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The Legalities of Firing Nazis

Charlottesville, Virginia is on everybody’s lips. In response to the removal of Confederate monuments, neo-Nazis, KKK members, white supremacists, militia, hard right conservatives, and others gathered–many armed with semi-automatic rifles and clothed in body armor–in Charlottesville for a “Unite the Right” rally. These people gathered, hoods off and faces revealed to the public. In the process of their armed protest, violence erupted against people protesting against the ideologies of those gathered–often essentially white supremacy and ethnic genocide”–in the wake of this violence one woman lay dead and fourteen were injured after a man named James Field rammed his car through a crowd of protesters. All told, the body count to date is three dead and dozens injured.

In response to the hatred inherent in the rally and the horrific acts of those such as James Field, many online took a beautifully simple step to strike back against neo-Nazi and KKK supporters-they posted pictures of them at the rally online. People took to Twitter and posted these pictures along with text reading “Do you know me? Are you my employer? I was at a neo-Nazi rally in Charlottesville.” This immediately drew the attention of those on social media and many identified the people at the rally. At least one employer–a hot dog restaurant out of Berkeley called Top Dog–fired an employee named Cole White for his photographed participation in a gathering of white supremacists at the rally.

The release of these pictures has led to some outcry from those who attended the rally and their supporters. They cry invasion of privacy and describe posting their pictures as “doxing”-a common term for posting personal information of a third party online in order to incite harassment. Let’s quickly dismiss these arguments, that simply isn’t how privacy or privacy law works. Privacy interests under the law hinge on your reasonable expectation of privacy in what you’re doing or in the information. If you are having a phone call alone in your house, there is a strong expectation of privacy. If you take to streets, masks off revealing your affiliation with the KKK, you have no expectation of privacy whatsoever. People can take pictures, people can generally post those pictures–you have almost no expectation of privacy in things you do on public streets.

NazisThe second thing that has these rally-goers in a tizzy is the potential of more employers going along the path of Top Dog and–who would have thought–firing people who reveal themselves as Nazi’s or white supremacists. Their arguments have trended towards one of two categories–reverse racism and violation of the First Amendment by firing them for political beliefs. We’ll be discussing firing over political beliefs later in a fair bit of depth. However, let’s start with reverse racism as an argument, because it is usually patently ridiculous and almost never exists under the law. While race-based discrimination can include Caucasian people, proving a claim of discrimination against a majority group such as this requires showing a higher standard of evidence as it is extremely rare to be able to establish a majority group is treated worse than a minority group.

The Legalities of Firing Nazis

The complaint of these rally-goers over the potential of being fired for their political beliefs is a more complicated one-mostly because there is a common misconception that employers can’t fire you for your political beliefs. Unless you are employed by the government, not only can a private employer generally fire you for your political beliefs they can even pressure you into voting a certain way. Just recently, it was ruled that a police chief could fire his employees for not donating to his political campaign. Generally, when not being applied to Nazis, this sounds a little scary. However, it makes sense considering how the First Amendment works. The First Amendment protects against government action curtailing freedom of speech, religion, and association-for the most part it does not apply whatsoever to private action or private employers. This includes political action taken outside of work.

There are several situations where a politically motivated firing can still get a private employer in trouble. Where the politics behind a firing overlaps with a protected class such a race, national origin, religion, or-in many states-sexual orientation or gender identity it can give rise to separate legal issues. Similarly, allowing a workplace environment where a boss or even many employees constantly discuss issues such as banning access to specific ethnicities, races, or countries, that can easily create a hostile work environment or constitute harassment. Both can lead to legal action against an employer. Finally, an employer cannot punish political stances in a way that limits an employee’s ability to discuss terms of employment or unionization. For example, if employees feel a politician’s stances might impact their wages then an employer would generally not be able to punish them for talking about it.

All of this presumes the most common type of employment-at will employment. In this situation somebody can be fired for any (or no) reason and they can quit in the same circumstances. There are certainly situations where an employment contract may modify how an employer must act.

State laws can add some further protections for political affiliations. California and New York forbid discriminating against workers due to political views, political activities, or affiliations. However, there are exceptions where you either participate in a political activity that conflicts with your employer’s business model or it impacts your work. If an employee creates a liability to the company-such as a Nazi who might create a hostile work environment or harassment lawsuit against your business–an exemption may exist depending on the facts.

