Thursday, April 28, 2016

UPDATE on Recent and Pending Discrimination Matters Pertaining to LGBT-Rights

Are There Any Federal Laws That Make it Illegal to Discriminate Against Employees or Workers Due to Their Sexual Preference, Their Sexual Orientation, or Their Sexual Identity  

Discrimination against a person because of his/her "sex" is illegal.  In fact, that was a principal component of the Civil Rights Act of 1964 (Title VII) which, from an employee rights perspective, was primarily intended to facilitate and protect the rights of blacks and women as they entered into the American workforce in increasing numbers.

LGBT-Related Protection
Out of Its Reach?
Over the past 50+ years, the definition of the term "sex" has become the subject of social debate, legislation and judicial decisions.  This Post discusses some of the more recent developments in that area of discrimination law.

Among the issues addressed herein are those relating to the reach of Title VII where discrimination based upon a variety of "sex-related characteristics" is concerned.

Definitions of Sex-Related Identifiers Used to Describe Members or Characteristics of LGBT Community

Here are some commonly employed definitions to inform your thinking:

"Biological Sex" - ones biological make-up as male, female or "intersex."  Common identifiers include genitalia, breast composition, facial/body hair, and chromosomes.

"Sexual Preference" or "Sexual Orientation" - refers to one's sexual preference or attraction to members of the same sex. Common Euphemism: Gay, lesbian, homosexual.

Same-Sex Symbol
"Sexual Identity" or "Gender Identity" -  refers to one's self identification as male or female, irrespective of one's physical attributes or genitalia.

"Transgender" - refers to persons who identify themselves as belonging to the sex that is the opposite of their Biological Sex.  Common Euphemism: Transsexual
LGBT Rights" - Acronym for members of society who identify as "Lesbian, Gay, Bisexual and/or Transgender"
LGBT Rights on Upswing
How Does the Federal Government Make it Illegal to Discriminate in the United States?

Nest,it is helpful to understand how Federal laws are made in the United States. There are 2 ways that our federal government can make it illegal to  discriminate:

1) The United States Congress can pass a law making discrimination illegal, such as it did when it enacted the Civil Rights Act of 1964; or,

A Powerful Source of Law
2) The United States Supreme Court can issue a decision declaring discrimination illegal.
Otherwise, the most persuasive authority in the United State's federal government is the Equal Employment Opportunity Commission ("EEOC"); however, while EEOC's rules, regulations and decisions are viewed as highly persuasive by the federal judiciary, they do not constitute the law of the land.

Can States, Cities and Local Governments Make Discrimination Illegal?

Yes, they can, provided that they do not enact laws that provide less rights than any federal law covering the same general subject matter.

Tapestry of LGBT-Related Laws 
Indeed, there are a wide variety of state laws that protect the rights of workers who are part of the LGBT community, and further is found in city, county and local ordinances throughout the country.

Indeed, Philadelphia's Fair Practices Ordinance is one of the strongest anti-discrimination in the workplace laws in the United States, making it illegal for employers within the city limits to discriminate against an employee because of his/her sexual preference, gender identity, marital status or familial status.  

Is is Illegal Under Title VII or Any Other Federal Law to Discriminate Against a Worker Because He or She is Gay?

Over the past twenty-years or so, the hot-button issues where LGBT-rights are concerned begins and ends with the issue of whether Title VII prohibits discrimination in the workplace based upon the employee's sexually orientation/preference.

In other words, is it legal to discriminate against an employee because he/she is gay?

Due to the failure of the United States Congress or  Supreme Court to pass a law or issue a ruling making such discrimination illegal, the matter remains open for discussion even today, although it seems clear that such discrimination will inevitably be deemed illegal.

That said, the Supreme Court has issued a number of decisions that support the LGBT community, and the EEOC recently issued a decision squarely stating its position that discrimination based upon one's sexual orientation violates Title VII, at least in its view!

Below is an overview of various legal decisions and EEOC rulings discussing LGBT-related rights to be be free from discrimination at work.

Does the Civil Rights Act of 1964 (Title VII) Make it Unlawful to Discriminate Based Upon Sexual Stereotyping? Is it Illegal to Refuse to Hire, or to Demote, Fail to Promote or Terminate an Employee Because of His/Her Sexual Preference or Sexual Orientation (Gay, Lesbian, Homosexual)?

In its landmark 1989 decision, Price Waterhouse v. Hopkins,the Supreme Court considered a case wherein a woman was denied a promotion to partner of the firm because she was perceived by some of her colleagues as being "macho," and "overcompensat[ing] for being a woman." One partner indicated that the plaintiff's chances of becoming a partner would increase if she would  "walk more femininely, talk more femininely, dress more femininely, have her hair styled, and wear jewelry."  

