by Kim Seten

When we present seminars on discrimination to human resources professionals, we frequently ask the audience whether they believe that discrimination based on sexual orientation is illegal.  Invariably, the audience believes that it is. They are surprised to learn that, in many states, there is no legal protection against discrimination based on sexual orientation.

Why the misconception?

First, an increasing number of companies are providing such protection as a matter of company policy. It is easy to confuse “corporate philosophies” with legal requirements, but they do not always match.

Second, the rights of lesbian-gay-bisexual-transgendered (“LGBT”) individuals, same-sex marriage and same-sex adoption, and other hot issues, have received a great deal of attention in the media, which could easily cause one to believe that there is more legal protection than actually exists.

Third, we continue to read about court decisions from jurisdictions that do provide protection based on these characteristics. There is no question that the law is developing in this area. Every few years, Congress considers the Employment Non-Discrimination Act, which would prohibit employment discrimination based on sexual orientation. It has yet to be enacted, but ENDA or something like it will probably become law in the not-too-distant future.

Title VII of the Civil Rights Act of 1964, the federal law prohibiting employment discrimination based on race, sex, national origin, religion, and color, is generally not construed to apply to discrimination based on sexual orientation.  (There are notable exceptions, so be sure to check all federal decisions in your own jurisdiction.)  However, at least two federal courts—a district court in the District of Columbia and the U.S. Court of Appeals for the Sixth Circuit (Kentucky, Michigan, Ohio and Tennessee) have found that Title VII does protect transgendered individuals from discrimination.

LGBT status is not considered a “disability” for purposes of the Americans with Disabilities Act. Indeed, the ADA explicitly excludes from protection homosexuality, transvestism, and transsexuality (currently known as “transgendered”).

That said, employers should at the very least have strong policies prohibiting harassment based on LGBT status. An employee who is harassed for any reason (including but not limited to LGBT status) can always bring claims against the harassers and the employer for intentional infliction of emotional distress, assault and battery, negligent hiring/ retention/supervision, and other torts.

A policy prohibiting discrimination based on LGBT status makes sense in principle, but as a practical matter it can be problematic. Employers considering such policies (in jurisdictions where such policies are optional) should be sure they consider the following:

Would the policy as drafted require the company to offer benefits to same-sex couples that are equivalent to those offered to married couples? If so, is the company prepared to do that?

If the company intends to grant leave under the Family and Medical Leave Act to domestic partners, has it considered that such leave does not count as “true” FMLA leave and therefore that many of the protections for employers under the FMLA would not apply? (“Live-in partners” do not qualify as “spouses” for FMLA purposes.) Thus, a same-sex partner granted quasi-FMLA leave would arguably be entitled to a full 12 weeks of true FMLA leave during the same 12-month period if circumstances warranted.

On the other hand, a couple from Massachusetts who has a lawful same-sex marriage presumably would be entitled to bona fide FMLA leave, assuming the other requirements of the Act were met. “Spouse” is defined as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” 29 C.F.R. §825.113(a). Although the “husband or wife” language does not quite fit, a same-sex marriage seems to clearly fall within the remainder of the regulation. On the other hand, the federal Defense of Marriage Act provides that states do not have to honor same-sex marriages from other states. Presumably, this means that if a Massachusetts same-sex couple moved to another state, they might very well not be “spouses” for FMLA purposes. 

Another consideration is whether the non-discrimination policy avoids infringing on the rights of employees whose religious beliefs may not endorse LGBT behavior. Employers must keep      in mind that Title VII prohibits religious discrimination and requires reasonable accom-modation of religious beliefs. Thus, although it is lawful for an employer to require all employees to treat LGBT employees with respect and courtesy, it would be unlawful to require any type of affirmative approval of their lifestyle or conduct.

Many courts have held that it is unlawful to require a transgendered employee (whether preparing for the surgery or having completed it) to use the restroom assigned to members of the “biological” sex, usually male. However, employers should also be sensitive to the privacy concerns of biological women who may be uncomfortable sharing their restroom and other facilities with a biological male.

There is no question that protection for LGBT employees is a hot issue, and will continue to be so for years to come. Employers should closely monitor legislative action and court decisions in the jurisdictions in which they do business.

