Recently in Sexual Orientation Category
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...
Court: Title VII prohibits retaliation based on good-faith complaint of sexual-orientation harassment
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...
According 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".
Share the news: President Obama will prohibit federal contractors from discriminating on the basis of sexual orientation or gender identity.-- The White House (@WhiteHouse) June 16, 2014
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.
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.
Over 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.
And it wasn't close at all.
By a final vote of 64-32, the Employment Non-Discrimination Act, also known as ENDA, passed the Senate on Thursday.
All 52 Democrats, plus 2 Independents and 10 Republicans voted in favor of the bill. Among the notable yes votes was Pennsylvania Senator Pat Toomey (R). Indeed, minutes before voting yes on ENDA, Senator Toomey saw his proposed amendment to the bill, which would have created exceptions for certain religious groups, defeated.
Toomey joined Sens. Kelly Ayotte (R-N.H.), Susan Collins (R-Maine), Jeff Flake (R-Ariz.), Orrin G. Hatch (R-Utah), Dean Heller (R-Nev.), Mark Kirk (R-Ill.), John McCain (R-Ariz.), Lisa Murkowski (R-Alaska), Rob Portman (R-Ohio) as the Republicans supporting the bill.
In fact, Toomey was the only Pennsylvania Senator to vote in favor of the bill. Senator Robert Casey (D), missed the vote, to be with his wife who recently had heart surgery. Senator Casey was a staunch advocate of the bill.
The Senate's newest addition, New Jersey's Cory Booker (D), as well as his fellow statesman, Robert Mendendez (D), we are also among the yes votes.
ENDA now heads over to the House of Representatives, where the chances of passage appear bleak. Although President Obama has called upon House Republicans to pass the bill, Speaker John Boehner (R-Ohio) is on record as opposing the bill, believing that it will encourage frivolous litigation and cost jobs in small businesses.
And although the House previously passed a version of the bill in 2007, yesterday, a spokesperson for House Majority Leader Eric Cantor (R-VA) further quelled any hope that the House would send this matter to the President for signature:
"The bill is currently not scheduled in the House. I hope Majority Leader Reid soon addresses the dozens of House-passed bills that have been ignored in the Senate that create jobs, improve education and create opportunity while Americans struggle to find a good-paying job."
So, it appears that this historical workplace discrimination bill stands in great jeopardy.
Earlier this week, I blogged about Senator Harry Reid (D-NV) promising that the Senate would take up the Employment Non-Discrimination Act.
Yesterday, the Senate obtained enough support to put ENDA to a full vote. Every Senate Democrat agreed to press forward. And even some Republicans helped get the bill to cloture, most notably conservatives Orrin Hatch (R-UT) and Dean Heller (R-Nev.), who announced on Monday that he would back ENDA. With 60 members of the Senate supporting ENDA, the matter is ripe for a vote.
However, while it appear likely at ENDA will make it through the Senate, passage in the House is another story. Concerned with the impact ENDA may have on American businesses, House Majority Leader John Boehner reconfirmed yesterday that he would oppose the bill.
President Obama, in a blog post on the Huffington Post, reaffirmed his support for ENDA. And the White House officially called for passage of ENDA on Monday.
Although the road for ENDA to become law remains rocky, it's worth noting that 93% of Fortune 100 companies include sexual orientation and 82% include gender identity in their corporate nondiscrimination policies. Nearly 200 municipalities also have similar laws in place.
Earlier this week, Senator Harry Reid (D-NV) offered some pointed remarks from the Senate floor. He blasted "radical Tea Party Republicans," lambasted "mainstream Republican colleagues, who remained silent even as the anarchists among us committed political malpractice," and then proclaimed, "This work period, the Senate will consider the..."
a. "...Twerk for Work Act, which would provide incentives to employers who hire unemployed Miley Cyrus wannabes who shake what their mamas gave them."
b. "...Fox; specifically, a bipartisan effort to learn what does the Fox say?"
c. "...Employer Handbook. As in, why do people actually read the drivel that spews each morning from Meyer's digits?"
d. "...Employment Non-Discrimination Act, which would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity."
If you guessed A, make sure your EPL premiums are paid up.
If you guessed B, put down the drugs.
If you guessed C, go to hell.
If you guessed D, bravo. Treat yourself to a caramel macchiato; your powers of deduction are amazing! And hey, you also got 200 points just for signing your name on your SATs.
I'll update you after the Senate takes up ENDA in a few weeks.
Twenty-one states and the District of Columbia have laws banning workplace discrimination in the private sector on the basis of sexual orientation. The Commonwealth of Pennsylvania, which currently bans discrimination based on sexual orientation and gender identity or expression in public employment, may soon become the latest state to ban it in the private sector as well.
(The term "gender identity or expression" means actual or perceived gender identity, appearance, behavior, expression or physical characteristics whether or not associated with an individual's assigned sex at birth).
A bill to amend the Pennsylvania Human Relations Act to add these workplace protections was introduced last week in the PA Senate with some bipartisan (but most Democratic) support. The same bill was introduced in the PA House the week before. Each measure would also carry the same restrictions in housing, credit and public accommodations.
