Emerging Litigation Podcast

Unraveling "Reverse Discrimination" with Leah Stiegler

• Tom Hagy • Season 1 • Episode 108

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What happens when the traditional understanding of workplace discrimination is turned on its head? Will the Supreme Court's unanimous ruling in Ames v. Ohio Department of Youth Services change how discrimination cases are evaluated when brought by members of majority groups?

Attorney Leah Stiegler of Woods Rogers joins us to examine this decision that rejected the "background circumstances rule" -- a standard that previously imposed a heightened evidentiary burden on white, heterosexual, or male plaintiffs claiming discrimination. As Leah explains, "There's no such thing as reverse discrimination. It's just discrimination." This simple yet insightful statement captures the essence of the Court's reasoning that Title VII protections apply equally to all employees, regardless of their demographic status.

Leah shares results from mock trials conducted with identical facts in different Virginia jurisdictions. A conservative Lynchburg jury awarded a white male plaintiff $600,000, while a more liberal Richmond jury found no discrimination whatsoever with the exact same evidence. This highlights how geography and community values dramatically influence discrimination case outcomes, sometimes more than the legal standards themselves.

We also explore the McDonnell Douglas burden-shifting framework that remains the analytical backbone of discrimination cases, the emerging concept of intersectional discrimination, and recent executive orders concerning religious expression in the workplace. Throughout our discussion, Leah offers practical insights for employers navigating these evolving issues, emphasizing that while the political discourse around DEI initiatives may be contentious, the fundamental prohibition against discrimination remains unchanged.

Whether you're an employer developing workplace policies, an HR professional conducting training, or an employee trying to understand your rights, this episode provides essential context for understanding how discrimination law is evolving in unexpected ways. Subscribe to the Emerging Litigation Podcast for more in-depth analysis of the legal issues shaping our workplaces and society.

This is Leah's second appearance on the podcast and I appreciate it! 

Tom Hagy
Host | The Emerging Litigation Podcast

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SPEAKER_00:

Hello and welcome to the Emerging Litigation Podcast. I'm your host, Tom Hagee. Today we're going to talk about an evolving twist in employment law. You might even call it emerging. And that is the concept of reverse discrimination. Maybe not a perfect phrase, but it's a phrase. Nonetheless, those are those are words. And I am over the moon to have back uh today's guest, Leah Stiegler. She's back on the pod, which is what the kids call these productions. So see you're already learning something, and I think they like it because it's short and punchy. I've been described that way as well. Leah is an attorney at Woods Rogers where she focuses on employment law and workplace litigation. She advises organizations on compliance with evolving federal and state regulations. She has a reputation. She has a reputation. Don't laugh at yourself when you talk, Tom. She's got a reputation for tackling complex issues and discrimination, DEI initiatives, you know those are popular, and emerging workplace trends. Leah brings both extensive legal experience and a practical approach to helping employers navigate today's challenging legal environment. She's uh she's successfully represented clients before state and federal courts as a frequent speaker and author on topics ranging from Title VII litigation to the impact of technology on HR practices. I should mention first that uh Leah was slightly late in joining me, which uh I'm never late, because she was traveling from a conference where she was speaking on employment law. And uh when she left, she was greeted with a rainstorm, and uh so that set her back a little. Now I offered to reschedule, but her answer was something like, Why would I do that? Those are my words. That's how I took it anyway. So that demonstrates to me she's not only an excellent attorney, but she's an excellent sport. So with that, here is my interview with Leah Stiegler of Woods Rogers. I hope you enjoy it. Well, Leah Stiegler, thank you very much for coming back to the Emerging Litigation Podcast.

SPEAKER_01:

Thank you for having me, Tom.

SPEAKER_00:

The um the one of the things, oh by the way, Stiegler, you know what Stiegler, do you know what it means?

SPEAKER_01:

Strong woman. I have no idea.

SPEAKER_00:

That's what it should mean.

SPEAKER_01:

Yeah.

SPEAKER_00:

I don't I can't. I was gonna try some German, but I don't know any. No, I looked it up because I'm always curious about names. Apparently it's named after maybe your family lived near a gate or a ladder. So like it comes from Stiegel.

SPEAKER_01:

Oh, interesting.

SPEAKER_00:

Yeah, yeah.

