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Total Articles: 121

D.C. District Court Issues Injunction Against Transgender Military Ban

Executive Summary: As previously reported by these authors, on July 26, 2017, President Trump announced via Twitter that transgender individuals will no longer be permitted to serve in the military. President Trump issued an official memorandum (“the memorandum”) on August 25, 2017, reasserting the ban and setting out a number of directives. In response, several transgender service members filed suit in the United States District Court for the District of Columbia alleging that the memorandum and the transgender military ban violate the guarantees of the Fifth Amendment of the United States Constitution. On October 30, 2017, United States District Judge Colleen Kollar-Kotelly issued an injunction, finding that the plaintiffs are likely to succeed on the merits of their claims. This order established a status quo by which President Obama’s prior policy, announced on June 30, 2016, remains in effect and permits transgender individuals to serve in all divisions of the United States Armed Forces.

U.S. Department of Justice Rescinds Policy Protecting Transgender Employees

On October 4, 2017, the United States Department of Justice, through Attorney General Jeff Sessions, issued a memorandum rescinding an Obama-era policy protecting transgender employees from employment discrimination pursuant to Title VII of the Civil Rights Act of 1964.

Feds Say Title VII Doesn't Cover Transgender Workers

Attorney General Jeff Sessions formally reversed the federal government’s position on whether transgender workers are covered by Title VII of the Civil Rights Act, informing all U.S. Attorneys and heads of all federal agencies that the Department of Justice (DOJ) no longer believes that the antidiscrimination statute provides such coverage. The October 4 memo indicates that, according to the DOJ, “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”

Department of Justice Weighs In: Title VII Does Not Prohibit Gender Identity Discrimination

Executive Summary: Whether Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation, gender identity, transgender status and/or gender expression remains a heated debate in the courts and between government agencies. In the latest development, on October 4, 2017, Attorney General Jeffrey Sessions announced that under his interpretation of Title VII, gender identity and transgender status are not protected. The Justice Department made the same argument with respect to sexual orientation last week at oral argument before the Second Circuit in Zarda v. Altitude Express. This represents a significant departure from the position of the Obama Administration and the current position of the Equal Employment Opportunity Commission, both of which interpreted Title VII to prohibit such discrimination. It is clear that absent Congressional action, or a decision by the U.S. Supreme Court, the issue will continue to be intensely debated.

Department of Justice Releases Memorandum Restricting Transgender Worker Protection under Title VII

On October 4, 2017, Attorney General Jeff Sessions reversed the Department of Justice’s position that gender identity is protected as part of Title VII of the Civil Rights Act’s prohibition against sex discrimination — taking a position that is contrary to current guidance from the Equal Employment Opportunity Commission.

Does Transgender Military Ban Signal New Direction of Trump Administration on LGBTQ Rights?

Executive Summary: On July 26, 2017, President Trump announced via Twitter that the military, arguably the country’s largest employer, will no longer allow transgender people to serve, thus breaking from the Obama Administration’s lift of the transgender ban and setting off a firestorm of controversy.

Is Sexual Orientation Protected Under Title VII? The DOJ Weighs In

Last week, on Wednesday July 26, 2017, the United States Department of Justice (DOJ) filed an amicus brief in a Second Circuit case taking the position that Title VII does not protect employees against sexual orientation discrimination.

Eleventh Circuit Sets the Stage for U.S. Supreme Court Certification on Whether Sexual Orientation is Protected by Title VII

Executive Summary: On March 10, 2017, in Evans v. Georgia Regional Hospital, a split panel of the U.S. Court of Appeals for the Eleventh Circuit held that it was bound by prior precedent that Title VII of the Civil Rights Act of 1964 does not prohibit sexual orientation discrimination. The majority opinion was clear that only a ruling from the Eleventh Circuit sitting en banc could change the state of the law on this issue. Evans moved for reconsideration en banc. The Eleventh Circuit denied the request on July 6, 2017. The Circuits are now split on the issue, providing an opportunity for the U.S. Supreme Court to definitely decide the issue.

Investigating Transgender Student Discrimination under New Education Department Directives

Department of Education regional directors have been given new instructions on sex discrimination protections for transgender students under Title IX of the Education Act of 1972. Two updated, internal Office of Civil Rights (OCR) guidance documents outline changes to the appropriate scope of OCR investigations and to the Department’s interpretation of Title IX.

During Last Week of School Seventh Circuit Rules in Favor of Transgender Teen On Restroom Use

Executive Summary: On May 30, 2017, on the heels of the Seventh Circuit’s ground-breaking en banc decision in Hively v. Ivy Tech. College holding that sexual orientation is a protected trait under Title VII, a unanimous three-judge panel of that Circuit upheld an injunction requiring a Wisconsin school district to allow a transgender student whose sex assigned at birth was female and who now identifies as male to use the boys’ restroom. In Whitaker v. Kenosha Unified School District No. 1 Board of Education, the Seventh Circuit ruled that under the gender non-conformity/sex stereotyping theory of liability as set out by Price Waterhouse v. Hopkins and its progeny, Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution prohibit a school from barring a transgender student from using the bathroom that corresponds to his or her gender identity.

Full Second Circuit to Revisit Its Position On Sexual Orientation as a Protected Class Under Title VII

Executive Summary: While the Seventh Circuit definitively has held that sexual orientation discrimination is discrimination “because of sex” and, therefore, a violation of Title VII of the Civil Rights Act of 1964, as amended (as reported by these authors on April 25, 2017), the other Circuits continue to debate this issue. Specifically, (as previously reported by these authors on April 3, 2017), the Second Circuit in Christiansen v. Omnicom and Eleventh Circuit in Evans v. Georgia Regional Hospital held they were bound by prior precedent that sexual orientation is not protected by Title VII, despite their skepticism as to whether that precedent remains good law.

Seventh Circuit Hands Down Major Ruling in Transgender Student Case

On May 30, 2017, the Seventh Circuit Court of Appeals ruled that a transgender student has the right to use the bathroom that aligns with his gender identity in Whitaker v. Kenosha Unified School District No. 1 Board of Education, et al. This ruling is potentially groundbreaking, and could open the door for other courts to find that both Title IX and the Equal Protection Clause protect transgender students from discrimination in schools.

Wal-Mart's 7.5M Settlement Approved in Same-Sex Health Benefits Case

A federal court in Massachusetts has approved a $7.5 million settlement in a case that accused Wal-Mart of discriminating against employees by denying health benefits to their same-sex spouses. The settlement involves the claims of current and former Wal-Mart employees in the US and Puerto Rico who said they were unable to obtain the benefits. In approving the agreement, US District Judge William G. Young called it, "Fair, reasonable, and in the public interest."