Other states have similar, but nowhere near as in-depth, laws regarding how political stances can be treated by employers. Kentucky, Ohio, Pennsylvania, and West Virginia make it illegal to fire or threaten to fire employees if any one political candidate is elected. Oregon makes it illegal to threaten an employee to influence their vote. In Washington, it is illegal to retaliate against an employee for not supporting a particular candidate, party, or ballot initiative. It’s notable that this does not include firing somebody for supporting any of the above-or provide any protection whatsoever for broader political positions. Michigan protects against direct or indirect threats to influence an employee’s votes. Florida goes so far as make threatening to or firing an employee for not voting a certain way. California, Colorado, Louisiana, New York, and North Dakota make it illegal to act against an employee for off-duty participation in legal politics. This last one is likely of the most concern. However, it only applies to legal political activity. This begs the question, is being a neo-Nazi or a white supremacist a legal political activity? The issue is not well resolved in the state courts where they’d be most relevant, but there is a strong argument that a desire for ethnic genocide is not a political position.

Yes, You Can Generally Fire Nazis for Being Nazis …and You Probably Should

For the most part, federal law has no protections for these white supremacists and Nazis. They have made their bed with their choices to appear in public and voice their support of hatred and ethnic genocide. Not only can employers fire such employees in most states, they are both morally in the right to do so and keeping these employees on may risk liability based on creating hostile work environment or allowing harassment of a protected class.

The repercussions are not over for those who chose to take to the streets in support of hatred. The criminal charges against James Fields are ongoing. GoDaddy and even Google have booted Nazi websites off their servers and search results respectively. The pictures online continue to be identified and brought to attention of employers. From here, we’ll have to see how many employers follow the example of Top Dog.

LGBT Rights: Understanding the Department of Justice In-fights with EEOC

Over the last year or so, we’ve talked quite a bit about the strides made in LGBT employment rights taken by the Equal Employment Opportunity Commission (EEOC). We’ve seen enormous steps towards extending protection of the law to those discriminated against based on sexual orientation and gender identity, if not making them a protected class in and of themselves.

Title VII forbids employers from discriminating against employees due to being a member of a protected class such as race, gender, national origin, color or religion.  It also prevents employers from retaliating, through termination or otherwise, against employees who report such discrimination. For years now, the EEOC has embraced the logic that sexual orientation and gender identity fall under the protections of Title VII–including them in the gender class.

Unfortunately, the Department of Justice (DoJ) and Jeff Sessions are determined to spend resources attacking these rights. Just a few days ago, the DoJ filed a “friend of the court brief” (a type of brief where an interested non-party to a lawsuit makes a filing to try and convince a court to rule a specific way) arguing that LGBT persons shouldn’t be. This a step down a path undoing essentially 8 years of work. The timing of the filing, the same day as the transgender ban we just spoke about, just serves to highlight the Trump administration’s stance on LGBT rights. Let’s take a look at the case, the stance of the EEOC, and the DoJ’s arguments against extending rights to the LGBT community.

The Case in Question

The case itself deals with a skydiving instructor by the name of Donald Zarda. Back in 2010, he was working for Altitude Express doing tandem dives with clients. This obviously involves being essentially strapped together. In order to assuage the worries of a woman he was diving with regarding this issue, he mentioned to her that he was gay. Her husband complained about this to the company, leading to their firing Mr. Zarda. After this, Mr. Zarda sued Altitude Express for violations of Title VII.

Mr. Zarda’s claims obviously hinge on sexual orientation being protected from discrimination under Title VII. The DoJ’s court filings argue that this is not the case and cannot be the case without an act of Congress. This specifically targets the current stance of the EEOC, taken during the Obama Administration years.

 LGBTThe EEOC’s Current Position

In July 2015, the EEOC declared as an agency that sexual orientation was a protected class as a form of sex-based discrimination.  Since then, they have been investigating claims of discrimination based on gender identity or sexual orientation. Recently, the EEOC has brought two separate federal lawsuits alleging discrimination against homosexual employees on the basis of their sexual orientation. They have had an unofficial stance favoring treatment of sexual orientation as protected under Title VII since as early as 2013. In cases as early as 2012, the EEOC had held the discrimination based on gender identity is discrimination based on sex and thus in violation of Title VII.

