August 28, 2013

Civil rights in Minnesota: setting the national agenda?

Posted in Age, Color, Commission Membership, Creed, Disability, Discrimination, Gender / Sex, Marital Status, Minnesota Human Rights Act, National Origin, Public Assistance, Race, Religion, Sexual Orientation tagged , , , , at 1:24 pm by Tom Jacobson

“judged … by the content of their character.” Dr. Martin Luther King, Jr.

It’s a cornerstone of our democracy that laws must change when they do not fit the needs of the majority. Today, the 50th anniversary of the March on Washington for Jobs and Freedom and Dr. Martin Luther King, Jr.’s iconic I Have a Dream speech, is the perfect opportunity to reflect on how there may be no better example of that principle than the ongoing struggle for civil rights for all Americans.

When it comes to civil rights, Minnesotans have historically been trend setters, not followers (see 150 Years of Civil Rights in Minnesota, Minnesota Department of Human Rights). For example, Minnesotans bravely fought and died in the 1863 Battle of Gettysburg, and efforts to protect the rights of  Jews and Native Americans date back to at least the 1930’s. Twenty years before Dr. King’s speech, Minnesota Governor Edward Thye created a commission to study discrimination and economic inequality. In 1946 Minneapolis Mayor Hubert H. Humphrey created the Mayor’s Commission on Human Rights, and two years later Minneapolis enacted the country’s first municipal fair employment law. The Minnesota State Act for Fair Employment Practices (which was the predecessor to the Minnesota Human Rights Act) pre-dated the federal Civil Rights Act of 1964 by nine years. When that state law was passed, the Minnesota Legislature declared:

[T]he public policy of this state is to foster the employment of all individuals in this state in accordance with their fullest capacities, regardless of their race, color, creed, religion, or national origin, and to safeguard their rights to obtain and hold employment without discrimination. Such discrimination threatens the rights and privileges of the inhabitants of this state and menaces the institutions and foundations of democracy.

Since its initial passage, the MHRA has of course been amended several times to add sex, marital status, status with regard to public assistance, membership or activity in a local commission, disability, sexual orientation, and age to its list of protected classifications. Some of those characteristics are now also protected by federal law,

In June I had the privilege of leading off a morning of presentations at the tenth annual West Central Minnesota Employment Law Update. To put things into perspective, I noted how the law is always playing “catch up.” That is, laws are passed in response to societal change. I suggested that if you want a glimpse into what our laws might look like in the future, pay attention to societal trends now. Let me take that a step further; to envision our nation’s future civil rights landscape, take a look at Minnesota today. But don’t look through rose-colored glasses, for much work still needs to be done to eliminate the vestiges of discrimination that continue to threaten the rights and privileges of the inhabitants of this state and nation and menace the institutions and foundations of democracy.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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June 13, 2013

Marital status protection trumps conflict policy, says MN Court of Appeals

Posted in Discrimination, Legitimate Business Reason for Termination or other Adverse Action, Marital Status tagged , , , , , , , , at 9:52 am by Tom Jacobson

Wedding Casual

Newlyweds, Camden State Park (August 6, 1988)

Twenty-five years ago this summer, my wife and I were married in the most beautiful outdoor ceremony at Camden State Park.  We had both worked there for several summers — she in the park office and I on the beach. We’ve never worked for the same employer since, though I’m sure we’d make a great team if we did. And, if things didn’t work out with our mutual employer such that one of us wanted to quit and go to work for a competitor, the Minnesota Court of Appeals has granted some protection to the one who stays.

The protection was granted in the case of Aase v. Wapiti Meadows Community Technologies and Services, Inc., which involved a situation where a husband and wife (April and Mark Aase) both worked for Wapiti Meadows, d/b/a Community Technologies and Services (CTS). Mr. Aase resigned and accepted a position with a competitor of CTS. CTS then fired Mrs. Aase and claimed that it did so because Mrs. Aase failed to cooperate with the company’s efforts to mitigate the potential conflict of interest. However, other evidence suggested that CTS fired Mrs. Aase because of her husband’s work for the competitor.

Mrs. Aase sued, claiming her termination violated the marital status discrimination provisions of the Minnesota Human Rights Act (MHRA), which makes it an unfair employment practice for an employer to discharge an employee because of marital status. This includes protection against discrimination on the basis of identity, situation, actions, or beliefs of a spouse or former spouse. The trial court dismissed the case based in part on its conclusion that it was legitimate and non-discriminatory for the company to fire Mrs. Aase because she would violate the company’s conflict of interest policy if her husband worked for the competitor.

