The Civil Rights Act of 1964 is America’s foremost protection against employment discrimination (also known as “Title VII”). Yet, for more than five decades, courts have applied this law to preserve such “equal rights” only for some, and decidedly not for homosexual or transgender persons.

No longer. In a decision which its conservative author acknowledged as “unexpected,” the U.S. Supreme Court has ruled that an employer who fires an individual for being gay or transgender violates Title VII’s prohibition against sex discrimination. Bostock v. Clayton County, Georgia (June 15, 2020).

Title VII makes it “unlawful ... for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual ... because of such individual’s race, color, religion, sex, or national origin.”

Justice Gorsuch, joined by five other members of the court, found that discrimination against a person for his or her sexual orientation or sexual identity was by definition discrimination because of that person’s sex.

Justice Gorsuch reasoned: “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”

Until this decision, it was possible for private employers in some 25 states to terminate a gay or transgender person for their sexual orientation and/or identity alone. Nationwide, it had also been possible for an employer to argue that even if sexual orientation or identity had been a factor in a worker’s termination, there should be no liability as he or she would have been fired for other reasons in any event (so-called “mixed motive” cases).

Again, no more. An employer violates Title VII when it intentionally fires an individual employee based even in part on (i.e., “because of”) sex (and thus, even in part, on his/her sexual orientation or identity). “It makes no difference if other factors besides the employee’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group.”

This profound expansion of Title VII’s principles must also apply to every other individual characteristic that law protects against discrimination: race, color, religion and national origin.

The decision thus calls for employers to take close stock of their policies, practices and training programs to ensure that workplace-protected characteristics are never a factor in any employment decision. Personnel management, whether in hiring, advancement, compensation, discipline, termination or any other major aspect of employment, must be grounded in worker ability, qualification and productivity.

See also:

• Abolishing Workplace Bigotry: A Work in Progress (March 5, 2020)
• Cautionary Tale 33: EEOC Settles Tex-Mex Restaurant Servers’ Sexual Harassment Case for $40,000 (August 15, 2019)
• Gender Equality and Discrimination in the Workplace (November 17, 2017)
• Helping the Haunted – California Employers Must Accommodate Victims of Domestic Violence, Sexual Assault or Stalking (July 7, 2017)
• Proving Workplace Discrimination is Now More Difficult in California; State Supreme Court Issues an Employer-Favorable Decision in a “Mixed Motive” Case (April 15, 2013)

Please contact Tim Bowles, Cindy Bamforth or Helena Kobrin for more information.

Law Offices of Timothy Bowles
April 15, 2013

2013 brings more changes on the notices that must be posted and the pamphlets that must be distributed in California workplaces. These include:

– Pregnancy Leave and Family Leave Notices: Any California employer with five or more persons on payroll is subject to the pregnancy disability leave (PDL) law . Any California employer with 50 or more on payroll must comply with the California Family Rights Act (CFRA). Effective December 30, 2012, employers must post updated notices on employee rights and responsibilities under the PDL (Notice A) and the CFRA (Notice B).

– Non-Discrimination and Non-Harassment Notices, Pamphlets: California’s Fair Employment and Housing Act (FEHA) prohibits workplace discrimination on the basis of “sex,” previously defined to include gender, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth. The Legislature expanded the definition in 2012 to include breastfeeding and related medical conditions. As a result, employers must post new a version of the workplace non-discrimination notice.

– Anti-Human Trafficking Postings: As mentioned in “New Labor Laws for 2013: Slavery and Human Trafficking Notice Required for Some Businesses,” certain types of businesses will need to post a notice with specific information about slavery and human trafficking. This law was effective January 1, 2013. The California Department of Justice is developing a model notice, due by April 1, 2013.

These are just the highlights. California and the federal government require employers to post and otherwise provide their workers with a range of printed statements and information on workplace laws and required procedures, available online from such agencies as the California Department of Fair Employment and Housing (DFEH), California’s Employment Development Department (EDD), the California Department of Industrial Relations (worker’s compensation), the California Industrial Welfare Commission (IWC) (wage orders), and the U.S. Department of Labor.