The arguments the EEOC makes to include sexual orientation and gender identity within the confines of sex and gender hinge on elements of Title VII which forbid discrimination based on non-compliance with norms or stereotypes. Essentially, it boils down to discrimination against LGBT persons being necessarily founded in discrimination based on their non-conformance with gender or sex norms in society–identifying with your birth gender and being heterosexual.

The DoJ is attacking this argument, as well as the power of the EEOC to make such a determination in the first place.

The Department of Justice’s Brief

The DoJ’s brief is substantial. They’ve clearly put quite a bit of time and resources into arguing against protecting the LGBT community. However, their arguments can essentially be boiled down to three things: 1) Congress has shown that they don’t want to protect LGBT persons by never amending Title VII to include them as a protected class; 2) discrimination can’t exist under Title VII unless women and men are treated differently; and 3) discrimination against LGBT is not necessarily related to gender.

Their first argument comes up several times in the brief. They assert that Congress’s failure to add sexual orientation when amending Title VII in 1978 and 1991, despite court rulings existing which refused protection on this basis, is proof Congress didn’t intend to protect LGBT persons. They say that Congress knew that LGBT people weren’t protected under the act both times they made their amendments. The DoJ says that this implies that Congress intentionally chose not to include LGBT people in Title VII’s protections.

The DoJ argues that this means that the EEOC doesn’t have the power to treat LGBT people as protected.  This probably is not the case, barring an actual act of Congress it is unlikely that the EEOC has acted beyond the purview of its role as an agency which is specifically to interpret and apply Title VII. However, the DoJ’s argument is the type that carries weight with the courts. In interpreting law, statutory interpretation often draws on the intent of Congress in making a law.  The failure to include LGBT persons is far from a deathblow to the EEOC’s interpretation but it certainly requires them to have stronger arguments backing their current treatment of the law.

Next, the DoJ argues that sex and gender discrimination only exists where men and women are treated differently by an employer. They cite a few (fairly cherrypicked) cases in support of this assertion. However, even the DoJ acknowledges that gender stereotyping creates an established cause of action for Title VII discrimination.  This leaves several holes in the DoJ’s arguments.

Gender stereotyping specifically creates a cause of action where an employee is discriminated against based on their divergence from established gender stereotypes. This has never relied upon treatment different from the opposite gender. If this wasn’t the case, why would gender stereotyping even exist as a cause of action under the law? Treating women differently from men already exists separate to gender stereotyping. If it only applies to treating women who act masculine worse than men who conform to gender stereotypes (or vice versa) then gender stereotyping as a rule becomes irrelevant. What’s more, if gender is considered as separate from biological sex (as is common practice in scientific communities these days), then transgender persons the EEOC argument still holds. A person male identifying female could receive disparate treatment from a male identifying male. In this case, although both have a birth gender of male, the case would involve a person identifying as one gender being treated differently from one identifying the opposite gender.

The DoJ tries to fight this by highlighting that a “plaintiff must show that the employer actually relied on her [or his] gender in making its decision.” This doesn’t have to mean one gender or another, just that an employer relied on the gender of the person discriminated against in stereotyping them.

Finally, the DoJ attacks the EEOC’s argument that discriminating against sexual orientation or gender identity is necessarily linked to the protected classes of sex or gender. They say, as if it encourages removing protections that a homophobic employer would discriminate against a gay or transgender person regardless of their gender. However, this once again ignores the basis of the EEOC’s argument in gender stereotyping. Even if an employer “equally discriminates” against both genders of LGBT persons, they are still necessarily discriminating based on a gender stereotype that people should have sex with the opposite sex and identify with their birth gender

The DoJ also argues that you can discriminate against gay people who completely conform to gender stereotypes other than their sexual orientation. This is held up to counter the EEOC’s argument that sexual orientation discrimination is always gender discrimination. It’s unclear however, as to how this is an argument against the practice altogether. Rather, at most, it is an argument that where there is no divergence from gender stereotypes there is no discrimination. How that would exist when a gay person is necessarily divergent from the gender stereotype of having relationships with the opposite sex is unclear.

