Transgender wife cannot be denied health insurance. Mrs. Radtke was born male in Wisconsin; she later moved to Minnesota and had gender-reassignment surgery. She obtained a Minnesota court order changing her name and gender and a Wisconsin order to change her birth certificate to female. She then married Mr. Radtke, who applied for health insurance for her under his union’s health plan. The plan denied coverage. It stated that since Mrs. Radtke was male at birth, “he” could not be a valid spouse under the plan and could not be validly married because the plan or state does not recognize same-sex marriages. The Radtkes sued. The court ordered the plan to insure Mrs. Radtke. Minnesota permits a person to legally have gender-reassignment surgery and legally change his or her gender. Once a court grants a legal gender change, the person is entitled to all full rights of that gender, including marriage and all related insurance coverage. Mrs. Radtke’s rights were to be determined at the time of marriage, not at the time of birth. An insurance company may not impose its own interpretation of state law in order to deny coverage. Radtke v. Drivers & Helpers Union Local #638 Health Welfare Fund (D. Minn., 2012).
Minnesota enacts affirmative-action preference for veterans in all hiring.
Minnesota has passed a law allowing all employers, public and private, to give veterans preference in hiring and promotion over all other applicants. Employers may also give preference to the spouses of veterans with disabilities. In public-sector employment, the law has doubled the veterans preference points and also allows non-competitive hiring of veterans with disabilities. “Veterans Points” or “Veterans Preferences” are the oldest and most widely used form of affirmative action. Most efforts are in the public sector. Minnesota has now given private employers a legal foundation to extend a preference and not be liable for discrimination charges by other applicants who claim that they were more qualified.
Congress questioning E-Verify. A number of Congress members have petitioned the U.S. Citizenship and Immigration Services to review the E-Verify program. They are concerned with numerous false reports, which have denied jobs to U.S. citizens without any effective way to appeal or challenge the process. The request is to create a speedy and effective method to challenge a false report, instead of the harmed person being continually labeled as ineligible for employment, with no recourse. The Congress members claim that 85,000 U.S. citizens were wrongly considered undocumented immigrants and were denied employment or lost their jobs just in the past year. This is “a seriously flawed program that deprives citizens of the ability to challenge a final declaration of ineligibility to hold employment.”
Baptist professor subjected to harassment for unpopular beliefs. Universities take pride in the tradition of “academic freedom,” “free speech,” “open debate of ideas” and “diversity of thought.” However, it does not always seem to work that way. An adjunct professor of social work alleged that she was harassed because she declined to give open support to the campus lesbian, gay, bisexual and transgender (LGBT) organization. She said that under her Baptist faith, non-heterosexual orientations were morally wrong, and she could not support them. She did not express antagonism, discrimination or even opposition to the LGBT organization’s right to be a part of the campus, only that she could not support it. She was then allegedly subjected to harassment by the other faculty members. Her bid for assistant professor was denied. The committee was composed of LGBT supporters, some of whom refused to attend her interview for the position. They recommended an allegedly less-qualified candidate and also stated that she was “not a good fit” for the department. The court found sufficient evidence of these alleged actions to allow the case to continue to trial under Title VII, religious discrimination and 42 U.S. Code 1983, Equal Protection. The §1983 case was against both the university and five named faculty members personally. Gadling-Cole v. West Chester University (E.D., Penn., 2012).
Catholic-school teacher who was fired for artificial insemination may pursue case. A non-Catholic teacher in a Catholic school revealed that she had fertility treatments and then became pregnant via artificial insemination. The school considered this form of pregnancy against its moral values and fired her. She sued for pregnancy discrimination and breach of contract. The court rejected the “immorality” defense. The teacher was not an “ecclesiastic employee” with religious duties. Therefore, the First Amendment prohibition against the court’s interfering with church decisions on theological bases did not apply. As a non-Catholic, the teacher was forbidden from engaging in any theological activities, prayer or religious discussions with students. She was purely a standard academic teacher. Thus, the standard employment laws applied and she could maintain her pregnancy-discrimination case. Dias v. Archdiocese of Cincinnati (S.D. OH, 2012).
