Employment Discrimination

 Georgia is one of 29 states without laws that specifically protect LGBT citizens against discrimination in the workplace.  A gay couple could be married on a Saturday and fired on Monday because the couple’s employers are uncomfortable with their employee’s sexual orientation. In much of the state, this is perfectly legal behavior.

In the city of Atlanta, however, things are different. The Human Rights Campaign, a national advocacy organization that grades the inclusiveness of municipal governments, gave Atlanta a perfect score of 100 in 2013 and 2014, citing its nondiscrimination laws that include protections for sexual orientation and gender identity and its creation of LGBT community liaisons.

Activists intend to push for workplace rights for LGBT state employees during the 2016 legislative session, even though similar legislation has failed to pass in previous sessions. There is reason to suspect that this session might be different, however. There is a change in public opinion and the measure now has 77 cosponsors, 17 of whom are Republicans. Jeff Graham, the executive director of Georgia Equality, which supports the bill, says “if a bill does not have Republican support, it’s not going to pass.” The proposed bill would only affect State employees. Private employers would still be permitted to make employment decisions based on their employees sexual orientation.

Other members of the State legislature are reintroducing measures meant to protect business owners' religious freedom. State Senator Josh McKoon the proposed legislation would protect religious rights against government interference. Critics claim it will give business owners a license to discriminate against minorities. Last March, the bill created much controversy until it was tabled following a contentious hearing. This divisive issue is very much in flux in the state of Georgia.

If you feel that your workplace rights have been violated, you need an experienced attorney who is aware of the changes occurring in our state’s laws to help guide you through the process.

How do anti-retaliation laws apply in the non-profit sector?

It ought to go without saying that an employer cannot discriminate against his or her employee for merely following the law. However, anti-retaliation laws have been yet again challenged in Georgia – and this time, it is the non-profit, tax-exempt sector seeking answers on this pivotal issue.

In a recent lawsuit filed by the Equal Employment Opportunity Commission (EEOC), the petitioner is seeking damages and restitution following an alleged retaliatory decision by Atlanta’s King’s Way Baptist Church, Inc. According to the complaint, the petitioner was fired from her position as a kindergarten teacher within the church’s Christian school after reporting ongoing sexual harassment at the hands of the church’s lead pastor, who also serves as the chief executive officer of the non-profit corporation.

Allegedly, the pastor engaged in the ongoing practice of inappropriately touching the teacher, followed by veiled threats of adverse treatment if the interactions were reported. From there, the teacher reported the incidents to the church’s governing board, which opted to terminate her position rather than investigate the matter further.

In a statement by the EEOC’s Atlanta office, “[w]hen an employer fires an employee for complaining about sexual harassment, it is only compounding its own culpability and setting itself wide open for charges of retaliation….EEOC is stepping in to defend the rights of this discrimination victim not to be victimized even further. No one should be punished for telling the truth to power if that truth is sexual harassment.”

Pursuant to the lawsuit, the EEOC (on behalf of the teacher) is seeking back pay, punitive damages, and an injunction barring the school from engaging in further retaliatory acts against current or future employees. The lawsuit was filed after attempts to negotiate and settle the matter proved futile.

If you are experiencing workplace discrimination or would like to discuss your rights under state or federal anti-retaliation laws, please contact an experienced discrimination attorney toady!

Can a federal employer ask if you have ever been convicted of a crime?

For years, public and private employers have been permitted to ask potential employees whether they have a criminal record.  This is usually done by asking an applicant to check a box if they have ever been convicted of a crime.  Now, President Obama has banned the box.

When you are applying for a job you may be asked whether you have ever been convicted of a crime.  Why?  Because employers want to do everything they can to ensure that they are hiring a trustworthy individual.  This makes sense from an employer’s perspective, but it may not be in the best interest of a potential employee.    Serving time in jail or prison is supposed to be punitive as well as  rehabilitative.  This means that it should prepare the person to live a crime-free life.  Unfortunately, the stigma attached to being incarcerated is one that employer’s focus on and one that might lead to employment discrimination.

