Total Articles: 153
Jackson Lewis P.C. • March 29, 2019
Gender identity, transgender status, gender non-conformance, and workplace gender transitions are timely topics, both societally and within workplaces. March 31 is International Transgender Day of Visibility, which aims to celebrate transgender people and raise awareness of discrimination faced by them. Jackson Lewis has been fortunate to assist a number of clients with workplace gender transition issues — including drafting policies, creating educational materials, developing and conducting training for managers and co-employees, and preparing individual transition plans.
Brody and Associates, LLC • December 04, 2018
The Department of Justice (“DOJ”) recently filed a brief in a case which may soon make its way to the Supreme Court of the United States, claiming Title VII of the Civil Rights Act of 1964 does not protect transgender people. The case is EEOC v. R&G and G&R Harris Funeral Homes, Inc.
XpertHR • November 19, 2018
The 2018 midterm election was historic for individuals identifying as lesbian, gay, bisexual or transgender (LGBT). With significant victories on the state and local level, LGBT individuals are making inroads as shown by Colorado electing Jared Polis as the nation’s first openly gay governor and Kyrsten Sinema making history not only as Arizona’s first female senator, but the first-ever bisexual member of the US Senate.
Ogletree Deakins • October 11, 2018
An estimated 9 million adults in the United States are lesbian, gay, bisexual, or transgender. Eighty-seven percent of U.S. residents report knowing someone who is lesbian or gay, and half report having a close lesbian or gay friend.
Jackson Lewis P.C. • September 05, 2018
On August 27, 2018, the Seventh Circuit Court of Appeals reversed an Illinois District Court in holding that a seventy-year-old homosexual woman could maintain her Fair Housing Act (FHA) claims against retirement community, Glen St. Andrew Living Community, for failing to take reasonable steps to prevent the “torrent of physical and verbal abuse from other residents” allegedly suffered by the plaintiff because she is openly lesbian.
Fisher Phillips • August 23, 2018
It is well-known that female employees in the United States earn less than their male counterparts, with most studies finding that females earn somewhere between 80 and 90 percent of what males earn. Various factors are cited to explain the differential in earnings, including prior employment and earnings history, differences in industry and occupation, time spent in the workforce, and biases against working mothers (among other factors). The gap in earnings does, however, diminish substantially when salary data is controlled for individual job functions at the same level and among employees of the employer.
Brody and Associates, LLC • July 29, 2018
The United States Supreme Court recently held a cake baker in Colorado had the right to refuse to make a wedding cake for a gay couple based on his sincerely held religious beliefs. In 2012, Charlie Craig and Dave Mullins asked Jack Phillips, the owner of Masterpiece Cakeshop, Ltd., to make a wedding cake for their marriage celebration. At the time, Colorado did not recognize same sex marriage. Phillips is a Christian who does not believe in same sex marriage and therefore refused to make the wedding cake. He did, however, offer to sell the couple a birthday cake, cookies, or brownies. He argued requiring him to make a wedding cake was forcing him to use his expressive talents to support a cause in which he does not believe.
Goldberg Segalla LLP • July 29, 2018
A recent decision from the Eleventh Circuit has now caused a split in the circuit courts as to whether a claim for discrimination based upon sexual orientation can be asserted under Title VII. In a six-page dissent, Judge Robin Rosenbaum calls out her peers on their July 18, 2018, three-page decision to affirm a lower court’s ruling to dismiss a sexual orientation claim under Title VII in Bostock v. Clayton County Board of Commissioners. Bostack brought claims under Title VII against his employer alleging that he was wrongfully criticized and ultimately terminated because of his sexual orientation and identity. The lower court dismissed Bostack’s Title VII claims, and Bostock brought an appeal. On appeal, the Eleventh Circuit relied on a 39-year-old ruling to determine that Title VII’s prohibition against discrimination “because of sex” does not include discrimination based on sexual orientation.
Ogletree Deakins • June 17, 2018
Pride—It’s a simple word that, for some, denotes arrogance, hubris, narcissism, or a foolishly and irrationally distorted sense of one’s personal value, importance, or achievement. However, there is a much more insightful, thoughtful, and powerful meaning behind the word that has been the impetus for worldwide commemoration. Pride can mean “the consciousness of one’s own dignity” and “a product of praise, independent self-reflection, and a fulfilled feeling of belonging.”
