Travel Ban Decision Offers Important Reminder For Employers

The Minnesota Employment Law Report is intentionally non-political but always seeks to be topical when current events relate to employment law.

This occurred in last week’s ruling from the Ninth Circuit Court of Appeals on the administration’s executive order seeking a temporary ban on immigration from seven selected countries.  This might not seem employment-related but the ruling reinforced a fundamental tenet of good human resources practice.

The Current Ruling

We all know what happened – the Ninth Circuit ruled against the administration’s argument that the president’s authority over immigration matters is absolute and not subject to review.  Therefore, unless this ruling is reversed, the executive order will be subject to a judicial evaluation to determine if it is constitutional.

One of the key issues was the appeals court’s assessment of the relative likelihood that one side or the other would prevail in the underlying case.  In other words, how likely is it that the states opposing the ban can prove an unlawful motivation for it?

This is where the President Trump’s prior statements, and those of others in his inner circle, became so critical.  In the face of so much campaign rhetoric about seeking a Muslim ban and a “total shutdown of Muslims entering the United States”, as well the President’s recent remark that the travel ban will favor Christians,  the appeals court believed that the opposition could prove that the travel ban is premised upon religious discrimination in violation of the constitution.

The Application to Employment

This story is obviously far from over but its relevance to employers dealing with harassment situations is clear.  When an employer receives a complaint of sexual harassment, or harassment based on race, religion or any other legally protected classification, an investigation typically must be undertaken.  If the evidence is not conclusive, or if it is a “he said, she said” situation, we look to other forms of evidence to help tip the scale one way or another.

Thus, if the accused contends that the incident did not happen or was misconstrued, the employer should do what the Ninth Circuit did – look to evidence of past statements or behaviors that might reflect upon whether the complainant or the accused is more likely to be telling the truth.  This is one of the reasons why it is so important to listen carefully and respond appropriately to all claims of harassment or inappropriate talk in the work place.  Even if you conclude that a policy violation did not occur, the matter still could be critically relevant in a subsequent allegation.

We actually wrote about this issue last summer in a piece entitled Roger Ailes and the Fiction of “He Said/She Said” regarding the founder and CEO of Fox News stepping down after sexual harassment allegations were corroborated by discovery that he allegedly harassed a number of other employees as well.  The evidence of his past misdeeds clearly came back to haunt him in the subsequent case.  Could the Ninth Circuit have used our piece as a guide to making their decision in the travel ban matter?

**February 15, 2017 Update**

A just-issued decision from Federal District Judge Leonie Brinkema in Virginia eloquently articulated this principle in a decision staying the immigration ban in her state:

“Just as the Supreme Court has held that ‘the world is not made brand new every morning,’ a person is not made brand new simply by taking the oath of office…the ‘Muslim ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered.” 

In other words, what you said yesterday or the day can still define you today.  If you engaged in derogatory language or harassing behavior regarding a protected classification in the past, it is easier to believe that you are still doing that today.

Bottom Line

Words matter regardless of when they are spoken.  Be sure that yours can not be used against you as the Ninth Circuit did to the President.