Kim Seten (Kansas City, MO) practices in the areas of labor relations and employment litigation prevention and defense.


by Kerri Reisdorff

A federal appeals court recently held that an employer could waive its right to challenge an EEOC charge based on lack of “verification” by failing to raise the issue before the right-to-sue letter was issued.

In Buck v. Hampton Township School District, the U.S. Court of Appeals for the Third Circuit (Delaware, New Jersey, and Pennsylvania) held that, because the EEOC had already issued a right-to-sue letter, and because the employer had submitted a “lengthy and detailed response” to the charge, the employer waived its right to raise lack of verification as a defense in the plaintiff’s subsequent disability discrimination lawsuit.

There are two main procedural requirements that a charging party must satisfy when filing a charge of discrimination with the Equal Employment Opportunity Commission – first, that the charge is timely and second, that it is under oath or affirmation (otherwise referred to as “verified”). For years, most courts found that these requirements went hand-in-hand.  In other words, failure to timely file a verified charge was an absolute bar to a subsequent lawsuit based upon the allegations in the charge. 

All that changed in 2002 when the U.S. Supreme Court in Edelman v. Lynchburg College held that an otherwise timely filer could be permitted to verify after the time for filing had expired but before a right-to-sue letter had been issued. The Supreme Court reasoned that that the filing and verification provisions of Title VII should be construed in accordance with the remedial purposes of the Act.               

In Buck, the School District had filed a response on the merits, but never asked the EEOC to dismiss the charge for lack of verification.  Relying on Edelman, the Third Circuit reasoned that the verification requirement “is concerned only with protecting an employer from responding to an unverified charge.  When an employer files a response on the merits, he forgoes the protection that the requirement affords.” 

What does this mean for employers?  First, all employers should specifically review every charge of discrimination to determine whether the charge is timely and properly verified.  Before responding to an unverified charge, employers should specifically request that the charge be dismissed for lack of verification.

Kerri Reisdorff—Kansas City, MO

by Cliff Nelson

You know the old saying, “Out of sight . . . out of mind.” Well, one might say that is an apt description of our labor relations attorneys. Most clients prefer not to think about this group and the union organizing, negotiations and strikes with which they deal, unless they have the subject forced upon them. And who could blame them? When that labor lawyer boards a plane to get to your door step, chances are good that a crisis of significant proportions awaits.

So, even though there is often a tendency to keep this practice group under wraps until needed, there comes a time when our labor lawyers deserve our attention, and this is one of those times.

When I joined Constangy in early 2005, I did so largely out of a desire to finish out my career by practicing with the best. As shown by the recent LRI awards (see “Constangy Labor Team Gets Top Honors!”), Constangy certainly has more than its share of outstanding labor lawyers, any number of whom could have received “Top 100” honors. Our labor attorneys are leaders in the field with impressive records of election wins, negotiation successes and litigation victories that are every bit the equal of those who have been recognized this year. I am honored to practice with each of them.

In addition to our wealth of experience, we are doing our best to prepare for the future. And that means developing our talented associates with in-the-field experience.

We foresee many battles down the road. Certainly, unions have continued to lose membership as our country’s national manufacturing base has declined and structural changes to our economy have continued unabated. However, new union tactics are posing challenges to a whole different set of employers. Perhaps the best known of these new organizing initiatives is the Change to Win campaign by the Service Employees International Union.

Instead of focusing on the country’s higher paid manufacturing base, the CTW efforts are being directed at lower-wage employees in the service sector – most particularly health care. And here, too, Constangy benefits from its deep well of experience – collectively we represent more health care providers than almost any other single law firm in the country. If the problem involves unions and health care, chances are good we’ve already seen it and know the best approaches for a successful resolution.

So there you have it . . . . A rare peek at our practice group in peace time! On behalf of Constangy, I’d like to express our deep appreciation to all of our clients for giving us a reason to excel and provide what we hope is, and always will be, the very best in legal services and advice.

Cliff Nelson (Atlanta, GA) is co-chair of Constangy’s Labor Relations practice group and one of the “Top 100” labor relations attorneys in the United States


Congratulations to Cliff Nelson and Steve Schuster, the Co-Chairs of Constangy’s Labor Relations practice group, and Robert Janowitz and Townsell Marshall, all of whom are included in the Top 100 Labor Attorneys in the United States.

