Ask The Lawyer By: Daniel A. Gwinn, Esq. – Isn’t this a form of discrimination?

TEACHER FIRED FOR VIOLATING COVID PROTOCOLS SMELLS SOMETHING FISHY

QUESTION: I’m a high school teacher. When my school began offering in-person classes for our students last January, we had strict protocols in place – like a mask mandate – that teachers were required to enforce (and it wasn’t easy). Long story short, in May, there were a couple of times when two students in my class did not mask up, and I overlooked it. Another student complained, and I was suspended “pending investigation.” Just before the end of the school year, I was informed that my contract would not be renewed. I have learned that several other teachers were also denied renewal of their contracts for supposedly violating Covid protocols. All of us have one thing in common: We are highly experienced teachers, and earn a salary near the top of the pay scale. I think the district used the Covid protocols as a pretext for getting rid of high-earning teachers. Isn’t this a form of discrimination?

 

ANSWER:     Whether or not you have a claim of discrimination will depend on whether you and the other non-renewed teachers share something other than earning high salaries and losing your jobs. You must all belong to the same protected class – and earning a high salary is not one of those classes. Did all the teachers who were not renewed belong to the same race or ethnicity? Were they all women (or men)? Were all the non-renewed teachers gay? Were they all people living with a disability? Were they all older (over 40)?

Unless you and the other teachers share a common protected trait, the district’s decision not to renew contracts of workers who violate Covid-19 protocols is not, on its face, discriminatory under any of the three major laws protecting Americans from workplace discrimination: Title VII of the Civil Rights Act of 1964; The Age Discrimination in Employment Act, and the Americans with Disabilities Act.

Title VII prohibits discrimination in employment on the basis of sex, sexual orientation or gender identity, race, color, religion, or national origin, the ADA prohibits discrimination against those living with a disability (or who are perceived as having a disability) and, as its name suggests, the ADEA protects Americans from age-based discrimination.

To establish a claim of discrimination, employees must show that they belonged to a protected class (race, sex, national origin, etc.), they were qualified for the job, they suffered an “adverse employment action” and the adverse action occurred under circumstances “giving rise to an inference of discrimination.” Claims of discrimination include situations in which an employee is discharged or disciplined for conduct that is excused, or punished less severely, by someone who is not in a protected class. (Claimants under Title VII or the ADA could also show that a neutral rule had a disparate impact on members of their class.)

The most likely common characteristic under the facts you describe is age because, generally, older teachers earn more. If you and the other teachers who were not renewed do share a common characteristic, your next step is to discover how people outside of your group were treated when they violated Covid-19 protocols. Assuming your shared trait is being over 40, you want to know how the district reacted when teachers under 40 violated Covid-19 protocols. Were 30-something teachers treated more leniently? What about 20-something?

If you can show that your school denied contract renewal to teachers over 40 who violated Covid-19 protocols, but did little or nothing to younger teachers who engaged in the same, or substantially similar, behavior, you may have a claim for discrimination.

However, if you are a public school teacher, you should have other avenues to protest the non-renewal of your contract. Most public school teachers in Michigan are represented by the Michigan Education Association; assuming you are an MEA member, language in your union contract should provide some protection. Have you and the other teachers contacted the union, jointly?

Michigan’s Revised School Code also provides some protection for teachers. For example, the law states that a school board or school district is prohibited from considering tenure status or length of service as “the primary or determining factor in personnel decisions when conducting a staffing or program reduction,” MCL 380.1248.

Based upon the facts as you have stated, you may want to contact a lawyer for guidance.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

 

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
(248) 970-0311 facsimile
daniel@gwinnlegal.com
www.gwinnlegal.com

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