FordHarrison LLP • June 13, 2018
Executive Summary: The protracted case of Gavin Grimm is set to be heard once again by the United States Court of Appeals for the Fourth Circuit. Grimm, a transgender male, was denied use of the boys’ bathroom while a high school student in Gloucester County, Virginia. The 2015 decision by the United States District Court for the Eastern District of Virginia dismissing Grimm’s lawsuit was appealed to the U.S. Supreme Court before being remanded back to the District Court in early 2017. On May 22, 2018, District Court Judge Arenda Wright Allen denied Gloucester County’s renewed motion to dismiss Grimm’s case. Joining a long list of other courts, Judge Allen held that discrimination based on gender identity falls within the Price Waterhouse v. Hopkins gender stereotyping theory and is, therefore, a per se violation of Title IX of the Education Amendments Act of 1972, as well as a violation of the Equal Protection Clause of the Fourteenth Amendment. On June 5, 2018, Judge Allen granted Gloucester County’s motion seeking immediate review by the Fourth Circuit. Grimm responded via Facebook, “[h]ere we go again.” The Fourth Circuit is the federal appeals court with jurisdiction over the federal district courts in Maryland, Virginia, West Virginia, North Carolina and South Carolina.
FordHarrison LLP • June 10, 2018
Executive Summary: On June 4, 2018, the United States Supreme Court, in a 7-2 ruling, found in favor of Jack Phillips, owner of Masterpiece Cakes, who refused to make a wedding cake for a same-sex couple. He cited religious beliefs condemning gay marriage as his reasoning. The LGBTQ community had hoped this long-awaited decision would expand their rights. However, the Supreme Court reversed the holdings of the lower courts, finding the Colorado Civil Rights Commission showed impermissible “hostility” towards Phillips, violating his rights under the Free Exercise Clause of the First Amendment.
A Colorado bakery owner who refused to create a wedding cake for a same-sex couple based on his religious beliefs should not have been found to have violated the state's anti-discrimination law, the Supreme Court held. In a 7-2 ruling, the justices found that a Colorado agency was neither tolerant nor respectful of the baker's sincere religious beliefs, and violated his First Amendment free exercise of religion rights.
Goldberg Segalla LLP • June 06, 2018
The United States Supreme Court ruled 7-2 in favor of Jack Phillips, the Colorado baker who made news when he refused to bake a custom cake for a same-sex couple because he believed doing so would violate his religious beliefs. This was one of the most watched and highly anticipated decisions to come from the court this term and was a relatively narrow decision — not in the number of justices agreeing to overturn the lower court’s decision, but in the majority’s reasoning, which hinged on the Colorado Civil Rights Commission’s violation of Phillips’ rights under Free Exercise Clause of the First Amendment, rather than the underlying issue of the couple’s rights to equal service.
Franczek Radelet P.C • June 05, 2018
In a limited opinion issued yesterday, the Supreme Court ruled in favor of a Colorado baker who refused to create a wedding cake for a same-sex couple. However, the Court’s decision in the case, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm., largely punted on the broader question of under what circumstances, if any, a business may refuse to provide services to or employ individuals based on a sincerely-held religious belief that potentially conflicts with anti-discrimination law, suggesting such questions need to be decided on a case-by-case basis.
Littler Mendelson, P.C. • June 05, 2018
On June 4, 2018, the Supreme Court issued its decision in Masterpiece Cakeshop, Ltd. and Jack C. Phillips v. Colorado Civil Rights Commission. In a 7-2 opinion authored by Justice Anthony Kennedy, the Court held that the Colorado Civil Rights Commission’s actions violated a shop owner's right to the free exercise of his religious beliefs.
Fisher Phillips • June 04, 2018
In a 7-to-2 decision, the Supreme Court ruled today that a baker’s Free Exercise Clause rights under the Constitution were not properly considered by the Colorado Civil Rights Commission when it held that he was legally required to bake and sell a wedding cake for a same-sex couple. However, today’s much anticipated decision in Masterpiece Cakeshop, Inc. v. Colorado Civil Rights Commission does not create any sort of safe harbor for businesses defending against bias claims. Instead, this narrow decision is more of a rebuke to the state commission that expressed impermissible hostility toward the baker’s religious beliefs when ruling on his case, requiring the commission to reconsider its earlier action.
Fisher Phillips • May 31, 2018
A federal court in Virginia ruled in favor a transgender teenager who wanted to use the boys’ bathroom at his former school, finding that the local school district violated his constitutional rights when it prescribed which bathroom he should use. On May 22, the U.S. District Court for the Eastern District of Virginia sided with a growing number of courts when it concluded that sex discrimination can encompass a claim for discrimination on the basis of one’s gender identity—in this case, under Title IX and the United States Constitution.
