Wednesday, November 3, 2021
The customer isn’t always right, especially when the customer wants you to discriminate
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Tuesday, June 29, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, June 16, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, March 30, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, January 22, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, September 22, 2020
“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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, January 9, 2020
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, November 18, 2019
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, October 30, 2019
“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.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, August 28, 2019
This is what sex discrimination will look like if the Department of Justice gets its wish to legalize sex stereotyping
Last week the Department of Justice (on behalf of its client, the EEOC), filed a brief asking the Supreme Court to conclude that “sex stereotyping by itself is not a Title VII violation.”
What might this look like if the DOJ gets its wish?
Consider the following story (as told on Reddit).
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, August 22, 2019
The EEOC asks the Supreme Court to legalize sex discrimination
This fall, the Supreme Court will hear argument in three cases to decide whether Title VII’s coverage of sex discrimination also implicitly protects LGBTQ employees from discrimination. Last week, the EEOC filed its brief in the cases, making a startling argument in favor of legalizing not just LGBTQ discrimination, but all sex discrimination.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, August 15, 2019
Government sanctioned discrimination is abhorrent and we, as a nation, should be ashamed
Trigger warning: today’s post is not for everyone. If, however, you are offended by what I am about to say, then today’s post is specifically for you.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, April 23, 2019
Supreme Court grants review in three cases to decide, once and for all, whether Title VII protects LGBTQ employees from discrimination
Yesterday, the Supreme Court agreed to hear appeals in three cases, to decide whether Title VII's prohibition against "sex discrimination" expressly includes prohibitions against LGBTQ discrimination.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, April 22, 2019
Does Title VII protect heterosexuals from discrimination?
So meet, ROBERTa! Shopping in the women’s department for a swimsuit at the BR Target. For all of you people that say you don’t care what bathroom it’s using, you’re full of shit!! Let this try to walk in the women’s bathroom while my daughters are in there!! #hellwillfreezeoverfirst
Suppose you own a company, and one of your employees posts this rant on her personal Facebook page. Further suppose that in addition to owning the company, you are also a lesbian, and take offense to the employee's views. If you discipline the employee for her Facebook post, and later fire the employee after she complains about the discipline, can the employee sue for retaliation under Title VII? In other words, does Title VII protect heterosexuals from discrimination in reaction to anti-LGBTQ speech?
In O'Daniel v. Industrial Service Solutions, the 5th Circuit said no.
The case put the plaintiff, unabashedly and vocally anti-LGBTQ (as expressed in the at-issue Facebook post), in the position of arguing that Title VII protects against discrimination on the basis of sexual orientation.
The Court held that under its own precedent, O'Daniel could not move forward on her claim.
O'Daniel claims in essence that she was retaliated against because she "opposed" discrimination perpetrated against her on the basis of her heterosexual orientation.… Title VII in plain terms does not cover "sexual orientation." … Because the law in this circuit is clear, we cannot accept O'Daniel’s … suggestions that this panel either overrule the precedents or assume arguendo that the "trend" has upended them.
Thus, because the 5th Circuit does not recognize sexual orientation as class Title VII protects, and employee's complaints about her employer discriminating against her because she is heterosexual could not support a retaliation claim: "Title VII protects an employee only from retaliation for complaining about the types of discrimination it prohibits."
Two points to make about this opinion.
First, if Title VII equates LGBTQ discrimination to "sex" discrimination (as I, like many other courts and the EEOC, believe it does), then logic says that it must also protect heterosexuals from discrimination at the hands of the LGBTQ community because of their sexual orientation. Any other result is logically inconsistent.
Secondly, this employee was not fired because she complained about discrimination. She was fired because she exhibited extremely poor judgment through her Facebook rant. As the concurring opinion succinctly and correctly states: "Simply put, Title VII does not grant employees the right to make online rants about gender identity with impunity." If the employee ranted against interracial marriage, and the company's African-American owner fired her, would anyone think she has a valid claim? This case is no different. The law protects the employee from discrimination and retaliation, but it does not protect the employee's right to express bigoted views, on her personal Facebook page or otherwise.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, January 14, 2019
What's good for the goose? "Reverse" LGBTQ discrimination
If, like me, you believe that Title VII's definition of "sex" includes sexual orientation and gender identity, then what do you do with the claim of a heterosexual employee who claims discrimination because of her anti-LGBTQ views?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, November 7, 2018
Job applicant told, "Your sexuality may be an issue with the atmosphere of the office environment."
I found the following story posted to the legaladvice subreddit. It's titled, "Turned down for a job, asked what the issues were. Told 'your sexuality may be an issue with the atmosphere of the office environment'."
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, October 23, 2018
Why the federal government's culture war against LGBTQ rights might not matter
The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth….
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, September 26, 2018
Cuyahoga County bans LGBTQ discrimination
Cuyahoga County, Ohio, my home county, has lately been on the receiving end of some bad press. Season 3 of Serial just landed on your podcast app of choice, and it does not portray my county's criminal justice system in the most positive of lights.
So, today, I thought I'd share something positive from Cuyahoga County.
Yesterday, the County Council passed legislation prohibiting LGBTQ discrimination in employment, as well as housing and public accommodations.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, June 25, 2018
Keep an eye on this 8th Circuit LGBT-discrimiation case
The 8th Circuit Court of Appeals has been asked to decide if Title VII expressly protects gay, lesbian, and bisexual employees.
The case—Horton v. Midwest Geriatric Management—involves an individual who lost his conditional job offer after, he claims, the owners of the company discovered his sexual orientation.
The 8th Circuit will be the 5th federal circuit to rule on this issue.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, June 5, 2018
When losing is really winning: SCOTUS rules in favor of bakery in gay wedding cake dispute, but…
A lot of digital ink has been spilled in the last day decrying the Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission as a win for the religious right and a step backward for LGBT rights. I was guilty of a little Twitter hyperbole myself after a quick first scan of the opinion.
Also, this does not give me a ton of hope that #SCOTUS will get LGBT employment issues right when that issue reaches them.
Then I sat down and read the opinion.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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