In fact,  65-70% of those who have been released from prison in the last year are unable to find work.  One study found that it is 50% less likely that an individual with a criminal record will land a job as opposed to a person without a criminal record.  Asking applicants to check a box if they have a criminal record enables employers to discriminate at the first juncture in the hiring process.  Removing the box will allow qualified applicants to be considered without their criminal record disqualifying them at the first opportunity.  This is not to say that employers will never be able to inquire about an applicant’s criminal record.  They just must do say at a later stage in the hiring process.

If you have a criminal record and are having a hard time finding a job, a discrimination attorney may be able to help you.

 

How do anti-retaliation laws apply in the nonprofit sector?

It ought to go without saying that an employer cannot discriminate against his or her employee for merely following the law. However, anti-retaliation laws have been challenged yet again  in Georgia – and this time, it is the nonprofit, tax-exempt sector seeking answers on this pivotal issue.

In a recent lawsuit filed by the Equal Employment Opportunity Commission (EEOC), the petitioner is seeking damages and restitution following an alleged retaliatory decision by Atlanta’s King’s Way Baptist Church, Inc. According to the complaint, the petitioner was fired from her position as a kindergarten teacher within the church’s Christian school after reporting ongoing sexual harassment at the hands of the church’s lead pastor, who also serves as the chief executive officer of the nonprofit corporation.

Allegedly, the pastor engaged in the ongoing practice of inappropriately touching the teacher, followed by veiled threats of adverse treatment if the interactions were reported. When the teacher reported the incidents to the church’s governing board, the board opted to terminate her position rather than investigate the matter further.

In a statement by the EEOC’s Atlanta office, “[w]hen an employer fires an employee for complaining about sexual harassment, it is only compounding its own culpability and setting itself wide open for charges of retaliation….EEOC is stepping in to defend the rights of this discrimination victim not to be victimized even further. No one should be punished for telling the truth to power if that truth is sexual harassment.”

Pursuant to the lawsuit, the EEOC (on behalf of the teacher) is seeking back pay, punitive damages, and an injunction barring the school from engaging in further retaliatory acts against current or future employees. The lawsuit was filed after attempts to negotiate and settle the matter proved futile.

If you are experiencing workplace discrimination or retaliation it is in your best interests to contact a reputable attorney who specializes in such matters

Is it possible to be fired simply because of sexual orientation or gender identity in the state of Georgia?

In spite of the fact that the Supreme Court has affirmed the right of same gender couples to marry, there is still a long way to go to ensure that everyone in our society is treated fairly and afforded equal protection under the law. Evidence of this can be found in the new Georgia Equality video series entitled "All Things Being Equal." Documenting the ongoing struggle for LGBT Georgians who have suffered discrimination at the workplace, in housing, and in access to public services, the series makes a strong case for just how much work still needs to be done to overcome prejudice and discrimination, not only in Georgia, but in many other parts of the United States.

The programs will focus on stories of Georgians who have been discriminated against simply because of their sexual orientation or gender identity. According to Jeff Graham, executive director of Georgia Equality, “Many people...assume that it’s already illegal to fire someone or deny them housing or other services simply because they’re LGBT, but that’s not true. Amazingly, in Georgia, as well as in 27 other states in the country, there are no laws protecting individuals from discrimination of this kind.

Because there are no federal laws protecting LGBT people from discrimination, and there are no pertinent state laws on the books in Georgia, discrimination remains a devastating problem for the LGBT portion of our communities. Law-abiding, hardworking Georgians are confronting issues of inequality every day, in many cases making it nearly impossible for them to feed, clothe, and house their families. 

The first video presented in the Georgia Equality video series focuses on Connie Galloway from Blue Ridge, Georgia.  This woman, a dedicated worker for more than 30 years at a firm providing mental health and disability support services, was abruptly fired just before Christmas because an interim director did not approve of her lesbianism. Connie's previously successful career at the organization, well-documented by promotions and commendations from supervisors and the board of directors, was totally disregarded.