Full Second Circuit Asked to Revisit Prior Precedent that Title VII Does Not Protect Sexual Orientation

Executive Summary: On April 3, 2017, in Christiansen v. Omnicom Group, Inc., the Second Circuit held that it was bound by prior precedent in ruling that Title VII of the Civil Rights Act of 1964 does not prohibit sexual orientation discrimination. On the tails of the Seventh Circuit’s en banc decision in Hively v. Ivy Tech Community College overruling prior Seventh Circuit precedent and holding that Title VII does, in fact, prohibit discrimination based on sexual orientation (as reported on April 25, 2017), Christiansen has now filed a petition for rehearing en banc, encouraging the Second Circuit to do the same.

"Common Sense Reality": Seventh Circuit Holds That Sexual Orientation Discrimination Violates Title VII

Executive Summary: In a landmark decision overruling decades of precedent, the Seventh Circuit en banc declared that sexual orientation discrimination violates Title VII in Hively v. Ivy Tech Community College. This comes as the first decision of its kind. The Seventh Circuit’s decision was followed by a Second Circuit panel decision days later in Zarda v. Altitude Express reaffirming its recent holding in Christiansen v. Omnicom that the long-held view that sexual orientation is not considered to be a protected class under Title VII remains good law. It is now unquestionable that the Circuits have split on the matter.

Title VII Covers Sexual Orientation Discrimination, Landmark Ruling Finds

n a first-of-its-kind ruling by a federal appellate court, the Chicago-based 7th Circuit Court of Appeals has found that discrimination based on sexual orientation is covered by Title VII of the Civil Rights Act of 1964.

In a Landmark Ruling, the Seventh Circuit Becomes First Court of Appeals to Ban Sexual Orientation Discrimination

Setting the stage for the U.S. Supreme Court to tackle the issue, the Seventh Circuit Court of Appeals (which covers Illinois, Indiana, and Wisconsin) yesterday overturned decades of precedent and held that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation.

Sexual Orientation Discrimination Prohibited by Title VII, Federal Appeals Court Finds

Observing that it would require “considerable calisthenics” to remove “sex” from “sexual orientation,” the U.S. Court of Appeals for the Seventh Circuit, in Chicago, has ruled that “discrimination on the basis of sexual orientation is a form of sex discrimination” and unlawful under Title VII of the Civil Rights Act of 1964.

eLABORate: U.S. Court of Appeals Ruling on Sexual Orientation Discrimination Sets the Stage for a Supreme Court Show Down

For the first time ever, a federal appeals court has held that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects against sexual orientation discrimination in employment. In the groundbreaking decision, the United States Court of Appeals for the Seventh Circuit, based in Chicago, held that gay and lesbian workers, and by extension, others in the LGBT community, can sue employers for discriminatory employment actions based on their sexual orientation.

Seventh Circuit Holds Title VII Protections Extend to Sexual Orientation Discrimination

On April 4, 2017, the U.S. Court of Appeals for the Seventh Circuit held in Hively v. Ivy Tech Community College of Indiana that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. This is the first time a federal appellate court has so held.

Seventh Circuit Finds Sexual Orientation Discrimination Is Sex Discrimination Under Title VII, SCOTUS Review Likely

On April 4, 2017, the Seventh Circuit Court of Appeals issued its highly anticipated en banc decision in Hively v. Ivy Tech Community College of Indiana, making the Seventh Circuit the first federal appellate court to find that sexual orientation is encompassed in Title VII of the Civil Right Act of 1964’s definition of sex.

Landmark Appeals Court Ruling Extends Title VII Protections To LGBT Employees

Late yesterday, the 7th Circuit Court of Appeals became the first federal court of appeals in the nation to rule that sexual orientation claims are actionable under Title VII. In a full panel en banc decision, the court opened the door for LGBT plaintiffs to use Title VII to seek relief for allegations of employment discrimination and retaliation.

Second and Eleventh Circuits Rule They are Bound by Prior Precedent that Title VII Does Not Prohibit Sexual Orientation Discrimination, but Some Judges Suggest It Should

Executive Summary: As these authors have previously reported, several cases analyzing whether sexual orientation is protected by Title VII of the Civil Rights Act of 1964 have been winding their way through the courts. The Eleventh Circuit, in Evans v. Georgia Regional Hospital, and the Second Circuit, in Christiansen v. Omnicom Group, Inc., have now ruled on the cases before them. But they offer little more clarity on the subject. While both held that they are bound by prior precedent that Title VII does not prohibit sexual orientation discrimination, the dissenting opinion in Evans, and the concurring opinion in Christiansen, suggest that it should.

Dear Littler: How Should I Handle Customer Concerns about a Transgender Employee?

Dear Littler: We have a transgender employee at work, Sarah, who identifies and presents as a female. She is in the process of transitioning and still occasionally exhibits traditionally “male” physical attributes. A client of ours recently noticed that Sarah appeared to have a “five o’clock shadow” at the end of a long day and complained to me about Sarah working on that client’s account. What is the best way to respond?

Trans-Competence in Healthcare: Emerging Realities for LGBTQ Patients

Cindy-Ann Thomas, Littler Principal and Co-chair of the firm’s EEO and Diversity Practice Group, and Dr. Thomas Robertson, Chief Psychologist at Jackson Behavioral Health Hospital, discuss how the transgender patient population in healthcare is one of the most highly victimized groups.

11th Circuit Finds Title VII Does Not Ban Sexual Orientation Discrimination

A divided 11th Circuit appellate court has ruled 2-1 that a gay woman who presents herself in a masculine manner cannot sue her former employer for sexual orientation discrimination under federal civil rights law. In rejecting the plaintiff's claim in Evans v. Georgia Regional Hospital, the court cited its past pronouncements that "discharge for homosexuality is not prohibited" under Title VII of the Civil Rights Act.

Sexual Orientation Discrimination Is Not Prohibited by Title VII, Eleventh Circuit Rules

On March 10, 2017, the majority of a split Eleventh Circuit Court of Appeals panel affirmed a district court’s dismissal of a sexual orientation discrimination claim brought under Title VII of the Civil Rights Act of 1964. Evans v. Georgia Regional Hospital, No. 15-15234 (March 10, 2017).

Appeals Court Refuses To Extend Title VII Coverage To Sexual Orientation

On Friday, the 11th Circuit Court of Appeals declined to extend Title VII’s protections to sexual orientation discrimination, but reinforced that employees may allege sex discrimination claims when they face workplace discrimination for failing to conform to gender norms.

How Will the Trump Administration’s Position on Transgender Students Impact Employers and Schools?

Now that the Trump administration has lifted the Obama administration’s guidance directing schools to allow transgender students to use the bathroom consistent with their gender identity, employers and school administrators face a period of significant uncertainty regarding transgender individuals and their usage of public facilities. The objection to Trump’s move by state governors — some of whom announced their states would continue to follow the Obama guidance — highlights the importance of continually re-examining workplace policies and procedures to ensure compliance with local and federal law.

