Tag Archives: sexual orientation

NEW LAW: Pennsylvania Human Rights Commission Expands Protections Of Pennsylvania Human Relations Act To Include LGBT Bias

In new Guidance Materials (“Guidance On Discrimination On The Basis Of Sex Under The Pennsylvania Human Relations Act”), the Pennsylvania Human Rights Commission has stated that it will consider sex discrimination to include not only an individual’s biological sex, but also sexual orientation, gender identity, gender expression, gender transition, and/or transgender status.

What this means for employers – it is recommended that employers take note of this expansion in the definition of sex and educate their managers/supervisors that an employee’s LGBT status is protected under Pennsylvania law.

NEW LAW: Cuyhoga County, Ohio Protects LGBTQ Employees From Discrimination

The Cuyahoga County Council recently passed County Ordinance #O2018-0009, while protects individuals from discrimination based on sexual orientation and gender identity in employment, among other things.  Employers in this county should review the new ordinance and provide training to their managers about the new ordinance.

Federal Appellate Court Rules Sexual Orientation IS Protected

 

In what may turn out to be the start of a significant shift among federal appellate courts, the Second Circuit Court of Appeals recently held that discrimination on the basis of sexual orientation is prohibited under Title VII of the Civil Rights Act.

The Case

In Zarda v. Altitude Express, Inc., the Second Circuit reconsidered its own previous ruling that Title VII does not cover sexual orientation discrimination claims.  Zarda was a homosexual skydiving instructor who brought a sex discrimination claim under Title VII alleging he was terminated because he did not conform to male gender stereotypes as a result of his sexual orientation.

The Second Circuit initially (and begrudgingly) followed their own precedent and held that Title VII did not cover such claims. Upon reconsideration by the full court, the court overruled its own precedent and held that Title VII does recognize sexual orientation within the framework of sex discrimination claims.  Specifically, the court found that discrimination based on an individual’s sexual orientation is discrimination “because of sex” as prohibited by Title VII.

Significance of this Case

While Zarda is not the first time an appellate court has found sexual orientation protected under Title VII (the Eleventh Circuit previously found such protections in Hively v. Ivy Tech Community College of Indiana), it does show a significant trend among federal appellate courts in recognizing a more expansive interpretation of the protections under Title VII. Numerous federal district courts have also recognized such protections, as has the Equal Employment Opportunity Commission (EEOC), which issued guidance in 2015 officially recognizing sexual orientation as a protected class under Title VII.

Takeaways

Employers should ensure their antiharassment and discrimination policies reflect the protections afforded under federal and state law, including protections against discrimination and harassment based on an individual’s sexual orientation. Additionally, directors, officers, managers, and employees should be provided with antiharassment and discrimination training that includes discrimination or harassment on the basis of an individual’s sexual orientation and gender identity.

The sea change in the interpretation and enforcement of Title VII is coming. Now is the time to prepare.

NEW POSTER — California Publishes New Mandatory Transgender Rights Poster

As previously reported (in NEW LAW: New Requirements for California Sexual Harassment Training) aside from increasing California’s sexual harassment training requirements to include discussing harassment based on gender identity, gender expression, and sexual orientation and including practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, Senate Bill 396 also requires all California employers post a workplace poster related to transgender rights. 

In order to help employers comply with this new posting requirement, the California Department of Fair Employment and Housing (DFEH) recently published the English and Spanish language versions of the poster.  Starting January 1, 2018, the “Transgender Rights in the Workplace” poster (as with all DFEH-mandatory posters) must be posted “in a prominent and accessible location in the workplace” where it can be “easily seen and read by all employees and job applicants.”   In addition, if ten percent or more of a company’s workforce speaks a language other than English, the poster must also be displayed in that language (or languages).

It is recommended that all California employers download the new poster and display it in the workplace as soon as possible.

NEW LAW: New Requirements for California Sexual Harassment Training

Attention California employers … on October 15, 2017, California Governor Jerry Brown signed SB 396 into law.  This new law amends the California Fair Employment and Housing Act (FEHA) and requires that employers’ sexual harassment training programs include an additional training element.

