10 ways to support your LGBTQ employees #pride

Today is the first day of Pride Month. June might be Pride Month, but your business should commit to and support its LGBTQ employees 24/7/365. Here are 10 ideas that incorporate this inclusion and demonstrate your support of your LGBTQ workers.

Uber suspends DEI exec over “Don’t Call Me Karen” events

Uber has suspended its longtime head of diversity, equity, and inclusion, Bo Young Lee, after Black and Hispanic employees complained that an event she ran — titled "Don't Call Me Karen" — was insensitive to people of color.

"Karen," in case you've lived an a cave without WiFi for the past half-decade, is slang for an entitled white woman who often complains to a management and the authorities about Black people and other minorities.

Intentional misgendering IS sexual harassment

Jane works as a cashier at a donut shop. She is a transgender female who identifies by a female name and female pronouns. Her supervisor, Lisa, however, refuses to use Jane's preferred gender. She uses Jane's male legal name, male pronouns, and "dude" when referring to her, despite Jane's frequent requests for her to use female pronouns and the preferred female name. Lisa would similarly encourage customers not to use Jane's preferred name or pronouns.

Did Lisa create a hostile work environment based on Jane's sex? 

You bet she did.

7th Circuit decides the issue of religious rights vs. trans rights … and trans rights won

I really wanted to move on this week from writing about transgender rights. But then the 7th Circuit had to go and decide that a student's right to be called by his or her preferred gender trumps a teacher's religious accommodation request not to do so.

The case is Kluge v. Brownsburg Community School Corp. John Kluge worked as a music teacher at the Brownsburg Community School Corp. In 2017, the school adopted a new policy that required teachers to use students' chosen names and pronouns. Kluge refused to abide, asserting that it violated his Christian beliefs. The school initially granted an accommodation that permitted Kluge to refer to all students by their last names. It withdrew the accommodation, however, after both trans and cisgender students became angered after deciphering Kluge's surname use. Kluge resigned and sued for religious discrimination and retaliation under Title VII.

Trans lives are human lives, and anti-LGBTQIA+ hate is wrong

"Dirty, f**got-loving motherf**ker." That's what someone yelled at me after I answered my office phone yesterday. I wish I knew who it was, but they chose to hide behind a blocked phone number.
For the past two days, I've posted about how employers can better support their transgender employees. Coincidence doesn't always equal causation, but in this case, I have to believe my posts and that awful phone call are linked.

5 tips to help support our trans employees in the workplace

Transgender people are under attack. They often experience discrimination, harassment, and a lack of understanding, including from their work colleagues and bosses. As an employer, it is important to create a safe and inclusive environment for all employees, including those who identify as transgender or gender nonconforming.

Here are five steps you can take in your business to support transgender and gender nonconforming employees at work:

We are failing our trans employees

"You're not a real man."
"Do you have female parts?"

Those are just two of the allegations the EEOC has raised in a lawsuit it just filed on behalf of Quinn Gambino, a transgender male, against his former employer, T.C. Wheelers Bar & Pizzeria.

The agency further alleges that management and co-workers made numerous other anti-transgender comments, including intentionally misgendering Gambino by using female pronouns and equating being transgender with pedophilia. 

Employee harassed after coming out at work loses harassment lawsuit

After an employee comes out at work as gay, he alleges that co-workers left him pink nail polish, a nail file, and bath bombs, that someone posted Bible verses on his desk, and that he was moved to an isolated corner of the office. 

Based on these facts, the 6th Circuit Court of Appeals affirmed the dismissal of the employee's sexual harassment claim.

Your religion isn’t a license to discriminate (but we may need to accommodate you anyway)

Pronouns confuse me. It's not that I want to misgender anyone. In fact, quite to the contrary, I try really hard to get people's pronouns correct when addressing them or speaking about them. To me, it's a simple matter of common decency. My efforts to get them correct, however, doesn't mean that they still don't confuse me. When I grew up, I learned that "they" refers to a group of people. Thus, when someone refers to someone else as "they," my brains says, "more than one." It's just difficult, but I still try to get it right.

Which brings me to the story of Vivian Geraghty, a middle school teacher. She is suing her former employer after being told either to use the preferred pronouns of her students or resign. She chose the latter, and claims in her lawsuit that the school's mandate discriminated against her Christian beliefs, which the school should have accommodated. Geraghty says the school instead should have explored potential accommodations such as moving her to another classroom or addressing students by their last names

LGBTQ+ rights vs. religious liberty

"It's an abomination to God. Rainbow is not meant to be displayed as a sign for sexual gender."

That's what Daniel Snyder wrote on the electronic bulletin board of his employer, Arconic. According to the Des Moines Register and Snyder's recently filed lawsuit, it's also what got him fired.