Unfortunately, this is the reality of discrimination as it now exists in Georgia and many other parts of the country. Connie Galloway is just one example of an innocent victim of discrimination who has, after a period of long, stable, dedicated employment,  lost her financial stability and potential retirement for no other reason than her sexual orientation.

The dedicated attorneys at Pankey & Horlock are prepared to fight for you in cases of employment discrimination like the one detailed above. We  have a high rate of success in fighting for our clients' rights in cases involving discrimination, withholding of overtime pay and other employment violations. If you are facing mistreatment in the workplace anywhere in the state of Georgia,  please get in touch us at 770-670-6250.

Why does Tom Brady, the football player, have more employment rights than the average American?

The ongoing "deflategate" investigation  has resulted in an as yet unresolved four-game suspension of Tom Brady by the National Football League Commissioner, Roger Goodell.  Many people question why he has the right to challenge his employer's decision when most of us, under parallel circumstances,  do not. The reason is that the vast majority of workers in the United States are not union members, whereas as Tom Brady  belongs to a powerful union.

The gap between the employment rights of union and nonunion workers in this country is a wide one. Where employers of union members must have a good reason ("just cause") to punish or fire their workers, employers of nonunion workers are permitted by law to fire "at-will," meaning on a whim, for no reason at all.

Nonetheless, there are major exceptions to the concept of "at will" penalties or termination . Primary among these is discrimination, which is strictly forbidden in a number of areas. Employees cannot be penalized or fired because of:

• Race
• Nationality or ethnicity
• Religion
• Age
• Gender
• Disability status

It should be noted, however, that, although gay marriage has recently been legalized in this county, in more than half the states employers are free to fire employees for sexual orientation. Laws supporting such discrimination, however, are  gradually changing as they are being vigorously challenged.

Other limitations on at-will dismissals include the following: employers may not fire workers for union organizing, whistleblowing, jury duty or filing for workers' compensation.

In spite of these restrictions, strange as it seems, it is perfectly legal for an employer to fire a worker for being insubordinate, obsequious, aloof or even overly friendly,  for wearing particular clothing or for sporting a particular hairstyle.

Is "at will" firing policy accepted in other parts of the world?

No, among the industrialized nations, the United States is the only one to have at-will employment laws. In most of the developed world, businesses must have valid reasons for firing an employee. The one state in this country that has dropped the at-will standard is Montana, bringing Montana more in line with typical international policies.

In spite of the relative rigidity of employment laws for nonunion workers in this country, knowledgeable and experienced attorneys can help you  challenge unfair disciplinary actions and firings at the workplace.  The dedicated attorneys at Pankey  & Horlock have a high rate of success in fighting for the  their clients in cases involving discrimination, withholding of overtime pay and other employment violations. If you are facing mistreatment in the workplace anywhere in the state of Georgia,  please get in touch us at 770-670-6250.

Is firing someone due to his or her intention to enter into a same-sex marriage the same as discriminating against him or her for sexual orientation?

An openly gay band teacher at a Catholic school in Georgia was fired from his position in 2014 after announcing that he would enter into a same-sex marriage.  The teacher is claiming that he was discriminated against due to his sexual orientation based on the recent landmark United States Supreme Court decision making same-sex marriage legal in all 50 states.  He has brought a civil action against the school in Federal court.

Flint Dollar was hired as a band teacher at Mount de Sales Academy in Macon, Georgia in April of 2011.  Dollar claims that during the hiring process he revealed to school officials that he was gay and living with his partner.  In May of 2014, Dollar announced to officials that he planned to marry his long-time partner later that year.  Dollar also made this announcement via Facebook.  Several weeks later, he was fired, even though he had just signed a contract for the 2014-2015 school year.

The school based the firing of Dollar on the fact that he intended to enter into a same-sex marriage, which violated the teachings of the Catholic Church.  Dollar claims that he was never aware that he could be fired for a behavior that violated church teaching and that other employees, such as those that are heterosexual and live with their partners prior to marriage, and those that are divorced, had not been fired, even though both activities clearly violate the teachings of the church.