SPEAKER_01:

So Well I found out that my first name, Leah, that one context of what that means. I was I was ordering kebabs, and the host explained to me that where he's from, the name Leah means grassy field. So I am the grassy field the gated grassy field.

SPEAKER_00:

There you go. There you go. And my last name means hedge. So I could be I could be on the edge. Okay. You could be on the edge of my field. The field, right. So we our families could see each other. So yeah, we're gonna talk now about I say it, I say it in the introduction about reverse discrimination for lack of a a better phrase. Uh so there was a Supreme Court decision that we're gonna talk about called Ames. I can give you, I can just read off my uh brief kind of summary of what it is, and then you can get into the details. Sounds good. So Supreme Court decision, it's Ames versus Ohio Department of Youth Services. It addresses critical issues under Title VII of the Civil Rights Act of 1964. And uh I was seven. Particularly the evidentiary standards for proving disparate uh treatment claims. Court unanimously rejected the Sixth Circuit's quote background circumstances rule, which imposed a heightened evidentiary burden on majority group plaintiffs like heterosexual individuals or white individuals. It threw it. Am I accurate so far? Okay. So let's talk then about that case. So equal standards for all plaintiffs under Title VII?

SPEAKER_01:

Is that Yeah This is an interesting case, and and it made its way all the way up to the highest court, the Supreme Court. You use the term reverse discrimination, and my lawyer colleagues will tell you there's no such thing as reverse discrimination. It's just discrimination. But the media has captured that term, reverse discrimination. And it I think it plays well in terms of understanding this Ames case, because in this Ames case, you had a white heterosexual female bringing a claim, and by nature of the fact that being a heterosexual white female, she was in the my majority. And so the idea of reverse discrimination is somebody from the majority claiming discrimination in terms of it's the reverse of what we would normally see, or the reverse of maybe what the Civil Rights Act was initially passed on what Congress intended to protect back in 1964.

SPEAKER_00:

Yeah. Okay. So then so it rejected the background circumstances rule.

SPEAKER_01:

The lower court basically said, well, Ames, if you're trying to prove that you were discriminated against in the workplace, then you have to prove a heightened standard. Because you're in the majority, you don't just have to prove the typical framework that a plaintiff would have to prove. You have to also show that there are some sort of background circumstances about this employer that would give you the implication that they are discriminating against you. So in a typical employment case, when I say typical, take that with a grain of salt. Let's just say you had a black male suing for discrimination, that lower court would have said that that plaintiff would have to prove that, you know, they were qualified for the position, they applied for a position, didn't get the position, or that they were terminated because of, or that their race was in part a motivating factor for the termination or for them not getting this particular position. Well, they imposed a higher threshold on this plaintiff saying, well, you also have to show some sort of background circumstances. And what those background circumstances are could be potentially statistical evidence about the employer. Maybe everyone in leadership is, you know, a of a particular race. And in Ames' case, one thing that came up was that one of the claims that she made was about sexual orientation discrimination and making the argument that there was a fact about the supervisor being homosexual, that that traits about that supervisor would be some background circumstances to lead to this idea that that supervisor was biased against her because she was heterosexual. So you've got to the the lower court said you've got to jump to a or prove a higher threshold or meet a higher threshold. The Supreme Court of the United States on appeal said, no, no, no, no. There's no, we're not gonna impose oppose different or put in place different standards for different people that discrimination is discrimination. And when you read Title VII, it says we protect people in the workplace on the basis of sex, gender, race, religion, national origin. It doesn't say that, say that because you're in one group or another group, you have a different standard.

SPEAKER_00:

Gotcha. Okay. And then go ahead. I'm sorry, Leah.

SPEAKER_01:

One thing I was gonna ask you is this idea too of what is the majority, because I think that that proves harder and harder every day to prove to make the argument of whether a particular person is in the majority, maybe even geographically or something.

SPEAKER_00:

Yeah, I think that's um I mean, because the nation is increasingly, I don't know if it is it the Hispanic population or just non-white populations going to be in the majority. But but I guess then then they'll probably then they. I don't know who I'm talking about, but at some point then you're gonna want to say, well, there are more of them, but are they in positions of uh power? I don't know.