The “Top 100” list is compiled by Labor Relations Institute, a management-side labor consulting firm.

Nelson and Marshall practice in Constangy’s Atlanta office, and Schuster and Janowitz practice in Constangy’s Kansas City office.

The LRI Top 100 is considered the best one percent of management labor lawyers in the United States.  Selection “demonstrates a long term and highly pro-fessional dedication to those attorneys’ clients and profession,” according to Donald P. Wilson, President of LRI.


MIKE GILES (Birmingham, AL, labor relations, wage and hour, and employment litigation) received his bachelor’s degree in biology and his master’s in health care administration from Georgia State University.  He later obtained his law degree from Samford University’s Cumberland School of Law.  Before attending law school, Mike was a hospital administrator, and the vice president of human resources for a large hospital.  He’s been a vice president and board member, and is currently president-elect, of the Birmingham Civitan Club.  Mike and his wife, Connie, have been married for 27 years and have two children.  Mike enjoys golf, yard work, and woodworking.   

COURTNEY HASSELBERG (Kansas City, MO, employment litigation prevention and defense) received her bachelor’s degree, summa cum laude, in history from William Jewell College in Liberty, Missouri.  She earned her master’s degree in history and her law degree, with distinction, from the University of Missouri-Kansas City.  While in law school, Courtney earned many honors, including Order of the Bench and Robe, Highest Scholastic Average, Outstanding Academic Achievement, and the Advanced Legal Research Award.  Since becoming a lawyer, she clerked for the Honorable Floyd R. Gibson of the U.S. Court of Appeals for the Eighth Circuit.  She has also received the President’s Award for Distinguished Service from the Kansas City Metro Bar Association.  Courtney currently serves as Community Support Vice-Chair for the Kansas City chapter of the Association for Women Lawyers and is a recent graduate of the Kansas City Bar Leadership Academy.  When she is not practicing law, Courtney enjoys traveling, hiking, history, politics and spending time with her husband and their two Yorkshire terriers. 

CLIFF NELSON (Atlanta, GA, labor relations, and employment litigation prevention and defense) is co-chair of the Constangy Labor Relations Practice Group.  Cliff received his bachelor’s degree from Duke University, magna cum laude, and his law degree from Boston University School of Law.  Cliff has practiced primarily in the area of traditional labor relations for almost 30 years, handling more than 200 union organizing campaigns.  Before joining Constangy, Cliff was a name partner with another labor and employment firm. For the past several years, he has been named one of Georgia’s "Super Lawyers" by Atlanta magazine and has been featured in Marquis’ "Who’s Who in American Law."  Since 1985, he has been a contributing editor to The Developing Labor Law, a well-known resource published by the American Bar Association. Cliff, along with three other Constangy labor attorneys, was named by the Labor Relations Institute as one of the Top 100 Labor Attorneys in the United States 2006.  (See articles on page 3.) Cliff is also an avid bass fisherman.  Cliff and his wife, Josie, have one daughter. 

KELLI PUSHMAN (Macon, GA, workers’ compensation and employment litigation) received her bachelor’s degree in political science and sociology from the University of Georgia and her law degree from Mercer University, where she was a member of the Phi Delta Phi Legal Fraternity.  Kelli is now on the Board of Directors for the Hay House, Secretary of the Macon Young Lawyers Division of the Macon Bar Association, a member of the Junior League of Macon, and a member of the Leadership Macon Class of 2006. When she is not working or volunteering, Kelli enjoys University of Georgia football, exercising, tennis, reading, and spending time with friends and family.  Kelli is engaged to be married in December.

TAM YELLING (Birmingham, AL, employment litigation prevention and defense) received her bachelor’s degree in political science magna cum laude from Spelman College and her law degree from Samford University’s Cumberland School of Law.  Tam is now the Treasurer of the Alabama Lawyers Association and a Hearing Officer for both the Personnel Board of Jefferson County, Alabama, and the Alabama Department of Transportation.  Before joining Constangy, Tam spent seven years as a plaintiffs’ lawyer in Birmingham.  She is a volunteer with the United Way and Big Brothers/Big Sisters of Greater Birmingham.  When she is not practicing law or volunteering, Tam enjoys traveling, Broadway shows, and spending time with family.

by Courtney Hasselberg

Two recent decisions – one from the U.S. Court of Appeals for the Tenth Circuit, and the other from the U.S. Court of Appeals for the Eleventh Circuit – have recently defined the proper scope of a “decisional unit” for the purpose of a valid waiver of age discrimination claims under the Older Workers Benefit Protection Act.

