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Following the recent Supreme Court decision legalizing gay marriage, many opposing the decision have denounced the decision based on moral grounds. Some have suggested that based on religious reasons they don’t have to recognize gay marriage and that “religious beliefs” can justify discrimination. However, this is simply not true. While many laws protect your religious freedoms and prohibit religious discrimination, for example Title VII prohibits religious discrimination—and the first amendment protects religious freedom – an employer’s religious beliefs do not give them the right to discriminate.

As stated by Justice Alito in Hobby Lobby:

“The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. . . . Our decision today provides no such shield.  The Government has a compelling interest in providing an equal opportunity to participate in the work force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

Thus – while employers may not agree with the decision – they may not hide behind the excuse of religion to discriminate against those that are gay.

For more information or if you believe you have been the victim of any type of discrimination, please contact the experienced Atlanta anti-discrimination lawyers at The Buckley Law Firm, LLP for an immediate consultation.

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In an important victory against employment discrimination, the Equal Employment Opportunity Commission (EEOC) has determined that anti-gay discrimination in the workplace constitutes a form of sex discrimination. In a recently published opinion, the EEOC concluded in a  3-2 vote, that Title VII of the 1964 Civil Rights Act forbids sexual orientation discrimination on the job because it’s a form “sex” discrimination.  Sex discrimination is explicitly forbidden by Title VII.    Three years ago the EEOC also determined that gender identity discrimination fell into the category of prohibited sex discrimination.  Since that time, federal courts have generally adopted the EEOC’s findings.

However, courts have had mixed views on whether discrimination based on sexual orientation is prohibited by Title VII.    The EEOC has called these decisions dated, and asserts that the concept of sex discrimination has evolved and is broad enough to encompass sexual orientation discrimination.  While the EEOC’s views are considered persuasive, they are not binding authority on the courts.

As Atlanta anti employment discrimination lawyers, we are hopeful that this ruling will be adopted by the courts and provide full protection of gay men and lesbians from job discrimination throughout the United States.

For more information or if you believe you or a love one has been a victim of employment discrimination please contact the experienced Atlanta employment discrimination lawyers at the Buckley Law Firm, LLC.

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According to legal news, Dunkin Donuts has been sued for disability discrimination after it refused to provide medical leave to a woman suffering from cancer.  In apparent violation of the law as required by the Americans with Disabilities Act (ADA), the doughnut chain fired the worker.  The ADA makes disability discrimination illegal and prohibits discrimination against “qualified individuals with a disability” in the terms and conditions of employment.  Further, the ADA requires that your employer make an effort to reasonably accommodate your disability.  This often includes allowing workers to take time off or leave in order to attend necessary doctors’ visits.  Provisions of the Family and Medical Leave Act (FMLA) and other state laws may come into play as well when a worker suffers an injury or needs treatment for an illness.

In this instance, according to the lawsuit, the woman successfully performed her duties as a regional manager of several Dunkin Donuts stores.  She was subsequently diagnosed with breast cancer and requested 4 to 8 weeks unpaid leave for surgery, chemotherapy and radiation.    Rather than allowing her to take the requested leave, the company abruptly fired the woman.

A representative of the Equal Employment Opportunities Commission (EEOC) commented,”Granting an employee unpaid leave for needed medical treatment is not only the compassionate thing to do, it is required by federal law unless the employer can show it would pose an undue hardship.”

For more information or if you or a loved one has been denied leave or an accommodation due to an illness or disability, please do not hesitate to contact the dedicated Georgia disability discrimination lawyers at The Buckley Law Firm, LLP for an immediate consultation.

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To many Americans, Friday’s 5-4 Supreme Court ruling which legalized gay marriage nationwide signifies much needed societal advancement and provides a long awaited and much anticipated legitimacy for relationships, families, and modern American life.  Justice Kennedy’s opinion eloquently addressed the quest for equal dignity under the law for same sex couples.  At the Buckley Law Firm, we applaud the Supreme Court’s decision and congratulate our friends, coworkers, and families who previously did not enjoy the freedom to marry.

With new-found freedom, we are still concerned that certain fundamental protections are missing.  Equal dignity under the law has not yet provided equal protection under the law.  More action is needed.

Even though gay marriage is now legal in all states, not all people embrace these relationships and families.  In fact, our gay colleagues have never experienced a society that allows them to openly acknowledge relationships in the workplace without fear of backlash, harassment or termination.  What can it mean to be a gay worker or to be perceived as being gay by work colleagues?  It still can mean hiding one’s identity and keeping personal relationships from others.  It can mean worrying about termination or harassment for being who you are.  It can mean denying oneself and one’s life partner  the legitimacy and respect each party – and the relationship – deserves, for a paycheck.

