You are listening to an excerpt from Ask the Experts on Talk 860 WWDB AM with host Steve O and weekly guest, LGBTQ legal expert Angela Giampolo.
This week Angela continues the discussion of Employment Law and Workplace Discrimination defining such terms as:
- What makes a “hostile work environment”?
- What does it mean to be “constructively terminated”?
- What are “protected categories”?
Angela discusses how to protect yourself in a possibly abusive workplace and goes a bit off topic to discuss the leak from within the Supreme Court that seems to suggest the era of Roe v Wade is coming to an end.
HOW DOES WORKPLACE DISCRIMINATION MANIFEST?
There are several ways in which workplace discrimination can manifest itself. There’s just flat-out discrimination where you’re being treated poorly. It can look like an adult version of bullying. You’re called names, played tricks on, taken off the schedule. For example, Abercrombie and Fitch made its brand around exclusivity, whiteness, and beauty. They would discriminate against employees for just not being white and beautiful. The case went all the way up to the Supreme Court based on their admitted discrimination.
On a macro legal level, talking about types of discrimination leads to the protective classes. Are you being discriminated against due to age? Are you being discriminated against because you’re not able bodied? Are you being discriminated against because you’re LGBTQ? Are you being discriminated against because you’re Black, Muslim, etc.? Where does someone’s First Amendment right begin, and where do my 5th and 14th Amendment rights end?
WHAT MAKES A HOSTILE WORK ENVIRONMENT?
A hostile work environment is sort of the next level, where going to work every day is a hostile act. Your employer has created an environment that you can’t exist in and work productively in. That potentially leads to being constructively discharged or constructively terminated, where they created an environment where you had to leave. A hostile work environment will lead to constructive termination because unless you’ve experienced damage or adverse action towards your employment status, you don’t have a case. This bullying, this mistreatment, this hostile work environment, can all be happening. But if you’re not fired, laid off, contract not renewed or constructively terminated, you don’t have a case. If you quit, then I can’t help you.
HOW CAN YOU PROVE WORKPLACE DISCRIMINATION FROM A LEGAL STANDPOINT?
It is legally difficult to prove workplace discrimination. Supervisors don’t just come out and say, I don’t like the fact that you’re Muslim, so leave. There are few slam dunk cases. But typically, a supervisor will have a little more stealth in their behaviors than that. We need to bring up circumstantial evidence and causal evidence to prove that. For instance, but for my being Muslim, you wouldn’t be doing X-Y-Z whatever the behavior is, or I wouldn’t have gotten this bad review. But for the fact that I’m gay, I wouldn’t have gotten written up for being late, but for the fact that I’m 72 and you wish I weren’t here.
If we even get that nuclear of a moment, usually that doesn’t happen in a vacuum. It’s not like everything was quiet and then one day someone was like, get out, I don’t like your kind. There are things that led up to it. What can people do to protect themselves is memorializing those things that lead up to it. You may feel like you’re crazy taking notes, but you need to gather information noting incidents that occur at specific times and dates. These logs can be used in court as these incidents build up over time.
I tell people to start journaling. Then talk to HR. You will have a very difficult case if HR has no mention of any adverse behavior or you complaining in any way. HR needs to have the ability or the right to address the situation before they get sued.
IS SEXUAL ORIENTATION A PROTECTED CATEGORY IN EMPLOYMENT LAW?
It is now. During the pandemic, one of the big civil rights movements that happened was Clayton v. Bostock, which put sexual orientation as a protected class within Title VII. You have federal protections, but maybe not statewide protection. But now you have a federal umbrella that you can avail yourself to. The problem with that is that from a federal level, to qualify for these protections, the company has to be morre than 15 people. The majority of businesses fall below the threshold of what Title VII governs, ultimately.
So it is a protected class. However, there aren’t that many of us that are protected because so many of us work for small businesses.
DOES A PERSON HAVE TO BE AN EMPLOYEE TO BE PROTECTED FROM DISCRIMINATION?
You don’t have to be a W-2 employee. You can be a 1099 independent contractor and still be protected. You can be a volunteer. You can be an intern. Ultimately, if you are going someplace day in and day out and working with them and helping them, then these protections can apply to you.
WHAT IS AN AT-WILL EMPLOYEE?
To be at-will as a W-2 employee, you have 401K, you have all the benefits, health insurance. But you don’t have a contract employment agreement. You are an at-will employee. Now, not all states honor and or allow for at-will employees. In this case, you can be let go for any reason.
