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Law Bars Discrimination Based on Sexual Orientation, Gender Identity

By
Law

A Landmark Ruling

By Amelia J. Holstrom, Esq. and Erica E. Flores, Esq.

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

Erica E. Flores

Erica E. Flores

Businesses in Massachusetts have to comply with both state and federal anti-discrimination laws that prohibit discrimination in employment based on what are referred to as protected characteristics. Some examples that people commonly think of are sex, age, and religion, but there are many more.

Massachusetts’ anti-discrimination laws have prohibited employment discrimination on the basis of sexual orientation since 1990 and gender identity and expression since 2012. However, many other states either don’t have employment-discrimination laws at all or don’t include sexual orientation or gender identity as protected characteristics under the laws they do have. So what about the federal law?

Title VII of the Civil Rights Acts of 1964 prohibits discrimination in employment based on specified protected classes. That statute, however, does not list sexual orientation or gender identity in its list of protected characteristics. Although Title VII prohibits discrimination on the basis of ‘sex,’ because it did not expressly list sexual orientation and gender identity as protected classes, federal courts had been left to grapple with whether discrimination on the basis of either of those characteristics is prohibited as a form of sex discrimination under Title VII. That is, until the Supreme Court of the U.S. issued its ruling in Bostock v. Clayton County, Georgia on June 15, 2020.

In a landmark ruling, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity. The court’s decision resolved three separate but similar cases pending before the Supreme Court: Bostock v. Clayton County, Georgia; Altitude Express Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC.

Each of the three cases began the same way: Gerald Bostock worked for Clayton County, Ga. and was terminated for conduct “unbecoming” of a county employee when he began to participate in a gay softball league. Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After mentioning that he was gay, he was terminated just days later after several years of successful employment. Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Garden City, Mich. When hired, Stephens presented as a male. After five years of employment, she informed her employer that, after she returned from an upcoming vacation, she planned to “live and work full-time as a woman.” She was fired before she even left.

Bostock, Zarda, and Stephens each filed a lawsuit against their employer alleging that they were discriminated against on the basis of their sex in violation of Title VII. Bostock’s case was dismissed by the Eleventh Circuit Court of Appeals, which held that sexual-orientation discrimination is not a form of sex discrimination under Title VII. Zarda and Stephens’ cases had a different outcome. The Second and Sixth Circuit Courts of Appeals found that discrimination based on sexual orientation and gender identity, respectively, are prohibited under Title VII as forms of discrimination based on sex.

“An employer has two employees — one female and one male — both of whom are attracted to men. If the employer fires the male employee because he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

The Supreme Court of the U.S. agreed to review all three decisions to resolve the issue that had divided the lower courts: whether discrimination on the basis of sexual orientation and/or gender identity is prohibited under Title VII as a form of discrimination based on sex. The Supreme Court answered in the affirmative.

In the 6-3 majority opinion, which was authored by Justice Neil Gorsuch, the court focused on the ordinary meaning of the language used by Congress in Title VII at the time the law was passed back in 1964. Specifically, Title VII states that it is “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex.” The court noted that, in 1964, ‘sex’ was defined as one’s “status as either male or female [as] determined by reproductive biology; that the statute uses the term ‘because of’ that status to define when an action is discriminatory; and that it focuses on discrimination against an individual, not a group.

Based on this language, the court found that, under the plain meaning of Title VII, “an individual’s homosexuality or transgender status is not relevant to employment decisions … because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The court went on to explain its reasoning using two examples:

• An employer has two employees — one female and one male — both of whom are attracted to men. If the employer fires the male employee because he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Accordingly, he was singled out based on his sex, and his sex is the reason for the discharge.

• An employer employs a transgender employee who was identified as a male at birth but who now identifies as a female. If the employer continued to employ someone who identified as female at birth but terminated the individual who identified as male at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.