The Employment Non-Discrimination Act aims to protect the LGBT community from workplace discrimination.  This legislation has been pending in Congress for over twenty years.  With only one exception, the Employment Non-Discrimination Act has been proposed each and every term since 1994.

The current bill, S.815 – Employment Non-Discrimination Act of 2013, sponsored by Oregon Senator Jeff Merkley, passed the Senate in November 2013.  This bill “Prohibits covered entities (employers, employment agencies, labor organizations, or joint labor-management committees) from engaging in employment discrimination on the basis of an individual’s actual or perceived sexual orientation or gender identity.”  Yet this proposed law has languished in the House of Representatives, with the last action being referred to a subcommittee in January 2014.

Congress needs to act now to provide equal protection under the law as most states do not provide any protection to LGBT employees. The fact is, in 2015, in more than half of the United States, there are few legal avenues LGBT employees can take in order to protect their jobs.

In Georgia, LGBT  employees must rely on local ordinances, where they exist, to protect their workplace rights, and few municipalities have implemented such protections.  Progressive cities like Decatur and Pine Lake have laws which to some extent protect government employees.  The city of Atlanta’s regulations provide some protection based on gender identity.  Throughout most of  Georgia though, gay and transgender employees have no legal protection.  In fact, no state-governed protection exists in any southern state.

The American Civil Liberties Union website features a map of the 23 U.S. states which have protected the rights of its populations against sexual orientation or gender identity discrimination in the workplace.  We applaud these states, and hope that in the near future everyone in this country can go to work without fear.  The time has come to pass national legislation to protect our colleagues, our friends, and our family members so they can enjoy the equal dignity they deserve.

What can we do as constituents?  We can make our voices heard.  Find out who your politicians are (House of Representatives and Senate) and let them know your thoughts.  And if you are employed by a company like Coca-Cola, Delta Airlines, and Whole Foods who so proudly unveiled their rainbow logos this past weekend, speak with senior leadership.  Encourage your employer to act.  Corporate America and its workforce must work together to lobby Congress for equal protection of our LGBT colleagues.  Now is the time, and America is listening.

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The Age Discrimination in Employment Act (ADEA) prohibits age discrimination.  This means that it is illegal for an employer to take adverse employment action against an employee based on his or her age.

To make out a prima facie case of age discrimination under the ADEA, a plaintiff must show (1) “that she was a member of the protected group of persons between the ages of forty and seventy”; (2) “that she was subject to adverse employment action”; (3) “that a substantially younger person filled the position that she sought or from which she was discharged”; and (4) “that she was qualified to do the job for which she was rejected.”

However, what happens if the person who takes the ultimate adverse action – such as a termination – does so based on another’s recommendation?  Recently, our firm was successful in challenging the dismissal of a claim where a vice president terminated a female worker on the recommendation of her direct supervisor.   In Godwin v. Wellstar, we successfully introduced evidence that this recommendation may have been inappropriately biased, the 11th Circuit Court of Appeals in Atlanta reversed the lower courts grant of summary judgment in factor of the company, and allowed our client’s age discrimination claim to proceed.

In this instance, the issue focused on the “Cat’s Paw theory”  – where  a plaintiff can establish but-for causation even where the person who ultimately decided to take the adverse employment action was neutral and unbiased. See Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999).

Under the Cat’s Paw theory, a plaintiff may establish but-for causation if she shows that the unbiased decision-maker (here the Vice-President) followed a “biased recommendation without independently investigating the complaint against the employee.”  Essentially, the person recommending the termination is using the decision-maker as a mere conduit, or “cat’s paw” for their discriminatory intent.  In the past, courts have tried to determine whether the ultimate decision was merely acting as a “rubber stamp.”

In this instance, the court expanded on this concept, noting that an ADEA plaintiff must show more than that an adverse employment action would not have occurred in the absence of the action taken by the  “recommender” but that the biased individual’s action also had a “determinative influence” on the ultimate decision.

Here the court determined that we had in fact introduced sufficient evidence of a “determinative influence.”  This included evidence that  the woman would not have been fired but for the recommendation of her supervisor; that the Vice President who fired her failed to conduct a truly independent investigation following the recommendation; that the Vice President did not verify the information provided by the supervisor; and that the Vice President had “no direct knowledge” of the complaints.   Thus, we were able to show effectively use the Cat’s Paw theory to show that the biased individual’s action had a “determinative influence” on the ultimate decision.

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In anticipation of a Supreme Court victory on same-sex marriage, many gay rights activists believe that the time is ripe for passing broad based federal legislation against discrimination in the workplace.   Currently, some states have protections banning discrimination against gay and transgender people, but no explicit bans exist in 28 states and at the federal level.

Some opponents argue against anti-discrimination laws claiming that these laws may infringe on the religious liberties and free speech rights of employers and others who oppose homosexuality or same-sex marriage on moral grounds.

