Kentucky Injury Law Blog

Workplace discrimination based on sexual orientation is not covered under Title VII of the Civil Rights Act of 1964, which protects workers from discrimination based on other factors such as race, religion and gender. However, certain Kentucky employees may be protected from sexual orientation discrimination by local ordinances and an executive order.

A few Kentucky areas, including Louisville, Jefferson County, and Covington have passed local ordinances that prohibit anyone from being discriminated against because of their sexual orientation. These ordinances cover discrimination in the workplace as well as housing and public accommodations. The only statewide protection was tested and upheld recently in Louisville, Kentucky.

In 2008, the Governor of Kentucky, Steve Beshear, signed an executive order that prohibits all state agencies from discriminating against current or potential employees because of their sexual orientation. Without this order, Governor Beshear stated “a gay person could be fired simply for being gay. A person should be hired or dismissed on the basis of whether they can do the job. Experience, qualifications, talent and performance are what matter."

This executive order was put to the test when a Kentucky Cabinet for Health and Family Services employee claimed he was terminated in 2009 because he was gay. According to the lawsuit, numerous cabinet employees were abusing email and internet use, but this worker was singled out because of his sexual orientation. The worker’s lawyer showed that he had sent emails that included gay slang, which was the cause for his termination. A female co-worker, on the other hand, had sent emails that included photos of almost completely nude men to other people in the cabinet, but she kept her job.

The cabinet defended this action, saying the decision to fire the male worker was made while he was still in his probationary period, whereas the female worker’s case wasn’t finalized until after she had become a full-time employee. Because of this change in status, she was protected by additional rights given to permanent employees. The fired worker’s lawyer had evidence showing that his case had been purposely rushed through in order to get him fired before he became a permanent employee. This included an email marked “high importance” from his supervisor requesting information immediately “because the state would like to be able to terminate the employee while in his probation period.” This same action was not taken against the female employee who had sent the nude pictures.

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Six scientists and doctors working for the FDA claim that the agency illegally monitored their personal emails. Then, based on the information gleaned from this process, the employees claim they were retaliated against through harassment or wrongful termination.

These professionals were working in the Device Evaluation department of the FDA when they allegedly determined that numerous devices that posed a danger to the public or were ineffective had been approved or were going to be approved in the near future. They first complained to the proper people at the FDA in 2007, but did not get any satisfaction, so they contacted The Health and Human Services (HHS) inspector general, Congress and the White House. The FDA had decided to secretly monitor their personal emails sent from work computers after their internal complaint and they discovered that the six in question had contacted individuals outside of the agency.

The FDA filed two complaints with HHS against the scientists and doctors, stating they had disclosed confidential information regarding the devices. HHS determined they had done nothing illegal and had a right to voice their concerns outside the agency. After the FDA was unsuccessful, the six employees were retaliated against, including one former professor from Yale and Cornell whose contract was not renewed. Another employee was terminated supposedly for a bad review, but internal FDA correspondence obtained through court included a letter from one manager saying they did not trust him. The others were either denied promotions, harassed, or terminated.

This case brings to light several issues regarding whistleblowers. A general definition of a whistleblower is one who witnesses an unsafe or illegal act by a company and notifies someone outside the company of the situation. In this case, the scientists and doctors felt the public’s safety was in danger because certain devices were being approved by the FDA that they felt were unreliable or unsafe. It is against the law to retaliate against an employee for doing this. Whistleblowers are not allowed to divulge confidential company information, even if they are communicating with the proper authorities. The FDA felt the six employees had given out information regarding the agency and the products that was confidential. If this had been the case, then the FDA would have had the right to punish the employees. However, the HHS inspector general’s office determined that no confidential information had been divulged, so the employees were within their rights when they made their reports to a few outside sources.

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National origin discrimination is defined by the Equal Employment Opportunity Commission (EEOC) as “treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).” This type of discrimination can also occur if an employee is related to someone who is from another country or has a different ethnicity.

Mesa Systems, Inc., a Colorado moving company doing business in Salt Lake City, Utah, was sued by the EEOC on behalf of Latino and Polynesian employees last month for national origin discrimination. The employees first complained in 2007 and the EEOC began their investigation. The suit says their supervisors called them derogatory names based on their assumed national origin. While a stray comment or an episode of teasing is not considered illegal, consistent belittling of an individual because of his nationality is illegal and creates a hostile work environment.

Also, in 2006, Mesa Systems made it company policy in their Salt Lake City facility that all employees had to speak English when at work. The complainants felt this policy was instituted to discriminate against them because English was not their first language. The EEOC states “An “English-only rule”, which requires employees to speak only English on the job, is only allowed if it is needed to ensure the safe or efficient operation of the employer’s business and is put in place for nondiscriminatory reasons.”

When the employees complained about the verbal harassment and the adoption of the English-only rule to the EEOC, some of their hours were reduced and others were fired. This type of action by an employer – called retaliation – is also illegal under Title VII of the Civil Rights Act of 1964, which protects certain classes of individuals from discrimination in the workplace. Individuals can be protected by Title VII based on their gender, nationality, religion, age, or disability.

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In the last week, two new sexual harassment lawsuits were filed in Jefferson County Circuit Court in Kentucky. The suits also claim retaliation and wrongful termination, claims which often accompany sexual harassment or discrimination allegations.

In the first case, Mary Sue Turner alleges she was harassed by a fellow employee while she was employed at the Jefferson County Clerk’s office. She has sued the clerk’s office and County clerk Bobbie Holsclaw. Ms. Turner claims that Mr. Clark touched her inappropriately, made lewd gestures with his body, and even slept in her office in the hopes of being intimate with her. Complaints about his behavior allegedly fell on deaf ears and he continued to harass her. After she complained about the harassment and reported that the office was accepting inappropriate gifts from local businesses, Ms. Turner contends that Ms. Holsclaw gave her bad performance reviews and wrongfully terminated her.

The second case was filed by Dr. Clay Kendall, a veterinarian that was employed by Louisville Metro Animal Services. The lawsuit states that the former director of the department, Gilles Meloche, sent her sexually explicit phone messages and touched her inappropriately. Dr. Kendall also claims that Mr. Meloche lured her to Proof on Main for a supposed business meeting between the two of them and one other individual. Mr. Meloche was intoxicated upon her arrival and proceeded to talk about Dr. Kendall’s personal life rather than business. The third party that Mr. Meloche said would be there stated after the fact that she was never requested to join them at the restaurant. Dr. Kendall complained to officials and showed them lewd text messages from Meloche, but they allegedly did not take any action to remedy the situation. Subsequently two new vets were hired to replace Dr. Kendall even though she allegedly had a contract to provide veterinary services.

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