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June is Pride Month, a time when the LGBTQ community comes together to celebrate their strength in spite of the decades of hardship and discrimination they have faced for just being themselves and loving the people they love, from the Stonewall riots to the AIDS crisis.

Sadly, LGBTQ discrimination is still an issue even in 2021, but there have been many landmark improvements over the years that allow for legal recourse in the event you believe you have been discriminated against because of your sexual orientation.

Bryant Legal LLC recognizes the incredible resilience the LGBTQ community has and is here to help its members when they face certain types of discrimination. We hope to help you better understand your LGBTQ employment rights if should you ever experience discrimination in the workplace and would be honored to present you in a case if your employment rights are violated.

Can I be illegally discriminated against based on my sexual orientation or gender identity?

No. On June 15, 2020, the U.S. Supreme Court ruled that the 1964 Civil Rights Act protects gay, lesbian, and transgender employees from discrimination based on sex. 

The 1964 Civil Rights Act does not directly state that these characteristics were protected from sex-based discrimination, so the fact that the Supreme Court stated that these identities fall under the umbrella of sex discrimination is important

The federal and Ohio state governments are also considering passing laws that would protect the LGBTQ community from more types of discrimination.

What’s the difference between the Equality Act and the Ohio Fairness Act?

The Equality Act

The Equality Act is a bill that would amend that 1964 Civil Rights Act and make it so it is explicitly stated that discrimination based on sexual orientation and gender identity is illegal. This would apply to more than just employment discrimination and would ensure that LGBTQ people would have equal protection against discrimination, just as anyone else in the United States does.

The Equality Act would also trump the Religious Freedom Restoration Act (RFRA), which means people whose religious beliefs may not approve of same-sex couples or transgender people cannot deny LGBTQ people housing, goods, and services on the basis of their religion and use RFRA as a defense for doing so.

The U.S. House passed the Equality Act on February 25, 2021, but it faces an uphill battle in the Senate.

The Ohio Fairness Act

The Ohio Fairness Act, or OH SB 119, is a bill that would make it illegal to discriminate against gay, lesbian, and transgender people throughout the state of Ohio.

If that the Equality Act does not make it through the U.S. Senate, the Ohio Fairness Act would ensure that discrimination against LGBTQ people in Ohio would be illegal.

Compared to the federal Equality Act, the Ohio Fairness Act does provide greater protection for LGBTQ people as it would apply to employers with more than 4 people (federal anti-discrimination laws apply to businesses with more than 50 employees). However, there are religious exemptions to the Ohio Fairness Act, which would allow religious organizations to discriminate in certain situations.

Despite partisan support for the Ohio Fairness Act, it’s unclear if this bill will pass a chamber, as the last time a similar bill passed a chamber, it was in 2009, when Democrats were in control of the Ohio House

What are some examples of LGBTQ employment discrimination?

  • Being fired after publicly transitioning or coming out
  • The retraction of a job offer after an employer reviews social media posts that show you and your same-sex partner together or posts revealing your transition
  • Being asked inappropriate questions about your sex life or genitals, offensive remarks about clothing, inappropriate touching, etc., to the degree it affects your ability to work effectively; retaliating against you for reporting the sexual harassment to HR by passing you over for a promotion you’ve earned, being excluded from meetings that would improve your position, change in compensation, etc. (hostile work environment sexual harassment)
  • Being asked to transfer positions (i.e., being asked to move from your public-facing position to a different department after starting to transition)
  • Being treated unfavorably due to your sexual orientation or gender identity, such as being denied or deprived of opportunities that could lead to a promotion or better pay

Bryant Legal LLC is here to protect LGBTQ employment rights

If you believe you have experienced any of the above situations, contact Bryant Legal LLC today. We can help you determine whether or not you would be able to pursue legal action against your employer due to LGBTQ discrimination. Contact us today for a consultation or to request more information.

How to Prove Retaliation

written by Daniel Bryant

What is retaliation?

Retaliation occurs when an employer takes an adverse action against you because you participated in protected activity. In order to assert your rights, you need to protect them. The purpose of this blog is to generally explain what can constitute unlawful retaliation, how to prove that you have been retaliated against, and what damages you can potentially recover. 