However, advocates notes that establishing a national right to same sex marriage could create a fundamental injustice – if a worker enters into a same sex marriage, he or she may lose their job if no anti-gay discrimination laws are in place.

As it stands, although no explicit federal laws exist banning discrimination on the basis of sexual orientation or gender identity, increasingly dedicated employment rights attorneys are using creative arguments based on sex discrimination laws and others to protect workers.

Further, a 2012 ruling by the Equal Employment Opportunity Commission extended the definition of sex discrimination to encompass discrimination on the basis of gender identity.

However, it is important that a law specifically addressing these forms of discrimination is passed.

For more information or if you or a loved one has suffered any form of discrimination, please contact the dedicated Atlanta employment discrimination lawyers at The Buckley Law Firm, LLP for an immediate consultation.

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In a victory for victims of discrimination, the Supreme Court of the United States has just ruled in favor of a Muslim woman who was denied a job at Abercrombie and Fitch.  Allegedly, the clothing store did not hire her because of her head covering.  After being turned down from the job, CNN reports that the woman, Samantha Elauf, filed a religious discrimination lawsuit against the retailer.

Title VII prohibits religious discrimination–that means your employer may not discriminate against you “because of” your religious beliefs. This also prohibits harassment based on your religious beliefs as well as retaliation against you for complaining about religious discrimination or for participating in someone else’s religious discrimination case.

If you follow a recognized religious faith, and your faith requires you to engage in certain practices or wear certain types of clothing while in the workplace, your employer must make reasonable efforts to accommodate you. That means allowing you to wear a religious head covering or engage in prayers, as long as the practice does not place an undue burden on your employer.

Here, the woman had applied for a job working in the store, and was informed before the interview concerning the company’s “look policy,” which included things such as not wearing a lot of make up, and avoid black clothing and nail polish.  However, the issue of her head scarf never came up.  After the  assistant manager who interviewed Elauf told the manager that she assumed Elauf was Muslim, the manager stated that Elauf shouldn’t be hired, because the scarf was “inconsistent with the look policy.”

Abercrombie asserted that they didn’t have “actual knowledge” of her need for an accommodation, but the Court disagreed, with Justice Antonin Scalia stating, “An applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.”

The lower court will now take this case under further consideration.  For more info or if you believe you may have been the victim of any type of employment discrimination, please contact the experienced Atlanta discrimination attorneys at The Buckley Law Firm, LLP for an immediate consultation.

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CBS News reports that more than a dozen federal agents have filed an employment discrimination action against the Drug Enforcement Agency (DEA). According to reports, the agents allege that the DEA has subjected the workers to “consistent, perpetual harassment that continues to escalate.”

One of the servicemen has alleged that he has been constantly harassed by DEA managers because he also serves his country as a U.S. Marine colonel reservist.

He says DEA managers don’t like military reservists taking time off work from the DEA to deploy overseas.

Others have joined the suit, noting that complaint claims DEA supervisors routinely subject military reservists to “hostile and offensive comments in the workplace” and that DEA managers discriminate against agents who serve in the military by “denying reservists promotions and assignments.”

Pursuant to the Uniformed Services Employment and Reemployment Rights Act (USERRA), most military personnel must be returned to their jobs when returning from serving in the military, and employers are prohibited from discrimination based on an employee’s military service.
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A class action lawsuit alleging sexual harassment and discrimination has been filed against Ford Motor Company. Twenty-nine women additional have just joined the suit, which was originally filed by 33 women – with many more saying they would like to join but fear retaliation.

The women set forth several instances of alleged harassing behavior including male supervisors asking women to take pictures of their private parts, as well as discriminatory actions such as being denied overtime and job opportunities.

While sexual harassment is probably one of the most well known forms of employment discrimination – it is not always easily defined. It is more than just a single leering look,, name calling or sexual advance. Instead you must prove that you have been engaged in conduct that creates such a hostile environment based on your sex that is sufficiently severe an pervasive to alter the terms and conditions of your employment.

Further, if you are subjected to a steady stream of unwelcome and offensive conduct based on your sex, and your employer does nothing about it, you may have a strong claim of sexual harassment.
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According to a recent CNBC News story, a growing number of older workers have reported experiencing age discrimination both while searching for a job and at their place of employment. In turn, this discrimination is making it difficult to find work and save for retirement.

In fact, roughly 50 percent of workers between 45 and 70 years old report age discrimination, and many of those older Americans out of work believe that age discrimination played a role in negatively impacting their ability to get a job.
The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against workers 40 years or older. At places of employment with more than 20 employees, employers may not use age as a factor in job related decisions such as hiring, firing, promotion, layoffs, and job assignments. It also protects older workers against harassment, which typically involves hostility of abuse directed at you by other employees because of your age, and from retaliation against you for complaining about age discrimination or for participating in someone else’s age discrimination case.
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