The court agreed that sexual orientation and gender identity are, in fact, distinct concepts from sex. However, the court determined that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

With this landmark decision, every employer that is covered by Title VII anywhere in the country will now be subject to the same prohibitions that have protected LGBTQ+ employees in Massachusetts for the last eight years, and will be subject to civil penalties and civil liability under Title VII for discriminating against employees on the basis of their sexual orientation or gender identity. This includes every private employer and every state or local government agency that has 15 or more employees.

Amelia J. Holstrom and Erica E. Flores are attorneys at the firm Skoler, Abbott & Presser, P.C., in Springfield; (413) 737-4753; [email protected]; [email protected]

The Stinger Provides Ample Evidence That Kia Is All Grown Up

By
Road Game

Coming of Age

Editor’s Note: This is the second installment of a new series for BusinessWest — car reviews of a sort. These are first-person looks, and some commentary, about some of the vehicles — and issues — that are, let’s say, in the news.

The author found driving the Stinger to be, well, an adventure.

When last we left our heroes — yes, I’m a huge Rocky & Bullwinkle fan and still have a ‘WhatsamataU?’ T-shirt (oldest thing I own) — we were talking about how no one’s driving cars anymore and SUVs now rule the earth.

While that’s an exaggeration (and Bullwinkle loved to exaggerate), it’s not far from the truth. SUVs are the big sellers, and cars are taking, well, a back seat.

These days, people need a good reason to drive a sedan, or several of them. Which is a nice way to segue to the Kia Stinger, the coolest, baddest sedan you’ve probably never heard of. Truth is, you’ve probably seen one and gone ‘what the heck is that?’ You could answer your own question if you, or the car in question, happened to be moving slowly enough to see the word ‘Stinger’ or the Kia logo. Or you were at a red light. It’s probably the latter, because the Stinger doesn’t move slowly. But we’ll get to that later.

Let’s get back to that ‘never heard of’ part. There are reasons for that.

First off, they don’t make many Stingers — it’s a specialty car of sorts and certainly not a big seller. Secondly, it’s made by Kia, which, although it’s made some serious strides in recent years, is still … Kia, a relative newcomer known mostly for making solid, economical cars with lots of value.

And that’s being kind. The company had a reputation, just like Hyundai did 20 to 25 years ago and Honda and Nissan (yes, I know, it was Datsun back then) did 40 to 45 years ago for making practical but uninspiring — and, yes, cheap, cars. Those brands grew up, and Kia has as well.

“It’s a wonderful vehicle — we’ve received a lot of positive response for it; most of the time, when we get them in, they sell out within 48 hours.”

The Stinger provides all the evidence you need, but there’s plenty more, said Mike Spanilo, general manager of Balise Kia in West Springfield, adding that the new Telluride, an in-demand, mid-sized SUV, is certainly making people rethink what ‘Kia’ means.

“It’s a wonderful vehicle — we’ve received a lot of positive response for it; most of the time, when we get them in, they sell out within 48 hours,” he said, adding that Kia now has a deep lineup of cars and SUVs that attract area buyers in all age groups.

Spanilo, who has been with Balise for more than 20 years now and sold GM and Chrysler products most recently, said he came to Kia with some preconceived notions that he soon realized were quite dated.

“My perspective on this, coming from two American-made brands, is that I was pleasantly surprised at what I found when I got here — because I had never driven a Kia before I got here,” he said. “If you’ve gotta sell ’em, you’ve gotta like ’em, and that has not been a difficult thing for me to transition to; this brand has definitely come a long way.”

Looking Sharp

All this brings us to the Stinger, and also … Jose Perozo, a sales associate at Balise Kia, whose story sounds a little like that of Victor Kiam. Sort of.

You remember him — probably. Maybe not. He’s the guy who owned Remington shavers and, later, the New England Patriots — thankfully, not for very long; one of his teams went 1-15. Anyway, the line he used in his commercials for Remington was, “I liked the shaver so much, I bought the company.”

The Stinger blends concept-car looks with performance and value.

Perozo bought a Kia a few years back and liked them so much he went to work selling them. And while selling them, he absolutely fell in love with the Stinger. So much so, he bought one.

