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Virginia firefighter sues employer after allegedly losing his job to anti-gay discrimination

Thursday, November 29th, 2018

Scott Philips-Gartner of Norfolk, Virginia tendered his resignation from the Norfolk Fire Department one year ago, after a 27-year career. He said it was because he was allegedly about to be fired for being gay.

Now, he’s suing the city.

A U.S. Navy veteran with war-time service, Gartner started working for Norfolk back in 1991 as a telecommunications officer, and was promoted several times in the years that followed, first to firefighter cardiac technician, then to Assistant Fire Marshall for the city. He was also a senior member of the Norfolk Bomb Squad. But as his complaint details, his career took a sudden, inexplicable downturn after he married his longtime partner in October 2014.

Gartner said he began to hear anti-gay comments form his superiors. Battalion Chief Roger Burris allegedly mocked Gartner for his sexual orientation. “In December 2015, Chief Burris verbally attacked Gartner’s sexuality during an open staff meeting by asking ‘Where is Ms. Gartner?’ which prompted other coworkers to laugh,” the suit offers as an example.

Gartner filed complaints about these incidents. He had also written a letter defending one of the female employees, Karen Barnes, who’d also claimed she had experienced gender discrimination by Burris. According to the complaint, it was Chief Ronnie Mann, a good friend of Burris’, who was charged with investigating the complaints against him.

It is unclear that anything ever came of these complaints, so Gartner and Barnes took their concerns to the city auditor, noting they had experienced further retaliation for the original complaints they’d filed.

The harassment continued well into July 2016.

That month, the complaint alleges, “Chief Burris said that he was going to place Gartner ‘in the middle of a large crowd of demonstrators holding up a sign,’ implying that he wished he could set Gartner up to be attacked by protestors that opposed homosexual marriage.”

Then, in March of 2017, Gartner was suddenly demoted. He was stripped entirely of his police powers, his duties as an IT administrator, his use of Norfolk city vehicles, his firearm, his computer, and his cell phone. The complaint claims that he was reassigned to a temporary facility miles from his usual office “with little to no job duties.” Two weeks later, his request for routine bomb squad training was likewise denied and he was also ordered to retire his service dog.

By November, Gartner learned Fire Chief Jeffrey Wise was planning to terminate him. He instead put in for his retirement, ending his career with the department this past January. He is 55 years old. According to Gartner’s attorney, Barry Montgomery, the harassment and demotions “disrupted his whole life.”

Gartner filed his suit in federal court, reflecting the multiple grievances he had also filed with the Equal Employment Opportunity Commission.

Neither the city nor the fire department was willing to comment when asked by The Virginian-Pilot, calling it a personnel matter.

In December of 2016, the city of Norfolk began protecting municipal employees from anti-gay discrimination, and the city council also passed a citywide law protecting LGBTQ workers the following summer. Neither, however, seemed to do anything to ameliorate the retaliation Gartner experienced during that time.

Virginia remains one of 26 states with no explicit protections for LGBTQ workers.

This article was originally published at ThinkProgress on November 29, 2018. Reprinted with permission.

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news.

Supreme Court poised to drastically reverse LGBTQ equality

Tuesday, November 27th, 2018

There are now six different cases implicating LGBTQ rights sitting before the Supreme Court. While the conservative-majority Court has not yet agreed to hear any of them, a circuit split between two of the cases and the fact that President Trump’s transgender military ban is at the heart of another strongly suggest at least one of them will advance to oral arguments.

The cases span a variety of different issues, including employment, education, military service, and public discrimination. At the heart at most of them is a question about whether discrimination against LGBTQ people counts as discrimination on the basis of “sex.” If the Court rules against queer people in just one of them, it could set a precedent that hinders LGBTQ equality across all of the different issues.

Such a decision would be the largest blow to queer rights since the Court upheld sodomy laws 32 years ago.

Employment discrimination

Two of the cases before the Court address the question of whether it’s legal to fire someone for being gay. Two different federal appellate courts arrived at different conclusions, increasing the likelihood that the Supreme Court will hear the cases to resolve the dispute.

