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Texas has a new plan to discriminate against LGBT people

Monday, April 17th, 2017

Texas’ anti-transgender bill has seemingly stalled, but inspired by North Carolina, Republican state lawmakers have a new plan to expand discrimination against LGBT people.

Last month, Texas seemed on track to follow in the footsteps of North Carolina’s HB2 and pass its own bill, SB6, mandating anti-transgender discrimination across the entire state. Lt. Gov. Dan Patrick (R) launched a massive misinformation campaign to scare up support of the bathroom bill, and the Senate passed it, terrifying the trans kids and families who testified against it. The bill was blocked in the House by various House Republican leaders who indicated they believed it was unnecessary.

But now, those House Republicans have introduced a new bill that looks awfully familiar.

Unlike the various complicated aspects of SB6, HB 2899 does only one thing: ban cities from passing nondiscrimination protections. To that end, it also would nullify any municipal nondiscrimination ordinances already in place.

This approach strongly resembles the “compromise” bill North Carolina lawmakers recently passed to replace HB2, which banned cities and school districts from passing any ordinance “regulating private employment practices or regulating public accommodations” until December 1, 2020.

These both, in turn, follow the example set by Tennessee and Arkansas—which have “preemption” laws that prohibit cities from protecting any class from discrimination that isn’t already protected under state law, which amounts to a de facto ban on LGBT protections. North Carolina’s law sloppily allows protections that already exist to remain in place, but Texas takes the approach a step further. By banning and nullifying all nondiscrimination ordinances, HB 2899 would prohibit cities from doing anything to address discrimination on the local level.

HB 2899 would effectively be a statewide license to discriminate against LGBT people. By regulating schools, it would also have severe consequences for LGBT students, who could not be protected from bullying. Trans students could not be guaranteed the right to use the restrooms and other facilities that match their gender identity.

Given the NCAA and NBA were convinced to abandon their boycotts of North Carolina over its replacement law, it seems likely that Texas lawmakers expect their new plan will similarly be safer from economic backlash. This is despite the fact that many cities and states are maintaining their bans on publicly-funded travel to North Carolina.

House State Affairs Committee Chairman Byron Cook (R), who blocked the Senate anti-trans bill, called HB 2899 “the right kind of balance” between “privacy”—i.e. discrimination against transgender people—and avoiding “a chilling effect on business.”

Cook’s committee will consider the new bill next Wednesday.

This article was originally posted at Thinkprogress.org on April 14, 2017. Reprinted with permission.

Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at zford@thinkprogress.org. Follow him on Twitter at @ZackFord.

Federal appeals court holds workers can’t be fired for being gay

Wednesday, April 5th, 2017

With a lopsided majority joined by a bipartisan coalition of judges, the United States Court of Appeals for the Seventh Circuit held on Tuesday that discrimination on the basis of sexual orientation violates federal civil rights law, at least in the context of the workplace.

The court telegraphed in an order last October that Hively v. Ivy Tech Community College was likely to be a victory for victims of discrimination in the workplace. The final vote in the case, however, is a bit more surprising.

Eight of the Seventh Circuit’s judges joined Tuesday’s opinion, including Republican appointees Richard Posner, Joel Flaum, Frank Easterbrook, Ilana Rovner, and Kenneth Ripple. Only three judges dissented.

The case involves Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of an employee’s “sex.” Though Title VII contains no explicit statement that discrimination on the basis of “sexual orientation” is prohibited, two crucial Supreme Court precedents inform Chief Judge Diane Wood’s majority opinion in Hively.

The first is Price Waterhouse v. Hopkins, which established that Title VII’s ban on sex discrimination is violated when an employee faces discrimination due to gender stereotyping. Thus, in that case, a female accountant could allege illegal discrimination if she was denied a partnership because her superiors deemed her too masculine. (One partner told her to take “a course at charm school.” Another deemed her too “macho.”)

One of the the core insights of Chief Judge Wood’s decision in Hively is that, because she is a lesbian, “Hively represents the ultimate case of failure to conform to the female stereotype.” Stereotypical women enter into romantic and sexual partnerships with men. Hively defies this stereotype by engaging in such relationships with women. So presuming that she must prefer relations with men is itself a form of gender stereotyping forbidden by Hopkins.