Coincidentally, he was bringing his home just a few hours before he took this writer along for a ride — not in his car, but the other Stinger on the lot.

To say that he could barely control his excitement would be an understatement. Every time he accelerated, and every time he thought he saw a Camaro, Mustang, or Charger driver looking over in what he perceived to be envy, you could see some discernable pride in ownership.

And that speaks quite loudly and effectively not only for this model, but the whole Kia lineup.

You don’t have to put the Kerwood Derby on your head (best Bullwinkle plotline ever; Google it) to know that Riverdale Street isn’t a good stretch for test-driving a car. There’s a ton of traffic, red lights that stay red for an hour or two, and long stretches where you have to go in the direction opposite from the one you want to in to get where you want to go.

Fortunately, a U-turn and a few of those lights later, you’re on that stretch of Route 5 that includes the North End, Memorial, and South End bridges, where the Stinger can begin to show what it can do. And after a quick trip over the last of those bridges and onto I-91, you can really get the idea.

The Stinger GT2 we drove ($51,000 fully loaded; top of the line) has a twin-turbo V-6 that delivers 360 horses and goes from zero to 60 in about 4.7 seconds. Drivers can choose a number of ‘modes’ for travel, or the car can pick one itself. These include ‘economy,’ ‘comfort,’ ‘smart,’ and ‘sport.’ The last of those options is obviously the most fun.

As Perozo punched the accelerator while in sport mode, the Stinger showed off its considerable straight-line speed, which is just one of its many positive traits. Others include the exterior design — it has concept-car looks — decent amounts of handling and comfort, optional all-wheel drive, and the requisite bells and whistles in the infotainment category — Apple CarPlay and Adroid Auto are standard.

While the Stinger has many of the safety features available on luxury brands — and even some non-luxury brands — today, it doesn’t go overboard, if you know what I mean.

And the trunk even passes the golf-club test, which, as we all know, is what the experts look for when scoring a vehicle. Forget those JD Power awards — can you get the golf clubs in the trunk?

And there’s something else. While the Stinger has many of the safety features available on luxury brands — and even some non-luxury brands — today, it doesn’t go overboard, if you know what I mean.

(Warning: old-man rant coming!) If you don’t know what I mean, cars that will alert you when to brake or if there’s a vehicle in your blind spot are fine, for the most part. Cars that flash the speed limit for the road you’re on and then make it blink on and off when going above it, and cars that not only alert you if you’re drafting from the center of your lane but yank you back to center, well … I have people yelling at me and telling I’m doing something wrong all day long; I don’t need the car to do that, too.

The Stinger doesn’t do any of that. What it does is almost defy categorization. It’s a luxury car, but not like most. It’s a performance vehicle, but not like most. It’s a muscle car (well, sort of, but not really) that’s not like most. And it can compete with cars in all those categories. It isn’t inexpensive — the entry-level, four-cylinder model is priced at $34,000 — but that’s far less than most of the luxury brands it competes against, and there is considerably more value.

Kia has indeed come of age, and the Stinger is just one of the models that makes this clear.

Speed Thrills

You’re wondering about that Kerwood Derby thing, aren’t you? See, there was this guy on Candid Camera (yes, from the early ’60s, I know), a co-host of sorts named Durwood Kirby who was bland and, quite frankly, dumber than a bag of hammers. The makers of Rocky & Bullwinkle spoofed the name in an episode all about a derby that had magical powers and could make its wearer the smartest person in the world. Guess you had to see it.

If you did, you’re getting old; you need to feel younger. Test driving a Stinger will certainly help.

As for this series of car reviews, in the true spirit of Rocky & Bullwinkle, tune in next time, when ‘O’Brien Vettes a Chevy,’ or ‘O’Brien takes on all Challengers.’

George O’Brien can be reached at [email protected]

Senior Citizens Are Frequently the Targets — and the Victims

By
Banking and Financial Services

The Scammers Are Out There

By Jean Deliso

Jean Deliso

Jean Deliso

Have you ever been scammed by someone or received a phone call attempting to pressure you to provide personal information or send money?