In suing for sexual discrimination, the plaintiff presented a unique issue, because she was not claiming that she was denied an opportunity to advance because she was a woman but, rather, because she did not fit her colleagues' stereotype of what a woman "should be."

The Supreme Court held that she stated a claim for discrimination based upon sex, noting:

In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender. ...we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.

[I]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.

In Hopkins, there was no suggestion that the plaintiff was a lesbian; however, because some lesbian women or homosexual men are perceived to exhibit behavior more commonly associated with members of the opposite sex, it was viewed as a gateway to future decisions by the Supreme Court expanding the reach of Title VII to members of the LGBT community in a variety of contexts.

However, that has not proved to be the case.

Hostile Work Environment Claims - Does Title VII Protect the Victim if the Harasser is of the Same Sex and the Abuse and Bullying is Because the Employee is Seen/Viewed/Perceived to be Gay or a Homosexual or a Lesbian? 

It took nearly a decade for the Supreme Court to issue a decision that further advanced the rights of members of the LGBT community.

In Oncale v. Sundowner Offshore Services, Inc., a 1997 decision by the United States Supreme Court, the male plaintiff was subjected to vile and humiliating statements and actions by his male co-workers, including physical assault and a threat of rape, who perceived the plaintiff to be a homosexual.  Plaintiff complained to management, which did little to remediate the situation. He thereafter quit and filed suit.  After the federal district court in Louisiana and 5th Circuit Court of Appeals court rejected his claim on the grounds that Title VII does not protect a worker for harassment from co-workers of the same sex, the Supreme Court took the case.

The Court held that plaintiff was entitled to protection under Title VII, analogizing the claim to one filed by a woman for a hostile work environment by male co-workers.  In doing so, however, the Court made clear that the plaintiff's claim was based upon sex discrimination, as opposed to discrimination based upon  sexual preference (i.e. homosexuality).

Despite its limited reach, Oncale was highly noteworthy because it was authored by Justice Antonin Scalia - who was revered for his intellect, and universally viewed as staunchly conservative.

Noted Conservatives Unite on
Behalf of LGBT Community?!
Moreover, and perhaps even more remarkably, a concurring opinion was issued by the similarly conservative Justice Clarence Thomas, who once upon a time had himself been accused of creating a hostile work environment.

Surely, an arithmetic advancement of the rights of gay workers across the country was coming swiftly.  .    

Is Discrimination Based Upon Sexual Orientation or Sexual Preference Illegal Under Title VII?

Twenty-seven years after Hopkins, and 19-years after  Oncale, the Supreme Court has yet to decide whether Title VII makes it illegal to discriminate against workers on the basis of their sexual preference or sexual orientation.

Hence, plaintiffs filing suit for discrimination based upon sexual orientation under Title VII are forced to state claims of discrimination based upon the "stereotyping"rubric announced in Hopkins.

Further, while there have been numerous efforts over the years to enact federal legislation making discrimination based upon sexual orientation unlawful, the most recent being the Equality Act of 2015, no such law has been passed as of this date.

The EEOC Decided in July 2015 That Discrimination Based Upon an Employees Sexual Preference or Sexual Orientation is Prohibited Under Title VII

Persuasive, but Not Final Authority

In July 2015, the EEOC issued a decision  in Baldwin v. FAA in which the claimant alleged discrimination based upon his sexual orientation.  The EEOC first conducted a survey of cases that had dealt with the issue over the preceding decade, and noted the consensus view of the federal courts, to wit, “Title VII does not prohibit . . . discrimination because of sexual orientation.” Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005).

Thereafter, the Commission squarely held that, in its view, discrimination based upon sexual orientation was unlawful under Title VII:

 We therefore conclude that Complainant’s allegations of discrimination on the basis of sexual orientation state a claim of discrimination on the basis of sex. We further conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex. An employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.

OVERVIEW: What Are the Leading Cases From the U.S. Supreme Court and Federal Circuit Courts on LGBT-Related Discrimination?

The EEOC has put together a fairly comprehensive list of such cases.  Click Here to jump to that list.

On March 1, 2016, EEOC published a Fact Sheet entitled Recent EEOC Litigation Regarding Title VII & LGBT-Related Discrimination.  This provides an excellent overview of pending or recently decided matters, and the issues considered therein.

Click Here to read the EEOC's "What You Should Know" publication, which addresses the laws governing discrimination based upon sexuaal preference.

The EEOC Has Determined That Discrimination Based Upon Sexual Identity (Transgender Discrimination) Violates Title VII

In Macy v. Dep't of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), the EEOC held that discrimination against a transgender individual because that person's gender identity constitutes unlawful discrimination based on sex and is therefore violative of Title VII.

Representing Pennsylvania Workers Since 1991
John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.  

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

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