Trump Administration Rescinds Guidance on Transgender Rights under Title IX

The Trump Administration has announced that the Department of Education (DOE) and the Department of Justice (DOJ) rescinded the Obama Administration’s May 2016 Dear Colleague Letter directing that schools “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.”

Trump Administration Sending Mixed Signals about Support of LGBT of Rights

In addition to issues involving the environment, immigration, and national security, the Trump Administration has been in the headlines recently for its stance on matters impacting the LGBT community.

Trump Administration Rolls Back Transgender Student Protections

Late yesterday, the Trump administration revoked Obama-era federal guidelines that had instructed public schools to permit transgender students to use bathrooms that match their gender identity. This action comes less than two weeks after the Department of Justice withdrew its objection to a federal court injunction barring the implementation of that previous policy. Yesterday’s Dear Colleague letter not only reverses course from the Obama administration’s position, but establishes that transgender bathroom policies are determinations to be made by states and local school districts.

Trump Administration Withdraws Motion Seeking to Limit Court's Stay of Obama's Transgender Bathroom Guidance in Public Schools

Executive Summary: There has been much speculation about the Trump administration’s position with respect to LGBTQ rights. We may now have our first glimpse. Just days after Jeff Sessions was confirmed as Attorney General, the government has withdrawn the motion filed by the Obama administration attempting to limit the nationwide temporary injunction blocking enforcement of the Obama administration’s executive order requiring that public schools permit students to use the bathroom consistent with their gender identity.

President Trump Reaffirms federal LGBT Protections

In a wave of executive actions taken by incoming President Trump repealing or modifying a variety of actions taken by President Obama, a question loomed regarding the future of current federal LGBT protections afforded under Executive Order 13672. That question has been answered. The White House announced today that “the order will remain intact.” Specifically, the Office of Press Secretary Sean Spicer stated that “President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election.”

Married, but Without Benefits: The Obergefell Saga Continues in Texas

Same-sex couples can legally marry, but are they legally entitled to benefits? The Supreme Court of Texas will decide this issue after hearing oral arguments in March of 2017 in Pidgeon v. Turner.

Raising the Bar to a Perfect Score: Corporate Equality Index to Look for Expanded Health Benefits as Measure of LGBT Workplace Equality and Inclusion

Employers looking for strong scores on the Corporate Equality Index (CEI) in coming years may have to make some unexpected changes to their health benefit programs.

Federal Judge Blocks Transgender Protections

Eleventh Hour Ruling Impacts Healthcare Industry On Eve Of Implementation

Courts are Trending Toward Prohibiting Sexual Orientation Discrimination under Federal Law

Two recent court decisions highlight the ongoing struggle by federal courts to determine whether Title VII of the Civil Rights Act prohibits employment discrimination based on sexual orientation.

Transgender Employees in the Sharing Economy

The sharing economy is attractive to many transgender employees who fear discrimination in traditional workforces. But are sharing economy employers required to provide them with any special protections? With the employment status of workers in the sharing economy in legal limbo, a question facing many employers is whether state and federal antidiscrimination laws apply to workers. Some states, such as California, specifically protect transgender individuals, and so any discriminatory action by a customer against a transgender individual will be prohibited by law. In most states, however, the situation is less settled.

Sexual Orientation Discrimination is Prohibited by Title VII, Federal Court Rules

The prohibition against sex discrimination under Title VII of the Civil Rights Act extends to sexual orientation, Judge Cathy Bissoon of the Western District of Pennsylvania has ruled. EEOC v. Scott Medical Health Ctr., No. 16-225 (W.D. Pa. Nov. 4, 2016).

U.S. Supreme Court to Hear Transgender Student Case

The U.S. Supreme Court has agreed to hear oral argument in one of the high-profile challenges to the legality of the Dear Colleague Letter (“DCL”) jointly issued by the U.S. Departments of Justice and Education on May 13, 2016, announcing the Departments would “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” Gloucester County School Board v. G.G., 822 F.3d 709 (4th Cir. 2016), cert. granted (U.S. Oct. 28, 2016) (No. 16-273).

Full Seventh Circuit To Consider Whether Title VII Protects Sexual Orientation

Executive Summary: Title VII of the Civil Rights Act of 1964 does not specifically include sexual orientation as one of its protected traits. In July 2015, the Equal Employment Opportunity Commission (EEOC) for the first time took the position that Title VII protects federal employees from sexual orientation discrimination in the workplace. However, courts have considered this non-binding precedent, instead maintaining that sex-based discrimination does not include sexual orientation – but that could soon change. On October 11, 2016, in Hively v. Ivy Tech Community College, South Bend, the Seventh Circuit vacated its own prior ruling that sexual orientation is not protected by Title VII, and granted a motion to have all of the sitting Seventh Circuit judges consider the issue. LGBTQ advocates, Human Resources professionals and employment lawyers should take note and keep their eye on this emerging area of the law.

Seventh Circuit to Reconsider Title VII Prohibition of Discrimination Based on Sexual Orientation

The U.S. Court of Appeals for the Seventh Circuit, in Chicago, has vacated the July 28, 2016, decision of a Seventh Circuit three-judge panel holding that sexual orientation discrimination is not sex discrimination under Title VII of the Civil Rights Act and granted rehearing en banc (by the full court).

Court Decisions Could Frustrate Obama Administration Efforts to Protect Transgender Students, Employees

A flurry of judicial activity has surrounded the Obama Administration’s efforts to provide legal protection to transgender individuals by extending protection against sex discrimination to cover gender identity under Title IX of the Education Act of 1972 and Title VII of the Civil Rights Act of 1964.

The Internal Revenue Service Issues Final Rules Defining Marriage

The Internal Revenue Service (“IRS”) has recognized that marriages of couples of the same sex should be treated the same as marriages of couples of the opposite sex for federal tax purposes. On September 2, 2016, the IRS issued final regulations — in furtherance of the Supreme Court’s decisions in Obergefell v. Hodges and Windsor v. United States, as well as Revenue Ruling 2013-17 — defining marriage for federal tax purposes. The IRS’s final regulations generally adopt the rules proposed by the IRS in October 2015 and amend the Income Tax Regulations, Estate Tax Regulations, Gift Tax Regulations, Generation-Skipping Transfer Tax Regulations, Employment Tax and Collection of Income Tax at Source Regulations and the Regulations on Procedure and Administration.

Final IRS Regulations Define Marriage in Gender-Neutral Terms

On September 2, the IRS released immediately effective final regulations that define the term "spouse" in a gender-neutral manner under federal law. The regulations follow up on two Supreme Court decisions that have recognized same-sex marriage at the federal and state levels since 2013.

10 Ways to Make Your Workplace More LGBT-Friendly

The struggle for equal rights for individuals identifying as lesbian, gay, bisexual and transgender (LGBT) has moved into the forefront more than ever before, and it’s having a dramatic impact on workplaces that are becoming increasingly diverse.