In one case, the court invalidated the OWBPA disclosures made by an employer, which means that the employees who signed severance agreements will be allowed to pursue age discrimination lawsuits against their former employer.  In the other case, the court approved the disclosures.  The decisions are relatively consistent – the different results appear to have been based on the facts unique to each case.     

The Tenth Circuit decision, which disapproved the disclosures, Kruchowski, et al. v. Weyerhaeuser Co., is from the court that hears federal appeals from Kansas, Oklahoma, Colorado, Wyoming, Utah, and New Mexico. The Eleventh Circuit decision, Burlison v. McDonald’s Corp., which approved the disclosures, is from the court that hears federal appeals from Florida, Georgia, and Alabama.

Because there are only a handful of reported decisions addressing the “decisional unit” issue, these decisions are likely to have application in courts nationwide.

Waiver Basics and “the Decisional Unit”  

For a waiver of ADEA claims to be valid in the “group termination” context, the OWBPA requires that the waiver identify “any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program. . . .”  (Emphasis added.)  The “class, unit or group” is also known as a  “decisional unit,” which the EEOC defines as “that portion of the employer’s organizational structure from which the employer chose the persons who would be offered consideration for the signing of a waiver and those who would not be offered consideration for the signing of a waiver.”  To use a very simple example, if an employer were to send an entire department offshore, the “decisional unit” would be the department.

Unfortunately, decisional units are not always so easy to define.  Suppose an employer wanted to terminate its poorer performing sales representatives.  Is the “decisional unit” the sales representative force, or is it the poorly performing sales representatives?   

The EEOC regulations provide some guidance, but not a lot.  The regulations charge employers to consider their organizational structure and decision-making process. The regulations explain that the term “decisional unit” “has been developed to reflect the process by which an employer chose certain employees for a program and ruled out others from that program.”

Although this is relatively vague guidance, it appears that the EEOC would take the position that the decisional unit in our sales representatives example would be all sales representatives.  The sales representatives’ relative performance would be the “eligibility factors.” (Put another way, the poor-performing sales representatives would be “eligible” for the termination program, while the better-performing sales representatives would be “ineligible.”)

The Kruchowski decision  

In Kruchowski, the Company selected 31 salaried employees for a RIF and provided each employee with a Group Termination Notice, a list of employees selected for termination and eligible for severance pay, and a list of those employees not selected for termination and thus not eligible for severance pay.  The Notice identified the decisional unit as all salaried employees at a particular mill.  However, the lists of employees contained only salaried employees who reported directly to the mill manager.   Thus, there was a discrepancy of 15 salaried employees.

After some of the severed employees sued for age discrimination, the company responded to discovery and clarified that the decisional unit was salaried employees at the mill who reported directly to the facility manager—in effect, that the employee lists, rather than the Notice, were correct. 

The employees claimed that their ADEA waivers were invalid, but the district court granted summary judgment to the company.  On appeal, however, the Tenth Circuit reversed.

The company, with some justification, tried to argue that it was self-evident that “all salaried employees at the mill” really meant “all salaried employees at the mill who report directly to the facility manager.”  Although this is consistent with the information provided on the lists, the court rejected the company’s argument, saying that there was no evidence that the affected employees knew or should have known that the unit excluded salaried employees who did not report to the mill manager.

The court also rejected the company’s argument that the mistake was de minimis, or insignificant, because the company had provided the correct information in its employee lists.  The court noted that the requirement to correctly define the “decisional unit,” on the one hand, and to list those eligible and not eligible for the termination program, on the other hand, are two separate requirements; therefore, compliance with one does not excuse non-compliance with the other.

Finally, the court said that the company was big enough to have known better.

