What Does “Protected Status” Mean in Discrimination Law?

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Have you suffered discrimination at your workplace? Are you wondering if there is anything you can do about it? How can you protect yourself? What laws are set in place to protect employees like you?

Unfortunately, these are all questions that some employees may encounter during their employment. This may involve confusing legal terminology, laws and policies that can be difficult to understand, especially for someone who may be experiencing discrimination at the time. The good news is that there are laws set in place to protect employees from being discriminated against by an employer.

The Minnesota Human Rights Act (MHRA) and Title VII of the Civil Rights Act protect workers from discrimination. The laws refer to protected classes. It is illegal to discriminate against an employee because of their membership in a protected class. When it comes to employment discrimination, protected classes refer to a person’s race, color, creed, religion, national origin, sex, marital status, disability, public assistance, age, sexual orientation, gender identity, familial status, and local human rights commission activity.

This means that employers cannot discriminate against employees, or treat them differently, based on any of these protected classes. Now, discrimination can look different for everyone, and it can involve various types of negative treatment against someone, so it is important to speak to an attorney that specializes in these types of cases. The law in this area is complicated and changes frequently.

If you feel you have experienced discrimination or retaliation at work because you belong to a protected class, our attorneys at Kitzer Rochel are here to help. Please contact us today. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower issues in the workplace.

The Supreme Court Weighs in on COVID-19 Vaccines: What It Means for Employees

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What is the vaccine mandate?  

  • In September 2021, President Biden issued an executive order requiring federal employees and contractors to be fully vaccinated against COVID-19 (the Coronavirus).  
  • In November 2021, President Biden issued two additional executive orders regarding the COVID-19 pandemic and vaccine mandates that are were reviewed by the Supreme Court.  
    • The first requires employers with 100+ employees to mandate vaccines (or weekly testing for those who do not want to be vaccinated).  
    • The second requires that healthcare facilities which receive federal funding implement a similar vaccine policy.  
  • In January 2022, the Supreme Court struck down the first of the November 2021 rules. It held that it is unconstitutional to require employers to mandate vaccines and weekly testing.  

So, what does all of this mean for me? 

  • If you are a federal employee, you must be fully vaccinated. 
  • If you are employed by a healthcare facility that receives funds through Medicare or Medicaid, you must be fully vaccinated or undergo weekly testing for COVID-19. 

Can my employer mandate vaccines, testing, and masks if it chooses?  

  • Yes. The Supreme Court did not ban employers from choosing to require that employees be vaccinated or undergo testing. It only prevented the government from mandating that employers implement this policy.  
  • However, if your employer is a healthcare facility that receives federal funding (through Medicaid or Medicare), then it is still required to mandate vaccines and weekly testing.  

My employer is a healthcare facility that receives federal funding and I think it is violating the vaccine mandate. Can I be punished for filing a complaint? 

  • No. Many statutes prohibit employers from retaliating against employees who report legal violations or participate in investigations of alleged violations.  
  • Employees can and should report violations of workplace safety laws, including federal and state OSHA regulations related to COVID-19.  

 

Am I Protected If I Blow the Whistle at Work?

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The Minnesota Whistleblower Act (MWA) protects employees who “blow the whistle,” in their workplaces. This means employees who refuse to engage in illegal activity at work or who report illegal activity. To prove a whistleblower claim in Minnesota, the employee must show (1) that they engaged in statutorily protected conduct; (2) that they suffered an adverse employment action; and (3) a causal connection between the two.[1]

What activity is protected by the MWA?

Employees who report a violation, suspected violation, or planned violation of a state or federal law or rule to an employer or government official are protected under the MWA.[2] Employees who are requested by a public body or office to participate in an investigation, hearing, or inquiry are also protected.[3] The MWA also protects employees who refuse an order from their employer that they believe in good faith to be unlawful if they inform their employer that that is why they are refusing the order.[4] The MWA also provides protections for employees who report substandard quality of health care services in a health care facility, provider, or organization.[5] Public employees are protected if they communicate the findings of studies or reports that they believe to be truthful and accurate.[6] Similarly, state government employees who communicate information relating to state services that they believe to be truthful and accurate to legislators or legislative auditors or constitutional officers are protected by the MWA.[7]

In 2013 the Minnesota legislature amended the MWA to include additional, robust protections for employees who report unlawful activities.[8] Specifically, the legislature amended the definition of “good faith” report to mean any report of suspected violations of the law as long as the reports were neither knowingly false nor in reckless disregard of the truth.[9] Importantly, the 2013 MWA amendments also added protection for employees reporting common law violations from retaliatory discharge.