SPEAKER_01:

It's hard to define that majority thing, and I think you're exactly right. If I recall the 2020 census statistics that came out, it's the the results were that the under 18 population in the United States had that a majority of the of individuals under 18 identified as biracial or more than one race. Yeah. To your point, you know, over time does what we're calling the majority today, does that change? Then even can you look at it on a geographical basis? So I think the lower court and other circuit court, other circuit courts had imposed this same background circumstances test. I think that the lower court did get it wrong by imposing, by reading into Title VII something that wasn't there, a standard that wasn't there. Um, and I think it's it's a difficult standard. It becomes very unworkable as we move along.

SPEAKER_00:

Yeah. Yeah. I mean your point about geography too. I mean, if you look at Washington, D.C., is it 70% or at least 70% African American uh are black? I'm still catching up on my own terms. It's at least 70% black. Maybe 90. I could be exaggerating, I'll check that, but it's uh, but yeah, that's the main majority.

SPEAKER_01:

But well, one one thing that's interesting about say I think that I think the idea of reverse discrimination becomes a really hot button political topic for sure, because you see it in the context of diversity initiatives as well in the workplace and a lot of lawsuits moving forward, and I can talk tell you about one in particular, but on the geographic note, we, my law firm, some of my colleagues and I, we did a mock trial on based on the Ames case. So slightly different, but pretty much the exact same facts, just more narrowed. And we did that in two different jurisdictions. First, we did it in Lynchburg, Virginia, which is a red city.

SPEAKER_00:

Very conservative. It's uh as you said earlier, it's uh where Liberty University is.

SPEAKER_01:

Right. Liberty University is very religious, very red city. We also did this exact same mock trial in Richmond, Virginia, um, which is a blue, historically blue voting city. And based on the same facts, in Lynchburg, Virginia, the jury that we that we paneled, they were men members of the public, they found for the plaintiff, for the white male plaintiff in our facts, and gave him, awarded him$600,000. In Richmond, the Richmond jury found for the defense giving the plaintiff nothing and found that there was no discrimination. The same facts with two very different results, and I think a lot of that is geographical.

SPEAKER_00:

Absolutely. Politics ha uh has to come into play as well. But the so is in that case in your mock, do you do you remember what kind of the background? I'm just curious, what was the background of the person doing the firing? Yes. Or whatever.

SPEAKER_01:

We used sexual orientation was at play. So we used the supervisor was a gay male and had terminated a gay male, a plaintiff. And in the the Ames case, this case, the actual case caption is Ames versus Ohio Department of Youth Services. In this case, we used a made-up department, the Virginia Department of Youth Services. And so we used sexual orientation, and then we also added a race factor as well that the plaintiff was later replaced with a uh younger black female. So a little bit of a caveat there. But we wanted to add that race component as well, because you see a lot of talk in the news about diversity programs. You see executive orders trying to rain back diversity and talk about what's unlawful diversity. And so on this idea of race discrimination, there was a case out of uh and and reverse discrimination. There was a case out of North Carolina, uh, Duvell versus or Duval versus Novent Health. And in that case, you had a white male plaintiff who was a senior VP of marketing for Novent Health. And Novent Health had um put in place sometime in like 2016, they had signed on to basically this idea, this equity program where they were going to try to have more diversity in their leadership. They they were gonna have four years of trying to work towards these goals, and then executive bonuses would be tied towards meeting, in some in part, towards meeting these diversity goals. Well, this white male plaintiff who was the senior VP of marketing had a great stellar performance record, yet was terminated and replaced, and his duties were initially given to a black female and a white female, and then he was later fully replaced by a black female. And so his argument was that he was the victim of reverse discrimination, or we'll just call it discrimination.

unknown:

Right.

SPEAKER_01:

That's what us lawyers would like to call it. So uh that he was the victim by way of the bias against him because of the company's diversity program. The jury awarded him$13 million, saying that yes, race and gender were motivating uh factors in his in the termination decision.

SPEAKER_00:

Okay. Wow. I remember as a very young guy, I was when I came to Philly from from Ohio, and I was trying to get a job, any job, and all the jobs opening, all they were all in sales. Everybody wanted salespeople, and I wasn't a salesperson, and I was like, all right, but I'll try it for a while. And I came with a with a little bit of sales experience from a newspaper, and I went to a paper. I'm a I'm uh by the way, I'm a white male Christian, or not a Christian, but I was raised in the Christian whatever. I'm not really anything, but that would that would be my bio, I guess. I was raised Presbyterian, but mostly I yeah.

SPEAKER_01:

You're checking so you got boxes, you're checking on your EEOC complaint.