Trump Administration is Backpedaling

The DoJ’s arguments for removing protections for LGBT have some serious issues, both from a legal analysis standpoint and an ethical one. However, they are not ridiculous on their face and are certainly capable of persuading a judge to rule in their favor.

The effort and money they’ve put in to allow discrimination against LGBT persons is, above all, an example of the Trump administration’s lack of commitment to protect the LGBT community. Despite proclaiming himself the preferred candidate for LGBT rights during his campaign, President Trump’s actions since taking office have shown him to anything but. This move is coming on the eve of revoking protections for transgender people in the military and in the wake of decisions backing off LGBT rights enforcement.

At this point, the issue is going to be more and more in the hands of state law-a patchwork of protection and utter lack of protection depending on where you live. However, more than anything, the DoJ’s actions reveal how important it is to treat sexual orientation and gender identity as protected classes of their own. This would require an act of Congress, and is thus will not happen soon. However, making these two a protected class would remove all of the DoJ’s arguments against protection. What’s more, they fit the established mold of what we treat as protected classes.

Courts have historically looked at three elements when forming a new protected class: (1) a long history of discrimination, (2) economic disadvantages, and (3) immutable characteristics. While some may argue immutability, despite substantial scientific evidence to contrary, both sexual orientation and gender identity easily check all these boxes. Until we see these two treated as a full protected class, the entire LGBT community will find it’s rights at the whim of each passing administration and that simply cannot stand.

Google Memo Writer Would Likely Lose Lawsuit Against Google

Former Google software engineer James Damore was fired by Google for writing a memo titled “Google’s Ideological Echo Chamber” that critics have labeled as “anti-diversity.” Damore’s memo was originally on a private internal company discussion board, but was quickly shared outside Google.

Google, currently under investigation by the Department of Labor for paying women less than men, has distanced itself from Damore’s memo, which claims that numerous differences between women and men are biological. Google’s new Vice President of Diversity, Integrity and Governance, Danielle Brown, has released a statement that the memo is “not a viewpoint that I or this company endorses, promotes or encourages.”

Damore says he is considering bringing a suit against Google for his recent dismissal, though exactly what claims he thinks will be successful in court is unclear.

GoogleWhat about Free Speech?

It’s a common misconception that free speech protects everyone against termination or discrimination. The First Amendment, and the ban against restricting free speech, is constitutional law. The Constitution only applies to governments: the federal government, the states, and local counties. The Constitution does NOT apply to private corporations. If Mr. Damore was terminated for writing his memo while working for California’s Department of Motorized Vehicles, he would have a strong free speech case against California. However, since Damore’s employer, Google, was a private employer, the First Amendment does not apply to this case.

However, while Google may prevail legally, this is a political, employment, and public relations nightmare that most major corporations don’t want to deal with. Google has built a reputation and social philosophy on diversity. Most conservative platforms and publications this week have already pointed out the hypocrisy: what’s the point in having diversity in race or gender if your team’s thoughts and viewpoints aren’t diverse? Diversity as a value is superficial if the only diversity celebrated is the person’s skin or appearance.

Still, this is a political question that will only affect law if public opinion changes enough.

Is There a Discrimination Suit Here?

Employment law is premised on two ideas: 1. that employers (and employees) may terminate “at will” an employment relationship for any reason other than an illegal reason and 2. One of those illegal reasons is discrimination based on a specific personal trait, such as race or gender. Notably, political ideology is not on the list of protected traits in the Civil Rights Act. This means that while a private company cannot fire a woman for being feminine, as that would be gender discrimination; the company could fire that woman for being feminist if she spends her time in the office talking about women’s rights issues.

Damore could attempt to bring a case against Google under the Civil Rights Act by arguing that Google discriminated against him for being a man or for being white. However, that claim would be incredibly hard to support. Google could just claim that it fired Damore because it didn’t like the memo he wrote. There’s nothing about the memo itself to suggest that the author was 100% a white man. Google does not have a history of discriminating white men and it doesn’t have a hostile work environment towards white men. In fact, given that white men make up the majority of the company, it’s a pretty safe assumption that Google’s problem with Damore is what he wrote rather than his race or gender.

What about California Law?

