Category: Discrimination

How to Make an Employment Complaint

My friend Branigan Robertson made the below video on raising effective workplace complaints while avoiding retaliation. He also writes about it here.

All of these tips are great, and they apply equally to Illinois employees. Tip number six is especially important: send a written complaint. Unfortunately, potential clients tell me all too often that they only complained about illegal conduct in-person or on the phone. Unfortunately, judges give these non-written complaints very little weight. Even more unfortunate, individuals who still work for the employer often have a different “memory” than you. Thus, if you make any complaint, it needs to be in writing. A simple email will do the trick, and you can print out a copy of the email for your records.

In the unfortunate event you need to make a workplace complaint, make sure to follow these tips. When in doubt, contact an experienced employment attorney.

The Size of the Employer Matters

In order to bring an employment lawsuit, sometimes the employer must have a minimum number of employees to bring a claim. For example, under the Age Discrimination in Employment Act (ADEA), the law that prohibits age discrimination and retaliation, the employer generally must have twenty or more employees. 29 U.S.C. § 630(b).

The Supreme Court recently agreed to hear a case to decide if employers with fewer than twenty employees can be considered “employers” if they are a state or political subdivision of a state. It is unclear if the political entity must also have twenty or more employees. The Seventh Circuit, which includes Illinois, found the state or political subdivision of a state must also have twenty or more employees. Kelly v. Wauconda Park Dist., 801 F.2d 269, 270 (7th Cir. 1986).

Many other laws require a company to have a minimum amount of employees to bring an employment lawsuit, such as wrongful termination. To bring a claim for most forms of discrimination (other than age) under federal and Illinois law, the employer must have at least fifteen employees. However, under claims for disability discrimination, pregnancy discrimination, and sexual harassment under Illinois law, there is no minimum amount of employees. To bring a claim under the Family and Medical Leave Act, the employer must have fifty or more employees.

If you think you have a legal claim against your employer, contact an experienced employment attorney to learn if you may have a case. The right attorney should know which laws apply to your specific case.

Fox Terminates Host for Racial Remark

Companies have a duty to prevent employees from working in a hostile work environment. On Friday, it appears Fox attempted to do just that. The company fired “The Five” co-host Bob Beckel for a remark he made to an African American employee. Fox believes it acted appropriately by firing Beckel due to the remark. However, lawyers who represent former Fox employees say otherwise.

 no seinfeld never finger wag no gif GIF

There have been a number of newly-filed racial discrimination lawsuits against Fox. Lawyers for these plaintiffs say that Fox created a hostile work environment for their clients. Moreover, lawyers allege that not only were there racial comments made in this case, but Beckel also attempted to get the employee to withdraw a subsequent complaint about the incident. The company denies such retaliation.

Title VII of the Civil Rights Act of 1964 prohibits employers from fostering a hostile work environment on claims based on racial harassment. 42 U.S.C. § 2000e-2. In order to establish a hostile work environment claim, the plaintiff must show (1) that he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment was severe or pervasive so as to alter the conditions of the work environment by creating a hostile or abusive situation; and (4) there is a basis for employer liability. Smith v. Northeastern Illinois University, 388 F.3d 559, 566 (7th Cir. 2004). An employer is strictly liable for harassment by a supervisor. If the harassment is committed by a co-worker, the plaintiff must show the employer knew or should have known about the harassment and failed to take reasonable steps to remedy the harassment once it was on notice. Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 975 (7th Cir. 2004). Thus, in this situation, the determination will partly depend on whether Beckel was the employee’s supervisor, or whether he was merely a co-worker, which requires a higher showing.

Title VII also prohibits retaliation for raising complaints about discrimination. Specifically, it is unlawful for an employer to discriminate against an employee for opposing an unlawful employment practice. 42 U.S.C. § 2000e-3(a). Here, the employee will likely also claim Beckel retaliated against her for raising a complaint of racial discrimination.

The ultimate determination for this employee and those bringing racial discrimination claims against Fox will depend on the specific facts and circumstances of each plaintiff. If you believe you have been discriminated against based on race, or retaliated against for raising a complaint, contact Osborne Employment Law today.


BREAKING: 7th Circuit Finds Sexual Orientation Discrimination Illegal

Big news in the employment law world today. As I have blogged, a three-judge panel on the Seventh Circuit Court of Appeals previously held that sexual orientation discrimination is not discrimination based on sex as contemplated by Title VII of the Civil Rights Act of 1964. The Court reluctantly found sexual orientation discrimination is not prohibited almost purely based on binding Seventh Circuit precedent dating back to 1984. However, the Plaintiff requested the entire Seventh Circuit to rehear the case, which it did in Hively v. Ivy Tech Community College, No. 15-1720 (April 4, 2017). Well, the decision was released yesterday, and the Seventh Circuit held “that discrimination on the basis of sexual orientation is a form of sex discrimination.”