What is an adverse employment action?

A basic example of adverse employment action is termination of employment. However, the MWA prohibits any form of “penalizing” an employee, which includes anything that would dissuade a worker from reporting illegal conduct. This includes harassment, reducing pay, reducing hours, or other forms of penalizing a worker.

Constructive discharge is also an adverse employment action. This occurs “when an employer deliberately renders the employee’s working conditions intolerable, thereby forcing her to quit.”[10] Whether the working conditions are intolerable is determined using an objective standard, considering whether a reasonable person in the same situation would find the conditions intolerable.[11] Further, if an employee resigns because they think there is no possibility of fair treatment by their employer, this can constitute constructive discharge.[12] This might occur if an employee reports illegal conduct or refuses to break the law, and their employer then makes working conditions intolerable for that employee. Subjecting an employee to a hostile environment can also be considered an adverse employment action.[13]

How do I show a causal connection?

This simply means evidence that an employee was treated badly, or penalized, because the worker reported violations of law (or refused to participate in them). This evidence takes many forms. Statements from a manager, or treating workers differently are examples of proving retaliation. Courts have also found that close proximity between protected conduct and adverse employment action is compelling evidence of a causal connection.[14] That means that if the adverse employment action occurred shortly after the protected conduct, there is likely a causal connection between the two. For example, if an employee reports a suspected violation of the law to their employer and they are fired the next day, it is likely that the two events are related, or causally connected.

What should I do if I my employer terminated my employment or retaliated against me for reporting violations or refusing to engage in illegal activity?

Contact us at Kitzer Rochel. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

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[1] Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327 (Minn. 1995).

[2] Minn. Stat. § 181.932, subd. 1(1).

[3] Minn. Stat. § 181.932, subd. 1(2).

[4] Minn. Stat. § 181.932, subd. 1(3).

[5] Minn. Stat. § 181.932, subd. 1(4).

[6] Minn. Stat. § 181.932, subd. 1(5).

[7] Minn. Stat. § 181.932, subd. 1(6).

[8] Minn. Stat.  § 181.931

[9] Minn. Stat. § 181.931, subd. 4.

[10] Tatum v. Ark. Dep’t. of Health, 411 F.3d 955, 960 (8th Cir. 2005).

[11] Gartman v. Gencorp, Inc., 120 F.3d 127, 130 (8th Cir. 1997).

[12] Dixon v. Mount Olivet Careview Home, Civ. 09-1099, 2010 WL 3733936 *8 (D. Minn. Sept. 17, 2010)

[13] Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998); Frieler v. Carlson Mktg. Grp., 751 N.W.2d 558, 570 (Minn. 2008).

[14] See, e.g., Dietrich, 536 N.W.2d at 327 (citing Hubbard v. U.P.I., Inc., 330 N.W.2d 428, 444 (Minn. 1983) (holding that causal connection requirement may be satisfied by the temporal proximity between protected conduct and adverse employment action)).

How Do I Know If I Can Request FMLA Leave?

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Employees may request leave under the Family and Medical Leave Act (FMLA).

To be eligible for FMLA leave, an employee must have worked for the employer for at least 12 months and have 1,250 hours of service in the previous 12 months. In addition, the employer must have at least 50 employees employed within 75 miles of the location the employee works at.

An employee may request FMLA for one of the following reasons:

  • Incapacity due to pregnancy, prenatal medical care or childbirth;
  • To care for the employee’s child after birth, or placement for adoption or foster care;
  • To care for the employee’s spouse son, daughter or parent who has a serious health condition; or
  • If the employee has a serious health condition that makes the employee unable to perform their job duties.

After an employee confirms that they meet the eligibility requirements and that they have a reason that entitles such employee to receive FMLA benefits, but their employer has denied their FMLA request, an employee may file a complaint with the U.S. Department of Labor. An employee may also file a private lawsuit against their employer.

An employer cannot interfere with, restrain, or deny any employee of any right provided under FMLA. It is also unlawful for any employer to discriminate against an employee, penalize an employee or terminate an employee for submitting an FMLA request or for using their FMLA benefits.

Employees of an airline flight crew, military members and/or military families may be entitled to additional benefits and should consult with an employment attorney if they have more specific questions.

If you feel you have experienced discrimination or retaliation at work related to FMLA, our attorneys at Kitzer Rochel are here to help. Contact us today. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower issues in the workplace.