SPEAKER_00:

Right, right. Exactly. You're exactly right. I'm planning ahead. I mean, even though in church mostly I doodled just to stay out of trouble. But no, I went to a newspaper called The Jewish Exponent in in Philly. And I I know it was pretty widely read. I thought, well, this will be cool. You know, it's a nice it's a niche market, and I can do that. And I said my name, Hagee, and I had the interview, and and somebody kept coming out and asking me my last name, and could you spell it like Hagee, you know, H A G Y. I'm not sure I even got the interview. Now, I'm not saying they discriminated against me. It's too distant the memory.

SPEAKER_01:

So you're your last name wasn't Jewish enough, is what is what you're that was I well see.

SPEAKER_00:

I wasn't uh I I was too naive to think about that at the time. And and I was like, I don't why they want to know my last name? And then it occurred to me later, maybe you know, and in that case, you know, it's a Jewish newspaper, so maybe you would expect Jewish people to be so I don't know, um, which was all fine. And maybe you can tell me whether I should go back and uh I'm sure the statute has worked.

SPEAKER_01:

Yeah, but the statute of limitations probably run out on that one, Paul.

unknown:

Yeah.

SPEAKER_01:

But you know what's what's interesting about the idea of bringing up the concept of you identifying yourself as a white male Christian, right, is that you know, every single person in the workplace or that's applying for a job is protected by Title VII. Every single person has a race, a color, a religion, or not, or a belief system, you know, a sexual orientation, so a national origin. So every single person is covered. I think there's too often a misunderstanding that, you know, Title VII is only there to protect women and people of color, but that's that's not the case. That's been the the primary need for it, um, in my personal view over all these years. And but I think there's a there's also this concept that we're seeing emerging a lot in the law called intersectional discrimination. Are you familiar with this term?

SPEAKER_00:

No. It's the idea of like I'm I'm half Italian and a drummer.

SPEAKER_01:

And a drummer. I'm not sure being a drummer. Well class.

SPEAKER_00:

There's a lot of ster a lot of stereotypes.

SPEAKER_01:

About Italian drummers?

SPEAKER_00:

Just about well, about both of those. I don't know if there's an across over it's an intersectional uh thing.

SPEAKER_01:

Okay, well, so to actually meet the prong, you would have to have two protected classes, and you would they would there would have to be a stereotype about being that comes from both of those protected classes. So maybe a stereotype about Jewish men or a stereotype about black women. And I I had a uh case that dealt with a situation where um a black female claimed this this not only did she claim race discrimination and gender discrimination, but she claimed that because she is a black woman, that the company imposed this con this bias against her that she was an quote angry black woman. And so they were there's a there was a bias that by by the fact that she was both of those protected classes, that that's where the bias came into play, and that black men were treated better than her, and that white women were treated better than her. And so it kind of opens up this door. And so I I don't know, you can think about something like um, you know, someone's religion and their national origin. So someone who's maybe Islamic and from the Middle East, maybe there's a bias as to their their belief system and or the the way they would interact with women in the workplace or something like that.

SPEAKER_00:

Sure. Gotcha. Yeah, sorry, just like I was gonna ask you something. Uh COVID fog is is a real thing, by the way. COVID brain fog.

SPEAKER_01:

Well, so you could fall under if you've got like let's say you had long COVID or something, you could click, you could be the disabled, you could have the disability protected status and be that Italian drummer. So you you're really intersectional right now.

SPEAKER_00:

What a niche.

SPEAKER_01:

Right. And I hope your listeners don't take this that we are saying one side or another or something like that. Because I I mean I think the goal, the goal for all what's interesting about these kind of emerging issues like intersectional discrimination and um like the concept of reverse discrimination is you know, Congress passed the Civil Rights Act in 1964. I don't think at the time that they passed the Civil Rights Act, they ever thought, for instance, gender identity or sexual orientation would be protections. But we we read that word sex in Title VII to encompass both of those concepts. And then you also see lawyers, you know, pushing these cases even with the idea of reverse discrimination. I bet if you interviewed some of the congressmen back then that they would say, you know, we were coming out of segregation and um uh and you know, the whole point of this was to give people of couple color the opportunity in the workplace. We never meant for this law to protect someone who is a white, heterosexual, male, you know, stereotypical employee who hasn't been historically who hasn't historically faced adversity in the workplace.