As the Court aptly stated, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.'” The opinion is especially important because it stands in stark contracts to the Eleventh Circuit’s decision in Evans v. Georgia Regional Hospital, which found Title VII does not prohibit sexual orientation discrimination. Generally, when different circuits “split” on an important issue, it becomes much more likely the Supreme Court will address the circuit split.

Keep in mind, although federal law now prohibits sexual orientation discrimination in states encompassing the Seventh Circuit (Illinois, Indiana, and Wisconsin), there may be other laws and ordinances which also prohibit sexual orientation discrimination. In Illinois, for example, the Human Rights Act prohibits sexual orientation discrimination. In Chicago, the Chicago Human Rights Ordinance similarly prohibits sexual orientation discrimination.

Although the Court’s employment decision is a victory for human rights, the Supreme Court will likely get the final say. In the meantime, however, the Seventh Circuit’s ruling will help prevent wrongful terminations based on sexual orientation in the future.

Court Finds Sexual Orientation Discrimination Prohibited

In August, I blogged how most federal courts have found employment discrimination on the basis of sexual orientation (LGBT) is not “discrimination based on sex” as contemplated by Title VII of the Civil Rights Act of 1964. However, the tide may slowly be turning.

Tide Turning

In my previous blog entry, I noted a three-judge panel of the Seventh Circuit Court of Appeals recently affirmed that Title VII does not prohibit sexual orientation discrimination, despite the Equal Employment Opportunity Commission (EEOC) concluding it does. The Court relied on Seventh Circuit precedent dating back to 1984 holding Title VII does not prohibit sexual orientation discrimination. Plaintiff Hively moved to have the decision reconsidered by the entire Seventh Circuit Court of Appeals (rather than just a three-judge panel). Last month, the Seventh Circuit granted the Plaintiff’s petition, and vacated the three-judge panel’s decision until the Court decides the case en banc.

In Hively, the Seventh Circuit partly found that it will leave expanding Title VII’s protections to district courts, “which are the front line experimenters in the laboratories of difficult legal questions…” In fact, a district court in Pennsylvania recently confronted this exact difficult legal question, and found “Title VII’s ‘because of sex’ provision prohibits discrimination on the basis of sexual orientation.” It will be interesting to see how the en banc Seventh Circuit treats the District Court’s groundbreaking determination, which is consistent with the EEOC’s position on the issue.

Employers Cannot Always Check Your Credit

Illinois, like many other states, has a law that generally prevents companies from checking employees’ credit (be it credit report, history…) as a condition of employment. The Employee Credit Privacy Act, 820 ILCS 70/1 generally prohibits employers from refusing to hire, discharge, or otherwise discriminate against an employee because of the individual’s credit history or report. 820 ILCS 70/10(a)(1). In fact, employers cannot even inquire about an applicant’s or employee’s credit history in most circumstances.

There are exceptions to the rule.  An employer is allowed to learn an employee has a “satisfactory credit history” only for an “established bona fide occupational requirement of a particular position.” 820 ILCS 70/10(b). For example, if the duties of the job position include unsupervised access to cash or marketable assets at $2,500 or more, the company is allowed to confirm the employee’s credit is “satisfactory.” 820 ILCS 70/10(b)(2).  Another exception is when the employee’s job position has “access to personal or confidential information…” 820 ILCS 70/10(b)(5). An individual harmed by a violation in the act is permitted to bring a civil action to obtain damages, injunctive relief, and costs and attorney fees in bringing the action.

Ohle v. the Neiman Marcus Group

In this case, Neiman Marcus located in DuPage County declined to hire an employee because her credit was not satisfactory. Neiman Marcus claimed the employee had access to customers’ personal and confidential information, namely taking credit card applications and dropping the applications in a secure location.  Therefore, the company argued, it was allowed to inquire into her credit history.

Credit Card Application

However, the Court found the employee did not “access” to the confidential credit card information by merely taking a credit card application and dropping it in a secure box. If this were the case, most retail sales clerks in the entire state would be exempt from the statute designed to protect these very employees. Therefore, as the employee was not covered by any of the Act’s exemptions, Neiman Marcus violated the Employee Credit Privacy Act by obtaining her credit report.

