond the control of you or the attorneys, but our goal is to leave every client as happy as those quoted above. Speaking of happiness, here’s a beach photo by attorney David Schleicher to help get your weekend off to a good start.

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Flirting at Work?

secret    Workplace flirting is not rewarded even in environments where it is encouraged, according to this interesting article on a recent study of law firms. On a related note, our experience in representing both the harassed and those accused of harassing, in both the federal and private sector, is that there remain a large number of managers–even at very high levels–who consider their position of power a license to sexually harass those working for them.

    Gentlemen: a good rule of thumb is that if you would not act that way at work if your mother or sister or wife were present, then you probably shouldn’t act that way in their absence either. An old standby alternative is, “How would what I’m doing look if covered on the front page of the Washington Post?”

Two Free Resources on Criminal Records and Hiring Process

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Employers: If you are concerned about the legal minefield of using criminal records to screen out applicants, here’s a link to a pdf of an employee-side perspective (May 2013–as pictured above) on how to do it legally.  You also can go to the Lawyers’ Committee for Civil Rights Under Law website for background on the by whom and why of the publication’s development.  If you would prefer a Q&A on the topic straight from Uncle Sam (April 2012), then instead go to EEOC’s website.  If you are a Texas-based employer, you also can give us a call with your questions.

A Smaller Whistle to Blow in Texas

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The Texas Supreme Court has just ruled, in a case involving a University of Houston professor, that the state’s whistleblower law does not protect reports of violation of internal rules and policies.  The Texas law already was narrower than the federal employee whistleblower law.  This new ruling confirms that unless the rules being broken were adopted formally under a legislative grant of authority, the reporting of their violation is not protected.

Finding one fatal bullet insufficient, the Court added that the case also should be thrown out because the professor should have known better than to believe what he reported was a violation of the law.  While accepting the professor actually believed he was reporting something illegal, the court found that given his familiarity with the University’s rules and his former work as an attorney, he should have known better.

Finding two fatal bullets insufficient, the Court went on to rule that he failed to meet the element of having made his reports to a “law-enforcement authority.”  The University’s general counsel, the internal auditor, the CFO, and associate provost all got notice, but none had the authority to investigate or prosecute criminal violations of the law outside the university.  The fact the party getting the report might have a duty to pass it on to law enforcement was found irrelevant.

Lessons?

(1) Texas state and local government employees who want their disclosures to be protected should make sure what is being violated is actually law, not merely internal policy.

(2) Reporting to law enforcement really does mean reporting to someone with a badge or the ability to prosecute.

(3) While there are no blatant flaws in the Court’s reasoning here, keep in mind that overall odds of winning as an employee-plaintiff before the Texas Supreme Court continue to be only slightly higher than that you will live past 105.  The fact the court was not content to throw the case out on just one ground and stop there, as usual rules of judicial restraint might call for, reflects a willingness by the court to ensure employers (especially government ones) do not spend a lot of time fighting battles in court with their employees.

(4) If you are a Texas employer, you have just had another great day at the Texas Supreme Court (unless, as a taxpayer, you would rather we err on the side of encouraging government employees to blow the whistle).

Impact?  More Texas state and local employees will look the other way when they see something that appears improper, knowing the chances they’ll be protected if they report it have dropped another notch.

Another AVVO Review

We just received notice from the Avvo.com website directory of attorneys of the following client review. Follow this link for the full review, other reviews, and an explanation of the website’s review process. While the outcome of each case turns on the particular facts and client involved, our goal is to leave everyone as pleased as this client:

Overall rating Excellent
Trustworthy Excellent
Responsive Excellent
Knowledgeable Excellent
Kept me informed Excellent
I recommend David Schleicher.
I hired David more than 3 years ago.
David handled my Government matter.
I have previously worked with 1-2 lawyers.

David and his firm have represented me since March 2009, and I’m fortunate and thankful for his expert knowledge of government employee, equal opportunity, and disabled employee rights, laws, and guidelines, as well as his counsel to help me through challenging and difficult law-related times. David is responsive and available, and when we speak and coordinate via email I’m certain that he’s completely focused on me and my needs. I also consider him to be exceedingly fair with his rate structure, and his staff diligently keeps me informed regarding status and cost breakdowns on all matters he works for me. I find him to be empathic while also ensuring I have a realistic view of options for the various situations he’s helped me address – always successfully in my favor. As a long-time federal employee, I never needed a lawyer’s counsel until 2009, and I’m grateful that David and his firm were my first choice, based on a coworker’s recommendation. David and his staff have confirmed my initial impression: he is THE government employee law professional. Look no further; if you need a lawyer on your side, David is the answer.