In this scenario, workplace discrimination becomes very difficult to prove. If you’re an at will employee and you have no contractual obligation, and the company has no contractual obligations to you, then they can terminate you for any reason whatsoever. To the extent that you can advocate for an employment contract, even if it comes with a non-compete, I would still counsel, yes, sign the non-compete because it’s worth having the contract and maybe buying your way out of that in the future.
HOW HAVE YOU BEEN THINKING ABOUT THE DOBBS LEAK?
As a lawyer, I believe in the rule of law. We have to follow rule of law in this country. I think the leak shows how weak we are as a society. People don’t honor certain obligations that they used to. Whistleblowing as a legal right is one thing, when you’re protected by the Whistleblowing Act. But to leak information that you’re otherwise not entitled to leak and that there’s no protection for you to leak, there’s no harm. They just wanted to let the world know that this was happening, so now we know a few days early. But other than that, there was no reason to do it. I don’t condone that.
Transcript
Speaker 1 (00:01)
You’re listening to an excerpt from Ask The Experts on Talk 860 Wwdbam with host Steve O and weekly guest LGBTQ legal expert Angela Giampolo. This week, Angela continues her discussion of employment law and workplace discrimination, defining such terms as what makes a hostile work environment, what does it mean to be constructively terminated, and what are the protected categories. Angela discusses how to protect yourself in a possibly abusive workplace and goes a bit off topic to discuss the leak from within the Supreme Court that seems to suggest the era of Roe v. Wade is coming to an end.
Speaker 2 (00:41)
Good morning, Philadelphia. Welcome to another Ask The Experts show with experts in the field of legal, health, financial and home improvement. If there is any show that I hate to cut by four minutes, it’s this one. But we use a computer, and this is the first time the computer has froze up. So I’m not going to even waste any more time with the opening. I’m just going to introduce you to our attorney, Angela Giampolo. We’re talking about LGBTQ laws today as it refers to employment law. And good morning, Miss Angela.
Speaker 3 (01:24)
Good morning. So good to see you moving on your frozen face.
Speaker 2 (01:29)
Wait a minute. Where’s the big clock at?
Speaker 3 (01:33)
All right. I am in Scottsdale with Niko.
Speaker 2 (01:38)
Something’s going on in Scottsdale. You’re always there.
Speaker 3 (01:42)
Yes.
Speaker 2 (01:43)
Anyway, I missed a big clock. Good morning. Oh, my God, it’s early for you. There it is.
Speaker 3 (01:48)
It’s 07:00 A.m.. That’s how committed I am.
Speaker 2 (01:52)
But look how good you look.
Speaker 3 (01:54)
Great.
Speaker 2 (01:56)
So the name of your firm is attorney Angelo Giampolo. And I got to tell you, you are teaching me, our listeners so much about the LGBTQ community. And today we started talking last week about employment law. So let’s just hit it. Let’s talk about workplace discrimination and tell me the different areas that you see in workplace discrimination.
Speaker 3 (02:29)
Yeah. There are several ways in which workplace discrimination can manifest itself. There’s just flat out discrimination where you’re being discriminated against, meaning treated poorly. It can look like an adult version of bullying.
(02:47)
Right.
Speaker 3 (02:47)
You’re treated poorly at work. You’re called names, played tricks on, taken off the schedule. That was a big one. If anyone hasn’t watched it, watch the documentary on the rise and fall of Abercrombie and Fitch and how it made its brand around exclusivity and basically whiteness and beauty. And they would discriminate against people for just not being white and beautiful. And they called their workers on the floor at a random mall. They called them models.
(03:21)
Right.
Speaker 3 (03:22)
And so they basically bred this culture of having to look a certain way, one of which being white. And the case go all the way up to the Supreme Court based on their admitted discrimination. They’re like, but this is what we want. We want beautiful white people. Well, you just can’t say that as a company culture in the United States.
(03:44)
Right.
Speaker 3 (03:44)
So Abercrombie and Fitch was sort of emulates the what not to do in this area. So bullying, treated poorly, hostile work environment which rises sort of to the next level of that we’re literally going to work every day is a hostile act that they’ve created an environment that you can’t exist in and work productively in. We talked about this a little bit last week. But for those who weren’t listening last week, that then potentially leads to being constructively discharged, constructively terminated, where they created an environment where you had to leave.