Although not part of its “official” holding, the court expressed the opinion that the company had also failed to provide adequate reasons for the RIF.  The disclosures said that the RIF was a result of financial challenges and the company’s ongoing efforts to restructure and combine jobs at the mill.  Again, this seems to be a perfectly reasonable explanation.  But the court cited to EEOC regulations which provide that, when an employer is attempting to eliminate excessive overhead, expenses, or costs through a RIF program, the entire facility will be the “decisional unit” for purposes of a valid OWBPA waiver.  Thus, this non-binding discussion from the court indicates that an employer that is reducing only a portion of a facility may want to provide more specific reasons for the reduction. 

The Burlison decision

The fast-food chain McDonald’s carried out a nationwide restructuring, which included reconfiguration of its Atlanta region.  The regional manager of the former Atlanta region, reviewed assessments of the employees from three regions who would make up the new, consolidated Atlanta region, and ultimately selected 66 of 208 employees for termination.  All of the 66 employees were over the age of 40, and all had worked for the company for at least 15 years.

The releases given to the 66 employees contained only the information relevant to the new Atlanta region:  they listed the job titles and ages of all of the original 208 employees from the three regions; the 66 who had been selected for severance; and the 142 who had not been selected for severance.

The plaintiffs signed releases and accepted severance benefits, but then sued McDonald’s for age discrimination, contending that the disclosures did not comply with the requirements of the OWBPA. The district court granted summary judgment to the plaintiffs, but on appeal the Eleventh Circuit reversed.

The district court had held that, in addition to disclosures about selections in the relevant three regions, McDonald’s should have supplied the ages of all employees terminated nationwide.  The Eleventh Circuit disagreed, noting that the purpose of the disclosures is to allow the severed employees and their attorneys “to make meaningful comparisons to determine whether an employer engaged in age discrimination.”  Therefore, providing too much information “will in reality only obfuscate the data and make patterns harder to detect.”

The plaintiffs also argued that the appropriate “decisional unit” was not the 208 employees in the regions that were to make up the new Atlanta region, but rather all regions in the company’s U.S. operations. Both the district court and the Eleventh Circuit disagreed with the plaintiffs on the ground that the 208 employees had been considered as a finite unit for purposes of making termination decisions and were considered for employment only in the new Atlanta region.


Can Kruchowski and Burlison be harmonized?  It would seem so.

In Kruchowski, the employer provided the wrong decisional unit information to the employees; thus, it had failed to comply with the OWBPA disclosure requirements. In Burlison, the employer provided the correct decisional unit information to the employees; thus, it complied with the OWBPA disclosure requirements.  However, determining the appropriate decisional unit is perhaps more an art than a science, and will be very fact-specific. Employers should consult with counsel in all but the most clear-cut cases because failure to correctly define the decisional unit renders all severance agreements invalid from an age discrimination standpoint.

What should an employer do if, as in Kruchowski, it discovers an error in the decisional unit, or makes a change in the decisional unit after the disclosures?  Kruchowski teaches us that the best course may be to issue new disclosures and give the terminated employees a new 45-day period in which to review the agreements.  As burdensome as that sounds, it is preferable to having all the releases declared invalid.

Courtney Hasselberg (formerly Hueser) works in Constangy’s Kansas City, MO, office and practices in the areas of employment litigation prevention and defense.


Cari Dominguez, Chair of the Equal Employment Opportunity Commission, is stepping down effective August 31.  The current vice chair, Naomi C. Earp, will be Acting Chair effective September 1.

Earp, a Virginian, was an attorney with the EEOC in the 1980’s and later was an EEO officer for the National Institutes of Health and the Federal Deposit Insurance Corporation, among other federal entities.  After those appointments, she worked as a private EEO consultant before returning to the EEOC in 2002.

President Bush appointed Earp as vice chair in 2002.  Earp’s nomination was initially opposed by the National Association for the Advancement of Colored People and Blacks in Government,  who said that she had created a "hostile environment" for minorities when she was EEO officer for the federal agencies.  According to the NAACP and BIG, Earp had cost the federal government money in EEO charges and settlements.

In other EEOC news, Ronald Cooper was appointed General Counsel.  Before his appointment, Cooper had a long career representing employers in labor and employment law.  He is originally from Athens, Georgia, but has spent the past 36 years in Virginia.