SPEAKER_00:

Right, right. But but it's interesting, though, to your point, it's it's it's to protect all groups, all people, not just groups. Um and I guess that was the point. I guess the the point too, the case talked about the McDonnell Douglas burden shifting. Is that worth talking about? Let's see. The eva uh it was a framework for evaluating disparate claims, but emphasize the prima facie burden is not onerous. Sure. And then let's talk about that.

SPEAKER_01:

So the the McDonnell Douglas burden shifting framework, this in in um in federal court to prove that you were discriminated against on the basis of um or under Title VII, the the court looks at this shifting burden shifting framework. And so if I'm the plaintiff and I'm saying I I'm suing for discrimination on the basis of my gender, let's say, let's say I'm saying I missed out on this promotion because of my gender. It was the position was given to a male employee that was less qualified. To meet that prima fascia case, I have to basically, it's a low burden, it's a low, low kind of threshold, and I basically have to prove that I was qualified for the position, which can be as easy as I was in this position for four years, or you know, or I here's what the position required, and I had all these qualifications, right? And that I am a woman and that I did not get the position and a male employee did, or I was terminated and a male employee took my spot. So you can't meet that prima fascia case if, for instance, you're saying my company terminated me and discriminated against me because I'm a woman, if the company replaced your position with another woman, right? Because clearly then there's no the the company didn't make its decision based on your gender, if they went ahead and just replaced you with an another woman. So after so that that initial prima fascia case is a pretty low, low standard to meet. Once I meet that, then the burden shifts to the employer. And the employer gets one shot, one chance to say that no, we didn't terminate you or we didn't not promote you because of your gender. It was because of your performance or you engaged in misconduct. So they have a burden to prove, they have a burden of production that produce evidence to show that you, that they had a legitimate business, a non-discriminatory business reason to take that adverse action, to either terminate you, demote you, not promote you, you name it. That's not the end of the story, though. Under the McDonnell Douglas framework, once the employer meets their burden, the burden shifts back to the employee who gets the final say. And the employee gets to look at the employer and say, liar, this employer is lying. And here's how they're saying it's about my performance. But every year my performance reviews show I walk on water and exceed expectations. Or they say it's about performance, but they don't actually have any documentation. This is just a made-up after-the-fact excuse to cover up for unlawful discrimination. Or they can point to something like statistics. Or my favorite is they can point to something that someone says during the termination or around the termination that would give you the inference that their decision was discriminatory. I have a case right now where the plaintiff is claiming that two days before she was terminated, she was at a retirement party for another employee, and her supervisor asked her, you know, well, aren't you thinking about retiring soon? Close in time comment is what's led her to believe that the two days later her termination was based on her age. So that's sort of the burden shifting framework that a typical employer would have to be mindful of.

SPEAKER_00:

My general advice to managers is talk less. Aren't you about to retire? Are you pregnant? You know, it's just like what else are we gonna, how else can we step in it? Well, you I don't mean I say we, not as me.

SPEAKER_01:

What I said, you'd be amazed what I I always had the impression when I was younger that if you were a manager, I just kind of stereotyped you that you knew what you were doing. And now that I've spent my lot the last 10 years in private practice advising employers, I very well can tell you many managers have absolutely no idea what they're doing.

SPEAKER_00:

I promise you, they do not. Uh and I was one of those. I mean, you sometimes you were just there first.

SPEAKER_01:

Right. And uh you were the longest serving employee and the spot was empty, and they put you in it. So Yeah.

unknown:

Yeah.

SPEAKER_01:

Or maybe, hey, because it you were a white Christian male. Who knows, though? I will say I had a uh client reach out recently. They had a manager who, owner of the company, was asking managers to sign on to a faith statement. And this was a retail store, zero affiliation with religion, the store store itself. Like imagine just selling clothes and products and goods. And if you wanted to be a manager there, you had to sign on that you were going to agree to this statement of faith, which even included an initial area next to a paragraph that said that you believe that marriage should be between a biological man and a biological woman. And I was like, in the what does this have? This has nothing like selling these t-shirts has nothing to do with and I was like, I am just amazed that this owner has made it this far running this long-standing store, but maybe because the owner was has been just hiring people that he knows or people from church or something that hasn't really come out and about to the public's eye. So okay.

SPEAKER_00:

All right. I know, okay, that's man. Okay, that's wild. See, so so I did I talked to your cause because DEI, we mentioned it, but and I talked to your colleague Patisse Holland.