In Bostock v. Clayton County, Georgia, a gay man argued that he was fired because of his sexual orientation. The U.S. Court of Appeals for the Eleventh Circuit dismissed Gerald Lynn Bostock’s case over a 1979 precedent, even though several Supreme Court cases since then have undermined that ruling, including a case that recognized “sex stereotyping” as a form of sex discrimination as well as a case that recognized same-sex sexual harassment as sex discrimination. The Eleventh Circuit insisted that “sexual orientation” enjoys no recognition under Title VII’s employment protections on the basis of sex.

Meanwhile, this past February, the U.S. Court of Appeals for the Second Circuit arrived at the exact opposite conclusion in Zarda v. Altitude Express. In that case, the appellate court found that skydiving instructor Donald Zarda, now deceased, was illegally fired for being gay under Title VII. The Trump administration had argued otherwise.

With this split in how to interpret federal law, it seems highly likely that the Supreme Court will want to resolve the conflict. While there are several compelling arguments that discrimination on the basis of sexual orientation inherently requires making determinations on the basis of sex, it’s not clear that there are five justices who will agree.

While they’re at it, the Court may also consider R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, a similar case about whether Title VII’s “sex” protections include discrimination on the basis of gender identity. The U.S. Court of Appeals for the Sixth Circuit agreed this past March that a Michigan funeral home violated the law when it fired employee Aimee Stephens for being transgender.

The Trump administration recently filed a brief in this case arguing that the Supreme Court should overturn the Sixth Circuit’s decision and rule that it’s legal to fire someone for being trans. But the administration also argued that the Court should consider Zarda or Bostock first — in other words, that it should resolve the question of whether sexual orientation is protected before it takes up gender identity.

In any of these cases, a ruling narrowly defining “sex” could set back employment rights for the entire LGBTQ community.

Trans military ban

On Friday, the Trump administration asked the Supreme Court to take the reins on the four different court battles over President Trump’s ban on transgender people serving in the military. The administration has lost in all of these different cases, including before two appellate courts, but it is now asking the Court to combine them all into the case Trump v. Karnoski.

The request is an unusual step, one that attempts to skip over the standard appeals process. LGBTQ groups chided the administration for being so desperate to discriminate that they’re willing to flout judicial norms and procedures. Nevertheless, given the Court’s willingness to cater to executive power in the Muslim ban cases, it might similarly be charitable to Trump’s claim that banning transgender people somehow improves military readiness, even though there’s no evidence to support that claim.

Another bakery

Just months after the Supreme Court granted a one-off victory to an anti-gay baker from Colorado, another bakery from Oregon is again asking the Court to grant it special permission to refuse service to same-sex couples. The details of Klein v. Oregon Bureau of Labor and Industries are almost identical to the Masterpiece Cakeshop case.

As ThinkProgress previously explained, Aaron and Melissa Klein — owners of Sweet Cakes by Melissa — are asking for even more from the Court than Jack Phillips did last year. They argue that business owners have a right to discriminate based on their religious beliefs — against any group, not just on the basis of sexual orientation. A ruling along those lines would not only greatly undermine LGBTQ protections, but nondiscrimination protections for all vulnerable groups.

Transgender students

While the Alliance Defending Freedom (ADF) is not defending the Kleins as it did Phillips last year, the anti-LGBTQ hate group is still heavily involved in this year’s round of cases. In addition to defending the funeral home in the transgender employment case, ADF is also representing a group of families challenging a Pennsylvania school’s inclusive policies.

In Doe v. Boyertown Area School District, ADF contends that allowing transgender students to use restrooms and locker rooms consistent with their gender identity somehow violates the privacy of other students. As such, they’re asking for a mandate that schools segregate trans students to single-use restrooms. Like in the employment cases with Title VII, ADF is also asking the Court to rule that Title IX’s sex protections don’t extend to transgender students.

If the Supreme Court were to take all of these cases and the conservative majority were to prevail in them all, 2019 could look radically different for LGBTQ people. Nationwide, it’d become legal to fire them for who they are, to discriminate against them in schools, and to discriminate against them in public spaces — and several thousand transgender service members would lose their jobs.

For now, the Court is delaying making any decisions.

This article was originally published at ThinkProgress on November 27, 2018. Reprinted with permission.

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news.

Intertwined: The Labor Movement and LGBT Rights

Monday, June 25th, 2018

Through all the celebration of LGBTQ Pride this month, there’s been a valuable opportunity to reflect on the hard-fought victories, brutal setbacks, and tenacious struggles that have ultimately delivered so much for so many. And just as importantly, there has been time to think about what lies ahead in that fight for justice.