Businesses may purchase a wide-ranging California and federal employment notices poster for 2013 through the California Chamber of Commerce website.

Our firm’s attorneys Tim Bowles or Cindy Bamforth can assist you in implementing or revising workplace policies as appropriate to ensure compliance with these requirements.

Law Offices of Timothy Bowles
April 1, 2013

Effective January 1, 2013, a new California law, Civil Code section 52.6, requires specified businesses and other establishments to conspicuously post a notice guiding the public to report suspected slavery and human trafficking. The places affected include:

– Restaurants
– Urgent care and emergency room facilities
– Privately operated job recruitment centers
– Commercial airports, rail stations, bus stations and truck stops
– “Adult or sexually oriented businesses” (as defined by Penal Code section 318.5)
– Businesses offering “massage or bodywork services” from uncertified message therapists
– Farm labor contractors

The notice must be at least 8.5” x 11” with 16-point font and state:

“If you or someone you know is being forced to engage in any activity and cannot leave—whether it is commercial sex, housework, farm work, construction, factory, retail, or restaurant work, or any other activity—call the National Human Trafficking Resource Center at 1-888-373-7888 or the California Coalition to Abolish Slavery and Trafficking (CAST) at 1-888-KEY-2-FRE(EDOM) or 1-888-539-2373 to access help and services.

Victims of slavery and human trafficking are protected under United States and California law.

The hotlines are:

:

• Available 24 hours a day, 7 days a week.
  
• Toll-free.
  
• Operated by nonprofit, nongovernmental organizations.
  
• Anonymous and confidential.
  
• Accessible in more than 160 languages.
  
• Able to provide help, referral to services, training, and general information.”

The notice must be in English, Spanish and at least one other language that is “the most widely spoken” in the county where the establishment is located.

The California Department of Justice will develop and make a model notice available online by April 1, 2013.

The state is authorized to fine any business or other establishment that remains in non-compliance 30 days after a written warning ($500 first offense, $1,000 each subsequent offense).

Law Offices of Timothy Bowles
April 1, 2013

Effective January 1, 2013, a new California law, Civil Code section 52.6, requires specified businesses and other establishments to conspicuously post a notice guiding the public to report suspected slavery and human trafficking. The places affected include:

– Restaurants
– Urgent care and emergency room facilities
– Privately operated job recruitment centers
– Commercial airports, rail stations, bus stations and truck stops
– “Adult or sexually oriented businesses” (as defined by Penal Code section 318.5)
– Businesses offering “massage or bodywork services” from uncertified message therapists
– Farm labor contractors

The notice must be at least 8.5” x 11” with 16-point font and state:

“If you or someone you know is being forced to engage in any activity and cannot leave—whether it is commercial sex, housework, farm work, construction, factory, retail, or restaurant work, or any other activity—call the National Human Trafficking Resource Center at 1-888-373-7888 or the California Coalition to Abolish Slavery and Trafficking (CAST) at 1-888-KEY-2-FRE(EDOM) or 1-888-539-2373 to access help and services.

Victims of slavery and human trafficking are protected under United States and California law.

The hotlines are:

:

• Available 24 hours a day, 7 days a week.
  
• Toll-free.
  
• Operated by nonprofit, nongovernmental organizations.
  
• Anonymous and confidential.
  
• Accessible in more than 160 languages.
  
• Able to provide help, referral to services, training, and general information.”

The notice must be in English, Spanish and at least one other language that is “the most widely spoken” in the county where the establishment is located.

The California Department of Justice will develop and make a model notice available online by April 1, 2013.

The state is authorized to fine any business or other establishment that remains in non-compliance 30 days after a written warning ($500 first offense, $1,000 each subsequent offense).

