Articles Posted in Sexual Orientation

Over the weekend, I joined a Facebook thread discussing a recent federal court complaint filed in Texas by a former Saks employee, Leyth O. Jamal. Ms. Jamal claims that Saks violated Title VII of the Civil Rights Act by discriminating against her because she is transsexual.

Saks claims (here) that the complaint lacks merit because Title VII doesn’t prohibit discrimination against transgender employees.

Writing for Slate.com, Mark Joseph Stern calls out Saks’ “trans-bashing legal strategy” as “legally untenable.” Underscoring the Supreme Court’s decision in Price Waterhouse v. Hopkins, Mr. Stern notes that Title VII forbids sexual stereotyping. For example, in Price Waterhouse, the company allegedly treated Ms. Hopkins differently because she was “macho,” was “tough talking” and used “foul language.” That is, she didn’t conform to the company’s expectations of how a woman should act in the workplace.

So, Mr. Stern is correct that sex stereotyping is unlawful. But, he also concedes that the Supreme Court has not gone the next step and banned discrimination based on transgender status. Still, he implies that, even without the Supreme Court’s imprimatur, the law overwhelmingly favors Ms. Jamal.

It doesn’t. (Well, many local and state laws do, but not federally…)

Indeed, in its motion to dismiss, Saks cites cases from three federal circuits, plus a recent decision from a Texas federal court — where the Saks case is now pending — which held that Title VII does not prohibit transgender discrimination. So, if this case is viewed as one of pure transgender discrimination, Ms. Jamal will lose.

[Note: the Complaint does contain allegations of sex stereotyping (Ms. Jamal was allegedly asked “to change her appearance to a more masculine one”) and a hostile work environment (allegations of violence based on gender)] 

At some point, either the Supreme Court is going to rule on this issue, or Congress will amend the law to clarify that transgender discrimination is (or is not) covered under Title VII.

In the meantime, a few notes about the Saks case:

  1. Companies, like Saks, are free to employ rules and policies prohibiting transgender discrimination. In this BuzzFeed article, Saks claims that it “maintains a long history of policies and practices that are fully supportive of the LGBT community and our LGBT Associates.”
  2. Don’t fault Saks for raising a good-faith legal argument that Title VII doesn’t prohibit transgender discrimination. Indeed, as noted above, several courts have reached the same conclusion.
  3. The Complaint is a series of allegations, not necessarily facts. Saks may not have done anything wrong, including treating Ms. Jamal differently because she is transsexual.

Under federal law (Title VII), employers cannot discriminate because of one’s sex. While Title VII does not explicitly coverage transgender employees (i.e., someone born female who presents male, and vice-versa; also known as gender identity), the EEOC’s position is that transgender employees are protected too. Indeed, they’ve begun filing federal lawsuits on behalf of transgender employees who claim to have been discriminated against.

But, Courts have not uniformly accepted the EEOC’s position. Indeed, the state of the law here is very much unsettled.

Just before Thanksgiving, a Texas federal court considered whether an employer can discriminate under Title VII based purely on gender identity…and get away with it.

More after the jump…

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Even without a federal law that specifically bans discrimination in the workplace based on sexual orientation or gender identify, it’s no secret that one of the EEOC’s top priorities is to protect LGBT workers from discrimination.

And the EEOC is being quite transparent about it, with a new guide for employers and employees.

I’ve got that for you after the jump…

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You have an employee handbook, an anti-harassment policy, training, the whole nine.

But, sometimes, notwithstanding your best efforts to create a positive, respectful workplace, you receive a complaint from an employee who claims to be the victim of harassment based on [insert protected class].

All the prophylactic measures you’ve already installed mean nothing unless you respond to that complaint appropriately.

See how one company did it right, after the jump…

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Title VII of the Civil Rights Act of 1964 prohibits discrimination based on a number of protected classes. Sexual orientation isn’t one of those protected classes specifically listed in the statute.

So, if an employee complains about sexual-orientation harassment and is later fired because she complained, then that won’t create a claim under Title VII. Or does it?

Find out after the jump…

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Thumbnail image for rainbowflag.jpgAccording to a Friday report from Cynthia L. Hackerott at Wolters Kluwer, President Obama will sign an Executive Order today banning discrimination against LGBT employees by federal contractors.

Last month, I blogged here that the White House had announced that it intended to eventually ban LGBT discrimination by federal contractors through Executive Order because the Employment Non-Discrimination Act (ENDA), did not make it through Congress.

Since that time, several gay-rights groups withdrew their support for ENDA, fearing that it afforded “religiously affiliated organizations … a blank check to engage in workplace discrimination against LGBT people.”

Following the Supreme Court’s Hobby Lobby decision, religious groups had pushed the White House to include a religious exemption in the President’s Executive Order. However, Ms. Hackerott and Jennifer Bendery at The Huffington Post (here) confirm that today’s Executive Order will not have a religious exemption.