By the time I was elected president of the United Mine Workers of America in 1982, the fight for LGBTQ rights was already in full swing. Thirteen years after the Stonewall riots, activists were marching, shouting and organizing for the basic dignities they had been denied for so long. It was a groundbreaking movement for equal treatment in all the fundamental facets of life, from employment and housing to health care and personal safety.

These pioneers knew that change wasn’t simply going to be handed down from the halls of power or granted as an act of corporate benevolence. Change would only come when a diverse and united front stood together to demand it. In the face of unrepentant bigotry and blind loyalty to the status quo, grassroots organizing led the way forward.

It’s a basic principle that has always been at the heart of the labor movement. Progress, steadily gained, is fueled by the power of a mobilized community. Every victory in the fight against oppression has ultimately been achieved by that spirit of solidarity.

That’s certainly been true in the ongoing battle for justice on the job. From my first day in the coal mines of southwestern Pennsylvania, I knew that the only way to secure a brighter future was to lock arms and stand together. And that meant leaving no one behind.

That’s why we at the UMWA were so proud to help secure some of the earliest protections for same-sex couples in our members’ contracts, ensuring that all of our comrades had equal access to key benefits. We couldn’t afford to wait until it was popular.

And so unions offered a new refuge for gay workers. A place where full equality wasn’t just a mission, but an obligation.

Over the succeeding decades, LGBTQ Americans have won a flurry of progress. Public opinion shifted in favor of equality. Prominent figures, from sports to entertainment to politics, came out of the closet. Institutional disdain for the community gave way to unbending advocacy of justice. Trans rights were lifted up, the armed forces’ closet door was knocked down, and the constitutional right to marriage was unequivocally affirmed.

Perhaps no movement for social change has achieved so much so quickly. But even in a sea of rainbow flags—and even with marriage equality secured—there still remains too much of the discrimination endured by early protesters.

Today, you are free to marry who you love. But in most states, you can still be fired because of who you are. Unless, of course, you have the protection of a union contract.

The truth is that many of the fights left to be won are based on economic rights. They’re rooted in workers’ relationships with employers. The labor movement knows a thing or two about that.

The AFL-CIO’s constituency group Pride at Work continues to lead the way in advocating for the dignity of LGBTQ workers. The rights codified in so many union contracts over the years—from couples’ benefits to nondiscrimination to trans health care—have made headway that simply couldn’t have been gained otherwise.

For many LGBTQ Americans, a union card is their only form of employment protection. But more importantly, it signifies membership in a large and growing family ready to fight when it matters most.

That’s what the labor movement is all about. And it’s how the progress of tomorrow will be won.

So, here’s my ask for this Pride Month: Join a union. Check out Pride at Work and tackle the workplace challenges facing LGBTQ Americans the way this movement always has: Organize, organize, organize.

This blog was originally published at AFLCIO.org on June 26, 2018. Reprinted with permission. 

About the Author: Richard L. Trumka is president of the 12.5-million-member AFL-CIO. An outspoken advocate for social and economic justice, Trumka is the nation’s clearest voice on the critical need to ensure that all workers have a good job and the power to determine their wages and working conditions. He heads the labor movement’s efforts to create an economy based on broadly shared prosperity and to hold elected officials and employers accountable to working families.

The Supreme Court hits pause on gay and lesbian rights

Monday, December 11th, 2017

For the second time in a week, the Supreme Court signaled on Monday that it may no longer be a friendly place for victims of discrimination on the basis of sexual orientation.

The Court announced Monday that it will not hear Evans v. Georgia Regional Hospital, a surprising decision given that the question presented in Evans — whether existing law banning discrimination “because of … sex” encompasses discrimination based on sexual orientation — is a subject of disagreement among federal appeals courts.

According to the Court’s own rules, the justices are especially likely to hear cases where “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.” Maintaining the uniformity of federal law is one of the primary functions of the Supreme Court.

As a general rule, it is dangerous to overread the significance of the Court’s decision not to hear a particular case. Such denials of review are not decisions on the merits, and can sometimes reflect a quirky problem with an individual case — not that the justices are uninterested in resolving the issue presented by that case.