(04:37)
Right.
Speaker 3 (04:37)
A hostile work environment will lead to constructive termination because what a lot of people don’t understand is unless you’ve experienced damage or adverse action towards your employment status, you don’t have a case. So all of these bullying, this mistreatment, this hostile work environment, all of that can be happening. But if you’re not fired, laid off, contract not renewed or constructively terminated, you don’t have a case. If you quit, then I can’t help you. And that is so hard for people to understand. Now on a macro legal level, when you say what kinds of discrimination are there, then we talk about the protective classes. Are you being discriminated against due to age? Are you being discriminated against because you’re not able bodied? Are you being discriminated against because you’re LGBTQ? Are you being discriminated against because you’re black, Muslim? What have you, right. What about religion and religion, right. That is coming up a lot right now with Roe v. Wade and abortion rights and then soon our right to get married around the country. So, yes. Where does someone’s First Amendment right of religious liberty and religious freedom? Where does someone’s First Amendment right begin?
Speaker 3 (05:59)
And where does my Fifth and 14th Amendment right begin and end? And how do those interplay and that has never been litigated. That has never been decided. And we’re entering in one to three year time period where we’re going to make the Supreme Court will make those decisions. Where does Rick Santorum’s First Amendment right begin and end? And where does my Fifth and 14th Amendment right begin and end?
Speaker 2 (06:29)
This has got to be hard to prove, though, if you go to court discrimination.
Speaker 3 (06:36)
Yeah. I mean, as we can see with the Supreme Court case yesterday that got leaked.
(06:43)
Right.
Speaker 3 (06:43)
The draft opinion that got leaked. At the end of the day, the Supreme Court is going to make up their minds based on their beliefs. A year or so ago, you had two of the justices who dissented in the marriage equality cases say that marriage equality needs to be overturned. They already want it. They’re waiting for the case to come up to do it.
(07:08)
Right.
Speaker 3 (07:08)
So is it hard to prove from a workplace discrimination standpoint? Yes. Because you can’t just come out and say, I don’t like the fact that you’re Muslim. So leave.
(07:25)
Right.
Speaker 3 (07:25)
So then you have to orchestrate if you’re in any way rational, then you won’t do that. There are a lot of people who do do that. And then there are slam dunk cases. But typically, a supervisor will be a little more stealth in their behaviors than that. And so then we need to bring up circumstantial evidence and prove that. But for causal, it’s called causal evidence. But for my being Muslim, you wouldn’t be doing X-Y-Z whatever the behavior is, or I wouldn’t have gotten this bad review. But for the fact that I’m gay, I wouldn’t have gotten written up for being late, but for the fact that I’m 72 and you wish I weren’t here.
(08:23)
Right.
Speaker 3 (08:23)
So it’s that. But for that, we have to prove.
Speaker 2 (08:28)
Well, I’m not going to get into politics with you today about what I want to know as a lawyer, though, what do you think about the leak that happened?
Speaker 3 (08:44)
Listen, as a lawyer, I believe in the rule of law.
(08:48)
Right.
Speaker 3 (08:48)
So even in Pennsylvania, when my dear friend Bruce Haynes, the register of wills for Montgomery County and truly dear friend, when he started marrying LGBTQ couples before it was legal as like a political advocacy act, this is dumb. Gay people should be allowed to get married. And I’m the register of wills. So I am going to issue these marriage certificates.
(09:15)
Right.
Speaker 3 (09:15)
And I wrote an article that said, Bruce Haynes is on the right side of history, but on the wrong side of the law.
(09:21)
Right.
Speaker 3 (09:21)
And that we have to follow rule of law in this country and without rule of law. Because what if Rick Santorum and this happened? I forget her name. Kim something out in the Midwest, Kim Davis refused to issue marriage licenses. So marriage equality came. I remember that Supreme Court said we’re allowed to get married. Kim Davis is like, no, I’m not issuing marriage licenses in my small town right.
Speaker 2 (09:55)
I remember.
Speaker 3 (09:57)
So if you have Bruce Haynes doing it when it’s not legal and issuing marriage licenses, then when it is legal, it allows a Kim Davis the ability not to. It’s like neither are right. Follow the rule of law, Bruce, you shouldn’t have done that when marriage equality wasn’t legal. And Kim, it’s legal, you don’t have the right to deny it. So what do I think about the leak? I think it shows how weak we are as a society. People don’t honor certain obligations to confidentiality that they used to. I mean, again, as a lawyer, whistleblowing as a legal right is one thing. And then you’re protected by the whistle blowing act and what have you. But so as a lawyer, I shouldn’t use that term. But to leak information that you’re otherwise not entitled to leak and that there’s no protection for you to leak, there’s no harm.
