Breaking: Supreme Court Makes LGBTQ Non-Discrimination in Employment Law of the Land

In a 6-3 ruling, the United States Supreme Court ruled on Monday that it is illegal to discriminate against workers in the U.S. based on their sexual orientation or gender identity.

The court held that an “employer who fires an individual merely for being gay or transgender violates Title VII.” Title VII, the landmark 1964 civil rights law, bars discrimination based on “sex” and the court has ultimately ruled that “sex” and one’s sexual orientation or gender identity are inextricably linked and therefore the protections of Title VII extends to LGBTQ workers.

Download the Court’s opinion here. The majority opinion was penned by conservative-appointee Justice Neil Gorsuch and joined by Justices Roberts, Breyer, Kagan, Ginsburg, and Sotomayor.

The ruling is significant because not every state has state-level protections for gay and transgender workers like Minnesota does under the Minnesota Human Rights Act. This ruling ensures that Title VII, a federal law, will be applied consistently in every state to protect against employment discrimination based on gender identity and sexual orientation.

Employment Protections for Nurses and Doctors on the COVID-19 Frontlines

Minnesota’s nurses and doctors are being asked to prepare for catastrophe—COVID-19 patient influxes that exceed hospital capacity in the event statewide stay-at-home measures do not “flatten” or even “bend” the curve.

Healthcare workers are rightly being heralded as heroes across the country. They are going to work lacking sufficient protective gear—masks, gowns, respirators, face shields—to treat patients and save lives.

These healthcare workers are taking selfless risks in carrying out their missions. Some are nevertheless starting to justifiably sound the alarm about their own safety as they continue to do their heroic work.

Yesterday, New York Times columnist Nicholas Kristof wrote about a Seattle-area doctor who spoke up about his hospital’s lack of protective gear and then got fired. The doctor had worked at that institution for 17 years.

THE PROBLEM: A SYSTEMIC LACK OF PREPAREDNESS

Weeks before the president of the United States acknowledged that social distancing should be practiced to limit the community spread of COVID-19, nurses were already sounding the alarm about examples of huge system failures in American healthcare and preparedness.

Today we know that our nation’s health care heroes—nurses, doctors, and the countless hospital staffers who support their work—are battling COVID-19 in conditions that are not only less than ideal, they are downright dangerous. We have all seen the accounts:

SEEN AS A PROBLEM: HEALTHCARE HEROES WHO SPEAK UP ABOUT SYSTEM FAILURES

The California surgeon who told the New York Times she “worried about retribution” for telling the paper that she lacked access to basic surgical masks during the COVID-19 crisis was right to worry. Retaliation for speaking out has been known to happen—it’s why the federal government and state governments have enacted protections for whistleblowers who speak truth to power on critical issues like basic protections for healthcare workers during crises like this pandemic.

LEGAL PROTECTIONS FOR HEALTHCARE HEROES WHO SOUND THE ALARM ON PREPAREDNESS

Health care workers battling on the frontlines of COVID-19 are protected by the law in some critical instances for speaking up about their employers’ lack of preparedness when it comes to their safety.

  • Section 11(c) of the Occupational Safety and Health Act of 1970 (OSH Act) prohibits employers from retaliating against employees for exercising a variety of rights guaranteed under the OSH Act, such as raising a health and safety concern with their employers, participating in an OSHA inspection, or reporting a work-related injury or illness.

  • Parallel protections exist under Minnesota state laws—”MN OSHA”—prohibiting retaliation for raising health and safety concerns with their employer.

  • The Minnesota Whistleblower Act protects all employees from reprisal because they reported actual, suspected, or planned illegal activities to their employers or to a government agency.

Under these laws, various employer reprisals constitute illegal actions—things up to and including termination, but also: blacklisting, demoting, denying overtime or promotion, disciplining, denying benefits, failure to hire or rehire, intimidation, making threats, reassignment affecting prospects for promotion, or reducing pay or hours.

IMPORTANTLY: under the state and federal occupational safety and health acts (OSHA) employees only have 30 days after learning of the retribution to file a formal complaint with the appropriate department of labor agency. This is a tight window to take advantage of a very meaningful means of recourse. Pursuing recourse under the Minnesota Whistleblower Act, however, has a six-year statute of limitations.

Affected healthcare workers should nevertheless act as quickly as possible to take advantage of all possible avenues, including the OSHA remedies.