Seventh Circuit Invites Supreme Court to Make Sexual Orientation Discrimination Actionable Under Title VII

Bound by its own precedent, the Seventh Circuit Court of Appeals again held that Title VII of the Civil Rights Act of 1964 does not redress sexual orientation discrimination in Hively v. Ivy Tech Community College, (7th Cir. July 28, 2016). The opinion could have ended there, and perhaps it would have, if penned by any other judge. Instead, Judge Rovner, writing for the panel, made a case for the Supreme Court of the United States to review the Seventh Circuit’s decision in Hively:

Federal Judge Blocks Obama Administration’s Transgender Bathroom Policy

A federal judge in Texas has dealt a serious blow to the Obama administration’s transgender school bathroom directive, barring the federal order which required schools to allow transgender students to use bathrooms, locker rooms, and other facilities according to their gender identity. U.S. District Judge Reed O’Connor granted a preliminary injunction in an order published late Sunday, August 21, the night before most schools begin their school year in Texas. However, the ruling does not just apply in Texas; it prevents the administration from asserting its guidelines on school districts nationwide.

Court Dismisses on Religious Freedom Grounds EEOC’s Title VII Suit on Behalf of Fired Transgender Employee

Finding the Equal Employment Opportunity Commission failed to accommodate the religious beliefs of a funeral home’s owner who fired a transgender employee under the Religious Freedom Restoration Act, a federal district court has dismissed the Commission’s discrimination lawsuit brought under Title VII of the Civil Rights Act. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., No. 14-13710 (E.D. Mich. Aug. 18, 2016).

7th Circuit Rules Title VII Does Not Prohibit Sexual Orientation Bias

The 7th Circuit Court of Appeals has ruled that Title VII of the federal Civil Rights Act does not protect employees who claim sexual orientation discrimination. Despite expressing some discomfort with its own finding in Hively v. Ivy Tech Community College, the court noted that Congress has repeatedly rejected legislation to extend Title VII to cover sexual orientation.

Discrimination Based on Sexual Orientation Not Protected by Title VII, Federal Court Rules

The anti-discrimination protections under Title VII of the Civil Rights Act do not encompass workplace discrimination on the basis of sexual orientation, the U.S. Court of Appeals for the Seventh Circuit, in Chicago, has held. Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. July 28, 2016) (an Order Correcting Opinion was issued on Aug. 3, 2016).

Federal Appeals Court Decries State of Federal Civil Rights Law on Sexual Orientation Discrimination

On Thursday, the United States Court of Appeals for the Seventh Circuit re-affirmed prior court holdings that Title VII of the Civil Rights Act does not prohibit discrimination based on sexual orientation, but in so doing pointedly criticized the current state of the law. In Hively v. Ivy Tech Community College, the court held that absent a Supreme Court opinion or new legislation broadening the protection of Title VII, it was constrained to hold that Title VII did not prohibit sexual orientation discrimination, yet went on to note that “[i]t seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry.”

Sexual Orientation Discrimination Not Covered Under Title VII, Court Says

A federal court of appeals recently announced that it had no choice but to deny an LGBT plaintiff’s request to proceed with a sexual orientation discrimination claim against her former employer because it concluded that such claims could not be brought under Title VII. However, the court went out of its way to note the many ways in which employers could still face cognizable claims from LGBT employees, and indicated that “perhaps the writing is on the wall” for Title VII to soon include a prohibition on sexual orientation discrimination. While this case counts as a “win” for the employer, it should stand as a warning for all employers to recognize that the legal landscape is rapidly changing.

eLABORate: Seventh Circuit Rejects Title VII Claim for Sexual Orientation Discrimination

Adhering to precedent that has long interpreted Title VII as not protecting against sexual orientation discrimination, a three judge panel of the Seventh Circuit Court of Appeals recently rejected a professor’s claim that she had been unlawfully denied full-time employment because of her sexual orientation. Hively v. Ivy Tech Comm. College, 2016 WL 4039703 (7th Cir. July 28, 2016).

EEOC: Title VII Prohibits Employment Discrimination Based on Gender Identity, Sexual Orientation

The Equal Employment Opportunity Commission has stated definitively that it interprets, and will enforce accordingly, the Civil Right Act’s Title VII’s prohibition on sex discrimination as encompassing employment discrimination based on gender identity and sexual orientation. Employers should review and update their policies and apply them consistently and fairly to all employees regardless of gender identity or sexual orientation.

eLABORate: EEOC Revises Proposal to Collect Pay Data, Extends Comment Period

The U.S. Equal Employment Opportunity Commission (“EEOC”) on July 14 published its revised proposal to collect pay data through the Employer Information Report (“EEO-1”). The pay data shall include W-2 income data and hours worked data. The EEO-1 is a longstanding information collection mechanism used by the EEOC and the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) to collect data on the nation’s workforce.

Transgender Workplace Rights: EEOC Releases Fact Sheet, North Carolina Lawsuits Filed

Transgender rights in the workplace and beyond continue to garner national attention as some states seek to pass legislation that promotes religious freedom and protects employee privacy, while the federal government asserts the federal Civil Rights Act's supremacy and supports transgender rights.

EEOC: Denial of Transgender Employees' Access to a Common Restroom Violates Title VII

On Monday the Equal Employment Opportunity Commission (EEOC) issued a "Fact Sheet” setting forth its position that denying an employee equal access to a common (i.e., multi-user) restroom corresponding to the employee's gender identity is sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII).

Department of Justice Warns Governor that North Carolina LGBT Law is Unlawful

North Carolina’s law restricting access to restrooms based on an individual’s sex assigned at birth and not based on an individual’s consistent gender identity violates both Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972, the United States Department of Justice has said in a letter to North Carolina Governor Pat McCrory dated May 4, 2016. The DOJ also instructed Governor McCrory that he has until May 9, 2016, to respond by confirming that the state will not implement the law.

EEOC Stresses Title VII Bars Discrimination against Transgender Workers, Including Regarding Bathroom Access

The Equal Employment Opportunity Commission’s new fact sheet focuses on bathroom access and reminds employers that discrimination based on transgender status is sex discrimination in violation of Title VII of the Civil Rights Act, and contrary state law (such as North Carolina’s HB-2, Mississippi’s HB 1523, and Oxford, Alabama’s Ordinance) is not a defense to transgender claims filed under Title VII.

Transgender Rights and Restroom Use: Key Dos and Don’ts for Employers

Lately, the private issue of restroom use has become a very public matter. It has been almost a year since the Supreme Court legalized same-sex marriage, and since then, there has been a significant shift in LGBT (lesbian, gay, bisexual and transgender) rights both in society and the workplace.

EEOC Seeks To Expand Reach Of Sexual Orientation Claims

A new wave of litigation may result in sexual orientation discrimination being prohibited at most workplaces across the country. The last month has seen a historic series of lawsuits filed by the Equal Employment Opportunity Commission (EEOC) addressing this issue head on, arguing that existing federal law covers this type of employment discrimination.