Although the federal Civil Rights Act doesn’t offer any protection for discrimination based on politics, California employment law does protection against discrimination based on “political activities or affiliations.” Although this phrase is somewhat vague, there is some consensus on what kinds of activities are protected. Employers cannot restrict or retaliate against their employees for what they do outside of the office. Employers cannot terminate or demote employees simply for having opposing political views or affiliations.

Damore potentially has a case based on this claim, as he was fired for expressing his views on gender and for his political views. Damore wrote a reasoned memo on what he thought were problematic political biases and Google responded by firing him. However, Google could argue that he wasn’t fired for his political affiliations or his activities, but for creating a hostile work environment. According to Google, Damore’s views would make the women at their offices uncomfortable. This is a real issue for Google, because promotions are based on peer review; Google cannot trust that Damore will be treated fairly by women or that he will treat women fairly after his memo ended up in the evening news.

Is Damore a Whistleblower?

Another route Damore could try is claiming to be a whistleblower. Affirmative action programs are often viewed as discriminatory against “majority” groups like white men. Since employment law prohibits discrimination based on race or gender, Google’s plans to admit only women into certain programs would be potentially discriminatory. If that is true, then Damore is a whistleblower against such discrimination.

Of course, claiming to be a whistleblower only works if Google is breaking the law and Damore is reporting it. Affirmative action programs have survived this long because courts often do not consider them illegal discrimination. The racism and sexism that employment law protects against is based on animus – hostility towards a certain group. Proponents have often won by arguing that their discrimination is based on helping certain groups rather than putting down other groups. Affirmative action is not about being anti-men, but pro-women. The fact that there are only two genders and that one is automatically disfavored if the other gender is favored doesn’t often enter into the analysis.

A Sign of the Times

Ironically, the Civil Rights Act that an employment attorney might try to invoke is premised on the very principles that Damore was writing against. The Civil Rights Act is premised on the idea of protecting race and gender. Granted, most employment suits are brought to protect specific races and genders, but the overall focus is on a person’s surface traits instead of viewpoint discrimination. At this time, there is simply no legal framework Damore could use to receive compensation for his termination.

This is a real shame though. Damore’s memo was articulate and very persuasive. It had a clear thesis, its premises were supported by examples, and it pinpointed specific problems and offered solutions to the problems it identified. To be sure, Damore himself makes a number of assumptions and has a number of biases in his own memo. Still, Damore makes a number of points that are very interesting and engaging. As a hiring manager, I did notice that men were more likely to ask for and negotiate for a higher salary than women. Whether or not that discrepancy exists because of biological differences is up to debate, but that is the point. Google should have engaged in that debate instead of firing the author of that debate.

Google has failed to live up to its business values and philosophies by terminating Damore. But the damage is not limited to Google’s reputation or bottom line. It is rare today to find thoughtful and intelligent political discussion in the public sphere; last year’s presidential election is an example of exactly how far we, as a nation, have fallen in that regard.

Google had a perfect opportunity to engage in the kind of frank debate that the public desperately needs. Google dropped the ball. Small wonder then, that a brainless sound bite machine like Donald Trump should prevail in today’s political environment, when even Google derides an opportunity for outstanding debate. I hope Damore finds a worthy opponent to continue his discussion. In the meantime, I will mourn for our public discourse.

Understanding Trump’s Military Transgender Ban

The relationship between Trump and the LGBT community is a confusing one to say the least–at least for Trump himself. During the election he repeatedly said that he would be better for the LGBT community than Hilary Clinton. At the same time, he went back and forth until finally coming out against transgender people using the bathroom of the gender they identify as. He also told Fox News he would “strongly consider” Supreme Court Justices who might reverse the famous Obgerfell ruling making same-sex marriage a constitutional right. As President he’s rolled back LGBT protections put in place by the Obama administration. During LGBT Pride Month, he decided not to make the now-traditional statement of support to the LGBT community. At this point, it’s pretty fair to say that-at a minimum-LGBT rights are not a priority for Trump.

Trump proved this once again after, just a few days back, he announced–through Twitter of all things–that he intends to ban transgender people from the military. The change, if made official, will have some serious repercussions which are worth taking a look at. With that in mind, let’s take a look at what Trump’s announcement will mean. However, in order to fully understand the implications of the decision, it’s worth starting with a look at the legal history between the LGBT community and the military.