Wood’s opinion also offers several other reasons why sexual orientation discrimination should be understood as a form of sex discrimination. Indeed, as Wood explains, this case is actually pretty straightforward. “Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her,” Wood writes. If this claim proves to be true, then it “describes paradigmatic sex discrimination.”

In reaching this conclusion, Wood acknowledges that the lawmakers who drafted the Civil Rights Act of 1964 probably did not expect it to be used this way. But the conclusion that Title VII can be read more expansively than its drafters anticipated was embraced by Justice Antonin Scalia’s opinion for the Supreme Court in Oncale v. Sundowner Offshore Services.

Oncale was a case of male-on-male sexual harassment, something that, as Scalia wrote, “was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” But so what?

As Scalia explained, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

A prohibition on discrimination “because of . . . sex” was expansive enough to cover male-on-male sexual harassment in Oncale. And it is big enough to encompass discrimination on the basis of sexual orientation. So holds the Seventh Circuit in Hively.

As Wood notes in her opinion, “for many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation.” Hively is now an outlier, and the Supreme Court typically takes up cases where the federal appeals courts disagree. It is all but certain to take up this case.

That means the fate of gay and bisexual workers is likely to rest with Justice Anthony Kennedy, a conservative who often provides the fifth vote in favor of gay rights. Whether Kennedy does so in this case remains to be seen—though the lopsided vote in Hively should be an encouraging sign for supporters of LGBT rights.

This blog originally appeared in ThinkProgress.org on April 4, 2017. Reprinted with permission.

Ian Millhiser is the Justice Editor at ThinkProgress. He is a skeptic of the Supreme Court, hater of Samuel Alito, and a constitutional lawyer of ill repute. Contact him at  imillhiser@thinkprogress.org.

Trump revokes executive order, weakens protections for LGBT workers

Wednesday, March 29th, 2017

An executive order President Trump signed Monday rescinded an executive order President Obama implemented that would have required companies that contract with the federal government to provide documentation about their compliance with various federal laws. Some have argued that this will make it harder to enforce the LGBT protections President Obama implemented for employees of federal contractors—as well as many other protections those workers enjoyed.

Trump rescinded the Fair Pay and Safe Workplaces order, also known as Executive Order 13673, that President Obama issued in 2014. That order required companies wishing to contract with the federal government to show that they’ve complied with various federal laws and other executive orders. Notably, Obama issued that order in tandem with Executive Order 13672, which prohibited contractors from discriminating on the basis of sexual orientation or gender identity.

Executive Order 13673 was enjoined by a federal judge in Texas back in October, but had it been implemented, it would have improved accountability for businesses that contract with the federal government. Enforcement of 13672, the LGBT protections, does not require this order, but would have been stronger with it. Whatever its fate in court may have been, it’s now gone forever.

LGBT people are particularly vulnerable to discrimination, even with 13672 still in place. Obama’s LGBT executive order amended previous presidential orders that also protected the employees of contractors on the basis of race, color, religion, sex, national origin, disability, and age, but all of those other categories are also afforded protection under various federal laws (the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act). Sexual orientation and gender identity are the only identity categories without explicit nondiscrimination protections under federal law, and fewer than half the states offer LGBT protections at the state level. That means Obama’s executive order is the only legal force protecting over a million workers.

Camilla Taylor, senior counsel at Lambda Legal, was the first to raise concerns that this change would impact the LGBT community. As she explained to Keen News Service, “It’s sending a message to these companies…that the federal government simply doesn’t care whether or not they violate the law.”

National Center for Lesbian Rights Executive Director Kate Kendell also said in a statement, “President Trump’s quiet take-down yesterday of federal safeguards against employment discrimination for millions of LGBT Americans is yet another example of why our elected officials, advocates, and our community must remain vigilant and continue working together to stop this administration’s regressive and harmful policies.”

When a draft of a “religious freedom” executive order that would have licensed discrimination against LGBT people was circulating, the White House tried to stir up some positive press by promising that it would “leave in place” Obama’s 2014 order protecting LGBT workers.