Dollar alleges in his lawsuit that he was discriminated against due to his sexual orientation.  The school maintains that he was fired not due to his sexual orientation, but due to his intention to enter into a same-sex marriage in clear violation of church teaching.  The school cites to its goal of providing an education that is based on church doctrine and the local Diocese and other organizations, such as the Cardinal Newman Society and the Catholic University of America, have come out in support of the schools decision.

If you believe that you have been discriminated against due to your sexual orientation or any other protected characteristic, please contact Pankey & Horlock today.  Our team of Georgia employment discrimination lawyers can be reached at (770)670-6250.

As a black female, can I sue my former employer for undermining my work and passing me over to promote a white male?

A Georgia woman who worked for a teacher's advocacy group has filed an employment discrimination lawsuit over her failure to receive a promotion.

Tracey-Ann Nelson, a former lobbyist with the Georgia Association of Educators, alleges that she was a victim of both race and gender discrimination when her then-employer selected a while male, instead of her, to serve as executive director of the organization. 

In her lawsuit, filed in federal district court in Atlanta, Ms. Nelson, who is African-American, says the organization not only passed her over for promotion but also undermined her advocacy efforts on behalf of teachers in the Georgia House of Representatives. She alleges that her ex-employer's president and the new executive director questioned the Georgia House Minority Leader about Nelson’s performance. She believes their conduct adversely affected her effectiveness as a lobbyist.

Nelson left the Georgia Association of Educators and is now Executive Director of the Arkansas Education Association. In her lawsuit, she is seeking back pay, financial damages, and other remuneration.

Without addressing specific allegations, the General Counsel of the Georgia Association of Educators denied Nelson's race and gender discrimination claims. He stated that a racially diverse board of women and men turned down Nelson's application to be executive director. He also said the organization would vigorously defend against the claims made in the employment discrimination lawsuit.

Suing a former employer can be a battle, but the skilled attorneys at Pankey & Horlock, LLC have effectively represented the interests of employees throughout Georgia in all types of employment and workplace discrimination claims. For a free confidential case evaluation, call the experienced legal team at 770-670-6250 today or schedule a consultation online.  

I am subject to random drug screening at my job. How will Georgia’s new medicinal marijuana law impact my employment? 

In April, 2015, the state of Georgia joined the leagues of other jurisdictions allowing the use of medicinal marijuana by citizens with a documented medical condition. While this will come as a welcome opportunity for the millions suffering from cancer-related pain, glaucoma, and other afflictions, the law has failed to address the plight of those lawful users who are “caught” with a positive drug test by their employer. However, with the help of a dedicated and progressive Atlanta employment law attorney, there may be ways to combat this delicate intersection of medical autonomy and employer rights. 

Under the new law, known as Haleigh’s Hope Act, applicants with a valid underlying medical condition will be able to obtain a permit from their physician for the use of low-potency medicinal marijuana – generally available in the form of cannabis oil. More specifically, the Act allows for the use of marijuana by patients suffering from any of the following conditions: 

• Cancer being treated by chemotherapy, or that has reached end-stage
• Amyotrophic lateral sclerosis
• Epilepsy
• Trauma-related head injuries
• Multiple sclerosis, severe or end-stage
• Parkinson’s disease, severe or end-stage
• Chrohn’s disease
• Mitochondrial disease
• Sickle Cell disease, severe or end-stage

However, despite the seemingly high thresholds imposed by the General Assembly for obtaining a lawful medicinal marijuana card, the Act fails to mention or address the duties of employers in honoring the use of medicinal marijuana, especially if doing so does not impact job performance in any way. This omission creates a distinction between the Georgia law and others, as most other states have artfully drafted their medical marijuana statutes to protect employees from workplace discrimination. 