EEOC Files Two Lawsuits Challenging Sexual Orientation Discrimination in the Workplace

On March 1st, the Equal Employment Opportunity Commission (“EEOC”) announced that it had filed two separate lawsuits alleging employment discrimination based on sexual orientation. For the first time in its own lawsuit, the EEOC contends that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination because of an employee’s sexual orientation. If the federal courts agree, their rulings will add to the growing number of federal courts which have held that sexual orientation discrimination is prohibited under Title VII.

EEOC Pushes Federal Courts to Expand Title VII Protections to Include Sexual Orientation Discrimination

The U.S. Equal Employment Opportunity Commission (EEOC) continues its aggressive push toward expanding the definition of sex discrimination under Title VII to include discrimination on the basis of sexual orientation. While 22 states, including Connecticut, New York, and New Jersey, have already added sexual orientation to their workplace non-discrimination statutes, Congress has failed to pass similar litigation. As a means of side-stepping this gap in the legislation, gay and lesbian employees have argued that discrimination on the basis of sexual orientation should be covered under Title VII’s prohibition on discrimination based on sex. While the Supreme Court has yet to decide this issue, the EEOC remains on the forefront; to that end, its Strategic Enforcement Plan for 2013-2016 includes seeking coverage of LGBT employees under Title VII’s prohibition on sex discrimination. In an article published on its website, entitled “What You Should Know About the EEOC and the Enforcement Protections for LGBT Workers,” the EEOC states:

Gender Identity Discrimination Claims on the Rise at State and Federal Levels

While gender identity is not expressly protected under Title VII of the Civil Rights Act of 1964, an increasing number of states, cities and counties are enacting or amending their anti-discrimination laws to prohibit discrimination against transgender employees. For example, the New York City Human Rights Law provides that it is unlawful to discriminate on the basis of a person's gender and defines "gender" to include "a person's gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth."

On A Collision Course? How Religious Entities Should Address The Legal Expansions Of Gay Marriage And Gender Identity Protections

By now you are no doubt aware that the U.S. Supreme Court’s 2014 decision in Obergefell v. Hodges legalized same-sex marriage across the country. The decision has caused religious institutions and schools to ask about their rights and obligations when it comes to making religious-based decisions about employees that might conflict with expanding gay and transgender legal rights. And, as in many areas of law, the answer to this complicated question is: “it depends.” Hold on to your seats as we examine a small portion of the law and give you a flavor of the complications facing your institution today.

Transgender Issues in the Workplace: Navigating a Changing Legal Landscape

Legislation prohibiting discrimination on the basis of gender identity is popping up all around the country. From California’s Senate Bill 703 prohibiting state agencies from entering into certain contracts with contractors that discriminate between employees on the basis of gender identity in the provision of benefits, to the proliferation of cities and counties with nondiscrimination ordinances that protect transgender employees, more employers may be facing gender identity issues in the near future.

Treasury and the IRS Issue Proposed Regulations Implementing Supreme Court Same-Sex Marriage Ruling

In recent guidance, the Department of Treasury and the IRS issued proposed rules that clarify under the Internal Revenue Code (Code) that the terms “spouse” and “husband” and “wife” refer to individuals who are lawfully married to one another regardless of that person’s gender. The guidance is in response to the recent Supreme Court decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which legalized same sex marriage across all 50 states. The regulations will affect sections of the Code that involve marriage, including payroll, income, and estate tax provisions, as well as a number of dependency exemptions. The proposed regulations instruct that the IRS’s updated interpretation of these terms in the Code does not extend to individuals who are part of a civil union or registered as domestic partners. For more details on the impact of Obergefell on employer sponsored benefit plans, please see our prior alert here.

A Workforce In Transition: Working With Transgender Employees

Since Caitlyn Jenner made her very public debut in June and brought transgender issues into the limelight, a national conversation on the topic has been sparked. Employers have plenty of compelling reasons to join this conversation, including an increasing number of transgender discrimination charges filed with the Equal Employment Opportunity Commission (EEOC), and several other federal agencies taking action on the subject.

EEOC Finds Sexual Orientation Discrimination Prohibited by Title VII

In a landmark ruling, the Equal Employment Opportunity Commission (EEOC) held that an employee alleging discrimination based on sexual orientation states a viable claim under Title VII of the Civil Rights Act of 1964. The EEOC’s decision marks the first time the agency explicitly held that Title VII’s prohibition on discrimination “because of sex” can be extended to lesbian, gay and bisexual (LGB) employees.

EEOC Says Workplace Sexual Orientation Bias Is Illegal

In a historic ruling, the Equal Employment Opportunity Commission (EEOC) has found that sexual orientation discrimination is illegal under Title VII of the Civil Rights Act.

EEEOC Rules Discrimination Based on Employee's Sexual Orientation Is Sex Discrimination Under Title VII

The U.S. Equal Employment Opportunity Commission (EEOC or Commission) has issued a potentially groundbreaking decision finding that discrimination based on "sexual orientation" can be brought under Title VII of the Civil Rights Act of 1964 (Title VII).1 In so ruling, the Commission rejected several circuit court decisions that ruled Title VII does not include protection from discrimination based on sexual orientation.

What the Same-Sex Marriage Ruling Means for the Workplace

The reverberations are still being felt from the Supreme Court’s blockbuster June 26 decision to legalize gay marriage nationwide. The finding in Obergefell v. Hodges that state same-sex marriage bans violated the Constitution’s Equal Protection Clause left no doubt where the majority stood. So now that the dust has settled, what are the key takeaway points for employers?

OSHA's Guide To Restroom Access for Transgender Workers

OSHA’s recent publication of its Guide to Restroom Access for Transgender Workers (“Guide”) further forged OSHA’s foray into the spotlight of the hotly prolific LBGT rights discussion. The Guide, which aims to assure that employers provide a safe and healthful working environment for all employees, underscores the principle that “all employees should have access to restrooms that correspond to their gender identity,” according to Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health.

U.S. Supreme Court Rules that States Must Permit and Recognize Same-Sex Marriage

Today, the United States Supreme Court ruled in Obergefell v. Hodges that the Fourteenth Amendment of the United States Constitution requires every state to issue marriage licenses to same-sex couples. In a 5-4 decision, the Court also ruled that states must recognize same-sex marriages validly performed elsewhere.

Marriage with a Capital "M": What Employers Need to Know About the Supreme Court's Decision in Obergefell v. Hodges

On June 26, 2015, the U.S. Supreme Court issued what can only be described as a landmark decision, ruling that the Fourteenth Amendment of the U.S. Constitution requires (i) all states to permit marriage between same-sex couples, and (ii) all states to recognize marriages performed in other states, including those between same-sex couples. The opinion effectively confirmed prior judicial decisions declaring state constitutional amendments and statutes unconstitutional and, at the same time, struck down bans against same-sex marriage in the 14 states where such bans remained.