“President Trump continues to be respectful and supportive of LGBTQ rights,” the statement read. The New York Times’ Jeremy Peters fell over himself to praise the statement for using “stronger language than any Republican president has before in favor of equal legal protections for gay lesbian, bisexual, and transgender people.”

It’s not a surprise, however, that Trump is walking back other executive orders that weaken the LGBT protections. Trump promised to undo all of Obama’s executive orders.

That “religious freedom” executive order hasn’t gone away either. A month after the draft leaked and the White House assured LGBT people it wasn’t signing it at that time, White House Press Secretary Sean Spicer told The Heritage Foundation’s Daily Signal that it was still coming. “I think we’ve discussed executive orders in the past, and for the most part we’re not going to get into discussing what may or may not come until we’re ready to announce it,” he said at the time. “So I’m sure as we move forward we’ll have something.”

This article was originally posted at Thinkprogress.org on March 29, 2017. Reprinted with permission.

Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at zford@thinkprogress.org. Follow him on Twitter at @ZackFord.

Federal judge concludes transgender worker can sue for sex discrimination

Wednesday, December 21st, 2016

A federal court in Kentucky is allowing a transgender workplace discrimination suit to proceed, recognizing that mistreatment in regards to gender identity constitutes illegal discrimination on the basis of sex.

Plaintiff Mykel Mickens sued General Electric Appliances (GE) for harassment and disparate treatment in the workplace. He was not permitted to use the men’s restroom, so he had to use a facility much farther away from his work station, and he was then disciplined for how long his breaks were to accommodate that journey. Mickens also had a conflict with an employee, but though GE addressed a complaint one of his white, female colleagues had with that employee, his complaint went unaddressed. He says that when he disclosed that he was transgender to his supervisor, he was singled out and reprimanded for conduct no one else was reprimanded for, and when he reported the harassment, GE said there was nothing it could do.

Federal Chief Judge Joseph McKinley, a Clinton appointee, concluded that there was significant evidence to bring a discrimination case for race and gender discrimination. He agreed there is precedent that punishing an employee for failing to conform to gender stereotypes can qualify as gender discrimination under Title VII. “Significantly,” he wrote, “Plaintiff alleges that GE both permitted continued discrimination and harassment against him and subsequently fired him because he did not conform to the gender stereotype of what someone who was born female [sic] should look and act like.”

McKinley noted that several court cases, including G.G. v. Glouchester County School Board?—?currently before the Supreme Court?—?could impact future trans discrimination suits. In the meantime, however, “what is clear is that the Plaintiff’s complaint sufficiently alleges facts to support discrimination or disparate treatment claims based upon race and gender non-conformity or sex stereotyping.”

GE did not comment directly on the suit but reaffirmed in a statement its commitment to “creating, managing and valuing diversity in our workforce” and “ensuring that our workplace is free from harassment.”

McKinley’s ruling isn’t an automatic victory for Mickens, but it is a sign of progress for those seeking the justice system’s protection for discrimination against transgender people.

Just last week, a transgender man in Louisiana won his discrimination complaint against his employer through arbitration. Tristan Broussard involuntarily resigned from the financial services company he worked for when he was intolerably forced to “act and dress only as a female.” He was awarded more than a year’s salary as well as additional damages for emotional distress.

The Obama administration has extended protections to transgender people in various ways, including advocating for their civil rights in employment discrimination cases. Many advocates worry the Trump administration will roll back these protections and abandon support for these plaintiffs, if not take an antagonistic position against their discrimination claims.

A recent massive survey of transgender people found that 16 percent had lost a job due to being transgender, and 27 percent had either been fired, denied a promotion, or not been hired due to being transgender.

This article was originally posted at Thinkprogress.org on December 13, 2016. Reprinted with permission.

Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at zford@thinkprogress.org. Follow him on Twitter at @ZackFord.

North Carolina just lost out on another 730 jobs because of its anti-LGBT law

Wednesday, October 26th, 2016

Zach FordThis week, North Carolina found out it is not getting 730 new jobs and a quarter-billion-dollar impact that it was the top contender for. The reason? Its anti-LGBT law, HB2, which bans trans people from using the bathroom and bars municipalities from protecting LGBT people from discrimination.

