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PM Director Janet Hendrick praises Supreme Court LGBTQ decision

Phillips Murrah Director Janet A. Hendrick is featured as the lead source in a Dallas Observer article reviewing the Supreme Court decision to uphold workplace protections for LGBTQ Americans.

Janet Hendrick

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

From the story:

Some employers’ advocates argue that, at the time the bill was drafted, it was intended to safeguard men or women from being discriminated against because of their sex. Justice Samuel Alito wrote in his dissenting opinion that the law wasn’t meant to include protections for sexual orientation or gender identity.

But it’s precisely because of their sex that gay, trans and gender-nonconforming people face workplace discrimination, said Janet Hendrick, a Dallas-based employment law attorney.

Although Texas’ Legislature does not explicitly outline protections for LGBTQ people, Hendrick said many companies have inclusive policies because “it’s the right thing to do.” Still, change can be slow going for certain small businesses in the Bible Belt, she said.

Hendrick, who works closely with employment advocacy groups like the North Texas LGBT Chamber of Commerce, said she was pleasantly surprised by the Supreme Court’s decision.

“It’s literally like a rainbow sparked up from ashes in light of all the bad news recently,” Hendrick said. “So for this decision to come coinciding with Pride Month, it’s wonderful, uplifting news.”

Hendrick is an employment law attorney based in the Firm’s Dallas office. Contact her by phone at 214.615.6391 or by email at jahendrick@phillipsmurrah.com.

Read the full article here: https://www.dallasobserver.com/news/north-texans-happy-about-supreme-court-lgbt-decision-see-more-work-ahead-11919900

For more information about this Supreme Court decision, read a summary of the decision here.

Supreme Court Rules Title VII Protects Gay and Transgender Employees

By Lauren Barghols Hanna

Phillips Murrah attorney Lauren Hanna

Lauren Barghols Hanna

Earlier this morning, the United States Supreme Court issued a landmark ruling that an employer who fires or otherwise discriminates against an employee for being gay or transgender violates Title VII of the Civil Rights Act of 1964.

In Bostock v. Clayton County, Georgia, the Supreme Court heard three cases in which employers had fired long-term employees simply for being gay or transgender.  A Georgia county employee was fired for “conduct unbecoming” an employee after he joined a gay recreational softball league.  A funeral home terminated an employee who presented as a male when she was hired, after the employee advised her manager that she planned to “live and work full-time as a woman.”  A skydiving company fired a skydiving instructor days after he advised a customer that he was gay.

In a 6-3 decision, the Supreme Court held that Title VII’s prohibition against discrimination “because of sex” prevents an employer from taking any adverse actions against employees on the basis of gender, sexual identity, or sexual expression.  Justice Gorsuch, author of the majority opinion, unequivocally declared that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The Bostock opinion considers an employer with two employees, both of whom are attracted to men.  The employees are materially identical in all respects, except that one is a man and the other is a woman.  If the employer fires the male employee because he is attracted to men, the employer necessarily is discriminating against him for the traits or actions it tolerates in the female employee.  Similarly, if an employer fires a transgender person because she was identified as male at birth but now identifies as a female, the employer is firing the individual for displaying traits or actions it would otherwise tolerate in an employee identified as female at birth.  Employers cannot discipline employees for being “insufficiently feminine” or “insufficiently masculine” without violating Title VII.

Title VII of the Civil Rights Act outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin.  The Supreme Court noted that the legislators who adopted the Act in 1964 may not have anticipated this particular outcome, but that those same legislators may also not have anticipated that the Act would ultimately prohibit discrimination on the basis of motherhood, prohibit sexual harassment of female employees, and—eventually–prohibit sexual harassment of male employees to the same extent as female employees.  But, as Justice Gorsuch noted, the phrase “because of…sex” is clear and unambiguous; thus, the “limits of the drafters’ imagination supply no reason to ignore the law’s demands.”

Today, the Supreme Court clarified that “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions” and that “[a]n employer who fires an individual merely for being gay or transgender defies the law.”

See the United States Supreme Court opinion HERE.


Phillips Murrah stands ready to assist employers in ensuring that employee handbooks and hiring and disciplinary practices are fully compliant with Title VII and all relevant employment laws.

Contact us by EMAIL or call 405.235.4100.

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41 years ago- SCOTUS: Attorney Advertising is 1st Amendment Right

There was a time when, generally speaking, lawyers were not allowed to advertise. In my role as Marketing Director at Phillips Murrah, I refer to those days as “the dark ages.” This anachronistic tradition, a holdover from Great Britain, was a regulation enforced from within the legal industry via bar associations.

“Advertising, the traditional mechanism in a free market economy for a supplier to inform a potential purchaser of the availability and terms of exchange, may well benefit the administration of justice.” – U.S. Supreme Court holding in Bates v. State Bar of Arizona, 433 U.S. 350 (1977)

Bates and O'Steen ad in Arizona Republic

Bates and O’Steen ad in Arizona Republic

On this particular day in history, Jun 27, 1977 to be specific, the U.S. Supreme Court decision in the case of Bates v. State Bar of Arizona marks an important development in the legal industry. The decision held that attorneys were to be permitted to inform the public about their legal practice through advertising.

The backstory of Bates began with two young lawyers, John Bates and Van O’Steen, who placed an advertisement in the Arizona Republic on February 22, 1976. In the ad, they informed the public that they offered “legal services at very reasonable fees,” and included fees for various routine legal services such as uncontested divorce, personal bankruptcy and legal change of name.