“Protected activity” is very broad. A non-exhaustive list of protected activities includes, but is not limited to, the following:

  • Refusing to follow orders that would result in discrimination
  • Filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or a similar agency
  • Assisting in an EEOC or agency investigation
  • Participating in any manner in an internal investigation, proceeding, or hearing involving allegations of discrimination
  • Filing or participating in a discrimination lawsuit
  • Witnessing an EEOC charge, complaint, investigation, or lawsuit
  • Communicating with a manager or a supervisor about employment discrimination
  • Opposing discrimination in the workplace (even if it is not you directly who has been discriminated against)
  • Resisting sexual harassment or stepping in to protect others from it
  • Talking about wages with fellow employees or supervisors, regardless of a union’s involvement

Retaliation can negatively impact the trajectory of your career, as it can result in the loss of your job, demotion or being passed over for promotion, job reassignment, or cuts in hours or wages. 

Proving unlawful retaliation can make sure you receive the compensation you deserve — but it is not as easy. It requires you to prove 3 components, and failure to prove just one of these items can end in your case being tossed out.

The 3 components of retaliation

In order to prove retaliation, you have to show the following 3 components to be true:

1. You participated in a protected activity or refused to obey an illegal act

There are 2 types of retaliation: retaliation to opposition and retaliation to participation.

Retaliation to opposition refers to retaliating against an employee who has refused to to obey a discriminatory order and can also be applied to employees complaining about alleged discrimination they have experienced or others have experienced, picketing to oppose discrimination, and threatening to file a discrimination charge.

Retaliation to participation focuses on retaliation against employees who have engaged in a protected activity, such as filing a charge of discrimination, opposing unlawful conduct (or testifying about said unlawful conduct), and participating in an investigation, proceeding, or hearing about the unlawful conduct.

If you have done either of these things, then you can continue to the next component.

2. Your employer took adverse action against you

You need to prove that your employer took adverse action against you. Adverse action can come in several forms, including but not limited to:

  • demotion
  • suspension
  • termination or firing
  • failure to promote
  • reassignment to a position with vastly different responsibilities or requirements
  • a decision that causes a significant change in benefits, such as a reduction or an increase in work hours

Verbally abusing employees who participated in a protected activity or refused to obey an unlawful act and thus creating a hostile work environment may also be constituted as an adverse action. 

3. There is a connection between your employer’s adverse action and your protected activity

Proving causation (that is, the proof that your participation in the protected activity triggered your employer’s adverse action) is one of the most difficult parts to prove, as these cases typically rely on circumstantial evidence.

It is rare for an employer to directly state or even admit that you were demoted, fired, or suspended because you engaged in a protected activity. Even if they have, it’s your word against the employer’s word, which was probably not recorded.

You must make the connection between the adverse action and the protected activity, even though there may not be a direct link. 

For example, if an individual who is qualified under the Americans with Disabilities Act requests a reasonable accommodation is transferred to a different job after making that request, this can be considered retaliation. Making that reasonable accommodation request is considered a protected activity, and transferring them to a different job is considered an adverse action.

While the employer never said why the employee in this example was transferred to a different job, it can be inferred that it was because of the employee’s reasonable accommodation request.

Likewise, when an employee files a sexual harassment complaint with the employer’s human resources department (a protected activity) and the managers reassign her to less favorable projects, stop including her in meetings, and tell coworkers not to speak with her, we can see that before the complaint was filed, the employee was not treated this way. We can infer that this is an adverse action (hostile workplace, failure to promote, and a decision that causes a significant change in benefits) and because we’ve established that connection, we can prove it as retaliation.

Bryant Legal LLC can help you prove retaliation

Although it may seem simple at first glance, proving retaliation is difficult to do.

That’s why it’s important to contact an employment lawyer at Bryant Legal LLC. Our employment attorneys can help you make the connection between the protected action and adverse action and gather evidence that is considered admissible in court. You need every piece of evidence to ensure the outcome of the lawsuit is in your favor, and we will do everything we can to tip the scales in that direction.

Speak to one of our attorneys today for more information and we’ll see what can be done about your case.

It’s been a little over a year since the initial confirmation of the COVID-19 pandemic in the United States. Since that time, millions of workers have been impacted. Regardless of where you stand in the midst of the pandemic, it is possible that your rights as an employee have been violated. If that is the case, you should contact Bryant Legal, LLC immediately in the event you believe you have been discriminated against for having to seek medical leave due to COVID-19 to quarantine, recover, or even caretaker duties for your child or a loved one due to caretaker duties as more fully outlined below..