CoStar Group Inc., a real estate analytics company, had been shopping around cities to build a new research operations headquarters, and the contenders were Charlotte, Richmond, Atlanta, and Kansas City. The Atlanta Business Chronicle heard from sources that Charlotte was the favorite. But the jobs are going to Richmond.

According to David Dorsch, CoStar Group’s commercial real estate broker, “The primary reason they chose Richmond over Charlotte was HB2.” CoStar Group was itself, a bit mum, simply confirming the jobs were going to Richmond-and no expansions were planned anywhere else. But Dorsch was adamant that the jobs were another casualty of the discriminatory law. “The best thing we can do as citizens in North Carolina is to show up on Nov. 8 and think about which party is costing us jobs and which one is not.”

Co-Star’s expansion is the latest-and one of the biggest-losses the state has faced over HB2. In April, PayPal backed out of a 400-job expansion in Charlotte and Deutsche Bank froze a 250-job expansion in Cary-both companies openly stating they refused to expand in a state with such a discriminatory law.

North Carolina has also lost several prominent sporting events, such as the NBA All-Star Game, various NCAA championships, and the ACC championships, each a significant economic impact the state will no longer enjoy.

Additionally, there are countless conventions, entertainers, and film companies that have backed out of economic commitments in North Carolina. Numerous states have even banned state-funded travel to the state. Plus, the state has to spend money to defend the law in court; the legislature even redirected $500,000 from emergency relief funds to cover the legal costs. That was before Hurricane Matthew devastated the state with massive flooding, and Gov. Pat McCrory (R) insists that even though he didn’t veto that measure, he hasn’t actually spent that money (yet).

But McCrory’s administration denies there’s been any backlash whatsoever. His Commerce Secretary, John Skvarla, insisted this week that HB2 “hasn’t moved the needle one iota.” Indeed, he claimed that the state is financially and operationally in the “best position” it’s ever been.

As the Charlotte Observer pointed out, this doesn’t jibe with the losses that local business leaders have reported because of decreased tourism and development. Johnny Harris, a real estate developer in Charlotte, believes that “ for every one company that decides to relocate to North Carolina that another 10 probably are not, deterred by HB2.”

They’re not in total denial, though. Skvarla also admitted that the state made PayPal give back a ceremonial wooden bowl that McCrory had given to the company as a gift celebrating the original plan to expand in North Carolina. As the Observer described it, “state officials did what any jilted ex might: Asked for their stuff back.”

It could be that because the boycotts were either new expansions that don’t appear as losses or recurring events that haven’t happened again yet, they don’t show up in Skvarla’s numbers. But the numbers do show up.

In September, Facing South estimated that, based only on the backlash that was evident so far at the time, the law’s cost would be well over $200 million. Wired similarly crunched the numbers in September and found losses approaching $400 million. And back in May, the Williams Institute made a similar estimate, but also counted the $4.8 billion in federal funding North Carolina receives that it would no longer be eligible for because of its enforcement of HB2 in schools and universities?—?a grand total of $5 billion in potential losses, per year.

This article was originally posted at Thinkprogress.org on October 25, 2016.
Reprinted with permission
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Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at zford@thinkprogress.org. Follow him on Twitter at @ZackFord.

A governor just sued his own attorney general over LGBT employment protections

Wednesday, October 5th, 2016

pphlnood_400x400The attorney general said he wasn’t going to stop blocking contracts unless he was sued, so the governor sued.

Louisiana’s governor just sued its attorney general over whether lawyers the state hires should be allowed to discriminate against LGBT people.

If that sounds odd, that’s because it is. And though there’s an easy moral answer to the conundrum, the legal answer might be far more complicated.

Gov. John Bel Edwards (D) was elected last year to succeed Bobby Jindal (R). One of the first things he did when taking office was reverse Jindal’s anti-LGBT policies, including Jindal’s executive order allowing businesses to discriminate against same-sex couples without any consequence from the state. Edwards then issued his own executive order protecting state workers and contractors from discrimination on the basis of sexual orientation and gender identity. It was nearly identical to President Obama’s 2014 executive order protecting LGBT federal employees and contractors, as well as Louisiana gubernatorial executive orders protecting LGB state employees that were in place before Jindal rescinded them in 2008.