If you can say yes, have you thought about what your parents or grandparents might do in similar situations?

Senior citizens are frequent victims of these criminal activities. To help protect older family members and to safeguard yourself, everyone should be better informed about these schemes and how to help prevent becoming a victim.

Scam artists are everywhere, and they are here in Western Mass. Within the past 18 months, I personally had two different clients who were defrauded by a scam tactic that preyed on their love of their grandchildren and their innocence and confusion.

One was contacted and told their grandchild had been in an accident, he had seriously hurt someone, and he was going to spend many years in jail unless money was sent. In the other situation, it was claimed that a grandchild was in a friend’s car, which was stopped by the police, and they found drugs. The scammer stated that the grandchild was not guilty, but he would be charged unless the grandparent sent cash immediately to get him assistance in court.

Both victims were told not to tell anyone, otherwise the assistance would stop. And in both situations, the grandparents went to the bank or withdrew money from their investment accounts, converted it to cash, placed it an envelope, and sent it to these unknown addresses.

These situations are happening more often, and thus there is a pressing need to educate our senior citizens to be aware of these types of scams.

There is nothing more special than the love of a grandchild. These imposters are targeting and exploiting this love and affection.

There have been other articles written on this subject, but not everyone reads them. It is important to educate your parents or grandparents that these scams exist and that, if they ever receive a call where they are instructed to be silent, they should contact a trusted family member or the proper authorities immediately.

Not all children are comfortable talking to their parents or grandparents about these situations, but I highly recommend you do.

I’ve seen too many of these scams recently amongst my clients. As a certified financial planner, it’s my responsibility to help my clients manage their assets and finances and to help safeguard against risks to their financial well-being. If a suspicious phone call or request is unusual or confusing, it’s important for the recipient to question it and alert their loved ones.

Please speak to your parents and grandparents about these threats. If they receive such a call, have them talk to other family members or the police before providing any information to the caller. They should never send cash to someone they don’t know or if they don’t fully understand why it’s being requested. Have them call the grandchild on their personal phone number, and, most importantly, tell them never to send cash to anyone they don’t know.

Jean Deliso, CFP is a principal with Deliso Financial and Insurance Services; (413) 785-1100.

Those Staff Meetings Matter More Than You Might Think

By
Workforce Development

The Overlooked Management Tool

By Kate Zabriskie

‘I sit right next them. We don’t need to have a staff meeting.’

‘I used to have staff meetings, but we stopped having them. Nobody had anything to talk about.’

‘We have enough meetings. We certainly don’t need another.’

For a myriad of reasons, many managers don’t hold regular staff meetings. Furthermore, most who do don’t get the most they could from them, and that’s too bad. Good staff meetings can focus a team, energize employees, and engage them in ways ad-hoc interactions don’t.

So how do you turn a halted or ho-hum approach to staff meetings into a high-functioning management tool?

STEP ONE: Connect Daily Work with Your Organization’s Purpose

In addition to distributing information, staff meetings present an opportunity to connect your team’s daily work to your organization’s purpose. If you’re thinking, ‘My people know how their work fits into our overall goal,’ you would be wrong. In fact, if you ask your group what your organization’s purpose or your department’s purpose are, don’t be surprised when you get as many answers as there are people in the room. (And you thought you had nothing to talk about in a staff meeting. A discussion about purpose is a good one to have.)

Purpose is why you do what you do. You connect the work to it by explaining how what people did aligns with the greater goal. For example, the head of housekeeping at a busy hotel might hold a meeting with the cleaning staff. In that meeting, the managers might recognize a team that received a perfect room score from all guests who took a survey and then talk about purpose.

The purpose of the hotel is to provide people a safe and comfortable place to spend the night. Having a clean, welcoming, and functioning room is one of the ways a cleaning staff achieves that goal.

“Purpose is why you do what you do. You connect the work to it by explaining how what people did aligns with the greater goal.”

