The Employer Handbook Blog

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.

Many 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.

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...

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?" »