Mrs. Aase appealed that decision to the Court of Appeals, which then had to decide whether the conflict of interest was a legitimate reason for firing Mrs. Aase. The court said no, “It was not a legitimate, nondiscriminatory act for CTS to discharge Aase solely based on the actions of her husband, even if CTS believed those actions violated the conflict-of-interest policy.” The appellate court then remanded the case for a trial where the trial court will need to decide whether CTS fired Mrs. Aase due to the conflict of interest involving her husband or for some other legitimate non-discriminatory reason.

What you need to know: Minnesota law prohibits employers from discriminating against employees due to their marital status. This includes the identity, situation, actions and beliefs of a spouse. Employers may, however discharge employees for legitimate non-discriminatory reasons. Based on the Wapiti Meadows case, the conflict that may exist when an employee’s spouse works for a competitor is not a legitimate non-discriminatory reason for discharging an employee.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 5, 2012

With Legitimate Business Reasons for Dismissal, Plaintiffs Can’t Always Get What They Want

Posted in At-will Employment, Color, Disability, Discrimination, Family and Medical Leave Act (FMLA), Gender / Sex, Legitimate business reason, Marital Status, National Origin, Pretext, Prima Facie Case, Race, Reduction in Force (RIF), Religion, Reprisal, Retaliation, Sexual Orientation, Termination for Cause, Wrongful Termination tagged , , , , , , , , , , , , , at 8:20 pm by Tom Jacobson

I’ve often advocated that regardless of whether an employment relationship is contractual (where the reasons and/or process for dismissal may be spelled out in an agreement) or at-will (where the employment can be ended with or without notice and with or without legal cause), the best practice is to have a legitimate business reason for discharging an employee. Three recent court decisions validate my point.

Let me set the stage by noting that in discrimination cases, the employee wants to prove that the employer’s actions were based on some unlawful discriminatory reason, such as age, race or gender.  The employer, of course, wants to prove that its decisions were based on entirely legitimate reasons. To balance these competing interests, the courts recognize a process that begins with the employee being required to present a legally-specified bare minimum of evidence suggesting that discrimination occurred. This is called the employee’s prima facie case. If the employee can do that, the burden shifts to the employer to present evidence that its actions were based on legitimate (non-discriminatory) business reasons. Once that’s done, the burden shifts back to the employee to present evidence that the employer’s stated reason is a pretext, which is basically a cover up for the true discriminatory motive. In legalese, this is referred to as the McDonnell-Douglas burden-shifting framework (named after the  United States Supreme Court’s 1973 decision in the case of McDonnell-Douglas v. Green).

The effectiveness of being able to establish a legitimate business reason played out recently in three separate cases. First, in Prody v. City of Anoka a former employee established a prima facie case of age discrimination under the federal Age Discrimination in Employment Act (ADEA) and the Minnesota Human Rights Act (MHRA). The employer then presented evidence that he was dismissed as a part of a reduction in force (RIF). Because the plaintiff could not establish pretext, the case was dismissed.

Next, in Bone v. G4 Youth Services, LLC the employee alleged age, race and Family and Medical Leave Act (FMLA) discrimination. As in the Prody case, the plaintiff was unable to show that the employer’s stated reasons for the discharge (failing to follow a directive, poor communication, losing the trust of employees, and refusing in general to accommodate employees’ requests) were a pretext for discrimination.

Finally, in Hilt v. St. Jude Medical S.C., Inc. the plaintiff claimed the employer fired her in violation of Minnesota’s Whistleblower Act. The employer presented evidence that the termination resulted from a RIF, and because the plaintiff could not establish that the RIF was a pretext, the court dismissed the case.

So, as these three cases illustrate, if you are an employee who feels you’ve been discriminated against, but your employer can demonstrate a legitimate business reason for its actions, You Can’t Always Get What You Want (thank you, Rolling Stones!).

What you need to know:  Regardless of the type of employment relationship, it is always an employer’s best practice to be able to rely on evidence to show that employment decisions are based on legitimate non-discriminatory reasons.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

January 12, 2012

Federal court reaffirms importance of harassment policies

Posted in Color, Disability, Discrimination, Employee Handbooks, Gender / Sex, Genetic Information, Harassment, Harassment, Marital Status, National Origin, Race, Religion, Sexual Harassment, Sexual Harassment, Sexual Orientation tagged , , , , , , , , , at 11:07 am by Tom Jacobson

I am often asked if employers must have a written policy prohibiting sexual and other forms of unlawful harassment. The short answer is no, for there is no statute, regulation or court decision mandating such policies. However, and it is a big however, implementing such policies is clearly the best practice. And, as reaffirmed by the United States Eighth Circuit Court of Appeals on January 11, 2012, having a written policy can be the key to successfully defending harassment charges.