What the Executive Order does.

The Executive Order will amend an existing Executive Order originally signed by President Lyndon Johnson, which bans discrimination by federal contractors against an enumerated list of protected classes. President Obama’s amendment adds sexual orientation and gender identity to that list.

According to Ms. Bendery, this Order affects 24,000 companies employing roughly 28 million workers, or about one-fifth of the nation’s workforce.

Some non-federal contractors may also be covered.

It’s worth noting that many states and municipalities already protect LGBT employees from workplace discrimination, regardless of whether their employer’s contract with the government. Most Fortune 500 and 100 companies already have internal rules banning LGBT discrimination.

Update: President Obama has signed the Order and the White House has published a fact sheet entitled “Taking Action to Support LGBT Workplace Equality is Good For Business“.

The White House announced the news yesterday via Twitter.

Just two years ago, the White House indicated that President Obama would not sign an executive order prohibiting federal contractors from discrimination on the basis of sexual orientation or gender identity, preferring that Congress act to pass the Employment Non-Discrimination Act (ENDA), legislation that would have banned LGBT discrimination in the private sector, entirely. However, ENDA stalled out in the House after passing the Senate last November.

And, according to Jennifer Bendery and Sam Stein reporting at The Huffington Post (article here), while President Obama has directed his staff to being drafting an Executive Order for his signature, there’s no guarantee that he’ll sign it right away:

“Notably, [a White House] official would not say whether the president will sign the order into law on Monday — suggesting the White House is leaking the news to warn lawmakers that they have a limited window to pass more sweeping workplace discrimination legislation before he acts without them.”

According to Edward Isaac-Dovere and Jennifer Epstein reporting at Politico (article here), there is some speculation that a delay in implementing the Executive Order could have to do with “the upcoming Supreme Court’s decision on the Hobby Lobby case, on the religious exemption for businesses to claim leeway from Obamacare’s contraception mandate.”

Other speculation suggests that, given the upcoming June 30 White House’s annual LGBT Pride Month reception, a signature on the Executive Order could come within the next two weeks.

Whatever the timing, absent a federal law on LGBT workplace discrimination, there are still many protections available for private-sector employees. Many states and municipalities already have laws banning LGBT discrimination. Further, same-sex discrimination based on gender stereotypes is also unlawful under Title VII. Moreover, many Fortune 500 companies (88% to be exact) have already banned LGBT discrimination in the workplace.

But as for a federal law specifically banning LGBT discrimination, it’s wait and see.

Three years at this blog without discussing mohawk hairstyles in the workplace. Now, two posts in one week. Which reminds me of the time I dressed up as BA Baracus for Halloween in law school

Ah, yes. That mohawk….and BA’s fear of flying. Ties right into today’s post.

(I love it when a plan comes together)

You see, recently, I read this opinion about a flight attendant who donned a mohawk and claimed sexual-orientation discrimination under NJ state law. 

Guh?

Yes, he claimed that the crap he took from his supervisors for his mohawk was because he was gay and, consequently, they had created a hostile work environment for him. And to attempt to prove his case, the plaintiff proffered pictures of other employees with “extreme hairstyles,” whom he claimed received more favorable treatment than he.

This argument did not persuade the Court:

“Plaintiff must ultimately show by a preponderance of the evidence that he suffered discrimination because of his sexual orientation….Indeed, nothing in the record suggests that these employees whose extreme hairstyles Continental allegedly has never questioned are heterosexual…Based on the record before it, this Court cannot conclude that these photographs are probative of any discriminatory animus on the part of Plaintiffs supervisors, as they fail to suggest that Continental applied its grooming policy to Plaintiff in a discriminatory fashion because of his sexual orientation.”

So, go ahead. Tease the heck out of the guy in the mohawk. Fire him if you want. And don’t pity the fool.

Thumbnail image for LGBT_flag_map_of_Pennsylvania.svg.pngOver the Summer, I reported here that about companion Pennsylvania bills introduced in the House and Senate that would outlaw both sexual orientation and gender identity discrimination in the workplace.

Each bill had bipartisan support, but it was unclear how Governor Corbett (R) would act if a bill was placed on his desk for his signature.

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Yesterday, The Philadelphia Inquirer reported here that Gov. Corbett said that he would support legislation banning discrimination based on sexual orientation in employment, housing, and public accommodations.

The Inquirer story notes that 33 Pennsylvania municipalities have nondiscrimination laws that include sexual orientation and gender identity, while 23 Fortune 500 companies based in Pennsylvania have similar nondiscrimination policies.

Neither bill has moved out of committee since being introduced in August. The Inquirer reports that Rep. Daryl Metcalfe (R., Butler), chairman of the state government committee, who controls the movement of the bill in the House, is against it.

We’ll just have to wait and see what comes of it.