Same-Sex Marriage: A Practical Guide for Employers

Now that the U.S. Supreme Court has issued its highly anticipated ruling that states must legally recognize same-sex marriages, what specific impacts will it have on the employment relationship and employee benefits?

The Same-Sex Marriage Ruling: Key Employment Law Take-Aways

On June 26, 2015, the Supreme Court of the United States answered the two questions it posed in the consolidated same-sex case, Obergefell v. Hodges, No. 14-556 (June 26, 2015). The consolidated case arose from challenges to Michigan, Kentucky, Ohio, and Tennessee state laws that continued to ban same-sex marriages and those states’ refusal to recognize legally valid same-sex marriages performed in other states. The two questions before the Supreme Court were: (1) Does the U.S. Constitution, including the Equal Protection and Due Process clauses of the Fourteenth Amendment, require all states to perform same-sex marriages? (2) Does the U.S. Constitution require states to recognize same-sex marriages legally performed elsewhere?

Supreme Court Rules States Can't Ban Same-Sex Marriage

The Supreme Court has ruled 5-4 that the Constitution requires all states to license same-sex marriages and to recognize such marriages when they were lawfully licensed and performed out of state.

Supreme Court Holds States Cannot Ban Same-Sex Marriage; All States Must Perform and Recognize Same-Sex Marriage

Executive Summary: The U.S. Supreme Court has held that marriage is a fundamental right, and states must perform and recognize same-sex marriage. See Obergefell v. Hodges (June 26, 2015).

SCOTUS Extends Same-Sex Marriage Rights Nationwide

As has become its custom, the Supreme Court left one of its most high-profile decisions for the end of its term, holding today by a 5-4 vote that the Constitution requires states to recognize same-sex marriages. As a result, state bans against same-sex marriage are no longer permissible and all states are required to recognize same-sex marriages that take place in other states. Employers should update their FMLA policies and benefit plans to provide the same coverages for same-sex married couples as for other married couples. Obergefell v. Hodges.

EEOC Continues With Strategic Enforcement Plan to Protect Transgender Individuals

The Equal Employment Opportunity Commission (EEOC) has now sued a Minnesota-based check printing company, alleging that the company illegally discriminated against a transgender employee by not letting her use the women’s restroom. The EEOC has also alleged that the company subjected the woman to a hostile workplace by allowing fellow employees to address the woman as a man.

New Gender Identity and Sexual Orientation Workplace Rights Now in Effect

With President Obama’s Executive Order 13672 now in full effect, federal contractors and subcontractors are prohibited from discriminating on the basis of sexual orientation and gender identity. The order highlights the importance for all employers — especially those companies that receive the billions of taxpayer dollars spent each year to supply goods, provide services, and perform construction work for government agencies — to examine their policies and procedures related to hiring, firing, pay, promotion, and other employment practices.

Gender Stereotyping in the Workplace: Despite Lack of Federal Legislation, Plenty for Employers to Think About

In “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey,” published in 2011, researchers found that harassment and mistreatment at work is a near-universal experience for transgender and gender non-conforming people and that its manifestations and consequences are many. But until recently, there has been no recognized federal statutory prohibition against employment discrimination protecting transgender and gender non-conforming people. Efforts to enact the Employment Non-Discrimination Act, which would provide federal statutory protections against workplace discrimination by most private and public employers on the basis of sexual orientation and gender identity, are stalled in the House of Representatives since its passage by the Senate in November 2013.

DOJ Says Title VII's Sex Discrimination Prohibition Includes Gender Identity

Executive Summary: U.S. Attorney General Eric Holder has announced that the Department of Justice (DOJ) now takes the position that Title VII's prohibition against sex discrimination includes discrimination based on gender identity, including transgender status. In a press release issued December 18, 2014, the Attorney General stated that he has informed all DOJ component heads and U.S. attorneys in a memo that the department will no longer assert that Title VII's prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination.

Sixth Circuit Creates Circuit Split on Same-Sex Marriage; Tees Up Issue for Possible Supreme Court Review

Yesterday afternoon, in DeBoer v. Snyder, the Sixth Circuit Court of Appeals issued an eagerly-awaited opinion, upholding laws in Ohio, Kentucky, Michigan, and Tennessee banning same-sex marriage. The court held that laws banning same-sex marriage in these states do not violate the Fourteenth Amendment of the U.S. Constitution. The crux of the court’s reasoning was that the question of the legality of same-sex marriage should be left to each state’s legislative process. Judge Sutton stated in the opinion: “From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen.” Judge Cook joined the opinion; Judge Daughtrey dissented.

President Obama Prohibits LGBT Discrimination Against Federal Employees And Those Who Work For Federal Contractors

At the end of July, President Obama signed an Executive Order prohibiting LGBT (Lesbian, Gay, Bisexual and Transgender) discrimination against federal employees and employees of federal contractors. The Order amends Executive Order 11478 to add “gender identity” to the list of protected attributes on the basis of which discrimination in federal employment is forbidden.

Supreme Court Passively Clears the Way for Same-Sex Marriage

On October 6, 2014, the Supreme Court of the United States declined to review all seven same-sex marriage cases with petitions for certiorari pending before it. The Court’s refusal to hear the appeals means that the lower court decisions striking down same-sex marriage bans in Indiana, Wisconsin, Utah, Oklahoma, and Virginia take effect right away. The immediate effects are twofold. First, the Court’s action (or inaction) allows same-sex marriages to begin or resume in those five states as early as October 6, 2014. Second, the Court’s orders also mean same-sex marriages validly performed in other states must be recognized as valid in these states.

When to Come Out: The Challenges Facing Gay CEOs

Being gay or lesbian in America in the past half decade has meant watching barriers fall in some surprising quarters. Institutions as seemingly unyielding as marriage, the military and professional sports have opened their doors to a degree unimaginable just a few years ago.

Airline Industry Legal Alert: Pregnant Employees Now Entitled to ADA-Type Accommodations

Executive Summary: The EEOC has issued new guidance on the reach of the Pregnancy Discrimination Act ("PDA") that greatly expands the protections it claims all employers must provide to pregnant employees. The two most significant new provisions of this guidance are that (1) the PDA requires that pregnant employees be afforded the same job accommodations as Americans with Disabilities Act (ADA) qualifying disabled employees, and that (2) denying a pregnant employee light duty work pursuant to a policy limiting such work to employees injured on the job violates the PDA. Both positions obviously represent significant departures from prior EEOC policy and even case authority.

Executive Order Protects Federal Contractor LGBT Workers

Yesterday President Obama issued an Executive Order extending antidiscrimination protection on the basis of sexual orientation and gender identity, as well as including these categories in affirmative action requirements. Regarding the federal contractor obligations, the Secretary of Labor will prepare regulations within 90 days, which will apply to contracts entered into on or after the effective date of the rules. Federal contractors or subcontractors holding contracts of $10,000 or more are subject to this Executive Order, a lower threshold than the $50,000 contract requirement for full affirmative action obligations. The additional antidiscrimination requirements are effective immediately for federal employees.

