Monday Morning Minute
In This Issue
Marijuana Laws Stressing Out Employers
Sexual Orientation and Title VII...Again
Chick-fil-A Religious Discrimination Update
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                  July 15, 2019
 
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MARIJUANA LAWS STRESSING OUT EMPLOYERS
 
Marijuana related employment lawsuits are rising in number as employees in states allowing medicinal or recreational marijuana use are challenging discharges for violations of employer work rules or policies. This has led to many employers to strategize the ways to maintain a drug free workplace, protect employees and customers from injury or an unsafe workplace or environment, prevent damage to company property, and otherwise minimize the risk of wrongful termination lawsuits.
 
For several years, the trend of litigation favored employers. State courts concluded that the state legislative sanctioning of medicinal or recreational marijuana use did not deprive employers of their right to maintain a drug free workplace or a zero tolerance use policy. However, some employers have begun to find it difficult to maintain a drug free workplace because marijuana use has become legal. Courts have started to side with employees with medical marijuana licenses, ruling that termination based on marijuana usage could lead to disability discrimination claims. Nevada and New York City have gone as far as to pass bills which prohibit employers from requiring their employees to submit a drug test for the presence of THC or marijuana. In addition, employers with four or more employees must also provide reasonable accommodations to medical marijuana users.
 
Illinois recently passed a recreational marijuana bill (HB 1438) allowing employers to enforce their own drug policies; however, this bill also creates regulations to protect employees. One such regulation states that an employer must have evidence of actual workplace impairment in order to fire an employee with a positive drug test. Even after an employer notices this impairment, the act states "employer must afford the employee a reasonable opportunity to contest the basis of the determination." The act does not define "reasonable opportunity" so it is unclear exactly what employers must offer to employees when there is a reasonable suspicion of impairment at work. Furthermore, the act states that employees cannot be fired for being a registered medical marijuana cardholder.
 
Contact Spognardi Baiocchi LLP if you need help developing or revising your drug free workplace and related policies and work rules. 
SEXUAL ORIENTATION AS PART OF TITLE VII 

A Human Resource Manager (Plaintiff) for Industrial Services Solutions alleged she was fired for writing a Facebook post voicing her personal concern against Target's policy allowing transgender individuals to use restrooms according to their gender identity.  She apparently did this on her own time and on her personal social media. 

However, the post was shared with the President and Vice President of the Company for which she worked.  The President, who is a member of the LGBT community took offense and wanted to fire her immediately.  

Instead, the President of the company required her to take sensitivity and diversity training and refrain from recruiting for the company on any social media platform- a stance that the Plaintiff, given her role in the company, felt was completely inappropriate. Additionally, she was placed under the direct supervision of the President, whom she alleges began creating a hostile work environment in an attempt to micromanage her out of the company.  

Plaintiff was indeed eventually fired.  Plaintiff filed suit against her Company [in Middle District of Louisiana, part of the 5th Circuit]:  Industrial Service Solutions ("ISS") and Plant-N Power Services ("PNP") which was the former subsidiary.  She also included as Defendants in the suit the Vice President of ISS, Tex Simoneaux, Jr. ("Simoneaux"), and the President of ISS Cindy Huber ("Huber").  

The legal claims cited in violation of her firing included: a Title VII Retaliation claim, the Plaintiff's sexual orientation [heterosexual] and the President's reaction to the Plaintiff's public pro-heterosexual speech. 

The District Court dismissed the claims because of a "failure to state a cause for which relief can be granted" as Title VII does not prohibit sexual orientation discrimination.  The 5th Circuit Court of Appeals affirmed. 

Title VII, on its face, prohibits discrimination because of race, color, religion, sex, or national origin. While other circuits' decisions may have expanded Title VII to include sexual orientation, the 5th Circuit has not recognized sexual orientation as a protected class included in Title VII.  The Supreme Court is expected to resolve this circuit split in its upcoming term which starts in October.  

There are several "take aways" for employers:  be mindful in making employment decisions based upon an employee's actions or conduct "off duty." Many states do have strong off duty conduct laws protecting what an employee does on their own time, with their own resources.  Employers need to also be mindful of what circuit court they are in to determine any risk in sexual orientation claims.  Even in circuits where sexual orientation is not recognized, such as the 5th circuit, the EEOC overall has voiced a strong opinion for inclusion of sexual orientation in Title VII.  

For the entire opinion click here:    O'Daniel v. ISS
CHICK-FIL-A UPDATE:  RELIGIOUS DISCRIMINATION

In an earlier MMM, we discussed the lawsuit against San Antonio by Texas AG Ken Paxton.  If you recall, San Antonio's city council banned Chick-fil-A from opening in the airport because of its charitable contributions to the organizations such as the Salvation Army and Fellowship of Christian Athletes.  

Now legal watchdog First Liberty Institute has joined in the lawsuit against San Antonio and is demanding the records of the council's decision be made public.  This is the same group that just won the Bladensburg Peace Cross case at the Supreme Court.  Stay tuned as this court case heats up!

SPOGNARDI BAIOCCHI llp is a law firm dedicated to partnering with companies of all sizes to address the full spectrum of legal concerns for its business.  Our commitment is to find common sense solutions that fit each clients' unique situation to labor, employment, human resources and general business needs. 


 
With over 50 combined years of experience among its 2 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 

 

For more information on the firm, please go to our website at www.psb-attorneys.com or Lisa at lab@psb-attorneys.com