By regularly connecting such activities as cleaning toilets, making beds, and folding towels to the guest experience, the manager highlights why each of those activities is important.

No matter what they do, employees usually enjoy their jobs more when their organization’s leaders talk about the importance of their work. They also tend to make better choices if they receive frequent reminders about purpose and what types of activities support it.

STEP TWO: Highlight Relevant Metrics

Connecting work to purpose usually works best when a team focuses on both anecdotal and analytical information. If you don’t currently track statistics, start. What you track will depend on your industry. However, whatever you decide should have a clear line of sight to the larger goal.

For instance, a museum that holds events to attract new members might track the number of events held, contact information collected, memberships sold, and the percentage of new memberships that come as a result of attending the free event. With regular attention placed on the right metrics, the team is far more likely to make good choices as to where it should focus its efforts.

STEP THREE: Follow a Formula and Rotate Responsibility

Successful staff meetings usually follow a pattern, such as looking at weekly metrics, sharing information from the top, highlighting success, a team-building activity, and so forth. By creating and sticking with a formula, managers help their employees know what to expect.

Once employees know the pattern of the meeting, many are capable of running it because they’ve learned by watching. Managers then have a natural opportunity to rotate the responsibility of the meeting to different people. By delegating, the manager is able to free up his or her time and provide employees with a chance to develop their skills.

STEP FOUR: Celebrate Successes

In many organizations, there is a huge appreciation shortage. Staff meetings provide managers and employees with regular intervals to practice gratitude.

“I’d like to thank Tom for staying late last night. Because he did, I was able to attend a parent-teacher conference.”

“Maryann’s work on the PowerPoint presentation was superb. I want to thank her for preparing me with the best slides shown at the conference. The stunning photos outshined the graphics others used. Maryann’s work really made our company look good.”

A steady drip of sincere gratitude can drive engagement. Note the word: sincerity. Most people have an amazing capacity to identify a false compliment. Real praise is specific. Well-delivered praise also ties the action to the outcome. Whether it’s being able to attend a conference, looking good in front of others, or some other result, people appreciate praise more when they understand how their actions delivered results. A praise segment in your staff meetings ensures you routinely take the time to recognize efforts.

STEP FIVE: Focus on Lessons Learned and Continuous Improvement

Staff meetings that include an opportunity to share lessons learned help drive continuous improvement. At first, people may be reluctant to share shortcomings. However, if you follow step four, you should begin to develop better communication and a sense of trust with your team. Modeling the process is a good place to start.

“I learned something this week I want to share with you. I had a call with a client that could have gone better. I’m going to tell you what happened and then I’ll discuss some ideas about how I would handle something similar in the future.”

The more you practice this exercise, the greater the gains you should experience.

STEP SIX: Develop a Schedule and Stick with It

Almost anyone can follow the first five steps some of the time, but those who get the most out of staff meetings hold them consistently. They publish a meeting schedule, and they stick with it. They may shorten a meeting from time to time or reschedule, but they don’t treat their chance to gather the team as the least important priority.

Good staff meetings aren’t perfunctory activities that add little value. On the contrary, when used to their full capacity, they are a dynamic management tool. Now what are you going to do about yours? u

Kate Zabriskie is the president of Business Training Works Inc., a Maryland-based talent development firm. She and her team help businesses establish customer service strategies and train their people to live up to what’s promised; www.businesstrainingworks.com.

The Impact of ‘America First’ on Employment-based Immigration

By
Marylou Fabbo
Employment

Under Pressure

By Marylou Fabbo

In the year that’s passed since President Donald Trump signed the Buy American and Hire American Executive Order, there’s been increased federal scrutiny on the employment-based visa petition process that has made it more difficult for businesses to hire foreign employees.

President Trump and other critics of employment visa programs believe they displace American workers and drive down wages, while employers maintain they need foreign labor to fill jobs that Americans are not willing or qualified to fill. So far, however, the administration’s actions have taken place through heightened agency action, such as government I-9 audits and immigration ‘raids,’ rather than legislation.