President Signs Executive Order Prohibiting Discrimination Based on Sexual Orientation and Gender Identity

Today, President Obama signed an Executive Order prohibiting federal contractors from discriminating against employees based on gender identity and sexual orientation. Specifically, the Executive Order amends Executive Order 11246 to add gender identity and sexual orientation to the protected categories listed in that EO. The Executive Order further amends Executive Order 11478, which requires the federal government to provide equal opportunity in federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, or age, and to promote equal employment opportunity through a continuing affirmative program in each executive department and agency. Executive Order 11478 was amended by Executive Order 13087 to add sexual orientation to the list of protected categories.

The Times They Are A-Changin': How HR Professionals Can Handle Workplace Issues Related to Sexual Orientation and Gender Identity

A recent article by Courtney Tomlinson, an associate in the Memphis office, was published in HR Professionals Magazine. The article “The Times They Are A-Changin': How HR Professionals Can Handle Workplace Issues Related to Sexual Orientation and Gender Identity” encourages employers not to ignore the recent developments in politics and law even if their state does not recognize sexual orientation and gender identity as protected classes in the workplace.

Same-Sex Marriages and Windsor: IRS Issues Notice on Retirement Plan Amendments and Retroactivity

Employers and participants alike have been anxiously waiting for further guidance from the Internal Revenue Service (IRS) on how marriages of same-sex couples will be treated for purposes of qualified retirement plans.

Employer Domestic Partner Policies: Legal Risk or Employee Relations Reward

As the tide begins to rise with state same-sex marriage laws, employers must continue to monitor the potential impact on their personnel policies; more specifically, employee benefits and leave policies. In the last half of 2013, there was also a surge of activity affecting same-sex couples and their employers in the federal courts and administrative agencies that will likely continue into 2014. This article summarizes that law and the effect that an increasing crop of state laws allowing for same-sex marriage may have on employers' benefits policies.

Legal Alert: IRS Answers Some Outstanding Questions for Same Sex Spouses

Since the Supreme Court's decision in United States v. Windsor holding the Defense of Marriage Act ("DOMA") to be unconstitutional, and the related guidance issued thereafter by the Internal Revenue Service (see the article linked at http://www.fordharrison.com/9530 and our previous Legal Alerts, IRS Answers Residence Question for Same-Sex Spouses, Labor Department Signs On to State-of-Celebration Rule for Same-Sex Marriages,The Windsor FICA Fix) certain questions have been left unanswered with respect to the administration of welfare plans and cafeteria plans. In Notice 2014-1 (the "Notice"), issued yesterday (December 16, 2013), the IRS has clarified certain questions regarding the way in which the rules governing cafeteria plans, FSAs, and HSAs should be applied in situations involving same sex spouses.

The ENDA Is Near: Proposed LGBT Law in the Works

On November 7, 2013, the Senate voted to pass the Employment Non-Discrimination Act, which would prohibit employers from discriminating against LGBT employees. The biggest obstacle facing ENDA is passage in the House of Representatives, which has yet to schedule it for debate. In most states, it is still permissible to discriminate against LGBT individuals in the workplace. If it becomes law, sexual orientation would be added to the list of protected classes and, as a result, ENDA could have significant impact on the workplace. Therefore, employers must take note.

Senate Passes Federal Workplace Protection for LGBT Employees

On November 7, the U.S. Senate passed Senate Bill 815, also known as the Employment Non-Discrimination Act (ENDA), to federally protect individuals from discrimination in the workplace based on their sexual orientation and gender identity. The bill’s passage comes a mere four months after the Supreme Court’s landmark decision in United States v. Windsor, which held that same sex couples who are legally married must be treated the same as married opposite sex couples under federal law. We reported on the potential impacts of Windsor here.

Senate Debates Federal Workplace Protection for LGBT Employees

This week, the U.S. Senate begins debate on whether to enact legislation to federally protect individuals from discrimination in the workplace based on their sexual orientation and gender identity. On November 4, the Senate voted to open debate on Senate Bill 815 also known as the Employment Non-Discrimination Act (ENDA). The debate begins a mere four months after the Supreme Court’s landmark decision in United States v. Windsor, which held that same sex couples who are legally married must be treated the same as married opposite sex couples under federal law. We reported on the potential impacts of Windsor

Should Who You Love Should Be A Terminable Offense? Senate Says “No” And Passes ENDA

On November 7, 2013, the U.S. Senate passed the Employment Non-Discrimination Act (ENDA) by a vote of 64-32, with the support of 10 Senate Republicans. ENDA essentially extends workplace protections based on race, religion, gender, age, national origin, and disability (under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA)) to lesbian, gay, bisexual, and transgender (LGBT) employees and those who associate with them. The Senate’s vote is certainly historic as ENDA has been introduced in every congressional session except one since 1994. President Obama expressed support for ENDA (including on the Huffington Post blog) and announced that passage of ENDA would be “preferable” to issuance of a more limited-impact executive order prohibiting federal contractors from discriminating against LGBT employees.

ENDA Half-way Home?

For the first time ever the United States Senate seems poised to pass legislation that would prevent discrimination against gays, lesbians and transgendered individuals appears to have obtained the 60 votes that would allow it to pass. See, Bill on Workplace Bias Appears Set to Clear Senate Hurdle.

DOMA No More: Impact of the U.S. v. Windsor Ruling and Recently Issued Guidance on Employee Benefit Plans

On June 26, 2013, the United States Supreme Court issued its ruling in U.S. v. Windsor, No. 12-307 U.S. June 26, 2013, declaring Section 3 of the Defense of Marriage Act ("DOMA") unconstitutional. Section 3 of DOMA defined marriage for federal law purposes as only a marriage between individuals of the opposite sex. The Windsor court ruled that this provision violates the Equal Protection Clause and that same-sex marriages in states where they are legally recognized are now entitled to the same treatment as opposite-sex marriages under federal law.

Legal Alert: IRS Answers Residence Question for Same-Sex Spouses

On August 29, 2013, the Internal Revenue Service issued Revenue Ruling 2013-17, under which same-sex couples will be treated as married for all federal tax purposes, including income and gift and estate taxes, if their marriage was legally entered into, regardless of where they reside, even if they reside in a state that does not recognize same-sex marriage. This was one of the primary issues left unanswered by the U.S. Supreme Court in its decision in United States v. Windsor two months ago. (For a description of the Windsor decision, please see the article linked at http://www.fordharrison.com/9530).

IRS Issues Guidance Regarding Same-Sex Spouses

On August 29, 2013, the Internal Revenue Service (IRS) issued widely anticipated guidance regarding the application of the Supreme Court's June 26, 2013 DOMA decision in United States v. Windsor to the taxation and benefits provisions of the Internal Revenue Code. The IRS issued its guidance in the form of Revenue Ruling 2013-17 and two sets of FAQs (one set relating to same-sex spouses and one set relating to domestic partners and individuals in civil unions).