Ogletree Deakins • March 27, 2018
Does discrimination based on gender identity fall within Title VII of the Civil Rights Act of 1964’s protection against discrimination “because of sex”? Adopting the U.S. Equal Employment Opportunity Commission’s (EEOC) interpretation of Title VII, in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the federal Sixth Circuit Court of Appeals recently said “yes” and reversed a lower court that had ruled to the contrary. The status of being transgender (or transitioning) is now—on its own—a recognized protected status under Title VII in the Sixth Circuit.
Title VII of the Civil Rights Act bans discrimination because of an employee's transgender or transitioning status, the 6th Circuit Court of Appeals has ruled. In EEOC v. R.G. and G.R. Harris Funeral Homes, the Cincinnati-based appellate court held that discrimination on the basis of transitioning status is necessarily discrimination based on sex.
FordHarrison LLP • March 20, 2018
Executive Summary: The Sixth Circuit Court of Appeals is the latest to weigh in on the heated debate as to whether sexual orientation, gender identity, transgender status and/or gender expression are protected classes under Title VII of the Civil Rights Act of 1964. Following on the heels of the Second Circuit’s February 26, 2018 en banc ruling in Zarda v. Altitude Express that Title VII protects sexual orientation, on March 7, 2018, in EEOC v. R.G., 2018 U.S. App. LEXIS 5720 (6th Cir. March 7, 2018), the Sixth Circuit became the first to hold that Title VII also protects transgender status. In doing so, the Sixth Circuit rejected the employer’s defense under the Religious Freedom Restoration Act (RFRA).
Fisher Phillips • March 18, 2018
The national and international spotlight on pay equity is getting brighter by the day. By way of illustration, this post explores two laws that took effect on January 1, 2018, one in California and one in Iceland, and a wage equity ordinance in Philadelphia that is currently being challenged on constitutional grounds. These are just examples of the much larger trend at the local and state level in the United States, as demonstrated by the Fisher Phillips Pay Equity Map. This trend can be seen around the world as more countries introduce some form of pay equity measures. Overall, the major question that all companies should be thinking about is: does the salary reflect the job position, not the person who is filling the position?
Littler Mendelson, P.C. • March 14, 2018
The U.S. Court of Appeals for the Sixth Circuit recently ruled, in what many have described as a ground-breaking decision, that discrimination based on an employee’s transgender status is discrimination based on “sex” in violation of Title VII of the Civil Rights Act of 1964 (Title VII).1 While the Equal Employment Opportunity Commission (EEOC) made such a determination in 2012,2 the Sixth Circuit is the first such federal appellate court to so rule.
Nexsen Pruet • March 14, 2018
Nexsen Pruet’s webinar series presentation last month was on Hot Topics in Employment Discrimination and included a segment on the ABC’s of LGBTQ issues in the workplace. As we discussed in the webinar, the Fourth Circuit Court of Appeals, which covers North and South Carolina, has not determined that Title VII prohibits employment discrimination because of an employee’s sexual orientation or gender identity.
Jackson Lewis P.C. • March 09, 2018
The Equal Employment Opportunity Commission may pursue claims that an employee was discriminated against on the basis of transgender status in violation of Title VII of the Civil Rights Act, the federal appeals court in Cincinnati has ruled in a landmark decision. EEOC v. R.G. & G.R. Harris Funeral Homes, No. 16-2424 (6th Cir. Mar. 7, 2018). The Court rejected the employer’s argument that it was protected by the Religious Freedom Restoration Act (RFRA).
Fisher Phillips • March 08, 2018
In what appears to be the first time a federal appeals court has extended the nation’s main federal employment discrimination statute to cover transgender and transitioning employees, the 6th Circuit Court of Appeals today ruled that employers cannot discriminate against such employees without violating Title VII. The appeals court also rejected the employer’s attempt to claim that its religious beliefs should shield it from such discrimination claims, opening the door for other applicants, employees, and former employees to avail themselves of statutory anti-bias law.
Gay workers won a major victory last week with the 2nd Circuit Court of Appeals ruling that Title VII of the Civil Rights Act bans discrimination on the basis of sexual orientation. In the 10-3 decision in Zarda v. Altitude Express, the full appellate court found that Title VII has "evolved substantially" and should be read to include sexual orientation discrimination as a subset of sex discrimination.
Jackson Lewis P.C. • February 27, 2018
In a much-anticipated decision, the federal appeals court in New York has held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on an individual’s sexual orientation. Zarda v. Altitude Express, No. 15-3775 (2d Cir. Feb. 26, 2017).
Goldberg Segalla LLP • February 27, 2018
The Second Circuit recently joined the Seventh Circuit in determining that discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964.
