By:  Attorney Brian G. Formella

Anderson, O’Brien, Bertz, Skrenes & Golla, LLP

The civil liberties of gay couples and the religious rights of a Colorado business owner were recently on a collision course. Then, on June 4, 2018, the U.S. Supreme Court found a detour to avoid the collision, at least for now. 

The Court held that, in some instances, a balance must be struck between protecting gay persons in the exercise of their civil rights and the rights of a business owner to express his religious-based objection to gay marriage.  The case is known as the Masterpiece Cakeshop case.

Why is the Masterpiece Cakeshop case of interest to human resources professionals?  Because the same policy intersection-- or “collision course,” depending on your perspective--  could easily arise in an employment context in Wisconsin.  Therefore, H.R. professionals will enhance their value to their organization if they are generally aware of court rulings like Masterpice Cakeshop.  

In Masterpiece Cakeshop, a Colorado bakery was owned and operated by an expert baker who professed certain religious beliefs about gay marriage.  The baker told a same-sex couple that he would not create a cake for their wedding celebration because of his religious opposition to same-sex marriages - - marriages that Colorado did not then recognize - - but that he would sell them other baked goods, such as birthday cakes. 

The couple filed a charge with the Colorado Civil Rights Commission, based on a Colorado law that prohibits discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services . . . to the public.”  Lower courts in the State of Colorado rejected the baker’s First Amendment claim that requiring him to create a cake for a same-sex couple for their wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed and which would, he maintained, violate his right to the free exercise of religion.

 In its decision, the U.S. Supreme Court recognized the intersection between protecting gay persons in the exercise of their civil rights, as well as religious and philosophical objections to gay marriage that may in some instances be a protected form of expression as well.

So how did the U.S. Supreme Court resolve the two basic rights, which appeared to be on a collision course? To continue with a travel metaphor, the Supreme Court took a detour.  It did not decide the issue head-on in this case.  Rather, it found that the Colorado commission that considered the matter to be impermissibly hostile to the sincerely held religious beliefs of the baker in this instance.  Such hostility meant that the baker was not afforded his due process rights in this instance.  The majority of the Supreme Court held that the Colorado commission’s treatment of the baker violated Colorado’s duty under the First Amendment to not have laws or regulations that express an overt hostility to a religion or a religious viewpoint.  As a result, the majority of the Supreme Court reversed the judgment of the Colorado appellate court,  meaning that the case will be returned to the Colorado legal system for consideration of the matter, but without the noted hostility that the majority noted. 

What is the lesson for Wisconsin employers and HR professionals?  First, Wisconsin has a law similar to the Colorado law that makes it unlawful to give preferential treatment to some classes of persons in providing services or facilities in any public place of accommodation or amusement because of sex, race, color, creed, sexual orientation, national origin or ancestry.  § 106.52(3), Wis. Stats., Public places of accommodation or amusement.  A person who feels that he or she has been a victim of unlawful treatment under the law may file a claim with the Equal Rights Division of the Wisconsin Department of Workforce Development, the same entity that considers violations under the Wisconsin Fair Employment Act. 

Second, certain Wisconsin employers may have the constitutional protection of the Free Exercise Clause of the First Amendment to the U.S. Constitution.  That clause states that “Congress shall make no law . . . prohibiting the free exercise” of religion.

 

CONCLUSION

            The rights and remedies available to everyone under state and federal law--whether state fair employment or public accommodation laws, or Title VII, the Americans with Disabilities Act, or similar federal laws--often create policy conflicts for employees, employers and businesses in general.  The wise HR professional will stay alert to the intersection and potential conflicts that will necessarily arise in the workplace and in the marketplace.  For now, the resolution to the underlying policy conflict in Masterpiece Cakeshop between public accommodation rights for gay couples and the religious expression rights of small businesses will need to be addressed another day.

By: Attorney Brian Formella
Stevens Point Area Human Resources Association
715.572.1341
bgf@andlaw.com

   Until recently, it seemed that winter would last forever in Central Wisconsin.   Similarly, it can seem that there is no end in sight concerning an employer’s legal obligation to provide reasonable accommodations to a disabled employee.

   But in March 2018, the U.S. Supreme Court decided it will not review whether a former operations manager at a Wisconsin manufacturer of retail displays should have been allowed to take two to three months off for recovery from back surgery, following exhaustion of his FMLA leave.  The unpaid leave would have been in addition to 12 weeks of leave that the employee took prior to back surgery.  The Supreme Court’s decision not to hear the case leaves in place a September 2017 ruling by the 7^th Circuit Court of Appeals (which includes Wisconsin) that a Wisconsin employer did not violate the Americans with Disabilities Act when it refused to let the employee take the additional leave beyond FMLA leave.

