Posts Tagged ‘sexual orientation’

The Seventh Circuit Court of Appeals has rejected the EEOC’s position that Title VII prohibits discrimination on the basis of sexual orientation. The July 28th decision, Hively v. Ivy Tech Community College, is a blow to the EEOC’s recent efforts to stretch Title VII to encompass sexual orientation, a classification that the statute does not mention. The Seventh Circuit based its ruling on the twin columns of statutory interpretation and judicial precedent: the language of Title VII does not explicitly prohibit sexual orientation discrimination and the case law of the Seventh Circuit has repeatedly denied that Title VII implicitly prohibits it either.

But perhaps the better indicator of the future of Title VII is what the court chose to do after briefly explaining its ruling. Rather than criticizing the EEOC for overreaching, it spent the rest of its lengthy opinion performing an extensive, mostly positive analysis of the EEOC’s justification for its position.

This analysis places a large, unofficial asterisk next to the decision, as the court described the very precedent it relied on to reach its decision as, among other things, “inconsistent.” The main source of the court’s consternation is the difficult task of squaring the Supreme Court’s approval of prohibiting gender non-conformity discrimination with its silence in regard to prohibiting sexual orientation discrimination. Gender non-conformity discrimination is discrimination based on a person’s failure to conform to gender stereotypes about how men and women should act. Many, including the EEOC, have argued that failing to be romantically interested in the opposite gender should just be considered a failure to conform to the gender stereotype that men date women and women date men. But because of Title VII and the Supreme Court’s silence in regard to sexual orientation discrimination, federal courts have consistently refused to extend gender non-conformity discrimination to cover sexual orientation discrimination.

The result is, as the court called it, an “odd state of affairs,” in which heterosexual plaintiffs who suffer gender non-conformity discrimination can more easily bring a discrimination claim than homosexual plaintiffs alleging the exact same discrimination, because the homosexual plaintiffs have the extra burden of proving the discrimination is not based on their sexual orientation. The court also found inconsistency in how the law currently would protect a woman from discrimination on the basis of the superficial way she talks or dresses, but not from discrimination on the basis of her (now legal) marriage to a woman. “We are left,” in the Seventh Circuit’s opinion, “with a body of law that values the wearing of pants and earrings over marriage.”

Such a conclusion makes it clear that as much as the Seventh Circuit felt bound by law and precedent to find Title VII does not prohibit sexual orientation, it also felt that the law and precedent should change. It concluded its opinion with a not-so-subtle call for either a change in legislation or a Supreme Court decision on the issue. The Seventh Circuit may not have endorsed the EEOC’s stance, but it certainly urged an institution with more authority to do so. Employers should be aware that it is likely only a matter of time before such an institution does.

This article is intended to provide general information, not a specific legal opinion or advice. Any particular questions should be directed to your legal counsel. If you do not have legal counsel, please feel free to contact Harmon & Davies, P.C.

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On March 1, 2016, the Equal Employment Opportunity Commission (EEOC) took the long predicted, but unprecedented, step of filing complaints in federal courts against two private companies alleging that sexual orientation discrimination is a violation of the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964. For the last several years, the EEOC has been accepting and investigating such allegations involving private employers and last year ruled in a case involving a federal government employee that sexual orientation discrimination was “inherently” a form of sex discrimination under Title VII.  To date, no federal appeals court has reached this conclusion and five Courts of Appeal have flatly rejected extending Title VII in this fashion.

To put this issue in a broader context, on July 21, 2014, President Obama issued Executive Order 13672 which amended Executive Order 11246 (issued in 1965) to include prohibitions against discrimination based on sexual orientation or gender identity, but the Executive Order only governs certain federal contractors. From 1994 through 2014, a version of the Employment Non-Discrimination Act (ENDA) was introduced in every session of Congress except for the 109th Congress (2004-2005.)  Early forms of the legislation would have only prohibited discrimination by private employers of 15 or more employees based on sexual orientation, but beginning in 2007, the proposed legislation would have also prohibited discrimination based upon gender identity.  Each of these versions of the bill included a religious exemption provision.  It was thought that with the election of President Obama in 2008, together with Democrat control of the House and Senate that ENDA would become law in 2009 or 2010, but it seemingly got lost in a crowded legislative calendar.  ENDA was not introduced in the current session of Congress.  Rather, with broad backing from the LGBT community, a more comprehensive Equality Act was proposed which would prohibit discrimination based on sexual orientation and gender identity in employment, public accommodations, housing and a variety of other areas.  Given the current makeup of Congress, its prospects of passage are not favorable.

Critics of the EEOC’s recent action argue that it is another example of the Obama administration’s willingness to use the administrative process to revise existing law. Advocates for the LGBT community argue, however, that the new lawsuits are a natural extension of the EEOC’s efforts to provide broad protection under Title VII.  Persons on both sides of the issue will be carefully following the actions at the district court level.

The case against Scott Medical Center was filed in the Western District of Pennsylvania and alleges that a gay male telemarketing representative was subjected to a sexually hostile work environment based upon numerous offensive comments directed at him by his male supervisor pertaining to his sex life and other personal matters. The employee’s resignation in the face of this conduct is alleged to be a constructive discharge.  The case appears to have been assigned to Judge Cathy Bisson, who was nominated to the Court in 2010 by President Obama.  The other case, which was filed in Maryland, alleges that Pallet Companies d/b/a IFCO Systems violated Title VII by its treatment of a lesbian forklift operator which included comments directed to her by her male supervisor such as, “I want to turn you back into a woman” and “you would look good in a dress.”  She was terminated a few days after registering complaints about this behavior to management and on an employee hotline.  The EEOC alleges that this termination was unlawful.  This case appears to have been assigned to Judge Richard D. Bennett, who was nominated to the Court by President George W. Bush in 2003.  In both cases, in addition to the usual remedies, the EEOC is seeking that punitive damages be awarded to the complainants.  It will be very interesting to watch how the courts handle these cases.

From a practice perspective, however, it is highly recommended that employers get ahead of this issue and modify, if necessary, their existing Discrimination and Harassment policies to include broad prohibitions against discrimination that include sexual orientation and gender identity as protected categories. The attorneys at Harmon & Davies, P.C. are available to discuss these matters with you in further detail.

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Posted in Labor & Employment | Comments Off on EEOC Sues 2 Private Employers in Unprecedented Sexual Orientation Discrimination Lawsuits

Earlier this year, during the NFL’s scouting combine, an NFL team employee allegedly asked three prospective players about their sexual orientation.  Allegedly, one prospective player was asked whether he had a girlfriend, was married, or liked girls.  Toss a yellow flag on the field.  Parlaying employment law into football lingo, the penalties as follows:  illegal formation (of a quesiton); neutral zone infraction, unsportmanlike conduct, taunting, a palpably unfair act, and encroachment.

Such questions are likely to violate state and local laws that prohibit discrimination, based on sexual orientation, in hiring and employment.  For example, the New York State Human Rights Law makes it unlawful for employers to discriminate against or refuse to hire any individual because of sexual orientation and also prohibits employers form making any inquiry in connection with the prospective employment about an individual’s sexual orientation.  In fact, at least 20 of the NFL’s 32 teams are located in jurisdictions that similarly prohibit sexual orientation discrimination in hiring and employment.

Interestingly, the NFL’s 2011 collective bargaining agreement with its player’s union prohibits discrimination in hiring and employment based on sexual orientation , but the labor agreement does not appear to provide any protection to prospective players during the recruitment process.  Nonetheless, even without the protection of the collective bargaining agreement, it appears that such questions would still violate state or local law in nearly a third of the cities where the NFL has teams.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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