(11:04)
Right.
Speaker 3 (11:05)
I just wanted to let the world know that this was happening. And so now we know a few days early. But other than that, there was no reason to do it. And so I don’t condone that.
Speaker 2 (11:16)
Okay. I totally agree with you. So you brought up something before about if someone says, I don’t like you because you’re a Muslim, leave. Well, it’s just your word against their word. How do you prove that? What can people do to protect themselves? How about that?
Speaker 3 (11:38)
Right. So usually that nuclear moment where someone says, get out, I don’t like your kind here or something along. If we even get that nuclear of a moment, usually that doesn’t happen in a vacuum. It’s not like everything was quiet and then one day someone was like, Get out. I don’t like your kind.
Speaker 2 (11:59)
There’s things that led up to that, right?
Speaker 3 (12:01)
There are things that led up to it. So what can people do to protect themselves is memorializing those things that lead up to it. You may feel like you’re crazy taking notes. I walked in at 9:01 and he was like, it’s about darn time. And yet someone else walks in at 9:07 and it’s like, oh, Judy, did you bring me Starbucks? Right. So then you write that down. You write that down May 3. And people usually contact me during this information gathering stage. They feel something in their gut. Like my hours were cut.
(12:51)
Right. Okay.
Speaker 3 (12:52)
Why? Or I’m relegated to the back of the house. I’m never in the front of the house.
(12:58)
Right.
Speaker 3 (12:59)
Because maybe people don’t want to see that a black person worked there or something. So I’m always given work to do at the back of the house. So they call me and they say, I have a gut feeling about this. And that’s why I tell them, start the journaling. That is the biggest thing. Then if there’s something like that, like at 9:01, why are you always like, DA, DA, DA? And then the other person gets, hey, welcome. Then talk to HR. You will have a very difficult case I can’t say will not succeed. You will have a very difficult case if HR has no mention of any adverse behavior or you feeling uncomfortable in any way of you complaining in any way. And then you let HR, whether they’re a good HR Department or not or a good HR director or not, but they need to have the ability or the right to address the situation before they get sued. They have the right to try to fix it before you get to sue them. So you have to let HR know.
Speaker 2 (13:59)
Angela, is sexual orientation a protected category?
Speaker 3 (14:05)
It is now. It is. So a lot of people don’t realize that during the pandemic, one of the big civil rights movements that happened was the Bostock case, Clayton v. Bostock, which put sexual orientation as a protected class within title seven. So you have federal protections, maybe not statewide protection. Like, for instance, in Florida where you’re sitting, and in Pennsylvania, where I’m normally sitting, there are no statewide protections. But now you have a federal umbrella that you can avail yourself to. The problem with that is that from a federal level, the size of the company that you work in matters. So it has to be a company larger than 15 people. So even my own company, it’s just me and this guy.
(14:57)
Right.
Speaker 3 (14:57)
So if you worked for my company and my Chihuahua was mean to you, now, if you work for my company and I discriminated against you, you’d have no protection, because on the state level in Pennsylvania, there’s no protection. And then I don’t fit the class of employer that title VII governs, ultimately. So there is still a huge gap. I mean, I’m kind of making this number up, but there’s like 300 million the amount of small businesses, even if it’s just the client that I just met with formed an LLC to manage her real estate in Philadelphia, to manage the money coming in from a tenant. That’s a small business.
(15:48)
Right.
Speaker 3 (15:48)
So even though there are 390, close to 400 million people in this country, there are 300 million small businesses, like the majority of businesses fall below the threshold of what title seven governs, ultimately.
Speaker 2 (16:04)
So you have to work on overseas state law. Angela, say that again, does federal law oversee super law?
Speaker 3 (16:12)
Okay, it’s superseded. So federal law is like Big Brother, right. And then state law can be more protective, it can’t be more lax than federal law. So federal law sets the standard. And then if Pennsylvania were to pass a state law, it could say our state laws govern all businesses with three people or less. Three people or less. Now you’re covering a lot more businesses, 15 or less. It’s kind of a large company with 15 employees.
Speaker 2 (16:50)
Yeah.
