Showing posts with label LGBTQ Discrimination. Show all posts
Showing posts with label LGBTQ Discrimination. Show all posts

Tuesday, March 13, 2018

Tattoos at work: more acceptance, yet still some legal risk

By ABC TV [Public domain],
via Wikimedia Commons
I am not a tattoo person. Yet, a whole lot of people are. And the numbers are increasing.

In fact, according to one recent survey, 3 in 10 Americans have at least one tattoo, up 50% in just four years. And, the younger you are, the more likely you are to sport a tattoo: 47% of millennials have a tattoo, as compared to 36% of gen Xers and only 13% of baby boomers.

Thursday, March 8, 2018

6th Circuit is the latest court to conclude that Title VII expressly prohibits LGBT discrimination

Photo by Sharon McCutcheon on Unsplash
Yesterday, the 6th Circuit Court of Appeals joined a growing number of federal appellate courts to hold that Title VII’s prohibition against sex discrimination expressly covers LGBT employees.

The claimant in EEOC v. R.G. &. G.R. Harris Funeral Homes [pdf], Aimee Stevens (formerly known as Anthony Stephens) was born biologically male, and presented as such when hired. The funeral home’s owner and operator, Thomas Rost, fired her shortly after she informed him that she intended to transition from male to female and would represent herself and dress as a woman while at work.

Tuesday, February 27, 2018

2nd Circuit holds that Title VII expressly bars sexual orientation discrimination as sex discrimination

Photo by Matias Rengel on Unsplash
Yesterday, the 2nd Circuit federal court of appeals (which covers New York, Connecticut, and Vermont) held that “Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of … sex.’”

With its decision in Zarda v. Altitude Express [pdf], the 2nd Circuit joins the 7th Circuit, and the EEOC in interpreting Title VII as such.

My thoughts on this issue are well documented throughout the archives.

Monday, October 16, 2017

There is no *good* reason to be anti-LGBTQ rights

Last week I presented a webinar entitled, “The Top 10 Employee Handbook Mistakes.”

I discussed, among other policies, missing at-will disclaimers, salary discussion bans, failing to define the FMLA leave-year, inflexible leave of absence policies, and omitted or ineffective harassment policies.

I also discussed anti-discrimination policies that ignore LGBTQ employment rights.

During the LGBTQ section of the webinar, I provided the legal background on the issue (Title VII is silent, some states and municipalities have acted, and the EEOC and federal courts have stepped up to otherwise fill in Title VII’s gap).

I then issued this challenge to the attendees—
“Be on the right side of history.”

Thursday, September 28, 2017

Trump flip-flops on LGBTQ workplace discrimination

“As your president, I will do everything in my power to protect our LGBTQ citizens.…”

Those were the words of then nominee Donald J. Trump at least year’s Republican Convention.

What’s missing from those words?

“…Unless you’re at work. Then you’re screwed.”

Yesterday, Trump’s White House announced that it will urge the 2nd Circuit Court of Appeals to rule that Title VII does not ban discrimination against gay employees. The court will decide whether, in that Circuit, Title VII’s definition of “sex” includes LGBTQ individuals. (The 7th Circuit has already says that it does.)

Are you tired of hearing me rant about this issue? Tired of hearing me tell you that it is shameful that in 2017 there still exists a group of people that the law does not clearly protect from discrimination? 

Well, I hope not. Because I’m going to keep doing it until this country WAKES UP and comes to its senses.

Thursday, September 21, 2017

Is LGBT discrimination finally coming to a head?

Two stories this week caught my attention:

Monday, August 7, 2017

Listen to me on the Talent10x podcast discuss the current state of LGBTQ discrimination

I have enjoyed a long and fruitful relationship with Workforce Magazine. I’ve been blogging at for the past five-plus years. I write a monthly column for the magzine. And, I serve on its editorial advisory board. Now, you can also add “podcaster” to my Workforce CV.

Monday, July 31, 2017

Justice Department takes a stand in favor of LGBTQ discrimination

LGBTQ prohibitions continue to make headway in the courts. While Congress has remained silent on the issue, more and more state and federal courts hold that the law’s existing prohibitions against sex discrimination implicitly cover sexual orientation and other forms of LGBTQ discrimination.

The latest appellate court to take up this issue in the 2nd Circuit, in Zarda v. Altitude Express. Just last week, the Department of Justice filed its amicus brief [pdf] in this case. Yet, in that brief, the DOJ argued that Title VII’s prohibition against sexual stereotyping as sex discrimination does not include LGBTQ discrimination. This position advanced by the DOJ is contrary to that already espoused by the 7th Circuit, many district courts, and the EEOC.

Wednesday, May 24, 2017

Federal court breaks new ground with transgender disability discrimination claim

The ADA expressly excludes from its coverage “transvestism, transsexualism, … [and] gender identity disorders not resulting from physical impairments….”

Thus, it should be an easy call for a court to dismiss a lawsuit in which an employee, born a male but who identifies and presents as a female, alleges disability discrimination because of her gender identity disorder.


Wednesday, April 19, 2017

6th Circuit tees up decision on LGBT discrimination coverage under Title VII

The 6th Circuit is currently considering whether Title VII’s definition of “sex discrimination”.

EEOC v. R.G. & G.R. Harris Funeral Homes alleges that the funeral home fired its funeral director because she is transgender and transitioning from male to female. The Eastern District of Michigan concluded that Title VII does not expressly cover LGTB discrimination, and limited the sex discrimination claim to a sexual stereotyping claim.