Series of promotions dooms gay brewery employee’s sex discrimination claim

Midland Brewing Company hired Ryan Boshaw to work as a server. Over the span of nine months, it promoted him three times, to an hourly managerial position, to floor leader, and ultimately to front-of-house operations manager (the second highest ranking position in the business). 

Shortly after Boshaw's final promotion, however, Midland terminated him following a series of performance-related issues and concerns. The brewery had issue with how he handled an issue with customers who found hair in their food. He deviated from his job assignments and interfered with how others performed their jobs. He brough the wrong resume to an interview of a prospective employee. The final straw for the brewery was Boshaw missing a mandatory meeting after texting a co-worker that the meetings were "such a waste of time," and then being no-call/no-show for his shift that evening. The brewery fired him the next day because of his "absence and failure to notify management" in addition to "other issues."

Where's the claim that supports Boshaw's federal lawsuit? 

The customer isn’t always right, especially when the customer wants you to discriminate

"I'm afraid we can't hire you because you won't mix well with our customers."

That's what the EEOC alleges a northern Minnesota furniture retailer told a transgender job applicant. It's also the reason that company has agreed to pay a $60,000 settlement. "Title VII does not permit discriminatory employment decisions based on customer preference," says the EEOC.

Transgender bathroom access remains a solution in search of a problem

Yesterday, the Supreme Court declined to hear the appeal of a school district challenging the right of a transgender student to use the bathroom that corresponded to his gender identity, leaving in place the landmark 4th Circuit opinion holding that transgender bathroom restrictions constitute illegal sex discrimination.

This decision falls in line with the EEOC's recent statement on this issue for employers.

Explaining the EEOC’s brand-new LGBTQ+ resources in three words

Yesterday, Bostock v. Clayton County—the Supreme Court decision which held that Title VII expressly covers and protects gay and transgender employees—celebrated its one-year anniversary. 

To commemorate this event, the EEOC released new resources on the issues of sexual orientation and gender identity workplace rights. These materials include a new landing page that consolidates the EEOC's information on these issues and a new technical assistance document to help explain Bostock and the EEOC's positions on it.

As sure as I believe love is love, I'm sure every BigLaw firm will be publishing detailed summaries about this new technical assistance document. 

I can summarize it, however, in three short words.

Let's meet employees where they are on their pronouns

In Meriwether v. Hartop, the 6th Circuit recently decided that a state university cannot force a professor to use students' preferred gender pronouns, and permitted the prof to proceed with his lawsuit challenging the school's discipline for his misgendering.

Civil rights is not a pizza

Among the litany of executive orders President Biden issued in his first two days in office was one on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. It's a beautiful statement adopting as the policy of the federal government the Supreme Court's decision in Bostock that Title VII's definition of sex explicitly includes LGBTQ employees.

“Religious freedom” ≠ freedom to discriminate (but sometimes it must be accommodated anyway)

The EEOC has sued an Arkansas Kroger after it fired two of its employees for allegedly objecting to its new dress code that required employees to wear an apron that contained rainbow-colored heart insignia. 

According to the EEOC, the women believed the insignia endorsed LGBTQ values, which contradicted their personal religious beliefs. As an accommodation, one offered to cover the insignia and the other offered to wear a different apron without it. The EEOC says that Kroger refused their accommodation requests, disciplined them, and ultimately fired them.  

Ohio legislature refuses to move on LGBTQ employment protections despite strong state-wide, bipartisan support to the contrary

There is no law in the state of Ohio that prohibits employers from discriminating against employees based on their sexual orientation or gender identity.

The Ohio Fairness Act—otherwise known as House Bill 369 and Senate Bill 11—seeks to change this legal abomination.

Gay man claims he’s the victim of intentional discrimination because of his sexual orientation … and that’s the least of his employer’s problems

Wesley Wernecke, an ex-employee of New York event planning company Eventique, claims in his recently filed lawsuit that the company intentionally alienated him, ostracized him, and shut him out of the business after its CEO learned Wernecke was gay.

NBC News shares the details of the allegations in Wernecke’s lawsuit.

“Tone down your gayness” = $20 million

A jury has awarded a St. Louis County police officer nearly $20 million over allegations that his superiors repeatedly denied him a promotion because they thought him too gay.

According to The Washington Post, the sergeant had more than 15 year of experience when he applied for a promotion. “The command staff has a problem with your sexuality,” he was told. “If you ever want to see a white shirt [i.e., get a promotion], you should tone down your gayness”, which was “way too out there.” The St. Louis Post-Dispatch adds that a captain had also referred to the plaintiff as “fruity.”