Law Offices of Timothy Bowles
April 1, 2013

2013 brings more changes on the notices that must be posted and the pamphlets that must be distributed in California workplaces. These include:

– Pregnancy Leave and Family Leave Notices: Any California employer with five or more persons on payroll is subject to the pregnancy disability leave (PDL) law . Any California employer with 50 or more on payroll must comply with the California Family Rights Act (CFRA). Effective December 30, 2012, employers must post updated notices on employee rights and responsibilities under the PDL (Notice A) and the CFRA (Notice B).

– Non-Discrimination and Non-Harassment Notices, Pamphlets: California’s Fair Employment and Housing Act (FEHA) prohibits workplace discrimination on the basis of “sex,” previously defined to include gender, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth. The Legislature expanded the definition in 2012 to include breastfeeding and related medical conditions. As a result, employers must post new a version of the workplace non-discrimination notice.

– Anti-Human Trafficking Postings: As mentioned in “New Labor Laws for 2013: Slavery and Human Trafficking Notice Required for Some Businesses,” certain types of businesses will need to post a notice with specific information about slavery and human trafficking. This law was effective January 1, 2013. The California Department of Justice is developing a model notice, due by April 1, 2013.

These are just the highlights. California and the federal government require employers to post and otherwise provide their workers with a range of printed statements and information on workplace laws and required procedures, available online from such agencies as the California Department of Fair Employment and Housing (DFEH), California’s Employment Development Department (EDD), the California Department of Industrial Relations (worker’s compensation), the California Industrial Welfare Commission (IWC) (wage orders), and the U.S. Department of Labor.

Businesses may purchase a wide-ranging California and federal employment notices poster for 2013 through the California Chamber of Commerce website.

Our firm’s attorneys Tim Bowles or Cindy Bamforth can assist you in implementing or revising workplace policies as appropriate to ensure compliance with these requirements.

Law Offices of Timothy Bowles
April 1, 2013

Beginning March 8, 2013, employers with 50 or more employees and subject to the federal Family and Medical Leave Act (FMLA) must display a new poster. The change is prompted by new U.S. Department of Labor (DOL) regulations.

This new “Employee Rights and Responsibilities Under the Family and Medical Leave Act” poster is included as “Notice C” on the more comprehensive California Chamber of Commerce “California and Federal Employment Notices” poster.

Along with a summary of FMLA, the new posting provides instructions for filing a complaint under that law. As always, covered businesses must display the poster in a conspicuous place where employees and job applicants can readily view it.

Law Offices of Timothy Bowles
March 8, 2013

Beginning March 8, 2013, employers with 50 or more employees and subject to the federal Family and Medical Leave Act (FMLA) must display a new poster. The change is prompted by new U.S. Department of Labor (DOL) regulations.

This new “Employee Rights and Responsibilities Under the Family and Medical Leave Act” poster is included as “Notice C” on the more comprehensive California Chamber of Commerce “California and Federal Employment Notices” poster.

Along with a summary of FMLA, the new posting provides instructions for filing a complaint under that law. As always, covered businesses must display the poster in a conspicuous place where employees and job applicants can readily view it.

Law Offices of Timothy Bowles
March 8, 2013

Copyrights, trademarks, trade secrets and patents are “intellectual property,” as compared with “real property” or real estate –land and buildings – or “personal property” – other physical property. A company’s intellectual property is often its most valuable asset. Thus of course, ensuring maximum protection for that property is a critical concern for such business.

A recent court decision from Chicago reaffirms the sometimes not-so-obvious rules on a copyright’s life span. Author Leslie Klinger, who according to his website is one of the foremost authorities on Sherlock Holmes, sued the Conan Doyle Estate,Ltd. in February, 2013. Mr. Klinger asserted that certain elements of two Sherlock Holmes characters – Holmes and Dr. Watson – created by Sir Arthur Conan Doyle were no longer protected by copyright. If correct, Klinger would of course no longer have to obtain the estate’s permission to utilize those elements in his own published writings.

The judge’s ruling was split. Elements based on character development, dialogues, settings, and other story aspects in the pre-1923 books and stories are freely usable because they were published before 1923 and thus are now in the public domain. The judge found that other elements published in 1923 or after were still subject to copyright, thus requiring Klinger or anyone else to obtain a license from the estate (and to pay any required fees) in order to include them in published works.

