Recently in Sexual Orientation Category

February 26, 2014

Mohawks in the workplace aren't gay. Stupid, but not gay.

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.

December 19, 2013

PA Gov. Corbett announces support for ban on LGBT workplace discrimination

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.

November 8, 2013

ENDA -- a bill banning LGBT workplace discrimination -- passes the Senate

Thumbnail image for rainbowflag.jpgAnd 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.


November 5, 2013

Senate on the brink of approving bill to improve LGBT workplace rights

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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.

October 30, 2013

Let's play: What did Senator Harry Reid say to affect your workplace?

harryreid.jpegEarlier 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.

August 20, 2013

New PA bill would ban sexual orientation, gender identity discrimination

LGBT_flag_map_of_Pennsylvania.svg.png

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

July 18, 2013

That's what they said: Lotsa NLRB news, and an employment-law carnival

theysaid.jpgSo 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!

July 11, 2013

One step closer to federally-protected LGBT rights in the workplace

rainbowflag.jpgNormally, 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. 

One its writers, Ruth Tam, writes here that the Employment Non-Discrimination Act (ENDA) has cleared a bipartisan Senate committee:

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

June 27, 2013

Supreme Court DOMA ruling "In Plain English"; impact on employers

theysaid.jpgWant 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:

April 29, 2013

Will Congress finally greenlight LGBT rights in the workplace?

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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.

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.

April 8, 2013

The importance of addressing sex stereotyping in the workplace

stereotype.jpgMany states and localities have laws forbidding discrimination on the basis of sexual orientation (LGBT). 

But Title VII of the Civil Rights Act, one of the federal laws barring discrimination in the workplace, law does not prohibit it.

What Title VII does make unlawful, however, is stereotyping based on a person's gender non-conforming behavior (i.e., a man who appears effeminate, or a "manly" woman). As a Virginia federal court (here) re-emphasized last week, sex stereotyping is central to all discrimination:

Discrimination involves generalizing from the characteristics of a group to those of an individual, making assumptions about an individual because of that person's gender, assumptions that may or may not be true.

Recognizing that the line between unlawful sex stereotyping and lawful (yet despicable) discrimination on the basis of sexual orientation can be tough to draw, the Virginia court denied a defendant's motion to dismiss a pro se plaintiff's sex stereotyping claims because he alleged that he was given crappy assignments based on the company's position that his failure to conform to gender norms reflected poorly upon the company and would displease its clients. This was enough, at the pleading the stage, to spell out plausible claims for sex stereotyping. Whether the plaintiff can ultimately prevail is another story.

The takeaway here is this: there are certain incendiary words that, when used in workplaces -- especially blue-collar workplaces -- may create immediate animosity and, ultimately, lead to lawsuits from male or female employees. Take, for example, the word "bitch." Courts recognize that calling a woman a bitch is intentional discrimination based on gender. But, calling a man a "bitch" (or "faggot" or "woman") can also give rise to a sex stereotyping claim based on a failure to conform to gender norms.

So, when conducting respect-in-the-workplace training, don't give same-sex harassment short shrift. Instead, explain it, give examples, and remind employees that they don't have to endure that kind of crap at work. Encourage anyone who experiences or witnesses sex stereotyping to complain about it so that it may be addressed and dealt with immediately.

Also, if you're one of the few employers that hasn't progressed beyond the confines of Title VII to preclude discrimination based on sexual orientation, get out of the stone ages and join us here in the 21st century.


March 13, 2012

Flyer claims Chick-Fil-A asks potential hires about sexual history

Over the weekend, I read this story by Laura Hibbard at the Huffington Post about a phony job flyer handed out by two men in red blazers posing as Chick-Fil-A employees [link to video] on the campus of New York University. The phony flyer states:

Remember Chick-Fil-A is a Christian company. We strive to have our values reflected in our employees. Please be prepared to discuss your religion, family history, personal relationships etc. upon interviewing. Chick-Fil-A reserves the right to question, in detail, your sexual relationship history. The Bible and Chick-Fil-A, define a traditional relationship as consisting of a man and woman. Anyone living a life of sin need not apply. The Chick-Fil-A Foundation. God, Family, Tradition.

The flyer and video have since gone viral. However, Chick-Fil-A, which has a stated corporate purpose to "glorify God by being a faithful steward of all that is entrusted to us," responded by posting on the wall of its Facebook Fan page (incidentally, 4,960,921 people "like" Chick-fil-A) that the flyer and video were BS. Given the company's religious leanings, the comments beneath Chick-Fil-A's status update are rather polarizing.

But since this an employment-law blog, there is an employment-law point to be made. Just because you technically can ask certain questions during a job interview, doesn't mean you should. Indeed, you may want to consider steering clear of these other 29.

But feel free to watch the vids below...

October 3, 2010

How do PA, NJ, and DE address discrimination based on sexual orientation?

Recently, I read an article by Bob Egelko in the San Francisco Chronicle about a speech from U.S. Supreme Court Justice Antonin Scalia in which he told law students from U.C. Hastings that the 14th Amendment to the U.S. Constitution, which guarantees equal protection to all U.S. citizens, do not preclude discrimination based on sex. Justice Scalia believes that the drafters of the Constitution did not have sex discrimination on the brain when they passed the 14th Amendment.

Continue reading "How do PA, NJ, and DE address discrimination based on sexual orientation?" »