SPEAKER_01:

Oh, I love Batice.

SPEAKER_00:

Yes, she's she's delightful, she was great on the podcast, and we talked about DEI and just because it's kind of fallen out of favor, these are my words, with I don't know how else to say it, with Republicans. I don't know how else to say it, I really don't. But it's anyway, it's it's criticized by a huge segment of the country. Yeah. And it doesn't mean that you, you know, the reverse is true now, that you, you know, that you don't have diversity. But and she was very careful about well, here's what employers need to do, you know, to keep this going. You're not, you know, you're not supposed to discriminate anyway, so there are laws in place, but uh it was interesting. I don't know if you have anything else to say. I think I think a part of it was from Justice Thomas. He wrote a concurring opinion in the in the Ames case. Wait, Ames case. Ames, yes. He expressed concerns about DEI and that they may inadvertently discriminate against minority majority group employees. So anyway, that's where some of that maybe is coming from.

SPEAKER_01:

It is. I think one of our other colleagues, James Wimmer, he used, I can't remember exactly the term, but it was something like this idea of DEI fatigue or or the fear, people having more there's more of a fear about DEI than truly a desire to understand what's lawful, what's unlawful. So yeah, no, I I think you know, what's always generally my take is what's always been unlawful is still unlawful. You could have never before discriminated on the basis of someone's race, regardless of their gender or race or or sexual orientation or whatnot. But but that it's uh there's more of a fear that people are misconstruing this idea of DEI with meaning that companies are putting in place quotas and engaging in sort of affirmative action, all of which have already been unlawful for many forever.

SPEAKER_00:

I mean, I'll say it. This is gonna get people riled up. Right. You know what I mean? Right.

SPEAKER_01:

What's true, what's not true. I don't know. I I was saying last night, I was like, I don't why do we even watch the news or read the news anymore? Because I truly, you cannot figure out what is real. Like, at least with statutes and what's in law, there's some concrete basis that I can go pull up what is in the Federal Register. You know what I mean? I can pull up a statute and I can try to interpret it. I can pull up a case and I can try to interpret it. But news articles to me today, it is like just even trying to understand if you're you're following the Charlie Kirk situation, you know, it uh like there's all this talk out there about whether or not he was in a relationship with a transitioning roommate, whether that was part of it. And I haven't seen any like evidence or proof of this. And I'm like, maybe this all just started because someone wrote a news article on the far right to try to create fear that you know someone who's transgender is causing is the core source of this violence or something. Right. I can't find any evidence to support that. I don't, you know, I mean so it it's wild. Yeah, everything out there is so political now.

SPEAKER_00:

Yeah, and it's just it just seems like whatever good intentions it's turned around. You know, it's like we want diversity, and then and it can and then it's the way it's pitched is well, they're gonna hire a minority even if they're less qualified. That's and people buy that, and uh that's sad. Okay, so moving moving from that though, you mentioned well you you so you represent employers and you advise employers and you even do training. So how does this uh how does this affect training? You know, if you're gonna train somebody on sensitivity, are you gonna are they gonna say you're being insensitive to them because you're making me sensitive? Talk about training and how this might affect might affect them.

SPEAKER_01:

Everybody is sensitive now.

SPEAKER_00:

Yes, I'm yes, I'm very sensitive.

SPEAKER_01:

Well, yeah, everyone's got their own subjective belief. Absolutely. I I can't emphasize enough that companies need to be still conducting anti-discrimination and anti-harassment training. Many companies are reigning, are we pulling back on their training. When I say DEI training, that could mean anything from, you know, training on civility in the workplace to implicit bias terms to pronoun and usage, anything around training about microaggressions, you name it. And so many employers are hesitant to move forward with that, mainly because I'd say you could have that one special employee in the audience who's going to make an issue of it, who's going to refuse to attend the training, or who's and who's going to say, my desire to not attend this training is protected activity. And if you terminate me for it, I'm going to sue you for retaliation under Title VII. Um we have seen lawsuits where an employee has refused to go to a company-sponsored training and the company made as a condition of their employment, and they were terminated. And that person is saying that no, my my desire to say no, I'm not going to support what you're preaching is protected activity. I am I emphasize to clients, no, you move forward with your anti-discrimination and anti-harassment trainings. Those that that these laws are very well in place and strong, whether they're state, whether they're federal, um, or both, and that you know it it's your your decision as an employer to make sure that your workplace culture is respectful of biases and harassment and treatment like that.

