Our employee’s rights attorneys have discussed it before, really bad employee conduct typically trumps a protected class. In Kilpatrick v. HCA Hum. Res., LLC, No. 22-5307, 2023 WL 1961223, (6th Cir. Feb. 13, 2023), HCA Human Resources (HCA) fired Montrell Kilpatrick because he forged and altered tuition reimbursement documents. Kilpatrick asserted that he was discriminated against and that his employer only looked closer at the documents because he came out as being gay. In addition to more closely inspecting his tuition reimbursement forms, Kilpatrick reported that he was left pink nail polish, bath bombs, and Bible verses.
One of the documents submitted by Kilpatrick to HCA seemed to be altered, depicting a screenshot of an account page for another student with that student’s name taken out. HCA presented evidence that additional educational reimbursement documents were altered balance using software called Snipping Tool; and that Kilpatrick’s emails revealed versions of submitted financial documents before and after editing.
Does the law protect against sexual orientation in the workplace?
Yes. Title VII of the Civil Rights Act of 1964 provides that it is unlawful for an employer to “discharge any individual, or otherwise to discriminate against any individual … because of such individual’s … sex.” 42 U.S.C. § 2000e–2(a)(1). In Bostock v. Clayton County, 140 S. Ct. 1731 (2020) the United States Supreme Court held that Title VII’s prohibition against sex discrimination extends to discrimination based on sexual orientation. 140 S. Ct. at 1754. This means that an employer cannot discriminate against an employee or job applicant based on his/her/their sexual orientation discrimination or gender identity discrimination without violating federal law.
Best Gay and Lesbian Workplace Rights Attorney Blogs on Point:
- What does Bostock v. Clayton County mean to the LGBTQ Community?
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How do you prove sexual orientation discrimination under Title VII?
To prove sexual orientation discrimination under Title VII, a plaintiff must show that:
- They are a member of a protected class: Sexual orientation is now considered a protected class under Title VII.
- They were qualified for the job: The plaintiff must show that they were qualified for the job in question or were performing their job duties satisfactorily.
- They suffered an adverse employment action: This can include being fired, demoted, harassed, or otherwise treated unfairly because of their sexual orientation.
- The adverse employment action was motivated by sexual orientation discrimination: The plaintiff must show that their sexual orientation was a motivating factor in the adverse employment action taken against them.
This is called a prima facie case of LGBTQ+ discrimination under Title VII. Once the prima facie case is satisfied, the employer must provide a non-discriminatory reason for its actions. At that point, the employee has the burden to show that the reason is pretext. In an employment discrimination case, pretext refers to a false or misleading reason given by an employer to justify an adverse employment action, such as firing, demotion, or failure to promote, that was actually motivated by discrimination based on a protected characteristic, which in this case is sexual orientation. If the employee cannot establish pretext, the employee loses. If the employee creates a question of fact on this issue, it must be decided by the jury. And, like in Kilpatrick, the United States Court of Appeals for the Sixth Circuit held that the employee could not establish pretext as a matter of law:
HCA asserts that, for two separately submitted reimbursement requests, “the course start dates and end dates on the two did not match, nor did the number of or the title of the courses that were listed.” Appellee’s Br. at 10. Kilpatrick responds that the university he attended did not have “official start stop date[s].” If this is true, it is unclear why dates were submitted to HCA and why they do not line up. Kilpatrick’s submission of start and end dates to HCA contradicts his own assertion about the non-existence of these dates.
HCA also notes that Kilpatrick submitted a “computer screenshot of what he represented … was his course account statement from Middle Tennessee State University (‘MTSU’) …. In reality, Kilpatrick had submitted another student’s account statement that was not his at all. What he provided was an edited picture of a friend’s course account (whose true name had been removed from the document) that Kilpatrick had altered on his work computer using an application called ‘Snipping Tool’ to make the document appear as if it was his own.” …
Finally, HCA points out that HR manager Tina Norris, while reviewing Kilpatrick’s email account, found “additional examples of altered education documents, where Kilpatrick had changed the tuition balance supposedly due on his student account and then forwarded a copy of that altered document to another employee.” Kilpatrick asserts that these documents were “drafts” sent to another employee to “vet” the paperwork. He claims that the modification was to fix a $1000 miscalculation by the university—a fix that Concordia itself made. But this reasoning does not explain why the documents before and after fixing are identical except for the amount charged, with the same receipt number. …
Kilpatrick’s explanations are insufficient to raise a genuine issue of material fact on pretext.
Id. at *3 (citations to the record omitted).
In the end, harassing a gay employee with makeup, bath bombs, and Bible quotes is really bad. It is understandable that an employee would want to sue for such treatment after being fired (and Spitz, The Employee’s Law Firm can help you do that). But such conduct must be weighed against the fact that the employee forged documents for potential financial gain. Unless an employee can show that he/she/they did not forge the documents, you are very likely going to lose a wrongful termination claim.
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Do I have a case for sexual orientation discrimination by my manager?
Best Employment Lawyer Answer: The United States Supreme Court has made sure that the rights of lesbian, gay, bisexual, transgender, queer, questioning and other forms of sexual orientation and gender identity discrimination is unlawful under Title VII. If you have been discriminated against, harassed, wrongfully fired, or denied other employment rights because of your sexual orientation or gender identity, do not wait to call the right Spitz, The Employee’s Law Firm to schedule a free and confidential consultation to find out what your legal rights are. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky to learn whether you have a claim to pursue against your former employer. Spitz and its experienced attorneys are very dedicated to protecting LGBTQ+ employees’ rights.
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