Can I take paid sick leave if I get COVID-19?

To provide context, in response to the COVID-19 pandemic, on April 1, 2020, the Secretary of Labor promulgated temporary regulations to implement emergency medical leave under Title I of the FMLA and emergency paid sick leave to assist working families facing public health emergencies arising out of Coronavirus Disease 2019 (“COVID-19” or “Coronavirus”) global pandemic. The paid sick leave was created by a time-limited statutory authority established under the Families First Coronavirus Response Act (FFCRA), of which contains two subsets: (1) the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the (2) Emergency Paid Sick Leave Act (“EPSLA”), for the time period of April 2, 2020 through December 31, 2020. The FFCRA is remedial legislation that expanded the protections under 29 U.S.C. § 2617 of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq., (“FMLA”) and requires covered employers to provide employees with paid sick leave, expanded family and medical leave, and job protection for specified reasons related to qualifying reasons related to COVID-19.

Under the FFCRA leave requirements, businesses with less than 500 employees were required to provide 2 weeks of paid leave at 100% of your typical pay, capped at $511 per day. 

While the FFCRA initial coverage period expired on December 31, 2020, it was extended by the American Rescue Act Plan of 2021 (the “Act”) until September 30, 2021. In order to promote vaccination and testing, the Act, which is effective as of April 1, 2021, added two additional reasons that allow employees to qualify for FFCRA leave, effective April 1, 2021, if their employer opts in:

  1. FFCRA leave is available for employees who are unable to work because they are obtaining a COVID-19 vaccine, or are recovering from any illness, injury or condition related to such vaccine (side effects): and
  2. FFCRA leave is available for employees who are unable to work because they are seeking or waiting for the results of a diagnostic test or awaiting a medical diagnosis. 

The American Rescue Act Plan of 2021 also extended the FFCRA in two other important ways:

  1. The Act increased the number of weeks that an employee can seek paid family leave under the FFCRA from ten (10) weeks to twelve (12) weeks.  Thus, an employee now has 14 weeks of paid leave available, if he or she qualifies: two weeks of sick leave and twelve weeks of family leave. 
  2. The Act also resets employees’ FFCRA sick leave rights to zero on April 1, 2021.  Therefore, if employees took FFCRA sick leave prior to April 1, 2021, that does not count against their future right to leave right.

As such, if you were denied leave or discriminated against at any point due to one or more COVID-related reasons, whether that be under the original FFCRA or the recently amended version (effective April 1, 2021), you may still have a legal case. 

Can I be fired for missing work to care for a family member who got COVID-19?

FFCRA applied to employees who had to go on leave to care for sick family members, and if you were denied paid sick leave or were fired for going on leave, it’s worth contacting a lawyer to see if anything can be done.

Under the Family and Medical Leave Act (FMLA), employees who work for private employers (that have at least 50 employees), government agencies, and elementary and secondary schools are eligible for 12 weeks of unpaid leave.

Provided you have worked for your employer for at least 12 consecutive months and have given notice about medical leave before you start your leave or as soon as you can in emergency situations, you should be allowed to take leave without losing your job. 

If you experience retaliation after exercising your FMLA rights, it may be grounds for a lawsuit. Retaliation can be a complex issue and depends on the specific facts of each scenario, so be sure to contact a lawyer to determine whether or not your case is one that can be brought forward.

Can I lose my job for missing work because I had to watch my children?

One of the many effects the COVID-19 pandemic has had is that children are attending school from home, leaving parents to tend to their children’s needs. In some cases, many parents have had to take extra time off of work or leave.

FFCRA expanded leave for parents to care for their children in the event their child care provider was unable to do so, or if their schools were closed

If you were fired for taking paid leave through FFCRA, reach out to an employment law firm immediately and ask to speak to an attorney.

What can I do if my employer fired me for taking leave for COVID-related reasons?

If you believe your employer violated your rights by firing you for taking time off due to a COVID-19 diagnosis or caring for your children or a loved one, contact Bryant Legal, LLC today. Our attorneys are here to support you during this difficult time and will fight for your employment rights.