FREE PHONE CONSULTATIONS FOR HEALTH CARE WORKERS, EXTENDED HOURS

Our attorneys are offering extended and free phone consultations to healthcare workers who need employment law consultations during COVID-19, including consults outside normal business hours and on weekends.

Nurses, doctors, and other healthcare workers affected by retaliation or any other suspect employer activity relating to the COVID-19 crisis can schedule a consult for any time that works for them by clicking the button below:

Media Resources: Tonya M. Sconiers v. Duluth Public Schools, et al.

On Monday, September 9, 2019, Haller Kwan LLP filed a lawsuit in federal court on behalf of its client, Tonya M. Sconiers, the former Principal of Denfeld High School in Duluth, Minn., against Duluth Public Schools and district leaders alleging wrongful termination in violation of the First Amendment, among other legal protections.

Media Downloads:

The Complaint filed in the United States District Court for the District of Minnesota on September 9, 2019—Sconiers v. Duluth Public Schools, Gronseth, and Horton

A written transcript of Principal Sconiers’ remarks to the community at the September 9, 2019, press conference announcing the lawsuit in Duluth, Minn.

Headshot—Tonya M. Sconiers, provided by Tonya M. Sconiers (low res) | (high res)

Media Contact:

For all media questions, please contact Attorney Ted Haller (ted@hallerkwan.com)

About Haller Kwan LLP:

Haller Kwan LLP is a law firm serving employees and whistleblowers across the state of Minnesota in the area of employment civil rights.

A Three-Peat: Ben Kwan Named Rising Star by Super Lawyers Again

Haller Kwan LLP is pleased to announce that Ben Kwan has been named a Rising Star by the research team at Super Lawyers for the third year in a row. Each year, no more than 2.5 percent of the lawyers in Minnesota are selected for the designation.

The Super Lawyer list is based on a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

Benjamin Kwan
Rated by Super Lawyers


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Ted Haller emcees benefit for the Innocence Project

On November 13, Attorney Ted Haller had the honor of emceeing the Innocent Project of Minnesota’s annual Benefit for Innocence. It was Ted’s fourth time helping the organization as an emcee; he also regularly covered the Innocence Project while working as a television reporter for KMSP.

At the Minneapolis Event Centers, Ted spoke in front of a gathering of about 500 supporters of the Innocent Project, a nonprofit that works to free the wrongfully convicted and reform the criminal justice system to prevent wrongful convictions.

Ted expressed his gratitude for the organization’s staff and volunteers—and the thousands of hours of time devoted to helping those convicted of crimes they never committed.

In his remarks, Ted quoted comments Bruce Springsteen recently made about time: “Once you enter the adult life…and you choose your work, the clock starts ticking and you walk alongside not only the people you’ve chosen to travel with, but you walk alongside your own mortality and you realize you have a limited amount of time to do your work…to try and do something good.”

Ted Haller speaks at the Benefit for Innocence

Ted Haller speaks at the Benefit for Innocence

Ben Kwan recognized as Rising Star by Super Lawyers for Second Year in a Row

Haller Kwan LLP is pleased to announce that Ben Kwan has been named a Rising Star by the research team at Super Lawyers for the second year in a row. Each year, no more than 2.5 percent of the lawyers in Minnesota are selected for the designation.

The Super Lawyer list is based on a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.  

Benjamin Kwan
Rated by Super Lawyers


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Ben Kwan revisits landmark Minnesota LGBT court ruling for Minnesota Lawyer

Haller Kwan LLP’s Managing Partner, Ben Kwan, indulged his first love, journalism, this summer and contributed a freelance piece for Minnesota Lawyer published last week.

In The Minnesota legal fight that changed the course of the gay rights movement, Kwan takes a look at a “family that nearly wasn’t” and the legacy of a landmark legal case and where the cases’s litigants are three decades later.

Thirty years ago on August 7th, thousands of LGBT rights activists and supporters took to the streets in 21 cities across the country for “National Free Sharon Kowalski Day.” The day became a flashpoint in the gay rights movement as a Minnesota woman fought for her right to care for and make decisions for her partner of four years, who had been severely injured by a drunk driver—and whose family later barred her partner from even seeing her.

A few years later, after a grueling legal battle, a landmark Minnesota Court of Appeals ruling overturned years of court-sanctioned “bigotry,” according to the lawyer representing the lesbian woman fighting for legal guardianship of her partner, and offered a new refrain for the gay rights movement—that same-sex relationships “ought to be accorded respect.” That was a landmark notion in 1991. My, how far we have come as a society.