Same-Sex Spouse Is Entitled To Death Benefits Under ERISA-Qualified Plan

Following on the heels of the Supreme Court’s decision in U.S. v. Windsor, a federal district court in Pennsylvania recently held that the same-sex spouse of a deceased employee is entitled to receive death benefits under the employer’s ERISA-qualified plan. Cozen O’Connor v. Tobits.

How Does the Supreme Court’s DOMA Decision Impact Employers?

The U. S. Supreme Court has declared unconstitutional a portion of the Defense of Marriage Act (DOMA), which had established a federal definition of marriage as a legal union only between one man and one woman. The Court’s 5-4 vote in U.S. v. Windsor will reach well beyond the case of Edith Windsor, a New York widow, who was sent a $363,000 estate tax bill by the Internal Revenue Service after her wife died in 2009. The Windsor decision means that same-sex couples who are legally married now must be treated the same under federal law as married opposite-sex couples.

Supreme Court Strikes Portion of DOMA

On June 26, 2013, the United States Supreme Court issued a pair of opinions favorable to the gay rights movement, ruling that married same-sex couples are entitled to federal benefits and, by declining to decide a case from California, effectively allowing same-sex marriages in that state. In United States v. Windsor (June 26, 2013), the Court held that Section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional because it violates the Fifth Amendment. The Court's decision to strike down this provision, which denies more than 1,000 federal benefits to same-sex married couples, may dramatically transform the legal status and financial standing of hundreds of thousands of gay Americans. The decision on the federal law was 5 to 4, with Justice Anthony M. Kennedy writing the majority opinion, which the four liberal-leaning justices – Justices Ginsburg, Breyer, Sotomayor, and Kagan – joined.

Supreme Court Rules DOMA Is Out, Same-Sex Marriages Are Legal

As the 2012 term of the U. S. Supreme Court comes to a close, the Justices left the most politically and emotionally charged decisions for last. On June 26, 2013, the Court handed down its decision striking down the federal Defense of Marriage Act (DOMA) in United States v. Windsor. A companion case challenging California’s Proposition 8 was remanded to the U.S. Court of Appeals for the 9th Circuit for lack of standing by the proponents of the law in Hollingsworth v. Perry.

U.S. Supreme Court Rules Federal Law Defining “Marriage” Is Unconstitutional

This morning, the Supreme Court of the United States issued its highly anticipated decision in United States v. Windsor, ruling that the Defense of Marriage Act (DOMA) is unconstitutional on equal protection grounds. With Justice Kennedy writing for the majority in a 5-to-4 decision, the Court ruled that DOMA, which excludes a same-sex partner from the definition of “spouse” as that term is used in federal statutes, is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment of the U.S. Constitution. The case is significant for employers because of its far-reaching impact on their benefits plans and how they are administered. It is also significant for employers based on the expected ripple effect on state, federal, and local law. This morning, the Court also issued its decision in Hollingsworth v. Perry, a case on California’s Proposition 8, which defined marriage to exclude same-sex couples. United States v. Windsor, No. 12-307, Supreme Court of the United States (June 26, 2013).

Gender Identity - The New Sex Discrimination?

The EEOC’s decision in Macy v. Holder marks the first time a court or agency with nationwide authority has held that transsexuals are protected by Title VII.

EEOC Concludes that Title VII Covers Gender Identity and Transgender Discrimination Claims

The Equal Employment Opportunity Commission recently issued an opinion concluding that under Title VII, employees may bring discrimination claims based on their transgendered status or gender identity.

ENDA Lite Hits a (Temporary?) Dead End

While I didn't actually predict that the Obama Administration would issue an Executive Order implementing protection for lesbians, gays and transgendered individuals employed by federal contractors, reading my post from a couple of weeks ago, you might could have drawn that conclusion. See, ENDA "Lite" On the Way?

ENDA "Lite" On the Way?

Federal legislative action in employment law matters, actually on most things, is pretty much a non-starter these days. But that does not mean that there is no potential for continuing developments, witness the firestorm of attention that the NLRB has received of late.

Changing Gender - The New Sex Discrimination

A sweeping decision by the 11th Circuit Court of Appeals treated discrimination against transsexuals as “sex discrimination” subject to intermediate scrutiny under the Equal Protection Clause of the Fourteenth Amendment. The sweeping ruling by a court that normally leans conservative signals a sea change in sex discrimination law in the private sector.

Transgender Employee Fired by Government Employer Is Protected Under Federal Law

The Eleventh Circuit Court of Appeals recently held that a transgendered government employee was entitled to protection under the Equal Protection Clause of the U.S. Constitution and could not be fired because of his or her gender non-conformity unless the government employer could demonstrate a “sufficiently important governmental purpose.” Glenn v. Brumby, Nos. 10-14833 and 10-15015, Eleventh Circuit Court of Appeals (December 6, 2011).

Gay Male Worker's Harassment, Retaliation Claims Reinstated

A federal appellate court recently reinstated a lawsuit brought by an employee who claimed that he was subjected to unlawful harassment based on his sexual orientation and fired in retaliation for reporting the misconduct. According to the Ninth Circuit Court of Appeals, the company had adequate knowledge of the alleged harassment before it terminated the employee. Furthermore, the court found that the "temporal proximity" between the worker's complaints and his discharge justified allowing the worker to proceed on his retaliation claim. Dawson v. Entek International, No. 09-35844, Ninth Circuit Court of Appeals (January 10, 2011).

As ENDA Lingers in Congress, a MDV in Maine.

Just recently I was having what is a frequent conversation about what I do for a living, basically -- how interesting it is. And how although I am now 35 years into the practice I am still amazed at the new situations and the complexity of issues that I see, or as in this case read about.

Which Restroom? Employers Face Challenges With Gender Identity Issues.

Good Eats, Inc. runs a family restaurant in a state which prohibits discrimination in employment based upon gender identity and disability. Its employees are required to wear name-tags, and to dress the same (black pants and shirt, minimal jewelry, conservative make-up). It has men's and women's restrooms, used by customers and employees alike. An employee (George) tells the manager that he is in transition to becoming a woman, and wants:

Changing Genders; Changing Laws, Part 2

In Part 1 of this article (Labor Letter, August, 2007) we looked at some of the sources of the expanding law of gender identity discrimination. In this conclusion, we'll deal with some of the specific protections that are out there and look at some of the concerns employers may face in dealing with this issue.

Changing Genders; Changing Laws, Part 1.

Gender identity discrimination is a rapidly developing area of employment law and all employers, whether or not they are located in a jurisdiction prohibiting this type of discrimination, should take note. In this issue we'll take a look at the basis for some of these laws. In a future article we'll address some specific problems employers face in dealing with this issue.
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