Wednesday, April 5, 2017

7th Circuit historically holds that Title VII expressly bans LGBT discrimination

If you spend any time reading or watching the news today, you will inevitably encounter much about the 7th Circuit’s historic (and correct, in my opinion) decision in Hivley v. Ivy Tech Community College [pdf]. You can read the background of this case here.

The court expressly held that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” Hivley now stands in direct contradiction to the opinion of the 11th Circuit in Evans v. Georgia Regional Hosp., which sets up this issue for a showdown in the Supreme Court.

Wednesday, March 15, 2017

The 11th Circuit’s odd LGBT-discrimination decision

Late last week, the 11th Circuit Court of Appeals, in Evans v. Georgia Regional Hosp. [pdf], held that Title VII does not protect sexual-orientation discrimination per se, and that to sufficiently plead such a cause of action under Title VII, one must allege facts sufficient to establish that the employer discriminated based on non-conformity with sex-based stereotypes. 

As such, this decision directly conflicts with the formal position of the EEOC (a priority that EEOC Commissioner Chai Feldblum announced will not change under President Trump), and expected decision by the 2nd and 7th Circuits.

Tuesday, March 7, 2017

SCOTUS reverses decision to review transgender bathroom case

Yesterday, the Supreme Court reversed an earlier decision that would have heard the appeal of a 4th Circuit opinion granting a transgender boy the right to use the bathroom of his identified gender.

The decision comes on the heels of the Trump administration’s policy change [pdf], which revoked the Obama administration’s guidance that protected the bathroom rights of transgender students in public schools.

Thursday, December 1, 2016

Will the 7th Circuit ban LGBT employment discrimination?

Those of you who have been reading this blog for any length of time should know that I strongly believe that it is a national embarrassment that LGBT employment discrimination remains legal. Sure, the EEOC believes that Title VII’s prohibition against sex discrimination covers LGBT discrimination. But, despite what it may think, the EEOC does not make law, it merely enforces laws made by others. And, yes, some federal courts are starting to come around to believing that Title VII covers LGBT discrimination. Yet, until either Congress amends Title VII to expressly cover LGBT discrimination, or all federal courts conclude that Title VII already covers it, employers are compliance limbo.

Wednesday, November 9, 2016

Federal court recognizes LGBT employment discrimination as illegal under Title VII

It’s been more than a year since the EEOC first announced that it would accept LGBT-discrimination charges as sex-discrimination charges under Title VII. Last week, the EEOC finally got a federal court to agree with its position in a LBGT-discrimination-is-sex-discrimination lawsuit.

Monday, August 22, 2016

Federal court's rejection of LGBT discrimination claim on religious grounds has scary implications

Last week, a Michigan federal judge rejected the EEOC’s claim that Title VII covers transgender status or gender identity as protected classes.

In EEOC v. R.G. & G.R. Harris Funeral Homes (E.D. Mich. 8/18/16) [pdf], the agency pursued a sex-discrimination claim on behalf of the Funeral Home’s former funeral director, Stephens, who is transgender and transitioning from male to female. The EEOC claimed that the Funeral Home “fired Stephens because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to [the Funeral Home’s] sex- or gender-based preferences, expectations, or stereotypes.”

The court rejected that claim on several grounds, including the Funeral Homes’s religious beliefs as protected by the Religious Freedom Restoration Act. This basis for the holding greatly troubles me.

Monday, August 1, 2016

Employers, ignore 7th Circuit’s rejection of Title VII LGBT protections

In Hivley v. Ivy Tech Community College (7th Cir. 7/28/16) [pdf], the 7th Circuit ruled that Title VII does not prohibit sexual-orientation discrimination. In doing so, this appellate court has taken a position directly contrary to that of the EEOC, which has concluded that Title VII expressly prohibits LGBT discrimination under the rubric of gender non-conformity-as-sex-discrimination.

The entire 42-page opinion is worth your time to read. It is a thorough analysis and summary of the state of the law (pro and con) of LGBT employment discrimination. Do not, however, dismiss this Court’s dismissal of Hivley’s claim as anti-LGBT. Instead of anti-LGBT rights, consider the 7th Circuit as pro-precedent. Indeed, even though the plaintiff loses her case, the Court has a lot to say on whether the result, which the Court believes Title VII mandates, is morally justified:

Thursday, June 9, 2016

D.C. Office of Human Rights publishes best practices guide for employers on transgender rights

The District of Columbia Office of Human Rights, in connection with the National LGBTQ Task Force, recently published a 19-page best practices guide for employers on transgender issues in the workplace. The document, entitled, Valuing Transgender Applicants & Employees: A Best Practices Guide for Employers [pdf], when taken together with earlier guidance from the EEOC on transgender bathroom access and broader guidance from the EEOC on LGBT discrimination continues to signal that issue is one that you can no longer ignore.

Wednesday, May 4, 2016

Transgender bathrooms is a solution in search of a problem

In the blogging world, when you snooze, you lose. Yesterday, my fellow bloggers were all over the EEOC’s publication of guidance on bathroom access for transgender employees:

Here’s the bottom line.

Wednesday, April 27, 2016

Ohio tries again to add LGBT rights to employment discrimination law

As I’ve said more times than I can count, I think it’s repulsive that, in 2016, it is lawful under Title VII and the employment-discrimination laws of most states to discriminate because of one’s LGBT status.

S.B. 318 [pdf], introduced in late April, looks to change this aberration in Ohio.