SPEAKER_00:

Right. Like you said, it was always it was always illegal to do those things. It still is. Now you mentioned uh you mentioned the t-shirt company with the sign-off on religious beliefs. So recently on July 28th, there was an executive order from from the Trump administration. The directive was titled, uh, you brought this to my attention, was uh titled Protecting Religious Expression in the Federal Workplace significantly expands the rights of federal employees to express their religious beliefs at work. And the guidance was rooted in two. Executive orders uh 14202, eradicating anti-Christian bias and establishment of the Religious Liberty Commission. Yeah. So that sounds fun. So tell me uh tell me about that. What impact do you think that's gonna have? Now, this is for public employees.

SPEAKER_01:

Yeah, yeah, this is a this is an executive order directed at federal agencies, but I do think it shows you the landscape of what, let's say, the EEOC, the federal agency that enforces the Civil Rights Act, the the approach that they're gonna be taking as well in the workplace is sort of an emphasis on religious rights in the workplace, um, and an emphasis on bringing cases that fall under this category of reverse discrimination, maybe, or anti-Christian bias, you name it, and less of a priority on the LGBTQ charges or race discrimination charges or pregnant worker charges. So, yeah, basically this executive order said it's it's okay to do a little proselytizing in the workplace. You know, you can have respectful conversations trying to talk about your religious beliefs and convince others about your religious beliefs. I don't think that that changes anything substantively. I think that that has probably always been somewhat fair game. Now, you can't get to a point where it becomes unlawful harassment. Um, so and and the definition of harassment is unwelcome and offensive conduct that's severe or pervasive in the workplace, and that's based on something like religion. And so if I start telling you about my religious beliefs and I'm trying to get you to go to church with me, Tom, and you say, Leah, look, I I'm I'm good about this, I really don't want to talk about this anymore, and I keep pushing it, I've just hit that unwelcome standard, right? You've made it very clear to me as your coworker that this discussion is unwelcome. And then from an offensive standpoint, the courts look at that on two prongs. They look at what's subjectively offensive. So we were just saying that you're an extremely sensitive person, Tom. So you might have a different level of sensitivity than I would, for instance. But they also impose an objective prong to that offensive standard. So what is objectively offensive to a reasonable person? So in this context, you know, I'll give you the example of somebody who is so vocal about their religious beliefs in the workplace that they hit those standards by maybe saying something offensive about women who get abortions, right? And that is offensive to other women in the workplace and potentially that reasonable person standard. Or they talk about, you know, something someone going so far as to say something so egregious as, you know, Islam, that's a terrorist organization or something so ignorant like that, that that would hit that severe or pervasive, unwelcome and offensive conduct. So what I don't like about this executive order is it probably doesn't do anything to change law, but it just puts confusion out there that lets people say, Oh yeah, so we can proselytize at work now and you can't do anything about it. Just like this idea of diversity is unlawful. Okay, well, what does that even mean, right? You know, and the previous executive order didn't even define that. So I don't know. I mean, do you really think that how often do you think it comes up that people are proselytizing in the workplace?

SPEAKER_00:

I never heard it in my in my many years in an office. I'd never heard it.

SPEAKER_01:

Even when you applied to as a Christian man to work with a newspaper, they didn't try to at least convert you.

SPEAKER_00:

They did not. They did not. But uh, you know, after living in Philly, I after a while I realized that there was a point when I think at least half of my friends were Jewish, and I was dubbed an honorary Jew by them. So I think I could have gone back with a little bit more street cred, but I no. Uh sales sales wasn't my thing.

SPEAKER_01:

Just talking to my dad about it. My dad uh is is from Boston, and he grew up and was raised very Catholic, went to Catholic school, you know, Boston Catholic. Um and he was explaining that even in um a lot of the neighborhoods up there that you know you had the South Boston and this side of the railroad tracks, right, the Italian community, sure, Portuguese community, all this stuff, and that you know, it wasn't just about national origin in terms of if you want like my dad wanted to go work at a particular liquor store. Well, no, no, no, that's not the Catholic liquor store. You gotta across these railroad tracks to go work. Right this liquor store. So, you know, I think, and that's just kind of overt discrimination in terms of who could work here, like your experience applying for a job.

SPEAKER_00:

Right, yeah.