The month of March is a very important month: Women’s History Month, which celebrates the incredible women who have changed the world as we know it.

In honor of Women’s History Month, we have decided to review the history of women’s employment rights, the progress that has been made, and a non-exhaustive outline of your rights under federal employment laws 

If you believe you have been discriminated against because of your sex, gender, pregnancy, pay, and/or medical leave (among other categories of discrimination that we handle), you are welcome to contact either our Toledo, Ohio, or Columbus, Ohio, office to speak with an employment attorney over a free initial and confidential consultation so that you can assert your rights in the event you face discrimination from your employer.

1836: The Lowell Mill strikes

Prior to the nineteenth century, the northeastern United States’ economy was made up of self-sufficient families that raised, grew, or made what they needed and sold or traded excess products with others. Both men and women worked and raised families. Labor and tasks were divided by sex, but the work of women was vital to these families and their surrounding communities, as seen in records kept in the home

About a third of the way through the nineteenth century, the economy started to change, and the home was no longer the center of production, and so the role of women changed. The production of goods shifted to factories and machines, which needed people to run it, and women ended up making up a very large segment of the workforce, particularly in the textile industry.

Women would move away from home to live in boarding houses owned by textile manufacturers, giving them a salary and more independence than they’d ever had before.

Unfortunately, this came at the price of poor and often dangerous working conditions and sometimes at lower wages. 

This was the case for the women working at the Lowell Mill, a textile factory in Massachusetts. The “Lowell girls,” as they came to be known, banded together and went on a strike in 1834. They did not get what they asked for in 1834, but succeeded with their goals in 1836, and created the first union of working women in American history

1920: The Women’s Bureau of the Department of Labor established

On June 5, 1920, the Women’s Bureau was established as part of the U.S. Department of Labor, several months before women were allowed to legally vote. The Women’s Bureau was designed to “formulate standards and policies which shall promote the welfare of wage-earning women, improve their working conditions, increase their efficiency, and advance their opportunities for profitable employment.” 

The Women’s Bureau played an important role in many ways. The agency’s predecessor, the Woman in Industry Service, used field investigations to learn more about how women were readjusting post-World War I, which led to investigations of women’s employment in a number of states. The first investigation was carried out in Indiana, and in 31 other states afterward.

In the 1920s and 1930s, the Women’s Bureau ran several studies that reviewed the working conditions of women in a wide variety of industries, such as:

  • Candy
  • Private household employment
  • Canning
  • Cotton mills
  • Spin rooms
  • Laundromats and laundries
  • Secretaries
  • Sewing
  • Tobacco
  • Enameling
  • Leather gloves
  • Shoes
  • Department stores
  • Silk dress
  • Hat-making

Other early studies included Black women workers and an investigation of how far women were allowed to take exams for federal government positions. The investigation would lead to a ruling from the Civil Service Commission, opening these exams to all sexes.

The Women’s Bureau would go on to work on the Fair Labor Standards Act, examine employment opportunities after the Second World War (opening the door for more employment opportunities in even more fields than before), and the Civil Rights Act.

The Women’s Bureau still exists to this day and continues to push for more progress and improvement for women’s rights in the workplace.

1923: Equal Rights Amendment introduced in Congress

woman discusses employment rights with lawyer

The Equal Rights Amendment (ERA) was a proposed amendment to the Constitution that would guarantee legal gender equality for all Americans. The ERA would be revived over 4 decades after its 1923 introduction in the late 1960s.

With feminists such as Betty Friedan and Gloria Steinem and the U.S. Representative Bella Abzug of New York championing the ERA, the amendment received its two-thirds vote of approval in 1971. It was then approved in March 1972 by the Senate and sent to the states to ratify. 

But a conservative backlash against feminism ended up drying up support for the ERA, thus resulting in a failure to ratify the amendment by 38 states (the number for the necessary three-fourths of the states needed to ratify an Amendment). Only 30 states ratified the amendment.

On January 15, 2020, Virginia became the 38th state to ratify the ERA with bipartisan support in both of the state’s chambers. But the ERA has long passed its ratification deadline, and on top of that, 5 states pulled out of their prior approval of the amendment.

The fate of the ERA is still hanging in the balance due in part to revived interest in the ERA and women’s activism. At this point, it is up to the federal government, courts, and Americans to push for the ERA’s ratification once more.