Enforcement Action Substantially Increased

When it comes to employing non-immigrant workers, the message is clear: companies’ hiring practices must be able to withstand heightened scrutiny. In September 2017, Asplundh Tree Expert Co. was ordered to pay a record fine of $95 million for employing thousands of unauthorized alien workers.

The U.S. Customs and Immigration Services (often referred to as ICE) has implemented a worksite-enforcement strategy that focuses on criminal prosecution of employers, human-resources personnel, and talent officers who knowingly hire illegal workers or are ‘willfully blind’ to the same. ICE has already doubled the number of worksite-enforcement cases that it pursued all of its last fiscal year. In New England alone, ICE made more than 680 arrests during the first quarter of its fiscal year. Even companies that don’t employ any immigrants or foreign workers are subject to an ICE audit and can face significant fines and penalties for things such as failing to fully and accurately complete I-9 forms for U.S. citizens.

Number of H-1B Visa Petitions Down

President Trump’s Buy American and Hire American Executive Order is purportedly designed to increase wages, protect the jobs of U.S. citizens, and increase employment rates. Among other things, the order requires federal agencies to review and propose new rules and guidance to protect the interests of U.S. workers and to prevent fraud and abuse in the H-1B visa program. This program allows companies in the U.S. to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations typically include fields such as science, engineering, and information technology.

About 65,000 regular visas and 20,000 masters-level visas are awarded each year through a lottery system, although the ultimate goal is to switch to a point-based merit system. While ICE received more than double the amount of petitions needed to fill the quotas, the total number of petitions submitted decreased by about 10,000 from last year and has decreased more than 50% since its high in 2016. Trump’s executive order — designed to reform the H-1B visa program by making it more difficult to get such a visa — may be driving some away from using the program at all.

Spouse Employment Authorizations Likely to Be Rescinded

Certain spouses of H-1B workers may be eligible to work pursuant to an H-4 visa. However, the Department of Justice and the Department of Homeland Security have stated that they intend to rescind employment authorization for H-4 visa holders, and it now appears that at least some form of the rescission is likely to take place in the near future.

Yet, some questions remain unanswered. Will current H-4 visa holders be able to renew them? Will there be a drop-dead date after which H-4 authorization is no longer valid at all? What’s clear is that employers who hire H-4 workers need to start thinking about alternate means of legally employing them.

Tougher Standards for H-1B Workers at Third-party Locations

ICE also has increased the scrutiny on employers who petition for H-1B employees and intend to place them at third-party sites. Earlier this year, ICE issued a policy memorandum stating that, for an H-1B visa petition involving a third-party worksite to be approved, the petitioner must show “by a preponderance of evidence” that, among other things, the worker will be employed in a specialty occupation and the petitioning employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period. The third-party recipient of the H-1B worker will also have to come up with some evidence corroborating what the employer provides.

Organizations that provide H-1B workers to third parties should be prepared to respond to requests for evidence beyond what they have experienced in the past, denials of petitions, and, possibly, the granting of H-1B visas for less than the usual three-year period.

Moving Forward

Employers should expect the Trump administration to continue to aggressively pursue immigration reform. Like the visas mentioned in this article, the state of those with C-33 visas — non-immigrants who have been granted Deferred Action for Childhood Arrivals (DACA), remains up in the air, and employers that have DACA recipients with employment authorization may face the loss of the ability to continue their employment.

Companies that have not already done so should carefully review their hiring practices and evaluate alternate means of employing non-immigrant workers regardless of their current visa status. Those employers that have H-1B workers at third-party sites should scrutinize their vendors and their contracts with those third parties. And, perhaps most importantly, companies should make sure their I-9s and other immigration-based records are complete and accurate. u

Marylou Fabbo is a partner and head of the litigation team at Skoler, Abbott & Presser, P.C. She provides counsel to management on taking proactive steps to reduce the risk of legal liability that may be imposed as the result of illegal employment practice, and defends employers faced with lawsuits and administrative charges filed by current and former employees; (413) 737-4753; [email protected]

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