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.

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.

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.

 

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.

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.

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.

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:

           

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).

2. 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.

3. 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.

Conclusion

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.