While prior attempts to get similar legislation passed in PA have failed, a recent poll indicates support for this measure throughout the Commonwealth. Plus, many large cities, including Philadelphia and Pittsburgh, have LGBT workplace laws. And, even without a law on the books statewide, many large employers have led by example. According to the Human Rights Campaign, as of April 2013, 434 (88 percent) of the Fortune 500 companies had implemented non-discrimination policies that include sexual orientation, and 282 (57 percent) had policies that include gender identity.
Governor Corbett's position on these bills is unclear.
Image Credit: By File:Map of Pennsylvania highlighting Philadelphia County.svg: Gay_flag.svg: derivative work: Fry1989 eh? 01:04, 12 January 2012 (UTC) [Public domain], via Wikimedia Commons
So much labor-and-employment-law news this week, I'll do what I can to cram it into a single post. Here goes...
From Seth Borden at Labor Relations Today comes this news about the Senate agreeing to -- gasp -- seat a full five-member National Labor Relations Board. How could this happen? Something about a nuclear option
and compromising photos..
Staying with the labor theme, Joel Barras at Employment Law Watch reports here about a recent advice memorandum from the NLRB's General Counsel in which the GC concludes that employers must bargain with their unions before implementing new social media policies. No shock there.
Now the bridge from labor to employment, as ESPN reports here that Major League Baseball and its union have agreed to bolster its policies against harassment and discrimination based on sexual orientation. Well done!
And finally, what would a Thursday be without an employment law blog carnival. Or a summer road trip. Or both. Robin Shea at the Employment and Labor Insider brought you both right here!
Normally, I get my Thursday post fodder from the Wiggity Wiggity Wonky Wednesday edition of Cracked Magazine. Hard hitting stuff like "7 Dick Moves Everyone Pulled in Classic Video Games" and "The Worst Imaginary Friends to Be Stuck With."
But, for today's post, I read this newspaper called the Washington Post. I dunno. Must've sprung up overnight.
Three Republicans, Sens. Orrin Hatch (Utah), Lisa Murkowski (Ala.) and the bill's original co-sponsor, Mark Kirk (Ill.) joined 12 Democrats to quickly approve what committee chairman Sen. Tom Harkin (D-Iowa) called "historic legislation."
Title VII of the Civil Rights Act currently makes it unlawful for employers to engage in sexual stereotyping. Introduced back in April and in every session of Congress save one since 1994, ENDA would expressly prohibit employers from firing, refusing to hire, or discriminating against those employed or seeking employment, on the basis of their perceived or actual sexual orientation or gender identity.
Ms. Tam's article notes that committee member, Sen. Lamar Alexander (R-Tenn.), opposed ENDA, but offered three amendments to the bill:
In his opening remarks, he suggested providing more guidance for employers operating at shared facilities, a better definition of "transitioning" individuals and the elimination of a provision added in the manager's amendment to allow cases to proceed when employers have legitimate reasons for certain employment decisions.
According to the article -- Tam's piece, not "6 Animals Clearly Disguised as Candy (A Drunk Column)" -- a full vote on ENDA in the Senate is expected sometime in the Fall.
Image Credit: Wikipedia
Want an explanation of yesterday Supreme Court decision regarding challenges to California's ban on same-sex marriage and the federal Defense of Marriage Act, check out Amy Howe's analysis "In Plain English" at SCOTUSblog.com.
And for more on yesterday's decision and the impact it may have on your business, check out:
- Lyle Denniston's recap at SCOTUSblog.com
- Danielle Kurtzleben's report on the impact DOMA may have on your workplace
- "DOMA Ruling Means Changes Loom for Employers" from Lauren Weber at WSJ.com
- "Post-DOMA, Employers Face HR Challenges" from Shannon Green at Corporate Counsel
- "Now What? Employer Benefits Obligations Post-DOMA" from Stephen Miller, CEBS at SHRM.org
Discrimination is just plain wrong. It is shocking that there is still anywhere in America where it is legal to fire someone for their sexual orientation or gender identity. Americans understand that it's time to make sure our LGBT friends and family are treated fairly and have the same opportunities as all Americans. Now it's time for our laws to catch up. People should be judged at work on their ability to do the job, period.-- Senator Jeff Merkley (D-OR)
Last week, Senator Merkley together with Senators Mark Kirk (R-IL), Tom Harkin (D-IA), Susan Collins (R-ME) and Tammy Baldwin (D-WI), reintroduced the Employment Non-Discrimination Act (ENDA). (The same version of ENDA has bipartisan sponsorship in the House as well).
Title VII of the Civil Rights Act currently makes it unlawful for employers to engage in sexual stereotyping. ENDA, which has been introduced in every session of Congress save one since 1994, would expressly prohibit employers from firing, refusing to hire, or discriminating against those employed or seeking employment, on the basis of their perceived or actual sexual orientation or gender identity.
And while Congress has blown several opportunities to pass ENDA, it's worth noting that, 93% of Fortune 100 companies include sexual orientation and 82% include gender identity in their corporate nondiscrimination policies. Nearly 200 municipalities also have similar laws in place.
Many are optimistic that Congress can get ENDA to the President this time around.