Sex and the Supreme Court

Those reading the newspapers know that the Supreme Court recently ruled in Bostock v. Clayton County that employment discrimination based on sexual orientation or gender status is discrimination based on sex. Why is this so? As I have argued for many years, an employer can't act on the basis of sexual orientation or gender status without first making judgments about sex. Or as the Court put it, "An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids." The Court also discussed causation at length. It emphatically rejected the notion that but-for causation means sole cause, primary cause, dominant cause or anything of the sort. All that is required is that the prohibited criterion made a difference.

What to do when you’re terminated

Verify the reason for your terminationIf you were fired, attempt to obtain a written statement of the reason(s) for your termination. If you cannot obtain a statement in writing ask your supervisor or manger to tell you the reason. Then write down for yourself the stated reason and include the date, time, and place (and any witnesses) that the statement was given. Read it to the supervisor and make a note of the date he or she confirmed its content.Important differences between resigning and being terminatedWhen the end of your career with the company seems imminent, or if your working environment has become unbearable, you may be tempted to simply terminate the employment relationship voluntarily by tendering a resignation. Sometimes, a resignation can be helpful. When you apply for new jobs, you can honestly say that you quit the company voluntarily. Your employment record at your old company should reflect that you quit and not that you were fired. For some large companies with numerous affiliates or divisions, an employee who resigns from the job is eligible for rehire with the company at a later date, whereas an employee terminated for cause would not be. However, the difference between being fired...

Donald Trump, the FBI and pretext

President Donald Trump's recent termination of FBI Director James Comey belongs in a textbook on employment discrimination. It shows the way employers can get into legal trouble when firing an employee. It is such a textbook example of a "bad termination," in fact, that an employer seeking to minimize its exposure to a termination-related lawsuit would do well to look at the President's handling of the Comey termination, and do exactly the opposite. The issue we examine today is whether the President's stated reason for firing Director Comey - Comey's alleged mishandling of the Clinton emails - is unworthy of credence and a pretext for some other motive.Comey's investigation of Secretary Clinton's emails took place and was complete before Trump was elected President. To the extent Comey mishandled anything, Trump clearly knew about it on the first day he took office. Yet, he waited 108 days to fire him. Just a few days before his termination, Comey asked the Deputy Attorney General for additional resources to investigate Trump's Russia connections. Trump, it turns out, also asked the Deputy Attorney General to draft the memo that Trump cited in his termination letter to Comey, without telling the DAG the memo would be...