SPEAKER_01:

But I think more and more employers are seeing a diverse workforce with employees with diverse belief systems. Um, and the law doesn't protect an employee's belief to a particular denomination. The law just says that we protect employees' sincerely held beliefs. So even atheism, if it's a sincerely held belief, can be you know, your belief system and talking about that in the workplace, that there's some level of protection. Same with if you believe in the church of the flying spaghetti monster, which is in fact a real No. Yes, it is.

SPEAKER_00:

I will be looking that up.

SPEAKER_01:

You could Google it. It's I was doing a presentation under a management training one time, and the manager was like, we had an employee who actually had the flying spaghetti monster tattooed on his arm.

SPEAKER_00:

Wow.

SPEAKER_01:

Yeah, it started as my understanding is that it started as sort of this online belief system where the god was like interwoven spaghetti with two meatballs as the eyes.

SPEAKER_00:

Sure.

SPEAKER_01:

And then they had like a whole thing of commandments and kind of like tenets of of this church of the flying spaghetti monster. And it started as this idea that look, if you can believe in someone who walks on water or who someone could part the Red Sea or something like that, then why can't you believe in the you know this this flying spaghetti monster? And so here, if you can believe in this sort of mythical like effort, then you can believe in this mythical effort. And now it's expanded, and there actually are kind of even like denomination branches.

SPEAKER_00:

Oh my gosh.

SPEAKER_01:

But an employer is not supposed to, you know, push back too much on what the employee's actual sincerely held beliefs are because two employees can go to the same church and still have a different belief system.

SPEAKER_00:

Yeah, yeah.

SPEAKER_01:

Your beliefs are independent to you. So I always tell employers don't focus so much on pushing back on that's not really what this denomination believes, or like why would you be doing that if you're Jewish? That's not in line with that. Or you can you really wear that if you're Islamic, you know? And I'm like, stop wading into it. If they say they believe it, just believe it. And you're dealing with the accommodation aspect that they request accommodations, and you're dealing with addressing sort of the offensive conduct or the disruption that that arises from the workplace with employees talking about their belief system.

SPEAKER_00:

Right, right. Yeah, you mentioned a lot of things there that just trigger memories. Like you mentioned Catholic churches like in Pottstown, Pennsylvania, or my wife's family's from a lot of Catholic churches, but each Catholic church is different. There's Italian, there's Greek, there's Polish Hungarian.

SPEAKER_01:

Absolutely, yeah. See, there's your intersectional discrimination if we're gonna go for full circle, right? This idea that, you know, maybe an employee could say, hey, uh, even though I'm Catholic, I'm I'm being discriminated against because I'm, you know, Hungarian Catholic and not Roman Catholic or something. Yeah.

SPEAKER_00:

Yeah. My brother, my brother went through a uh a Buddhist phase and he was in Columbus, Ohio, which you don't think about Buddhists in Columbus, Ohio, but there they are. You know, and uh there were the uh Oh my gosh. He said there were different groups. There were the Zen Buddhists, uh, there were Tibetan Buddhists, there were different types of Buddhists. And um, you know, to but to settle their differences, they had softball teams. So I don't know. There's just something spiritual about your softball self that is out there.

SPEAKER_01:

Yeah, that's much better than war, which is yes historically, many ways that religions settle their differences and concepts. I hope I didn't just lose all your audience from that one. You can cut that out if you need to.

SPEAKER_00:

No, no, I think we need to wake everybody up. But you don't yeah, but it's funny that that's a very Ohio resolution to a dispute, you know, play softball.

SPEAKER_01:

Let's play softball, yeah. Yeah, yeah.

SPEAKER_00:

He's out. Is he spiritually out, or is it just his body? Yeah, his physical self. And he's out, but he can come back so later. You're not dead after everyone, okay. We're gonna lose the Buddhist uh crowd. I'm I'm a big big fan of the beliefs. So I think I think that's everything. We won't talk about let's no, we I'm not gonna say what we won't talk about, because then I'll want to. But I think that's this has all been helpful and I appreciate it very much. Thank you for doing this.

SPEAKER_01:

Yeah, of course. Thanks, Tom. I always appreciate you having me. So I'm sorry if we insulted most of your audience.

SPEAKER_00:

Well, no, I'd like to get some feedback from people.

SPEAKER_01:

Yeah, give me the good feedback, give him the bad feedback.