1938: Fair Labor Standards Act (FLSA)

The Fair Labor Standards Act of 1938 is the law that gave Americans our modern-day workplace protections, such as an entitlement to the payment of minimum wages, overtime compensation when you work over 40 hours in one or more workweeks, and the federal law that governs a variety of conditions in the workplace.

Mary Anderson, the first director of the Women’s Bureau, worked to ensure that women would be protected under the Fair Labor Standards Act by including the statement “No classification shall be made under this section on the basis of age or sex.” 

Anderson was far from the only woman who worked to bring this bill to law. Other female architects and advocates of the FLSA include:

  • Secretary of Labor Frances Perkins
  • U.S. Representative Mary Norton 
  • First Lady Eleanor Roosevelt

1963: Equal Pay Act

The Equal Pay Act of 1963 is a federal law that amended the Fair Labor Standards Act with the goal of ensuring equal pay for men and women. While this law is an important starting point to ensure equal pay between males and females, the gender wage gap persists despite the EPA’s passage. 

In 2020, women earned 81 cents for every dollar earned by men — and that’s just white women. The gap grows wider for women of color, women in executive roles, and in certain jobs. If you believe you are not being paid equally as your male co-workers despite having the requisite qualifications, do not hesitate to contact us to go over your rights to equal pay.

1964: Title VII of the Civil Rights Act

black women talk at work

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination based on race, color, religion, sex, and national origin. We regularly advocate on behalf of individuals who have been faced with discrimination under Title VII. Importantly, Title VII also prohibits employers from retaliating against an employee for opposing discrimination, even if you are not the individual who faced discrimination (i.e. reporting sexual harassment, racial slurs, among other conduct).

1978: Pregnancy Discrimination Act

The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964 to make it illegal to discriminate against a pregnant employee under Title VII’s definition of “sex” discrimination. Thus, the PDA amended Title VII to include protections for pregnant employees.

1996: Equal Pay Day is created

An initiative started by the National Committee on Pay Equity (NCPE), Equal Pay Day is a symbolic day that represents how far into the year a woman must work in order to achieve the same average earnings a man did in the previous year. The date changes every year.

March 31, 2020, was a momentous year and date for Equal Pay Day, as it was the first time ever that showed the gender pay gap is narrowing. It was also the earliest day Equal Pay Day occurred on. 

2009: Lilly Ledbetter Fair Pay Act

The Lilly Ledbetter Fair Pay Act was the first piece of legislation signed into law during the Obama Administration, overturning the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., which placed tight restrictions on the time period for filing complaints of employment discrimination regarding compensation.

Today

Despite all of the progress women and others have made on behalf of women’s rights in the workplace, there still remains a long road ahead for true equality for women in the workplace. At Bryant Legal, LLC, we strive to continue to make progress on behalf of women in all aspects of their employment.

We saw women share their stories of sexual harassment and assault, with many of them occurring in the workplace, with the advent of #MeToo. The #MeToo movement revealed how common and pervasive sexual harassment is in the workplace, which resulted in a handful of seemingly powerful men, like producer Harvey Weinstein, Today Show anchor Matt Lauer, and self-help guru Tony Robbins fall from the public’s grace. Women also feel more empowered to report instances of sexual harassment, sex discrimination, and other forms of discrimination in the workplace, which is how it should be in modern society.

However, very few of these public figures accused of sexual assault faced trial and/or conviction. Weinstein is a rare exception, as he was found guilty of two counts of sexual assault and jailed. As such, individuals need to be held accountable for sex discrimination and that can only be done through asserting one’s workplace rights.

There have been reports that men in the workplace go out of their way to exclude or avoid their female coworkers out of fear of being falsely accused of sexual harassment, which puts women at a disadvantage in terms of promotions and equal pay. 

Even with March 31, 2020, being the most progressive year for narrowing the pay gap, the Census Bureau has found that at the current rate of progress, women won’t see equal pay until 2059

The fight for true equality in the workplace is far from over, which is why Bryant Legal, LLC is always here to protect your rights. If you have any questions about your rights as a female employee in the workplace under any of the federal or Ohio laws governing your employment, please contact us for a free and confidential phone consultation with an employment attorney.