FordHarrison LLP • February 26, 2018
Executive Summary: Overruling prior circuit precedent, the full U.S. Court of Appeals for the Second Circuit held today that sexual orientation discrimination is a subset of sex discrimination under Title VII. In reaching this conclusion, the Second Circuit joins the Seventh Circuit, deepening a split among the federal appeals courts, as the majority of these courts have held that Title VII does not prohibit sexual orientation discrimination
Littler Mendelson, P.C. • February 26, 2018
On February 26, 2018, a majority of the entire U.S. Court of Appeals for the Second Circuit held, in Zarda v. Altitude Express Inc., that Title VII prohibits workplace discrimination on the basis of sexual orientation. With this ruling, the Second Circuit becomes the second federal appellate court to reverse its prior precedent and reach this conclusion.
Phelps Dunbar LLP • February 26, 2018
This morning, the United States Court of Appeals for the Second Circuit entered an order, upholding protection under Title VII of the Civil Rights Act of 1964 (“Title VII") for sexual orientation discrimination in the workplace. The order followed an en banc review of a July 2017 decision by the Eastern District of New York. The panel held that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of discrimination.”
Fisher Phillips • February 26, 2018
Another federal court of appeals decided today that Title VII covers claims of sexual orientation discrimination, continuing the evolution of workplace discrimination law that has begun to sweep over the country in recent years. With today’s ruling by the 2nd Circuit Court of Appeals—covering federal claims arising in New York, Connecticut, and Vermont—employers across the country have been put on notice that Title VII is increasingly being interpreted more expansively than it had been just a few short years ago (Zarda v. Altitude Express, Inc.).
Phelps Dunbar LLP • December 13, 2017
This morning the United States Supreme Court declined to review a case that would have resolved a circuit split over whether Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination on the basis of sexual orientation. As written, Title VII protects against sexual discrimination in employment, but courts across the country have taken different positions as to whether that protection extends to sexual orientation or sexual identity.
XpertHR • December 13, 2017
The US Supreme Court has declined to hear a case that could have settled the question of whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation.
Fisher Phillips • November 29, 2017
The federal watchdog agency that oversees federal antidiscrimination law just scored a milestone victory when a judge awarded $55,500 to a telemarketer who alleged to have been forced off the job because of sexual orientation discrimination. The November 16 decision brings to an end one of the first cases brought by the Equal Employment Opportunity Commission (EEOC) on the theory that Title VII – the federal law prohibiting job discrimination based on “sex” and other protected classes – also prohibits LGBT bias. It also marks the first time that a lawsuit brought by the EEOC on this theory has led to a successful judgment, and should serve as an eye-opener for employers across the country.
FordHarrison LLP • November 12, 2017
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.
Franczek Radelet P.C • October 17, 2017
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.
Fisher Phillips • October 11, 2017
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.”
FordHarrison LLP • October 06, 2017
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.
Jackson Lewis P.C. • October 06, 2017
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.
FordHarrison LLP • August 01, 2017
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.
Littler Mendelson, P.C. • August 01, 2017
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.
FordHarrison LLP • July 11, 2017
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.
Jackson Lewis P.C. • June 22, 2017
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.
FordHarrison LLP • June 12, 2017
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.
FordHarrison LLP • June 02, 2017
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.
Jackson Lewis P.C. • June 02, 2017
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.
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."
FordHarrison LLP • May 09, 2017
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.
FordHarrison LLP • April 26, 2017
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.
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.
Franczek Radelet P.C • April 06, 2017
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.
Jackson Lewis P.C. • April 06, 2017
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.
Phelps Dunbar LLP • April 06, 2017
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.
Littler Mendelson, P.C. • April 06, 2017
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.
Ogletree Deakins • April 06, 2017
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.
Fisher Phillips • April 05, 2017
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.
FordHarrison LLP • April 04, 2017
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.
Littler Mendelson, P.C. • March 22, 2017
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?
Littler Mendelson, P.C. • March 21, 2017
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.
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.
Ogletree Deakins • March 16, 2017
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).
Fisher Phillips • March 14, 2017
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.
Goldberg Segalla LLP • March 01, 2017
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.
Jackson Lewis P.C. • February 26, 2017
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.”
Jackson Lewis P.C. • February 26, 2017
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.
Fisher Phillips • February 23, 2017
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.
FordHarrison LLP • February 20, 2017
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.
Jackson Lewis P.C. • January 31, 2017
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.”
Ogletree Deakins • January 25, 2017
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.
Ogletree Deakins • January 13, 2017
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.