Thoughts on Work from The Boss

At Haller Kwan LLP, we often turn to our boss, The Boss, for wisdom on employment law. Recently, our firm had an important meeting with Mr. Bruce Springsteen in New York City; a few others showed up, too, since they also had purchased tickets for “Springsteen on Broadway” at the Walter Kerr Theatre.

Bruce working at Walker Kerr Theatre

Inside the small theater, Bruce joked that his Broadway show was the first real “five-day-a-week” job he ever had, then reflected on why so much of his music is about working nine-to-five jobs. Was his career based on a lie?

No. Bruce’s work about work, as he explained in New York City, and as he wrote in his autobiography, “Born to Run,” is shaped by witnessing his mom and dad—and their distinct relationships with their employers.

For Bruce’s mom, her decades-long relationship with her job at a law firm was strong and positive. Bruce wrote in his book, “She goes to work, she does not miss a day, she is never sick, she is never down, she never complains. Work does not appear to be a burden for her but a source of energy and pleasure.” (How we wish everyone felt this way about their jobs!)

For Bruce’s dad, his relationship with work was unhealthy. He struggled to keep a job, holding many over his life, usually ending the day in a dark kitchen: “the nightly religious ritual of the ‘sacred six-pack,’” Bruce wrote.

Our takeaway from hearing Bruce discuss the relationships with his mom (wonderful) and dad (challenging) is that you cannot ignore his parents’ other relationships: the ones with their jobs. Our jobs shape us, they affect us in profound ways regardless of our intent. And bad work relationships bleed into our personal lives. We see the impact of these relationships every day with our clients; and we see our own jobs as helping clients either repair broken relationships or ensure their “job divorce” is as healthy as possible, which usually means obtaining the money necessary for clients to feel peace and have the resources necessary to work to find new work.

Bruce describes work in “Badlands,” “you gotta live it every day. Let the broken hearts stand as the price you gotta pay, we’ll keep pushin’ ‘til it’s understood, and these badlands start treating us good.” In “Out in the Street,” his character works five days a week “loading crates down on the dock,” always looking forward to Friday “when I’m out on the street.” In “Factory,” a man “walks out in the morning light” to the factory gates where men walk “with death in their eyes.”

In other words, ones expressed less poetically than Bruce’s, work is usually hard—hard enough without employers breaking the law, hard enough without discrimination or harassment, or fears of retaliation.

In “Blood Brothers,” Bruce sings, “We lose ourselves in work to do and bills to pay. And it’s a ride, ride, ride, and there ain’t much cover. With no one runnin’ by your side.”

Running by your side. That’s our job.

 

 

 

 

 

 

 

 

 

Who Gets Whistleblower-Retaliation Protection in Minnesota?

The answer is broader than you might think.

It is illegal for employers in Minnesota to retaliate against any employee who has opposed illegal activities or reported actual, suspected, or planned illegal activities.

Photo by tupungato/iStock / Getty Images
Photo by tupungato/iStock / Getty Images

That’s a lot more to unpack than meets the eye.

Let’s start with what Minnesota law makes illegal: "[a]n employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee" because the employee is a whistleblower. The most common form of whistleblower reprisal we see is the retaliatory termination.  But the courts, all the way up to the U.S. Supreme Court, have ruled repeatedly that illegal retaliation can take many forms.  Quite simply, it’s a classic “smell test.” Courts will ask whether the employer’s action would dissuade or discourage another employee from reporting illegal activity; if it would, then that’s retaliation.

If you’re experiencing something that looks and feels like retaliation, the next step is determining whether the law protects the kind of activity you opposed or reported.

Under the Minnesota Whistleblower Act, employees are only protected when they’ve objected to or reported actual, suspected, or planned illegal conduct. The important thing there: the complained-about conduct must be illegal.  Not just unfair.  Not just unethical.  Not just arbitrary.  Not just a violation of company policy.  ILLEGAL.

Here’s the remarkable thing, though.  Employees who report concerns don’t need to be lawyers—they don’t need to use the magic word “illegal” when they report their concerns.  Employees only need to have reported—orally or in writing—facts, which if assumed true, implicate a violation, suspected violation, or planned violation of an actual law, statute, or regulation. It's up to the lawyers to find the actual law, not the whistleblower.

Another remarkable thing: the whistleblower is still protected by the law even if mistaken on the facts. In other words, if you think the company was breaking the law, but they weren't, yet they still retaliated against you for complaining, you are still protected.