But despite both the state and federal precedent for such executive action, Attorney General Jeff Landry (R) wasn’t having it. Prompted by anti-LGBT lawmakers opposed to both Edwards’ executive order and the Obama administration’s guidance protecting transgender students, he issued an eight-page opinion in May declaring that neither was legally enforceable in the state.

“The brief answer is an Executive Order cannot expand or create state law,” Landry wrote. “‘Gender identity’ is not and has never been a legally protected class under state or federal anti-discrimination laws.” He insisted that the order protecting LGBT employees “should be interpreted as merely aspirational and without any binding legal effect.”

Even giving Landry the benefit of the doubt that he was just trying to check the power of the executive, his own anti-LGBT biases are not in doubt. He also said that the federal transgender guidance “creates an environment in which children may be more easily exposed to sexual predators.” Rules simply affirming transgender students’ identities “place the mental well-being and privacy rights of ninety-nine percent of Louisiana’s children at risk without any demonstrable evidence of benefit to the less than one percent of the population this policy purports to benefit.”

For the past four months, Landry and Edwards have engaged in this standoff, warring over state legal contracts. Edwards keeps including LGBT nondiscrimination language in proposed contracts with private lawyers, and Landry keeps blocking them specifically because of this language. He hasblocked at least 37 contracts, including 11 from the Department of Insurance. Defending his actions, Landry’s office has asserted, “The Attorney General requires antidiscrimination clauses in legal contracts to be written in conformity with State and Federal law, therefore, these provisions should not contain language exceeding what the law requires.”

Matthew Block, general counsel for the Edwards administration, explained last week that these blocked contracts are starting to have a big impact on the management of the state. “We have a lot of things that need to get attended to and we need to have people doing their work,” he told NOLA.com. “I have law firms not getting paid for the work that they are doing. I have law firms that are waiting around to start work.”

1-ttjhkebbo9sxiijhid_lyaSo on Friday, Edwards sued Landry in state court. At a press conference Friday, he was pretty blunt about the standoff. “He basically told me that if I wanted him to approve those contracts that I would have to sue him,” Edwards said. “So I’m obliging him on that.”

The lawsuit states that Landry “has refused to perform the ministerial task of approving private contracts and appointing private counsel for numerous executive agencies of the State.” He has “explicitly rejected most of the contracts on the grounds that the contracting attorneys should not have agreed not to discriminate in employment and the rendering of services” in accordance with the executive order. In other words, the lawyers who would be impacted by the LGBT protections have already agreed to them, but Landry has still denied the contracts because that language is in them.

The conflict is spurring some interesting political divisions. For example, Louisiana Senate President John Alario (R), voted against LGBT nondiscrimination protections in the legislature, but he told NOLA.com that he believes the governor isn’t overstepping his authority. It’s Landry, he said, who he thinks “is stepping out of bounds.”

Landry has stood by his actions, saying in an interview that he looks forward to “defending the legislature and their priorities and their wishes.” He added that he believes the protections create “additional liabilities and expenses for the state,” but refused to answer questions about his own position on protecting LGBT people from discrimination.

It will now be up to the state courts to resolve the conflict, or at least to interpret whether Landry is within his authority as attorney general to rebuff the executive order. It could, however, be the first time that a court weighs the validity of an executive order that protects workers from discrimination.

But Louisiana is hardly an outlier for the actions Edwards took. There are 12 other states that, through executive order or similar administrative regulation, extend employment protections to state employees on the basis of sexual orientation or gender identity that exceed protections under state law. And of course, past Louisiana governors protected sexual orientation without having to sue their attorneys general to enforce them.

This article was originally posted at Thinkprogress.org on October 5, 2016.
Reprinted with permission
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Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at zford@thinkprogress.org. Follow him on Twitter at @ZackFord.

 

House Republicans stand strong for anti-LGBT discrimination in the wake of Orlando shootings

Thursday, June 23rd, 2016

LauraClawsonLGBT people may be able to marry, but in many states they can also be fired or not hired because they’re LGBT. And House Republicans are fighting to keep that from changing.