If you are facing a difficult situation and would like to discuss your options, you may be able to circumvent workplace discrimination under Georgia’s disability protections. More specifically, employers are prohibited from discriminating against workers or engaging in adverse treatment (e.g., termination or demotion) based solely on that employee’s status as a disabled individual. Chances are, an employee meeting the definition of “medical condition” listed above may also meet the ADA definition of “disability,” which is any “physical or mental impairment that substantially limits one or more major life activity.”

If you have questions about Georgia’s new medicinal marijuana laws, or are facing backlash from your employer over the issue, please contact Pankey & Horlock today.  Our team of reputed Georgia employment lawyers can be reached at (770)670-6250.

Can I find a job even though I have a criminal record?

For job applicants seeking state employment, the applicant pool can be fiercely competitive. That fact, coupled with the existence of a criminal background, can preclude many otherwise-qualified applicants from pursuing and obtaining lucrative job positions. However, the state of Georgia – along with 13 other states – recently enacted legislation banning the practice of discriminating against potential employees based on their criminal background, which will significantly increase the number of eligible applicants for many of the state’s most sought-after jobs.

Under Georgia’s new “Ban the Box” policy, state agencies may no longer disqualify an employee with a criminal conviction on his or her record. While the prohibition only applies to public jobs, as opposed to the private sector, it is expected to allow otherwise ineligible candidates the opportunity to seek positive career advancements despite the presence of a criminal infraction. For many jobseekers, mistakes made during their youth and young adulthood have remained a critical roadblock to success, one which the Ban the Box bill hopes to eliminate.

Other states have enacted similar laws with much success. For instance, Hawaii began prohibiting criminal background discrimination in 1998 – and has since seen a dramatic reduction in recidivism rates among first-time offenders. Other states, such as California, Minnesota, and New Jersey have expanded anti-discrimination policy to private employers as well as hiring officials in the public sector. Moreover, nearly 100 cities and municipalities nationwide have enacted similar ordinances.

Applicants for special high-clearance jobs, such as those in law enforcement, corrections, or security positions are still subject to a criminal background review. However, the vast majority of Georgia state agencies now operate without the guise of criminal background discrimination – a welcome change for the thousands of former offenders hoping to reintegrate into society, which begins with a secure and stable employment position.

If you are experiencing employment discrimination and would like to discuss your rights with a knowledgeable attorney, please contact Pankey & Horlock, LLC right away by calling 770-670-6250. 

Can my employer retaliate against me for being a whistleblower?

The United States Securities and Exchange Commission (SEC) is investigating whether companies are trying to silence and retaliate against whistleblowers. A whistleblower is an employee who complains of illegal or unethical activities either internally or to a government agency. Whistleblowers play an important role in keeping employers honest, and there are state and federal laws protecting their rights.

Authorized by the 2010 Dodd-Frank Wall Street reform law, the SEC started a whistleblower program which rewards people reporting possible securities law violations if their tip leads to more than $1 million in sanctions. Awards can range between 10 and 30 percent of money collected by the agency. The SEC Office of the Whistleblower received more than 3,500 tips last year. This is the highest number since the program started.

Concerned about corporate backlash against whistleblowers, the SEC issued letters to several companies seeking years of documents such as nondisclosure agreements and employment contracts. It is unknown how many letters were sent or to whom. The documents being sought by the SEC might reveal employers discouraging whistleblowers. Sometimes these kinds of documents contain clauses that require employees to forfeit any awards, even though such clauses are prohibited by federal regulations.

U.S. Attorney General Eric Holder called on Congress for action last year, stating that Wall Street companies often shielded their leaders from responsibility for misconduct. Holder suggested increasing rewards for whistleblowers and requested funding for more FBI agents with forensic accounting expertise.

If you live in Georgia and believe your employer is involved in illegal activities but fear speaking up, contact the attorneys at Pankey & Horlock, LLC. We have decades of experience representing clients and aggressively protecting their rights. Call (770)670-6250 today to schedule a consultation and learn more about state and federal legal protections for whistleblowers.