My Toughest Case: Whistleblower Protections & Gender Identity
Labor and Employment Law
Partner | Kean Miller (New Orleans)
27 years in practice
J.D. Tulane University Law School 1991
B.S. University of New Orleans 1988
Raised in New Orleans
Following a series of accusations that shook workplaces across multiple industries in the United States this year, it has possibly never been a more interesting, or challenging, time to practice labor and employment law.
David Whitaker, a partner at Kean Miller, exclusively represents employers and has seen a clear uptick in clients wanting to make sure their policies against harassment and discrimination are up to date in order to avoid any problems in the workplace.
Whitaker has practiced labor and employment law since graduating from Tulane University Law School in 1991. His interest stemmed from a course in business school that delved into labor law while he was still an undergraduate at the University of New Orleans.
Whitaker said many cases have stood out over the years, but in particular there was one case, shortly after Louisiana’s Whistleblower Statute was passed in 1997, where a woman claimed she had been terminated after reporting unlawful behavior by her employer. The state’s whistleblower statute provides protection to employees who might face retaliation from reporting an employer’s misconduct.
“The case created an internal civil war within the company because the employer had terminated someone in senior management. It became a case of ‘he said, she said’ about whether the person had been terminated for a business reason,” Whitaker said.
The plaintiff had employees who spoke up in support of her, and others who spoke against her. In the end, Whitaker and the attorneys representing the employer were able to prove that the woman had been terminated for her style of supervising and that the employer had not acted unlawfully.
With more focus on issues of gender identity and sexual orientation coming up in the workplace, Whitaker recalled another particularly challenging case involving the termination of a transgender employee.
“The issue was driven by ideology and there were very public implications,” he said.
The ex-employee was supported by public interest organizations who were invested in advancing gender identity as a protected class status under Title VII of the Civil Rights Act, which protect employees in the workplace based on race, gender, religion, age, and sexual orientation.
It was a simple case, he said, about one employee being fired.
However, “the employee was lawyered up by 20 lawyers, meanwhile there were four of us on the other side,” he said. The case ended in arbitration.
Whitaker said that moving forward, the overall landscape for employment law won’t change and is likely to become more complex.
“It’s definitely a tricky area for employers to navigate,” he said.