President Obama’s executive order banning federal contractors from discriminating on the basis of sexual orientation or gender identity went into effect in 2015. Democratic Rep. Sean Patrick Maloney has been trying to get the House to pass an amendment backing up that executive order, but House Republicans are not having it. They’ve beenfighting to keep allowing employers to discriminate against LGBT workers even if they get federal money, and they’re not stopping now.

The House Rules Committee blocked Maloney’s amendment from getting a full House vote. Again, we’re talking about something saying that if you want federal money, you can’t discriminate. And context matters here:

Maloney argued that allowing a vote to prohibit discrimination in the workplace after the targeted attack on the gay nightclub would send a message of solidarity with the LGBT community.

“It’s hard to imagine that any act that is so horrific could lead to anything positive. But if we were going to do anything, it would be a very positive step to say that discrimination has no place in our law and to reaffirm the president’s actions in this area,” Maloney told The Hill. “Seems to me a pretty basic thing to do.”

Sorry, make that—context should matter here. But House Republicans have made it clear that there’s no context that would stop them from enabling discrimination.

This blog originally appeared at DailyKos.com on June 15, 2016. Reprinted with permission. 

Laura Clawson has been a Daily Kos contributing editor since December 2006. Labor editor since 2011.

Working People in Unions Stand with LGBTQ Brothers and Sisters Against Discrimination

Monday, April 18th, 2016

Image: Liz ShulerLet’s be clear about North Carolina’s H.B. 2 and other “bathroom laws” popping up in states that would bar transgender people from using the restroom facility of their identified gender: We won’t stand for it.

H.B. 2 not only discriminates against our LGBTQ brothers and sisters, but it also means employers can now fire anyone because of their religion, race, color, national origin, age, sex, disability or veteran status. North Carolina abolished 30 years of legal protections against workplace discrimination.

This law even bars cities and municipalities from passing legislation on nondiscrimination, paid leave, fair scheduling and raising the minimum wage.

Jerame Davis, executive director of Pride At Work, said:

In states desperately in need of jobs and infrastructure, lawmakers are focused on legalizing discrimination and harassing people in restrooms. It’s just astounding. Pride at Work condemns these regressive laws as well as those in other states, including those that are still pending. We also call upon Congress to swiftly pass the Equality Act at the federal level in order to nullify the injustice of these attempts to circumvent progress for the LGBTQ community.

North Carolina State AFL-CIO Secretary-Treasurer MaryBe McMillan said:

It’s crazy that at a time when our elected officials should be doing all they can to create jobs and get more people employed that they’re actually wasting taxpayer money to create a law that’s going to make it easier to discriminate and fire people. And, in the process, they’re driving business out of our state because these corporations don’t want to do business in a state that supports discrimination.

To put it simply, H.B. 2 and similar legislation mean more discrimination, weaker benefits, less safe workplaces and lower wages.

#WeAreNotThis

This blog was originally posted on aflcio.org on April 15, 2016. Reprinted with permission.

Liz Shuler was elected AFL-CIO secretary-treasurer in September 2009, the youngest person ever to become an officer of the AFL-CIO. Shuler previously was the highest-ranking woman in the Electrical Workers (IBEW) union, serving as the top assistant to the IBEW president since 2004. In 1993, she joined IBEW Local 125 in Portland, Ore., where she worked as an organizer and state legislative and political director. In 1998, she was part of the IBEW’s international staff in Washington, D.C., as a legislative and political representative.

Employment Equality - When is the Federal Government Going to get on Board with LGBT Employment Rights? A Lawyer’s Look at State & Federal Workplace Protections

Thursday, January 14th, 2016

BraniganRobertsonThe topic of LGBT rights has dramatically increased in the last few years. Most have heard about the recent Supreme Court case, Obergefell v. Hodges, which legalized same-sex marriage throughout the nation. Whether on the legislative floor or in the courthouse, there is no question that LGBT rights have really come a long way in America in the last few years. But what about in the workplace? What employment law protections are there against LGBT discrimination at work?