Fisher Phillips • January 04, 2017
Eleventh Hour Ruling Impacts Healthcare Industry On Eve Of Implementation
Franczek Radelet P.C • December 05, 2016
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.
Fisher Phillips • November 16, 2016
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.
Jackson Lewis P.C. • November 14, 2016
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).
Jackson Lewis P.C. • November 02, 2016
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).
FordHarrison LLP • October 21, 2016
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.
Jackson Lewis P.C. • October 17, 2016
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).
Jackson Lewis P.C. • September 22, 2016
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.
Jackson Lewis P.C. • September 12, 2016
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.
XpertHR • September 07, 2016
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.
XpertHR • August 29, 2016
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.
Ogletree Deakins • August 26, 2016
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:
Fisher Phillips • August 24, 2016
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.
Jackson Lewis P.C. • August 23, 2016
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).
XpertHR • August 09, 2016
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.
Jackson Lewis P.C. • August 08, 2016
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).
Franczek Radelet P.C • August 03, 2016
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.”
Fisher Phillips • August 03, 2016
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.
Phelps Dunbar LLP • August 01, 2016
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).
Jackson Lewis P.C. • July 24, 2016
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.
Phelps Dunbar LLP • July 19, 2016
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 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.
Franczek Radelet P.C • May 09, 2016
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).
Jackson Lewis P.C. • May 05, 2016
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.
Jackson Lewis P.C. • May 04, 2016
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.
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.
Fisher Phillips • April 06, 2016
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.
Franczek Radelet P.C • March 03, 2016
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.
Goldberg Segalla LLP • March 03, 2016
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:
Fisher Phillips • January 06, 2016
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.
Ogletree Deakins • November 10, 2015
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.
Franczek Radelet P.C • October 29, 2015
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.
Fisher Phillips • September 01, 2015
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.
Franczek Radelet P.C • August 04, 2015
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.
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.
Littler Mendelson, P.C. • July 20, 2015
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.
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?
Goldberg Segalla LLP • July 09, 2015
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.
Franczek Radelet P.C • June 29, 2015
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.
Littler Mendelson, P.C. • June 29, 2015
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.
Goldberg Segalla LLP • June 29, 2015
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?
Ogletree Deakins • June 29, 2015
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?
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.
FordHarrison LLP • June 26, 2015
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).
Fisher Phillips • June 26, 2015
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.
Goldberg Segalla LLP • June 11, 2015
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.
Goldberg Segalla LLP • April 21, 2015
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.
Goldberg Segalla LLP • January 27, 2015
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.
FordHarrison LLP • December 22, 2014
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.
Ogletree Deakins • November 10, 2014
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.
Brody and Associates, LLC • October 13, 2014
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.
Ogletree Deakins • October 08, 2014
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.
Knowledge@Wharton (Reg Required) • July 29, 2014
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.
FordHarrison LLP • July 25, 2014
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.
Fisher Phillips • July 23, 2014
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.
FordHarrison LLP • July 22, 2014
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.
Fisher Phillips • June 19, 2014
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.
Ogletree Deakins • April 14, 2014
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.
FordHarrison LLP • December 18, 2013
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.
Goldberg Segalla LLP • November 27, 2013
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.
Franczek Radelet P.C • November 11, 2013
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.
Franczek Radelet P.C • November 08, 2013
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
Ogletree Deakins • November 08, 2013
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.
Ogletree Deakins • November 05, 2013
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.
Jones Walker • September 16, 2013
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.
FordHarrison LLP • September 03, 2013
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).
Fisher Phillips • August 01, 2013
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.
Franczek Radelet P.C • July 01, 2013
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.
FordHarrison LLP • June 28, 2013
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.
Fisher Phillips • June 27, 2013
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.
Ogletree Deakins • June 27, 2013
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).
Brody and Associates, LLC • May 22, 2012
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.
Franczek Radelet P.C • May 02, 2012
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.
Ogletree Deakins • April 16, 2012
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?
Ogletree Deakins • March 28, 2012
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.
Brody and Associates, LLC • February 15, 2012
A sweeping decision by the 11th Circuit Court of Appeals treated discrimination against transsexuals as â€œsex discriminationâ€ 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.
Ogletree Deakins • December 09, 2011
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 â€œsufficiently important governmental purpose.â€ Glenn v. Brumby, Nos. 10-14833 and 10-15015, Eleventh Circuit Court of Appeals (December 6, 2011).
Ogletree Deakins • February 08, 2011
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).
Ogletree Deakins • July 21, 2010
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.
Fisher Phillips • April 02, 2010
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:
Fisher Phillips • September 05, 2007
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.
Fisher Phillips • August 03, 2007
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.