Law firm settles case, pays $547,000 and will not force out older partners. A law firm’s policy required partners to give up their partnership interest and either retire or become “of counsel” at lower pay at age 70. One 70-year-old partner decided to not go quietly. He sued for age discrimination and the EEOC undertook the case. The EEOC rejected the defense that partners are “owners” and are not “employees” under the employment laws. The EEOC states: “There is no reason why attorneys who are capable of continuing to practice at 70 should be forced to retire or otherwise dissuaded from continuing to work in their chosen profession just because of their age.” In addition to restoring the older partner to full status and paying him $547,000, the law firm has changed its policy and has agreed to train all partners about discrimination law. EEOC v. Kelly, Drye & Warren (S.D. NY, 2012).
“Healthy” is not a euphemism for age. A demoted HR manager claimed that the company’s memos and programs promoting a “healthier workforce” were code for getting rid of older workers and having a “younger workforce.” She alleged that this was intended to dissuade older workers from continuing employment. The court found this argument insufficient and a stretched interpretation. The healthy-workplace effort was aimed at reducing healthcare costs and reducing absenteeism across all age levels of employees. It was a “facially neutral practice.” The plaintiff presented no evidence of any adverse impact of this policy on older workers. Other than her subjective interpretation of the “healthy workforce” emphasis, she had no direct evidence of an age-related motive in her own demotion. Crowell v. Walmart Stores, Inc. (S.D. NY, 2012).
Older reporter had a good case but blew it. In Sanders v. Gray Television Group, Inc. (6th Cir., 2012), the court affirmed summary judgment against the plaintiff in an age-discrimination case. A 62-year-old was the TV station’s highest-paid reporter, receiving choice assignments and the best shifts. He was noted for his expertise on health and medical news issues. A new manager came and allegedly started making statements that Sanders was “old” and “old school” and asked repeatedly about his “retirement plans.” The new manager abruptly changed Sanders’ shift so he had to start at 4:00 a.m. The manager also removed him from most health and medical news assignments, giving them to younger reporters. Sanders complained to upper management that he was being forced out because of his age and in violation of his eight-year contract. One day the new manager assigned others to cover a major news event but put Sanders on a “web producer” slot, where he would be inside and have no presence on the news shows. Sanders blew up and refused. He and the manager got into a yelling match. Sanders walked off the job, telling two coworkers he was “going to quit.” He later had his wife call to apologize and say he was coming back to the office. However, the company stated that it was accepting the resignation, and the employment was therefore over. Sanders sued. The court ruled that his evidence of age-related comments and adverse treatment may well have made a good case. However, he abandoned that case when he abandoned the job. He could not sue for discharge when he peremptorily resigned and did not wait for the new manager to actually make a discharge decision.
Male employee denied childcare leave has case. A male employee was denied time off to provide care for his two grade-school-aged children when his wife was unavailable. He was told he would have to schedule such leave weeks in advance, with documentation. This was not practical for the situation, and even when he did this, it was denied. The employer stated that the leave requests were for regular daycare and after-school care and not for a serious health condition; therefore, it did not qualify under the FMLA. The employee had never made his leave requests under the FMLA. The employee sued under Title VII for sex discrimination, not under the FMLA. The court found ample evidence of sex discrimination. Female employees were routinely given time off for similar after-school, snow-day, no-school or other sorts of routine non-medical childcare needs. Supervisors allowed female employees “open-ended” arrangements with only minimal advance notice and no documentation required. The court also found ample evidence of retaliation. After the employee complained about the sex discrimination, managers were allegedly instructed to deny all his future leave requests of any nature. Ehrhardt v. LaHood and Department of Transportation (E.D. NY, 2012).
Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at email@example.com.