If you believe an employer has improperly requested your credit information, terminated you for credit information, or discriminated against you for any reason, contact an employment attorney as soon as possible.

Discrimination Based on Sexual Orientation

Imagine this situation. You are a model employee at your company. You arrive to work early, stay late, and work hard. One day, your boss pulls you into his office with some unfortunate news. Your boss admits that you are a great worker. However, he says that he recently learned that you are gay, and for that reason alone, you’re fired. Did your boss break the law by firing you based on your sexual orientation? Although it might surprise you, under federal law, most courts have found this type of termination is perfectly legal.

Federal Law – Title VII

Title VII of the Civil Rights Act of 1964 is a federal law which prohibits many employers from discriminating against employees. Title VII makes it an “unlawful employment practice for an employer to fail or refuse to Rainbow Flaghire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. Thus, the question is whether discrimination based on sexual orientation is considered discrimination because of an individual’s sex. The Equal Employment Opportunity Commission takes the position that Title VII prohibits sexual orientation discrimination. In fact, earlier this year the EEOC filed two lawsuits on behalf of employees claiming they were discriminate against based on their sexual orientation. One of these lawsuits has already settled.

Despite the EEOC’s position on sexual orientation discrimination under Title VII, most courts around the Country have found Title VII does not prohibit sexual orientation discrimination. Last week, the Seventh Circuit Court of Appeals, which covers Illinois, also found Title VII does not cover sexual orientation discrimination. The Court relied heavily on Seventh Circuit precedent finding sexual orientation is not a Title VII protected characteristic. See Hamner v. St. Vincent Hosp. Health Care Ctr.., Inc., 224 F.3d 701, 704 (7th Cir. 2000); Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000). In essence, the Court held Title VII prohibits discrimination based on a person’s gender, not a person’s sexual orientation. See Muhammad v. Caterpillar, Inc., 767 F.3d 694, 697 (7th Cir. 2014). The Supreme Court has not ruled on the critical rift between the EEOC and most Circuit Courts.

Congress has attempted to change Title VII to include sexual orientation as a protected characteristic. Since 1994, every Congress except the 109th has proposed the Employment Non-Discrimination Act. The Act would amend Title VII to prohibit sexual orientation and gender identity discrimination. Until Congress passes any legislation or the Supreme Court rules on the issue, we are likely stuck with the current state-of-affairs regarding sexual orientation discrimination at the federal level.

State and Local Laws

Even though most courts have found federal law does not prohibit sexual orientation discrimination, some states have enacted legislation prohibiting the discrimination. For example, the Illinois Human Rights Act prohibits discrimination “against any individual because of his or her … sexual orientation … ” 775 ILCS 5/1-102(A). Some municipalities also prohibit discrimination within the city or county.  For example, Cook County prohibits sexual orientation discrimination in employment decisions. To see which states prohibit which types of discrimination, see this website created by the Human Rights Campaign. Under the “select and issue” tab, select “statewide employment laws & policies.”

Also keep in mind that even some employers are not subject to any anti-discrimination laws as to sexual orientation, they are free to implement their own policies that prohibit this type of discrimination. Although not legally required (at least no yet), it would still be the right thing to do.

Termination for Off-Duty Facebook Comments

In the past months, there have been a massive amount of protests across the Country.  These protests often involve some combination of the Black Lives Matter movement, officer-involved shootings, Donald Trump, and Hillary Clinton.  Obviously these are all hot-button topics that draw an immense amount of passion and enthusiasm from everyone involved.

So what happens when an employee says something while not at work about the protests that might be considered discriminatory or racist?  For example, in Richmond County, South Carolina, seven first responders have lost their jobs over social media comments about a Black Lives Matter protest which occurred on July 10, 2016.  One senior paramedic who worked for the company, Tommy Boland, commented on facebook that he will “donate to whoever runs over protesters in the roaddway (sic).”  He was terminated a few days later.

In Philadelphia just last week, an employee was fired after posting a rant about a Black Lives Matter protest on her facebook page.  Instead of following this opera signer’s more subtle approach to support his “All Lives Matter” cause, Diana posted the following on her facebook page:

           Facebook page of termination

She was soon fired as well.  But doesn’t the first amendment guarantee us the freedom of speech?!  This is America after all.

Wrongful Termination

Well… kind of.  The general rule in Illinois and most other states is that employers can terminate employees for any reason or no reason at all.  This is called at-will employment – the employee is working at the will of the employer.  If your boss does not like you playing Pokemon Go in your free time, he or she is likely free to legally terminate you for that reason.