The motivation for this business model was to serve people of moderate income. The profit return was low for such cases, so they depended on increased volume to remain viable in their legal endeavor. After a couple of years, they concluded that their practice would not survive without the benefit of advertising their services and fees. This act put them in violation of the conduct rules of the State Bar of Arizona.

Eventually, (see the many, many details here), the U.S. Supreme Court, decided that such prohibitions of the free flow of commercial speech was a First Amendment violation. For the purpose of highlighting some of the Court’s opinion, delivered by Justice Harry Andrew Blackmun, I will copy excerpts below that I find to be personally valuable in finding satisfaction in my role at our modern, forward-thinking Firm:

  • The listener’s interest is substantial: the consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day. And commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system.

  • The assertion that advertising will diminish the attorney’s reputation in the community is open to question. Bankers and engineers advertise, and yet these professions are not regarded as undignified. In fact, it has been suggested that the failure of lawyers to advertise creates public disillusionment with the profession. The absence of advertising may be seen to reflect the profession’s failure to reach out and serve the community: studies reveal that many persons do not obtain counsel, even when they perceive a need, because of the feared price of services or because of an inability to locate a competent attorney. Indeed, cynicism with regard to the profession may be created by the fact that it long has publicly eschewed advertising, while condoning the actions of the attorney who structures his social or civic associations so as to provide contacts with potential clients.

  • It appears that the ban on advertising originated as a rule of etiquette, and not as a rule of ethics. Early lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on “trade” as unseemly. Eventually, the attitude toward advertising fostered by this view evolved into an aspect of the ethics of the profession. But habit and tradition are not, in themselves, an adequate answer to a constitutional challenge. In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind. Since the belief that lawyers are somehow “above” trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.

Dave Rhea is Marketing Director at Phillips Murrah P.C. He may be reached at 405.235.4100.

Justices won’t hear Robert Half class arbitration challenge

Published on October 30, 2017

New York — The U.S. Supreme Court refused to hear a case from former Robert Half International Inc. workers challenging a ruling by the Third Circuit that the staffing agency could address overtime claims in individual arbitration rather than on a classwide basis, according to its Monday order list.

The high court denied former staffing managers David Opalinski and James McCabe’s June petition for a writ of certiorari, which identified what they perceived as a circuit split on the issue of who determines the availability of class arbitration — a district court or an arbitrator. The Third Circuit had affirmed a New Jersey district court’s ruling that class arbitration was not permitted under their employment agreements, which Opalinski and McCabe claimed directly contradicted an arbitrator’s prior determination.

Justice Neil Gorsuch did not take part in the high court’s decision.

“Robert Half essentially got two bites at the apple by successfully moving to compel arbitration and then running back to court when it did not like the result it obtained in arbitration (despite not having previously challenged the court’s allowing the arbitrator to decide this issue),” they wrote in the petition. “This case presents a prime example of the gamesmanship in which parties can partake, exploiting the uncertainty of the ‘who decides’ issue to their advantage.”

Opalinski and McCabe had launched their lawsuit in New Jersey federal court against international staffing agencies Robert Half International Inc. and Robert Half Corp. in 2010, claiming that the companies misclassified them as overtime-exempt employees in violation of the Fair Labor Standards Act. Opalinski and McCabe sought to pursue individual claims as well as collective action claims on behalf of thousands of Robert Half staffing managers, according to court filings.

Robert Half, meanwhile, asserted that the employees had signed employment agreements containing arbitration clauses, trying to dismiss their claims and compel arbitration.

An arbitrator held in May 2012 that class arbitration was permitted under the employment agreements but the district court later disagreed, arguing that it was not permitted and dismissing the suit with prejudice. That decision was affirmed by the Third Circuit, which refused to grant Opalinski and McCabe a rehearing in March.

The workers petitioned the high court for a writ of certiorari in June, arguing that an arbitrator — not the district court — has the final say as to the availability of class arbitration. Their petition relies on the high court’s precedent in the 2013 case Oxford Health Plans LLC v. Sutter, in which it upheld a an arbitrator’s decision to permit class arbitration despite the fact that such an option was not mentioned in the class’ agreements but put off resolving the broader question of who has the power to determine class arbitration availability.

The workers identified in their petition a circuit split on the issue, arguing that while the Third Circuit ruled in their case that a district court must determine class arbitration availability, the Fifth Circuit has alternatively found that power lies instead with an arbitrator.

Robert Half countered before the high court that no such circuit split exists, quoting the Third Circuit’s opinion in saying that no other circuit courts have “ruled, or even expressed a view on the issue before us.” Rather, they claimed that the Third, Fourth, Sixth, Eighth and Ninth Circuits have ruled that “determining the availability of class arbitration presents a question of arbitrability that is presumptively for a court to decide,” their reply brief states.

The company also noted that the case involves older arbitration agreements that make no mention of class arbitration, but parties have since evolved to address class arbitration head-on in their employment agreements, meaning the “present issue is headed towards total extinction.”
Counsel for the parties did not immediately respond to requests for comment.

The workers are represented by Shannon Liss-Riordan of Lichten & Liss Riordan PC.

Robert Half is represented by Richard Alfred, Patrick J. Bannon and James M. Hlawek of Seyfarth Shaw LLP.

The case is David Opalinski, et al. v. Robert Half International, Inc., et al., case number 16-1456 in the Supreme Court of the United States.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.