Under current law, California employers who employ 50 or more employees are required to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees in California within six months of their assumption of a supervisory position.  The training program must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation and must include the following elements:

  • Information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment,
  • Information and practical guidance regarding the remedies available to victims of sexual harassment in employment,
  • Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation,
  • Information and practical guidance regarding prevention of abusive conduct.

Under the new law, starting January 1, 2018, the sexual harassment training program must also address harassment based on gender identity, gender expression, and sexual orientation and include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation.

In addition to the new training requirements, all California employers are required to post a poster regarding transgender rights in a prominent and accessible location in the workplace.  This poster will be developed by the DFEH and is not yet available on the DFEH website.  It is also recommended that employers consider distributing the DFEH’s brochure regarding transgender rights (Transgender Rights in The Workplace) to all employees.

Take Home for Employers

It is recommended that all affected California employers verify their sexual harassment training programs include the new required elements.  In addition, all California employers should make sure to post the new poster in the workplace once it is available.

NEW LAW – Birmingham City Council Passes Nondiscrimination Ordinance

On September 26, 2017, the Birmingham City Council passed a new nondiscrimination ordinance, which is the first of its kind in Alabama.

Under this new law, the City of Birmingham has prohibited discrimination on the basis of a person’s real or perceived race, color, religion, national origin, sex, sexual orientation, gender identity, disability, or familial status.

This new law applies to housing, public accommodations, public education, and employment. There are only two exceptions for compliance — one for religious corporations and one for employers with bona fide affirmative action plans or seniority systems.

In addition, the new law creates a Human Rights Commission that will advise the Mayor and Council on matters related to eliminating discriminatory practices within the City.

The ordinance still needs to be signed into law by the mayor, in order for it to become effective.  However, the mayor has indicated that he will sign it into law immediately.

The Verdict is in — Sexual Orientation is a protected class under Title VII

Is sexual orientation discrimination prohibited under Title VII?

This question, which has long plagued employers, has been recently decided by the Seventh Circuit Court of Appeals. In a landmark decision (Hively v. Ivy Tech Community College of Indiana), the 7th Circuit held that discrimination on the basis of sexual orientation is a form of discrimination that is prohibited under Title VII. This holding aligns with the position taken by the EEOC in its July 2015 administrative decision (Baldwin v. Foxx) that “sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII”.

The Case

The plaintiff (Hively) was a lesbian and was open about her sexual orientation. She had been working as a part-time adjunct professor for Ivy Tech Community College for several years. Throughout her employment with the college, Hively applied for several full-time positions for which she was qualified, but she never received an interview. In 2014, the college failed to renew Hively’s contract for the 2014-2015 academic year – effectively terminating Hively’s employment with the college.

Following her termination, Hively filed a lawsuit in the Northern District of Indiana claiming that she was terminated in violation of Title VII – specifically that she was discriminated against because of her sexual orientation.

The college argued that Title VII’s protections did not extend to sexual orientation discrimination and, the trial court agreed – dismissing Hively’s claims.

Hively, however, appealed her case to the Seventh Circuit. After a long battle in court, the 7th Circuit concluded that “discrimination on the basis of sexual orientation is a form of discrimination” and that it “would require considerable calisthenics” to remove the “sex” from “sexual orientation” when applying Title VII to a claim of discrimination based on sexual orientation..

Why Should I Care?

This decision is significant to employers across the United States because this is the first case where a federal appellate court has confirmed that sexual orientation is a protected class under Title VII.

While several states (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin) have already included sexual orientation (and, in some cases, gender identity/transgender) under their state anti-discrimination laws, this case sends the message to all employers that Title VII’s protects private workers based on sexual orientation and gives LGBT plaintiffs in other Circuits ammunition to fuel the argument that Title VII protections extend to the LGBT workforce.

In light of this decision, it is recommended that employers in the Seventh Circuit take steps to verify (and ensure) sexual orientation is treated the same as any other protected class in all aspects of their business. This includes updating handbook policies to specifically include sexual orientation to the list of protected classes, training managers and supervisors about the new LBGT protections and verifying that the organization’s hiring, discipline and discharge procedures comply with Title VII.

For employers outside of the Seventh Circuit, this case may be a sign of things to come in your own jurisdictions. It is advisable that employers in states whose state anti-discrimination statutes do not have express protections against sexual orientation practices strongly consider taking similar steps to ensure that sexual orientation is treated the same as any other protected class in all aspects of their business.