The case is Crawford v. BNSF Railway Co. In this case, BNSF had a “zero tolerance” policy on workplace harassment. Among other things, the policy defined the prohibited conduct, instructed employees to report complaints through one of five channels (one of which was an anonymous employee hotline), explained that  allegations would be investigated “promptly, impartially, and confidentially,” included guidelines explaining the ranges of discipline BNSF might apply to offenders, and contained a provision prohibiting retaliation for reporting discrimination. BNSF also trained employees on how to report harassment.

In this case, five employees alleged that they were victims of unlawful harassment by their supervisor. Specifically, they claimed that their supervisor engaged in a long litany of inappropriate behaviors ranging from fondling and sexual comments to requests for sexual favors, mimicked sex acts, and racial slurs.

Eight months after the alleged harassment began, the employees filed discrimination charges with the Nebraska Equal Opportunity Commission (NEOC) and the Equal Employment Opportunity Commission (EEOC).  One of the employees then reported the harassment directly to BNSF. BNSF conducted an investigation, which included interviewing four of the plaintiffs. Within two days, BNSF placed the supervisor on administrative leave. After completing its investigation less than two weeks later, BNSF informed the supervisor that he was being terminated, and the supervisor then chose to resign.

The general rule in such cases is that an employer is liable for the unlawful harassment committed by its supervisors unless it can show that: (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm.

Noting the existence of BNSF’s zero tolerance policy and its swift action after receiving the employees’ complaint, the court concluded that BNSF had exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Then, noting that the employees had not availed themselves of BNSF’s complaint procedure, the court also ruled that they had  unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Accordingly, the court held that it was appropriate to dismiss the employees’ claims. Importantly, the court stressed that “‘distribution of a valid antiharassment policy provides compelling proof’ that an employer exercised reasonable care to prevent and correct promptly harassing behavior.

Thus, the Crawford v BNSF case clearly illustrates that the best practice for employers is to implement and distribute harassment policies, for without them, employers will find it extremely difficult, if not impossible, to defend claims on the basis that they exercised reasonable care to prevent and correct promptly harassment.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

May 9, 2011

Until death parts us: marriage, work, and the Minnesota Human Rights Act

Posted in Discrimination, Marital Status tagged , , , , at 4:11 pm by Tom Jacobson

Managing married co-workers presents a unique challenge for any employer, especially if one spouse separates from employment on bad terms.  Some employers may be tempted to divorce themselves from the remaining employee.  That’s a temptation that must be avoided, the Minnesota Supreme Court said on April 13, 2011 in Taylor v. LSI Corp., http://bit.ly/iWaJTY.

In the Taylor case, LeeAnn and Gary Taylor were married, and they both worked for LSI.  He was the company’s president; she was its sales and marketing coordinator.  After Mr. Taylor offered a “forced” resignation, but before that resignation took effect, LSI fired Mrs. Taylor.  According to the Taylors, LSI fired her because the company believed she would feel uncomfortable or awkward staying with the company after Mr. Taylor’s departure.  Mrs. Taylor also claimed to have been told that, “due to her husband‟s situation . . . and the fact that it was likely [the Taylors] were going to have to relocate, [LSI] was eliminating [her] position.”  The company claimed to have legitimate business reasons for dismissing Mrs. Taylor.

Mrs. Taylor then sued LSI, claiming that her termination violated the marital discrimination provisions of the Minnesota Human Rights Act (MHRA), http://bit.ly/la9EWA. A key issue in the case was whether or not Mrs. Taylor had a legitimate claim when LSI’s actions were not “directed at the institution of marriage.”  Marital discrimination has long been prohibited by the MHRA, but in 1984 the Minnesota Supreme Court ruled in another case that in order for a marital status discrimination claim to exist under the MHRA, there had to  be evidence that the employer’s actions were “directed at the institution of marriage,”  not just evidence that one spouse was treated adversely because of the other spouse’s situation.

However, in the Taylor case, the court noted that since its 1984 decision, the legislature amended the MHRA to provide broader protections for marital status discrimination.  The legislature did this by re-defining “marital status” to include “protection against discrimination on the basis of the identity, situation, actions, or beliefs of a spouse or former spouse.”  Based on this new definition, the court specifically rejected the notion that the MHRA still requires a showing that the employer’s actions were directed at the institution of marriage.  Thus, because Mrs. Taylor’s claim fit within the new definition, the court allowed her claim to proceed.

Employing married co-workers presents special challenges, including how to treat the remaining employee after his/her spouse is fired or otherwise separates from employment.  As tempting as it may be to try to avoid discomfort and awkwardness by dismissing the remaining spouse, the Taylor case makes it clear that doing so would likely violate the MHRA.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

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