As long as a creative work is subject to copyright, the author or anyone to whom he/she assigns the copyright – has the exclusive right to reproduce, publish, distribute, publicly display, or create derivative works from that work. Anyone else wishing to do so must receive permission from the author or other owner of the copyright. However, while creative works – writings, songs, music, computer code, screenplays, sculptures, paintings, photographs, and more – are born with copyrighted status from the moment of creation, the legally protected term of that copyright does not always start at that moment.

The length of protection depends on where the work was created, as each country has its own law with one or more international treaties thus affecting protections of that work in other nations, as well as when the work is “published.”

For original works created in the U.S. the law has changed over the years and is somewhat complex. For many works published after January 1, 1978, the copyright lasts for life of the author plus 70 years. However, if an individual created a work for an employer or under a particular contract that qualifies it as a “work made for hire,” copyright extends for 95 years. Further, if any work was published prior to 1978, the rule is 95 years from when the work was first published, not the date of creation. This is the “95 year rule” applied in the Conan Doyle Estate case.

To strengthen the protection for copyrights in the United States over their life span, it is a good idea to register them with the U.S. Copyright Office. For help in understanding these issues and protecting your copyrights, contact the firm’s “of counsel” attorney, Helena Kobrin.

Law Offices of Timothy Bowles
February 1, 2013

California Labor Code 2751 is being revised to require employers to place commission pay arrangements in writing. Businesses have the next 12 months to prepare. Effective January 1, 2013, section 2751(a) will state:

“Whenever an employer enters into a contract of employment with an employee for services to be rendered within this state and the contemplated method of payment of the employee involves commissions, the contract shall be in writing and shall set forth the method by which the commissions shall be computed and paid.”

Employers will be required to “give a signed copy of the contract to every employee who is a party thereto and shall obtain a signed receipt for the contract from each employee.” Labor Code 2751(b). If the contract expires, its terms continue until specifically superseded or the employment terminates.

Covered commissions are “compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.” (Labor Code 204.1) The new law does not cover short-term productivity bonuses “such as are paid to retail clerks” or other bonus and profit-sharing plans “unless there has been an offer by the employer to pay a fixed percentage of sales or profits as compensation for work to be performed.” Labor Code 2751(c).

The former Labor Code 2751 required such written commission agreements only for employers with no “permanent and fixed place of business” in California. However, in 1999 a federal judge found that limiting the law to such out-of-state companies was unconstitutional. Thus, the revised code section seeks no such discrimination. Now all businesses employing in California will be subject to the requirements.

While employers could find this “put it in writing” requirement an inconvenience, the new law can be regarded as a positive incentive for businesses to nail down important specifics on their commission plans.

For example, it is not uncommon for a company to overlook defining the event or events after which an employee no longer earns a commission. Is a worker entitled to a percentage of certain income the employer receives after his or her departure? If so, what is the formula for confirming and calculating post-termination commissions? Where an oral (or just presumed) agreement can create an expensive fight over how much commission money, if any, a terminated employee has earned after his or her termination, a written agreement can establish the boundaries and cut-off points clearly.

While the revised law specifies no penalty or consequence for failing to place a commission agreement in writing, court could disregard a future employer’s claimed oral commission arrangements with workers as unenforceable, instead siding with an employee’s much more generous recollection of commission terms. The state’s wage enforcement agencies or a court could also consider written commission agreements within the scope of “personnel records” and that an employer’s failure to maintain and provide them for inspection under Labor 1198.5 even subjects that employer to misdemeanor fines and even imprisonment under Labor Code 1199(c).

As there is no time like the present, it is a good idea to address any needed written agreements or revisions before the coming year has suddenly flown by. An experienced labor and employment lawyer can of course help an employer steer clear of the ambiguities and create workable agreements that benefit all concerned.

Law Offices of Timothy Bowles
January 1, 2013