If you are heading to the annual meeting of    the Association for Corporate Counsel (ACC) in October, please let us know! Constangy lawyers will also be in San Diego hosting a reception and dinner for clients and other ACC friends, meeting new folks in the Exhibition Hall, and attending CLE sessions. Please write vwhitaker@constangy.com so we can ensure you are invited to the dinner slated for October 24. See you there!


Supervisor Biff, a dark-skinned African-American, constantly teases his employee, Bud, a fair-skinned African-American, about his ancestry and his racial "impurity."  The teasing gets so bad that Bud has a nervous breakdown and sues for unlawful harassment. The attorney for the employer advises the employer not to worry because Biff and Bud are both male and both African-American.  Is he right?

No, no, no! Bud would not have a valid claim for race discrimination, but he could sue for color discrimination, which is prohibited by Title VII.  He could also sue for wrongful (constructive) discharge, negligence, and intentional infliction of emotional distress under the common law of most states.

The EEOC has recently issued comprehensive guidelines on race and color discrimination.  The guidelines are available at the EEOC’s website.


“Get out of kitchen,” court tells plaintiff who can’t stand heat. The California Supreme Court held that one who works on a sexy TV show should be expected to tolerate some sexual talk in the workplace, and dismissed a lawsuit by a writer’s assistant for Friends who had claimed she was subjected to a hostile work environment based on the writers’ “sexual antics and coarse sexual talk.” The plaintiff had brought her claims under the California Fair Employment and Housing Act.

Better than crack. An alcoholic who worked at an ethanol fuel facility was denied unemployment benefits after he noticed an ethanol spill, indulged his passion, immediately passed out, was rushed to the hospital, and then was fired for having a blood-alcohol level of 0.72—twice the level considered fatal for most humans. “Why did you drink fuel?” asked the flabbergasted administrative law judge.  The ex-employee replied, “I don’t have a good answer for that. Curiosity?”

Employer’s headache . . . all gone! The Third Circuit (Deleware, New Jersey, and Pennsylvania) affirmed summary judgment for an employer in a race, age, and sex discrimination lawsuit. The plaintiff was terminated after he left work, supposedly because of a migraine headache, and was caught detailing the car of his co-worker. Before the migraine incident, the plaintiff had tested positive for cocaine three times and had threatened a co-worker.

Seems to us there’s a little reverse age discrimination goin’ on here. The Sixth Circuit affirmed summary judgment for a hospital that terminated a nurse in a special-care maternity unit. The nurse had allegedly pinched her charges’ teensy little noses, force-fed them, yelled at them, spanked them, blew into their faces, and shook them. Because she was replaced by two younger nurses, she (naturally) claimed age discrimination.

It’s ok to terminate public servants who publicly reenact hate crimes, court finds. The Second Circuit reversed a lower-court decision in favor of a New York City policeman and two firefighters who were terminated by then-Mayor Giuliani for participating in a Labor Day parade float that featured stereotypes of African-Americans and the reenactment of a hate crime. The appellate court held that the city had a legitimate interest in maintaining respect for the police and fire departments– duh!–that outweighed the plaintiffs’ right to “express themselves.”


Gangsta Arbitrayta. An employee with a history of violent and threatening behavior will be allowed to go back to work . . . in a job where he handles explosive chemicals. A judge for the Eastern District of New York upheld the decision of an arbitration panel reinstating the employee, who had been indicted for attempted murder and other felonies, and who had a history of aggressive and irresponsible behavior in the workplace.

Reason flails . . . but then prevails! On Mother’s Day, the Anaheim Angels gave out free tote bags to moms, all of whom happen to be women. A male fan has filed suit claiming that the female-only tote giveaway was discriminatory. The story reached all the way to Pennsylvania, where, in response, the Altoona Curve announced a “Salute to Frivolous Lawsuit Night.” The double-A ball club distributed pink tote bags to men, served lukewarm coffee to women over the age of 18 “so they [would] not burn themselves,” and gave away beach balls to children “with a warning not to ingest [them].” The President and Managing Partner of the Curve refused to comment, on the ground that by doing so he might prompt a frivolous lawsuit.

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