What many people do not know is that workplace protections for LGBT employees vary by state jurisdiction. This can be confusing as many people may assume that the law is uniform throughout the nation. It’s not. Simply put, federal and state laws may differ as to whether an employer may discriminate against an employee because of his or her sexual orientation.

Federal Law Does Not Ban Sexual Orientation Discrimination

Federal law is not very good at protecting LGBT employees in the workplace. The main federal anti-discrimination law is Title VII. It doesn’t ban discrimination based on sexual orientation. Some federal courts have held that discrimination by an employer based on an employee’s sexual orientation is not a violation of federal law. See Hamner v. St. Vincent Hosp. & Health Ctr., Inc. (7th Cir. 2000) and Bibby v. Philadelphia Coca Cola Bottling Co. (3rd Cir. 2001) (“It is clear…that Title VII does not prohibit discrimination based on sexual orientation.”) What is really interesting is that Title VII prohibits an employer from discriminating against an employee based upon their “sex,” but some courts have interpreted that to refer only to their biological gender, not someone’s sexual orientation or identity.

However, just because an LGBT employee is not be protected at the federal level does not mean they are out of luck. Most states have some sort of protection banning discrimination in the workplace based on an employee’s sexual orientation. For example, California explicitly bans employment discrimination based on “sexual orientation,” “gender identity,” and “gender expression.” See CA Government Code § 12940. Case law supports this as well.

State Law is Better for LGBT Employment Rights (Depending on Where You Live)

Complicating the matter, there are still a few states (eighteen in total) that have no state laws whatsoever prohibiting LGBT discrimination in the workplace. To make it even more confusing, some states prohibit discrimination in all workplaces (public and private) but some states, such as Alaska and Arizona, only prohibit public employers from discriminating based on sexual orientation.

The good news is that there is an increasing amount of states joining the movement of implementing laws that are very favorable to LGBT employees. From 2012 until present, three states have enacted laws prohibiting discrimination in the workplace based on sexual orientation. I’m an lawyer in California which has had laws protecting LGBT employees in the workplace since the early 1990s. So why is the federal government not on board with most of these states yet?

Answering that question is pretty difficult as there are so many factors to be considered as to why the federal government has not followed the majority of the states yet. But what can be said is this; in today’s legislative environment, the federal government usually does not implement controversial or hotly debated law until an overwhelming majority of the states have already done so. Rather than anger many states by forcing them to adopt a law they dislike, the federal government will sit on the sidelines until enough political pressure has built up that Congressional leaders and the Supreme Court align with the states. For example, the Supreme Court did not legalize same sex marriage until thirty-seven states had already done so and public opinion swung towards legalization. So if that is the case then when is the federal government going to implement favorable laws protecting LGBT employees in the workplace?

The Momentum is Growing for Federal Protection

As stated above, most states offer some level of protection to LGBT employees, but some states provide a higher level or protection than others. So arguably, there is not yet an overwhelming majority of states that offer LGBT employees total protection like that of the laws in California. But every year a state or two adopts favorable LGBT employment laws. Thus, assuming a state or two adopts favorable laws every year we may see some major changes to federal law within the next decade protecting LGBT employees.

Moreover, aside from statutory changes, the Equal Employment Opportunity Commission has taken a stance on the issue. In 2015, the EEOC released a statement that federal law prohibits an employer from discriminating against an employee based on his or her sexual orientation because it is a type of sex discrimination. Considering that the EEOC is the federal administrative body that handles employment claims, this is a huge step in the right direction. However, such statements made by the EEOC are not binding on the federal courts or the legislature, but they can influence a court or the legislature to take a certain stance.

At the end of the day, LGBT rights in the workplace have come a long way from what they used to be only a few decades ago. In the span of only a couple decades, most states have adopted some sort of law protecting LGBT employees, and almost half of the states have total protection for LGBT employees. Things are looking good for the LGBT community when it comes to protection in the workplace, but there is still some work to be done. In light of Obergefell v. Hodges and the most recent stance taken by the EEOC, I would not be surprised if in the next decade or so, whether it be by the legislature or a Supreme Court ruling, that the federal government amend Title VII to offer more protection to LGBT employees in the workplace.