56th Anniversary of the Civil Rights Act of 1964

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On this day 56 years ago, President Lyndon Johnson signed the Civil Rights Act of 1964 into law, providing workplace, public accommodation, education, & voting protections to children, women, racial and religious minorities.

Following the Emancipation Proclamation and the end of slavery, Congress passed the Civil Rights Act of 1866 (declaring African Americans citizens of the United States) and the Civil Rights Act of 1875 (banning racial discrimination in places of public accommodation). These sweeping pieces of Reconstruction legislation were an attempt to extend equality under the law to all Americans.

But, in 1883, the U.S Supreme Court stifled these efforts in the Civil Rights Cases, ruling federal law could not ban discrimination in the private sector. This decision allowed discrimination in the workplace to continue, leading to the Jim Crow segregation era.

In addition to extending protections against discrimination and retaliation in the workplace, the Civil Rights Act of 1964 reversed that Supreme Court precedent from the Reconstruction Era.

Because of the 1964 Act, every American has workplace protections against discrimination and retaliation, among other things.

If you feel like you’ve been discriminated or retaliation against, we are here to help. Our firm, Teske, Katz, Kitzer & Rochel, represents employees facing discrimination and retaliation in the workplace.

Abou B. Amara, Jr., Attorney

Supreme Court Declares Sexual Orientation Discrimination Illegal in the Workplace

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On June 15, 2020, the United States Supreme Court issued a landmark decision—in Bostock v. Clayton County—that expanded civil rights workplace protections to members of the LGBT community.

For years, countless Americans asked, “Can I be fired for being gay or lesbian?” or “Can I be fired for being transgender?” Prior to this decision, in a majority of states, the answer to those questions was yes. Employers were legally able to fire someone based on their sexual orientation or gender identity.

The central question the Court considered was whether Title VII of the Civil Rights Act of 1964’s prohibition of discrimination “on the basis of … sex” included sexual orientation and gender identity. In response to this question, Supreme Court Associate Justice Neil Gorsuch said, “the answer is clear.”

In the Court’s 6-3 opinion, Justice Gorsuch stated “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The Court’s decision in Bostock will immediately provide federal protection to more than one million LGBT employees across the Nation, ensuring that they have recourse if their employer discriminates or retaliates against them based on their sexual orientation or gender identity. Because of this decision, members of the LGBT community now have federal protection against workplace discrimination in all 50 states.

If you are an employee who has believes you have been discriminated or retaliated against based on your sexual orientation and/or gender identity, we are here to help. Please contact Teske, Katz, Kitzer, and Rochel, PLLP. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower related issues in the workplace.

Abou B. Amara, Jr., Attorney

Governor Walz’s Recent COVID-19 Order Gives Employees Important Rights

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On May 13, 2020, Minnesota Governor Tim Walz issued Executive Order 20-54, in response to the COVID-19 pandemic crisis. Among other things, the Governor’s executive order provides rights to Minnesota employees that all workers should be aware of.

First, the executive order prohibits employers from discriminating or retaliating against employees who ask their employers questions or expresses concerns about COVID-19 (the Coronavirus), or their health and safety regarding the virus outbreak.

Second, the executive order generally prohibits employers from discriminating or retaliating against employees who wear gloves, cloth, eye protection, or other protective gear in the course of their work.

Third, the executive order gives employees the right to refuse to work under conditions that they, in good faith, reasonably believe pose an imminent danger of death or serious bodily harm.

Fourth, the executive order gives employees the right to request the Minnesota Department of Labor and Industry (“DLI”) conduct an inspection of their workplace if they suspect a COVID-19 threat to health and/or safety is present.

Lastly, the executive order gives employees the right to seek reasonable accommodations related to COVID-19, including the ability to work from home, if possible.

All of these protections contain important caveats, so if you have questions about Executive Order 20-54, or COVID-19 at work, you should contact an experienced employment lawyer.

If you are an employee who has experienced difficult circumstances with your employer related to COVID-19, we are here to help. Please contact Teske, Katz, Kitzer, and Rochel, PLLP. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower related issues in the workplace.