However, like any other legal rule, there are exceptions that may prevent the employer from terminating an employee for comments made while not at work.  Here are some of the most common exceptions:

  1. Freedom of Speech

The First Amendment to the Constitution protects our freedom of speech.  However, the Amendment only prohibits the government from abridging freedom of speech, not private entities.  In essence, while the government cannot arrest you or otherwise punish you for making those unfortunate racist comments on facebook, your employer is usually free to terminate you based upon the comments made at home.

Public employers, on the other hand, do not have as much freedom as their private counterparts.  The Supreme Court has found that government officials are prohibited from retaliating against an employee because of the employee’s engagement in constitutionally protected political activity. See Elrod v. Burns, 427 U.S. 347 (1976).  In these cases, the employee must establish that he or she speaking as a citizen, rather than speaking on matters pursuant to employment duties. See Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir. 2007).

  1. Employment Contract

One way to avoid the often unfair at-will employment doctrine is for the employer and employee to enter into an employment agreement.  In the contract, the parties can agree that the employee can only be terminated for-cause, which can only be based on the employee’s misconduct while at work.  Government employees, union employees, and executives are generally more likely to be subject to an employment contract.  However, most individuals are not subject to such agreements, and are subject to the employment at-will doctrine.

  1. Concerted Activity under the National Labor Relations Act

Another potential reason an employer cannot legally fire an employee for comments made while off-duty is the worker’s comments are protected under the National Labor Relations Act (NLRA).  The NLRA prohibits most employers from retaliating against employees (whether in a union or not) when the employee engages in “concerted activity.”  This is defined as two or more employees taking action for their aid or protection regarding the terms of their employment.  Thus, an employee covered by the NLRA is generally free to complain about working conditions on facebook if he is doing so to potentially discuss the conditions with other employees.


Thus, even though this is the land of the free, employers are generally free to terminate employees for off-duty comments on facebook and elsewhere.  I have provided some exceptions to the general rule that are likely to apply to off-duty comments.  Obviously there are other exceptions to the general at-will employment doctrine (such as the prohibition to discriminate on the basis of race), but I only the listed those most likely to apply in the situation.

Illinois on the Verge of Getting Domestic Workers Bill of Rights

On June 26, 2016, the Illinois General Assembly approved the Illinois Domestic Workers Bill of Rights.  In short, the law would provide greater workplace protections for domestic workers, such as caregivers and house cleaners, that were previously unavailable.  The bill is sitting on Governor Bruce Rauner’s desk for his signature.

CleanerWhat’s the Problem?

Domestic workers are not protected by many federal and state employment laws.  Many laws protecting workers only apply to companies with a minimum number of employees.  For example, Title VII of the Civil Rights Act of 1964 applies to employers with 15 or more employees, the Family and Medical Leave Act only to employers with 50 or more employees, and the Age Discrimination in Employment Act applies to employers with 20 or more employees.  As most companies employing domestic workers only have a few employees, these laws do not effectively protect them.

Moreover, some laws specifically exclude domestic workers from the employment protections.  For example, the National Labor Relations Act, which allows employees to form a union and negotiate for better pay, does not protect individuals “in the domestic service of any family or person at home.” 29 U.S.C. § 152(3).  Similarly, the Occupational Safety and Health Act, which sets minimum standards of health and safety at the workplace, does not cover domestic workers. 29 C.F.R. § 1975.6.

Domestic Workers Bill of Rights

The proposed legislation adds several employment protections for domestic workers.  The bill generally applies to people performing “domestic work,” which includes housekeeping, nanny services, caregiving, and companion services, among other duties.   The bill provides the following protections for domestic employees:

  • The bill allows domestic workers to be protected by Illinois’ Human Rights Act, which prohibits discrimination in Illinois with respect to employment on the basis of race, color religion, sex, national origin, ancestry, military status, age, marital status, sexual orientation, and disability.
  • The bill adds domestic workers as individual covered by the Illinois Minimum Wage Law, which mandates Illinois employers to pay their employers the minimum wage (currently $8.25) and overtime for all hours worked over forty in a given week.
  • Domestic workers must be allowed to have a 24-hour consecutive rest break in every calendar week. The domestic worker can voluntarily agree to work on such day of rest, but the employer is required to pay all hours worked on the rest day the overtime rate, even if the employee has not worked at least forty hours in the given week.

The Governor has 60 days to take action on the legislation.  If he approves the bill, it will become effective on January 1, 2017.  Domestic workers are often overworked and underpaid, and it is good to see these long-overdue employment protections close to becoming Illinois law.