Branigan Robertson is an employment attorney in Orange County, California. He is a member of the California Bar, California Employment Lawyers Association, and the National Employment Lawyers Association. He exclusively represents employees (the little guy/gal!) in lawsuits against employers and focuses his practice on discrimination and wrongful termination. Mr. Robertson attended Chapman University School of Law and was President of the Employment Law Society.

Court To Catholic School: No, You Can’t Fire People Because They Are Gay

Wednesday, December 23rd, 2015

Zack FordA Massachusetts court has ruled against a private Catholic school that denied employment to a man because he was married to a man. This warranted unlawful discrimination on the basic of sexual orientation, the court found.

Plaintiff Matthew Barrett had applied for a job at Fontbonne Academy, a Catholic prep school for girls in Milton, Massachusetts, as a Food Services Director. After several interviews, he was offered the job. On his new hire form, Barrett listed his husband as his emergency contact. Two days later, Fontbonne informed him that he could not have the job because his marriage was inconsistent with the teachings of the Catholic Church.

Fontbonne defended the decision, claiming its belief about the definition of marriage had nothing to do with sexual orientation. In fact, the school includes “sexual orientation” in its own nondiscrimination statement. But Associate Justice Douglas H. Wilkins found this distinction wholly unconvincing. “It is no answer to say that Fontbonne denied Barrett employment because he was in a same-sex marriage, not because of his sexual orientation,” he wrote. “The law recognizes no such distinction.”

Massachusetts’ nondiscrimination laws do include some exemptions for religious institutions, but Fontbonne did not qualify. The exception applies to organizations that limit membership to persons of the same religion or denomination, but as Wilkins pointed out, Fontbonne has no such limitations. “It does not require its employees to be Catholic. In particular, the Food Services Director does not have to be Catholic.” Moreover, “its student body has included non-Catholics, including Muslims, Jews, Baptists, Buddhists, Hindus, and Episcopalians.”

Fontbonne also claimed that hiring Barrett would have burdened its expression. This also failed to convince Wilkins, because Barrett “was not denied employment for any advocacy of same-sex marriage or gay rights; he only listed his husband as an emergency contact on his ‘new hire’ form. Nothing on that form suggested that Barrett claimed his marriage to have sacramental or other religious significance or that it was anything but a civil marriage relationship. Fontbonne presents no evidence of advocacy by Barrett.” Besides, there would be “little risk” that the school’s “involuntary compliance with civil law will be mistaken for endorsement of same-sex marriage.”

Leaving no stone unturned, Fontbonne similarly claimed that it deserved a “ministerial exception.” But Barrett would have no duties as an administrator or teacher of religious matters as Director of Food Services. Wilkins countered that “to apply the ‘ministerial’ exception here would allow all religious schools to exempt all of their employees from employment discrimination laws simply by calling their employees ministers.” It would defeat the point of having an exemption and case law that defines the limits of that exemption.

GLAD, the LGBT legal organization that represented Barrett, praised the ruling. “Religious-affiliated organizations do not get a free pass to discriminate against gay and lesbian people,” senior attorney Bennett Klein said in a statement. “When Fontbonne fired Matt from a job that has nothing to do with religion, and simply because he is married, they came down on the wrong side of the law.”

Barrett was “ecstatic,” saying simply, “What happened to me was wrong, and I truly hope it doesn’t happen to anyone else.”

Damages have not yet been determined in the case.

About the Author: The author’s name is Zach Ford. Zack Ford is the editor of ThinkProgress LGBT at the Center for American Progress Action Fund, hailing from the small town of Newport, PA. Prior to joining ThinkProgress, Zack blogged for two years at ZackFordBlogs.com with occasional cross-posts at Pam’s House Blend. He also co-hosts a popular LGBT-issues podcast called Queer and Queerer with activist and performance artist Peterson Toscano. A graduate of Ithaca College (B.M. Music Education) and Iowa State University (M.Ed. Higher Education), Zack is an accomplished pianist with a passion for social justice education. Follow him on Twitter at @ZackFord.

This blog was originally posted on ThinkProgress on December 17, 2015. Reprinted with permission.

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