History of the LGBT Community in the Military

The history between the military and the LGBT community has not always been the most friendly one to say the least. In 1921 the military declared homosexuality and “feminine characteristics” could render a man unfit for service. In ’42 the U.S. Selective Service System said that being homosexual disqualified somebody from the draft.

transgender banThings only got worse from there. In 1950, Army Regulation 600-443 made homosexuality an offense subject to court martial. If the person wasn’t “active” (openly gay) and was a “non-aggressive” homosexual (they didn’t have sex with men) they could leave the service with a honorable discharge. Otherwise, they’d either face court martial or be forced to take a dishonorable discharge depending on their situation. Transgender persons faced similar restrictions on service.

In 1972, homosexuality was once again confirmed as grounds for discharge or dismissal under Army Regulation 635-200. Just four years later, a court upheld this as grounds for dismissal in the case of a U.S. Air Force Technical Sergeant.

In four more years, in 1980, a federal district court finally ruled that discharging an Army Sergeant for being homosexual violated her First Amendment rights. The Army, however, chose to ignore the court’s ruling altogether. Eventually, unfortunately for the Sergeant in question, a federal appeals court once again sided with the military and the Supreme Court refused to hear her case. This was the state of the case law for quite some time, the Department of Defense issued directives stating that homosexuals were banned from military service in 1981 then followed up with similar statements three more times over the years–most recently in 2008.

However, even before 2008 there was a fair bit of movement on the state of the law when it came to LGBT persons in the military. The most famous of these changes came in 1993 with the advent of “Don’t Ask, Don’t Tell.” The policy, introduced by President Clinton, wasn’t actually a particularly enormous shift. Being LGBT remained an offense that would get you discharged (often dishonorably discharged) from the military. The policy forbad harassment or discrimination against closeted LGBT persons but still barred openly LGBT people from military service.

It wasn’t until two years into the Obama administration, in 2010, that things finally started really changing for the better. In early 2010, guidelines came out of the Pentagon which slightly increased protection from unproven allegations under “Don’t Ask, Don’t Tell.” However, the real change came at the end of the same year when Congress repealed “Don’t Ask, Don’t Tell” entirely. This lifted the ban of gays and lesbians serving in the military.

The situation was still no better for transgender persons wishing to serve. It would take another six years until their ban was finally lifted in 2016.  It had been a long battle for the transgender community, but they were finally allowed to serve their country if they so chose. Along with this change came access to the military’s medical insurance to help in transitioning genders. This occurred first, and most famously, with well-known military whistleblower Chelsea Manning. However, with Trump’s new change, these benefits are likely to be disappearing after only about a year.

The Effects of the Trans Ban

The obvious effect of Trump’s action-should it be made more official than a tweet-would be to bar transgender people from enlisting in the military. However, the less obvious issue is what will happen to the transgender people who have already joined the military in the last year. The Trump Administration has made it clear that they intend to follow through on Trump’s tweets. However, just how they will has not yet been fully explained.

The advent of “Don’t Ask, Don’t Tell” led to thousands of honorable and dishonorable discharges for homosexual service members. To make matters worse, the discharges often listed “homosexuality” as the reason for their discharge. These discharges are a member of public record, essentially outing these service members to employers or nearly anybody who cared to find out.

Just in the last year, as many as 15,000 transgender people have enlisted in the various branches of the military or came out as openly transgender after it seemed they would not be punished. Now they may face the same fate as the victims of “Don’t Ask, Don’t Tell.”If they end up facing dishonorable discharges it would take away basically all health and education benefits they would otherwise receive from their service.

As it is, military leaders have refused to take any action until the Department of Defense issues official guidelines and formal guidance on how they should proceed. For now, the only real action has been a delay on fully lifting the ban on transgender people in the military until January of 2018-a move that won’t affect people already enlisted. However, if the White House follows through on its plans, the reprieve will be short-lived.

