You’ve Changed Your HR Policies, But Have You Changed The HR Culture?

April 14, 2021 at 10:38 am Leave a comment

Since the Supreme Court ruled in Bostock v. Clayton County last year that Title VII of the Civil Rights Act prohibits discrimination on the basis of sexual orientation as a matter of federal law, yours truly has been intrigued by what impact this ruling would have on New York State employers since New York law already prohibited this discrimination.  A recent ruling by a Massachusetts federal court provides several lessons for your credit union to consider, not only as it works to ensure that it fosters an environment which minimizes potential discrimination claims and fosters a productive work environment, but because the recent changes in the law are likely to have an impact on your credit union’s procedural posture should it find itself on the receiving end of one of these lawsuits.  The case to which I am referring is Renee Welch, Jason Demello, Mamadou Dembele, Souleymane Mori, Dolunay Moser, and Minerva Elsayed, v. People’s United Bank, National Association.

Massachusetts, like New York, has already prohibited discrimination on the basis of sexual orientation for several years (See Chapter 151B).  As a result, when Frank DeMello, a gay man, joined People’s United Bank (PUB) as a vice president in 2016, the conduct he chronicles in his lawsuit is clearly illegal.  Among his allegations are that the bank’s president in Massachusetts, criticized another gay PUB employee in front of DeMello, stating “AIDS is making [the other employee] lumpy.”  In another example provided by DeMello, a vice president is quoted as saying “I’m so glad the pansies could make it to the meeting” when DeMello and one of his gay colleagues arrived for a meeting of executives and Human Resources (“HR”) representatives.

There are other comments I could point to, but you get the idea.  DeMello complained to executives about the toxic work environment and said the bank had to institute diversity training.  His request was rebuffed and eventually he resigned. 

Now here is an obvious point.  When it comes to changes in law which make fundamental changes to the way in which employees and employers interact with each other, it is not enough to simply update your policies and go about your day.  You can’t prevent your executives from making stupid comments, but you can minimize the consequences of these comments to your credit union by documenting a commitment to having a harassment free environment.  Think of how much better positioned PUB would have been in responding to this lawsuit if it had the type of training requested by DeMello. 

Secondly, it’s a cliché, but it’s a cliché because it’s true: A harassment free environment starts at the top.  It’s never good when your president can be quoted in a complaint. 

Now, here is the part of this blog of interest to attorneys, when employees bring discrimination claims, they generally must first file actions with an administrative agency such as the Equal Employment Opportunity Commission.  DeMello did not take this step.  He argued that it was not necessary to do so because the bank’s conduct did not violate Title VII until last year’s Supreme Court decision.  Nevertheless, the district court dismissed his complaint. 

First, even though the Supreme Court had not yet ruled when he filed his suit, he should have filed a complaint with the EEOC.  Secondly, since Massachusetts law already prohibited sexual orientation discrimination he should have filed a claim with the appropriate state level agency.  New York is now grappling with some of the same issues and should your credit union be confronted with similar claims, you should be mindful of the posture in which your attorney will be defending your credit union.

Incidentally, PUB’s victory may ultimately be a pyric one.  The court gave DeMello the right to start the case over again following the right administrative procedures.

On that note, yours truly is taking a couple of days off.  I will be back with a blog on Monday.

Entry filed under: HR, Legal Watch, New York State. Tags: , , , , .

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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