Minnesota Supreme Court Issues Landmark Disability Discrimination Decision

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On February 27, 2019, the Minnesota Supreme Court issued a major decision in favor of employees. The case, Daniel v. Minneapolis, addressed whether an employee who is disabled as a result of a work injury can bring a claim under the Minnesota Human Rights Act (MHRA). For decades, such employees were prohibited from filing MHRA claims because of a prior supreme court ruling in Karst v. FC Hayer Co., Inc. (issued in 1989). Under Karst, disabled employees were prohibited from bringing human rights claims because they were preempted by Minnesota’s Workers’ Compensation Act. Consequently, any employee who experienced disability discrimination resulting from a work injury was left without any recourse to remedy the discrimination.

This led to absurd results. For example, if an employee suffered a disabling injury outside of work, she would be protected from discrimination under the MHRA. But if that same employee became disabled at work, she would have no protection from discrimination. Her employer would be free to fire her because of her disability and nothing more. This was bad policy for Minnesotans and was out of step with the rest of the country, with nearly every state rejecting similar interpretations of their own state laws.

In Daniel, the Minnesota Supreme Court corrected that problem and overruled the Karst decision. Writing for a 5-2 majority, Justice Margaret Chutich wrote, “Unlike the workers’ compensation act, the human rights act is a civil rights law that protects employees from unlawful employment discrimination.” The Court recognized the fundamental difference between the Workers’ Compensation Act, which is designed to remedy work injuries, and the MHRA, which is designed to protect disabled employees from discrimination. Because of these differences, neither law preempts the other. Instead, workers have rights under both.

Teske, Katz, Kitzer & Rochel lawyers Phillip Kitzer and Brian Rochel wrote on behalf of the Minnesota Chapter of the National Employment Lawyers Association in a “friend of the court” or amicus brief, asking the Supreme Court to overrule the Karst decision. “This marks a great step forward for all employees in Minnesota and corrects a decades-long error in the law,” said Phillip Kitzer. “Employees should not be treated differently and denied equal protection simply because they become disabled as a result of a work injury. That is not consistent with Minnesota’s strong history of protecting and advancing human rights,” added Brian Rochel.

If you have any questions about Daniel v. Minneapolis, disability discrimination, workers’ compensation retaliation, or employment law generally, please contact Teske, Katz, Kitzer & Rochel today.

I received a severance agreement, should I contact an employment lawyer?

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As lawyers representing employees, we are often asked when it is a good idea to have a lawyer review a severance agreement. The short answer is: almost always.

First, any severance agreement that releases legal claims (virtually all of them do) requires an employee to know whether they have any legal claims that they are giving up by signing the agreement. It is impossible to know the value of what you may be giving up without having a thorough evaluation of potential legal claims.

Second, most severance agreements are not clearly written and require employees to waive or limit rights that employees may not even understand. Frequently, severance agreements seek broad restrictions on the right to seek employment at other companies, to speak openly and truthfully, to pursue administrative claims, or to assist others who may seek legal action against a former employer, just to name a few examples. These terms limit the rights that employees otherwise freely enjoy.

Third, initial severance offers are frequently just that—an initial offer. Employers may be willing to negotiate the severance amount or offer other terms in addition to separation pay. The potential for negotiating terms of a severance agreement (including the total monetary payout) is well worth seeking sound legal advice.

The expertise of an experienced employment lawyer is valuable in understanding all of the terms in a separation agreement as well as in deciding how to respond to a severance offer. Nearly every severance agreement includes language that the employer encourages the employee to seek consult an attorney. That language exists for a reason. You can be assured that the company was advised by a lawyer; do not miss the opportunity and to seek sound legal advice of your own.

You must also act quickly, because nearly every severance offer has a time limit upon which an employer may withdraw the offer.

If you have received a severance agreement or have questions about your employment or separation from employment, contact Teske, Katz, Kitzer & Rochel today.

Phillip Kitzer Participates on #MeToo Panel at FBA National Conference

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On September 14, 2018, TKKR Employment Attorney Phillip Kitzer spoke on a panel sponsored by the Labor & Employment Section of the FBA at the Federal Bar Association’s National Conference in New York City. The panel, titled “#MeToo: Implementation and Administration of an Effective Anti-Harassment Policy,” discussed various legal issues arising out of the #MeToo movement, including addressing complaints in the workplace, effective training of employees and management, responding to EEOC charges, and recent tax law changes involving settlements of claims involving sexual harassment and abuse. The panel was moderated by Donna Currault of Gordon, Arata, Montgomery, Barnett LLC in New Orleans, LA, and included the Hon. Lisa M. Smith, U.S. Magistrate Judge for the Southern District of New York, and Mary A. Smith, Principal at Jackson Lewis, P.C.