Trump’s tweets cited medical costs and “loss of focus” as justifications for his ban, although he provided no support for these assertions beyond vague references to outside guidance. Trump’s actions may be in response to a bill defeated in Congress earlier this month which would have stopped the Pentagon from paying medical costs related to gender transitioning. Laws both protecting and curtailing these rights continue to develop in Congress from both sides of the aisle. It seems unlikely that the overall costs of allowing transgender people into the military will outweigh the benefit. As former Defense Secretary Ash Carter said when lifting the ban last year, “we can’t allow barriers unrelated to a person’s qualifications prevent us from recruiting and retaining those who can best accomplish the mission.” The very act of threatening a reinstatement of the ban, regardless of whether Trump follows through, undermines this goal. Trump isn’t just undermining the rights of the LGBT community, he’s potentially undermining the military itself.

Discrimination Protections are Reduced After Missouri Signs Bill to Protect Businesses

Missouri is rolling back employment discrimination protections to protect businesses from frivolous lawsuits. At least, that’s the rationale Governor Eric Greitens would have everyone believe. The new law, SB 43, will go into effect beginning April 28 of next year. Previously, employees in Missouri only had to show that discrimination was one factor in their demotion or dismissal to bring a suit. Under the new law, employees must show that discrimination was “the motivating factor” or primary cause of their demotion or termination. Additionally, the bill would cap the amount of damages that an employee could receive and would restrict such suits to businesses. Employees would not be able to sue individuals, such as their supervisors, for discrimination. The bill applies the same restrictions to housing and public accommodations.

discrimination protectionsThe bill is extremely controversial in Missouri, in part because the sponsor of the bill, State Senator Gary Romine, owns a business that is being sued for alleged discrimination.  The employee in Romine’s case alleges that his supervisor calls him “nigger” and that there is a map in the back of the store circling a black neighborhood with the words “do not rent” underneath. Romine denies any wrongdoing in the case and insists that his bill was aimed at frivolous lawsuits without any consideration for the case pending against his company. Nevertheless, the NAACP and other critics accuse Romine of self-dealing while sponsoring and passing the bill.

The Downfall of Mixed-Motive Cases?

As promised, these restrictions will doom many employment discrimination suits. In an at-will employment position, an employer can fire a worker for any reason except for reasons that are prohibited by law. However, it’s rare today for employers to admit to terminating an employee purely for illegal reasons. Instead, the suits often involve cases where the employer dismisses an employee for a mix of legal and illegal reasons. For instance, if a woman is denied a promotion because her performance review says “she berates the staff” and that she “overcompensates for being a woman,” she might have an actionable suit based on the latter comment. However, the former comment would be a justifiable reason for the business to deny her a promotion.

Under federal law, an employer that has both legitimate reasons and illegitimate reasons will be liable for discrimination. If the employer can prove that it would have treated the employee the same without the illegitimate reasons though, reinstatement, back pay, and future pay will be denied to the employee. States have taken different positions on mixed motive discrimination. Many states have adopted the federal model. Other states permit the employee to prevail even he or she can show that an illegal reason exists, regardless of whether there were other legitimate reasons.

The Future of Missouri Businesses

Missouri has changed from a “no impressible motive whatsoever” position to a legal regime where discrimination must be the “dominating factor.” In other words, for Missouri employees to prevail now, it is not enough to show that the employer was discriminatory. If the employer might have had other reasons for dismissing or denying a promotion, the employee must show that discrimination was the most significant reason for loss of employment or promotion. Previously, the woman who sued for losing her promotion to comments that she “berates the staff” and that she “overcompensates for being a woman,” would have won because the second comment was proof of discrimination. Under the new Missouri law, it is not enough that the second comment exists. Instead, the second comment must be the #1 reason the woman lost her promotion.

Although this structure will undoubtedly force many employees out of the Missouri courthouse, the dominate motive structure is not an unusual one. Even states as liberal as California use the dominate motive instead of the mix motive framework to balance the fight between employers and employees. Instead, the most egregious aspect of SB 43 is that it caps damages. If a state forces a plaintiff to jump through hoops, like establishing dominate motive, it seems overly cruel to limit the damages that a plaintiff can obtain if the plaintiff wins. Employment lawsuits can be long and draining as they are. Missouri has doubled the time, expense, and difficulty for employees to collect a judgment, but it has reduced the amount of money that the employee gets even if the employee does everything correctly. It adds insult to injury if an employee can claim she was discriminated, but gets less for it.