Title VII Covers Sexual Orientation – according to a Connecticut district court

There is a lingering question regarding the scope of Title VII – “Do Title VII’s protections extend to sexual orientation?”

While the answer may seem clear to most employers – of course Title VII covers sexual orientation and, as reported previously (in “Sexual Orientation Bias is Barred By Title VII,” Says EEOC), the EEOC has taken this position, the federal district courts are split on this issue. Now, with a recent decision (Lisa Boutillier v. Hartford Public Schools), a Connecticut federal court as widened the split with its holding that Title VII’s protection against discrimination based on sex extends to sexual orientation discrimination.

In this case, a former Connecticut teacher claimed that she was discriminated against by her employer because she is a lesbian. The employer sought to dismiss the case, arguing that Title VII doesn’t extend to sexual orientation discrimination. The Court disagreed.

Take home for employers

While there is a split in the federal courts regarding Title VII’s reach, increasingly federal courts are more frequently allowing sexual orientation discrimination claims under Title VII. In addition, many states include a prohibition against discrimination based on sexual orientation in their anti-discrimination statutes. In light of this trend, it is recommended that employers implement policies that prohibit discrimination based on sexual orientation and take steps to ensure that employment-related decisions are based on legitimate business reasons and not anything that could be or is a protected reason.

Impact of Mississippi’s New Religious Freedom Law on Mississippi Employers

On April 5, 2016, Mississippi Governor Phil Bryant signed HB 1523 (the “Religious Liberty Accommodations Act”) into law. This new law will go into effect on July 1, 2016.

Under the guise of protecting a Mississippi citizen’s religious freedom from government intrusion, this law protects religious organizations, persons, and public employees from legal liability if they act on these three sincerely held religious beliefs:

  1. That marriage should be recognized as the union of one man and one woman;
  2. That sexual relations are properly reserved for marriage; and
  3. That an individual’s sex is determined by anatomy and genetics at birth.

What are religious organization and persons for purposes of this law?

Both “religious organization” and “person” are broadly defined under this new law.

The term “religious organizations” is defined to include houses of worship; religious groups, corporations, associations and schools; and the owners or employees of those entities.

The term “person” spans from natural persons to religious organizations, and includes companies and similar business entities that harbor any of the above-mentioned sincerely held religious beliefs.

What is the impact on private employers?

Under the new law, the state will not take any “discriminatory action” (which includes assessing a monetary fine, fee, penalty or injunction) against a person who establishes sex-specific standards or policies concerning:

  1. Employee dress or grooming, or
  2. Access to restrooms, spas, baths, showers, dressing rooms, locker rooms, or other intimate facilities or settings.

In light of this new law, one may think that Mississippi employers can allow their personal religious beliefs to motivate certain employment decisions and avoid a discrimination claim. Well think again.

While justifying a discriminatory action (like taking an adverse action against employees because of their sexual orientation or gender identity, or because of an employee’s out-of-wedlock pregnancy; or mandating restroom use based on one’s biological sex) based on sincerely held religious beliefs might shield a Mississippi employer from a discrimination claim under state law, Mississippi employers are still required to comply with federal employment laws.

For example, Title VII (applies to employers with 15+ employees) prohibits discrimination on the basis of one’s sex, which has been interpreted by the EEOC and several federal courts to include sexual orientation and gender identity. Therefore, taking an adverse action against an employee because of his/her sexual orientation or gender identity or implementing a policy that discriminates against a transgender person would violate Title VII.

It is recommended that employers evaluate whether a decision/policy will violate federal law and consult with an HR Professional or competent legal counsel before making an employment decision in reliance on Mississippi’s new religious freedom law.

Sexual Orientation/Gender Identity Discrimination Unlawful in Utah

On March 12, 2015, the Utah Antidiscrimination Act was amended.  The new amendment prohibits employment discrimination on the basis of an individual’s sexual orientation and gender identity.

The law adds sexual orientation and gender identity as prohibited bases for discrimination in employment and requires employers to adopt rules and policies that permit employees to dress and utilize sex-specific facilities consistent with their gender identify.