Speaker 3 (16:52)
So, yes, it’s a protected class. However, there aren’t that many of us that are protected because so many of us work for small businesses.
Speaker 2 (17:02)
So does a person have to be an employee to be protected from discrimination?
Speaker 3 (17:07)
No. You can be a 1099 contractor.
Speaker 2 (17:14)
You can independent contractors.
Speaker 3 (17:17)
An independent contractor. Thank you for translating that. People are W-2s. But yes, you don’t have to be a W-2 employee. You can be a 1099 contractor and still be protected. You can be a volunteer. You can be an intern. Ultimately, if you are going someplace day in and day out and working with them and helping them, then these protections can apply to you. So I have to check into my flight, so my alarm keeps going. All right, I just silenced it. But yes, you can.
Speaker 2 (18:01)
I was mainly thinking about independent contractors. So they’re protected.
Speaker 3 (18:07)
Exactly, yes.
Speaker 2 (18:08)
Okay, what is an at will employment situation?
Speaker 3 (18:14)
It’s exactly. So you could be at will, which is your W-2 employee. You have 401K, you have all the benefits, health insurance. You’re not a contractor. You’re not a 1099, but you don’t have an agreement. You don’t have a contract employment agreement. You are an at will employee. Now, not all states honor and or allow for at will employees. Pennsylvania does. I’m not sure about Florida, but you can be an at will employee, in which case you can be let go for any reason.
(18:53)
Okay.
Speaker 3 (18:54)
And so now it becomes very difficult to prove because if I just say, you know what? I don’t like your pink shirt. I don’t like your yellow shirt. Get out. I can literally say that I don’t like your yellow shirt. Please leave. And if you’re an at will employee and you have no contractual obligation, the company has no contractual obligations to you, then they can terminate you for any reason whatsoever to the extent that you can advocate, even if it comes with a non compete. So typically when you get the protections and the benefits of an employment agreement, you have to give something up. You get something, you give something. And so typically when you get something by getting the added protection of an employment agreement, you have to give up the ability to leave and go to a competitor next day. So if you have that ability to negotiate a non compete, even if to get an employment agreement, I would still counsel, yes, sign the noncompete because it’s worth having that and maybe buying your way out of that in the future. I’m helping someone right now negotiate a buyout of their non compete.
Speaker 3 (20:13)
So she got all the protections at the outset of saying, yes, get an employment agreement and got all the protections, but signed a noncompete and is now buying her way out of said noncompete. So she got it in both ways. The benefits of so not all States recognize that will. Pennsylvania does. You need to know if your state does, there may be added protections whether or not you’re a contractual employee or not. But in Pennsylvania, you can be let go for any reason.
Speaker 2 (20:44)
Angela, for your practice, do you handle mostly employee or do you also do employer too?
Speaker 3 (20:54)
So I’ve never done a defense of an employer where they’ve hired me to help them get out of a discrimination case. So I am 90% plaintiff’s work all for the plaintiff. The 10% or I would say 100% of the litigation work is for the plaintiff. Then for companies, I do transactional consulting where they bring me on to help them with their employee manual, to help them with their policies, to make them LGBTQ specific, to help them get ranked with the Human Rights Campaign corporate equality index. And to get them ranked as but in order to do that, you have to have policies. So I helped them with the policy. So that’s the way in which I work with corporations is they hire me as a consultant to help with diversity, equity and inclusion stuff, adding policies and working on their manuals to make them compliant and culturally sensitive.
Speaker 2 (21:59)
Our next show is our buying and selling of a business. And I got to tell you, if you’re buying a business and you have it.
Speaker 3 (22:09)
You need to look at the manuals and the policies that you’re buying. Potential lawsuits that you’re buying.
Speaker 2 (22:14)
Exactly. Angela, give everybody your phone number.
Speaker 3 (22:18)
Sure, 215-6452-415 and you can email me at Angela at Giampolo Law. My website is giampololaw.com and I [email protected].
Speaker 2 (22:29)
She’s in Arizona but her office is in Philadelphia and she’s working.
Speaker 3 (22:34)
We have an office here. More on that later anyway.
Speaker 2 (22:38)
Angela, thanks as always. See you next to you again next Tuesday.
Speaker 1 (22:42)
Be sure to tune in every Tuesday at 10:00 a.m. When Angela Gianpolo is the guest on Ask the Experts on 860 wwdbam and [email protected].