   Just how long an employee should be allowed to remain on leave to recover from a disabling condition that prevents him from performing his job is a question that has plagued employers nationwide.  The issue frequently requires employers to navigate between the  Americans with Disabilities Act and the FMLA.  The point for Wisconsin employers is that federal law does not require endless leave in all situations.  However, Wisconsin employers should also consider the requirements of the Wisconsin Fair Employment Act in considering reasonable accommodation requests.  The WFEA  may be is interpreted more liberally than the ADA when it comes to leave requests as a reasonable accommodation.

   Wisconsin winters are not endless; they only seem that way.  Similarly, an employer’s need to reasonably accommodate an employee’s disability with additional leave is not endless in all situations.  The applicable case is Severson v. Heartland Woodcraft, Inc.

By: Attorney Brian Formella
Stevens Point Area Human Resources Association
715.572.1341
bgf@andlaw.com

It is hard to ignore the daily dose of headlines that assert new allegations of sexual harassment or abuse in American society.

While the problem of sexual harassment may be analyzed on many levels -- personal, societal, historical, cultural, to name a few -- sound legal analysis of the topic must not be overlooked by employers and employees.

When sex harassment occurs in the workplace, the conduct is likely addressed by Wisconsin and federal law. Some forms of harassment may suggest criminal repercussions, although many forms of sexual harassment in the workplace may not be considered a crime, depending on circumstances.

While all bad behavior in the workplace is inappropriate, not all inappropriate behavior may be contrary to state and federal laws. Inappropriate conduct may not merely be illegal, it may be bad for business, including lowering employee morale. The Equal Employment Opportunity Commission (EEOC) states that “workplace harassment affects all workers, and its true cost includes decreased productivity, increased turnover, and reputational harm,” all of which is a drag on productivity. (Select Task Force on the Study of Harassment in the Workplace; June 2016.)

Given the wide range of sexually inappropriate conduct, it behooves employers and employees to know the law. Sex harassment is a form of unlawful discrimination based on sex. Wisconsin defines discrimination because of sex to include implicitly or explicitly making or permitting acquiescence and/or submission to sexual harassment a term or condition of employment. It is unlawful for an employer to permit conduct that has “the purpose or effect of substantially interfering with an employee’s work performance or creating an intimidating, hostile or offensive work environment.” Substantial interference with an employee’s work performance or creation of an intimidating, hostile or offensive work environment may be established when the conduct is such that a reasonable person under the same circumstances as the employee would consider the conduct to be sufficiently severe or pervasive to interfere substantially with the person’s work performance or to create an intimidating, hostile or offensive work environment. Usually the offensive conduct must be unwelcome for the conduct to be deemed unlawful under Wisconsin law.

Federal law is similar to Wisconsin law. Wisconsin law applies to any employer with one or more employees; federal law applies to employers with 15 or more employees.

What should employers do to protect themselves against conduct by employees that may lead to harassment complaints?

1. Review your harassment policy to make sure it is up-to-date and has been recently communicated to your employees.
2. Conduct harassment training for management and nonmanagement employees if you have not done so within the past year. The EEOC recommends that the training be live and interactive, if possible, or computer-based and interactive if live training is not possible.
3. If applicable, conduct appropriate harassment training for your organization’s board of directors.
4. Analyze whether your organization has been unintentionally tolerating or ignoring an employee who has a reputation for engaging in inappropriate behavior.
5. If the allegations of inappropriate behavior or harassment in your organization are widespread or involve someone high up in the organization, consider outside legal counsel to assist with your investigation. Outside counsel will be able to help you analyze legally sound investigation techniques and what, if any, remedial action should be taken.

In conclusion, it is important to recognize that bad behavior is bad for business, whether or not the conduct is against the law. Consult with your legal advisor to review whether your harassment policies are up-to-date and whether key employees in your company should have moral turpitude clauses added to their employment agreements (when there are such employment agreements) to assist the employer in terminating employees who are behaving poorly, even if their conduct does not rise to the level of unlawful harassment under state or federal law. Seek legal advice promptly if you suspect behavior that may violate state or federal harassment laws.

By: Attorney Brian Formella
Stevens Point Area Human Resources Association
715.572.1341
bgf@andlaw.com