But the Court’s non-decision in Evans follows last week’s surprising oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, where Justice Anthony Kennedy — the author of the Supreme Court’s landmark marriage equality decision — appeared unwilling to let the law treat homophobia as an evil akin to racism, sexism, or other forms of invidious discrimination.

Taken together, the two events suggest that Kennedy, who believes that all people have a fundamental right to marry, is not particularly interested in abolishing discrimination on the basis of sexual orientation writ large. Without Kennedy, moreover, the project of equality for the LGBTQ community is dead in the water at the Supreme Court.

A year-and-a-half ago, Kennedy’s marriage equality opinion in Obergefell v. Hodges seemed to suggest that gay rights litigators still had many significant victories ahead of themObergefell described sexual orientation as an “immutable nature.” And it highlighted the long history of harsh discrimination against people with same-sex attractions both by the government and private actors.

This language in the Obergefell opinion seemed significant because past Supreme Court decisions established that when a group has historically faced discrimination that bears “no relation to ability to perform or contribute to society,” and especially when they face such discrimination because of an “immutable” trait that they cannot control, any law which discriminates against that group must be treated with a great deal of constitutional skepticism.

A major purpose of the Fourteenth Amendment is to eradicate institutionalized racism and government discrimination that is similar in character to racism, and Kennedy’s Obergefell opinion strongly signaled that discrimination on the basis of sexual orientation meets this test.

Perhaps emboldened by these signals in Obergefell, the United States Court of Appeals for the Seventh Circuit held last April that the existing ban on sex discrimination by employers prohibits discrimination on the basis of sexual orientation. In an 8-3 decision joined by several Republican-appointed judges, the Seventh Circuit explained in Hively v. Ivy Tech Community College that discrimination against a lesbian employee is itself a form of sex discrimination. Being a woman attracted to women “represents the ultimate case of failure to conform to the female stereotype.”

On the day Hively was handed down, there was good reason to believe that the Supreme Court would follow the Seventh Circuit’s lead. Kennedy’s opinion in Obergefell suggested that he believes that discrimination on the basis of sexual orientation is both morally and legally similar to sexism. And eliminating private discrimination against gay, lesbian, and bisexual employees was the next logical step for LGBTQ rights litigators after their victory for marriage equality.

Now, however, that project is stalled. The Supreme Court’s decision not to take the Evans case leaves Hively in place, but it also leaves in place decisions in several other federal judicial circuits holding that it is perfectly legal to fire someone because they are gay. Kennedy’s questions in the Masterpiece Cakeshop case, moreover, suggest that he may even be willing to roll back existing protections for such workers.

At last Tuesday’s oral argument, Kennedy was outraged by a Colorado state commissioner who said — accurately — that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history.” He also accused the state of not being “tolerant” or “respectful” of the religious beliefs of a baker who refused to serve a same-sex couple in violation of Colorado’s anti-discrimination law.

Kennedy, in other words, appeared to think that laws banning discrimination on the basis of sexual orientation must bend to the will of people who claim a religious justification for their prejudices — or, at least, that state officials who wish to enforce these laws must walk on eggshells to avoid offending people on the religious right.

Rather than extending civil rights protections to gay, lesbian, and bisexual workers throughout the country, Kennedy now appears more likely to roll back existing protections in states that already ban discrimination on the basis of sexual orientation. The momentum towards equality is currently paused, but it may soon move in reverse.

This article was originally published by Ian Millhiser on December 11, 2017. Reprinted with permission. 

About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

Can federal workers blatantly discriminate against LGBTQ people? Jeff Sessions isn’t sure.

Wednesday, October 18th, 2017

During Wednesday’s Justice Department Oversight Hearing, Sen. Dick Durbin (D-IL) asked Attorney General Jeff Sessions about the Department of Justice’s new “religious freedom” guidance. In particular, Durbin was concerned about how the guidance might enable anti-LGBTQ discrimination, asking Sessions to respond to several hypotheticals.

“Could a social security administration employee refuse to accept or process spousal or survivor benefits paperwork for a surviving same-sex spouse?” Durbin asked.

There was a long pause. “That’s something I never thought would arise, but I would have to give you a written answer to that, if you don’t mind.” Sessions responded.

Durbin countered, “I’d like to have that,” then launched right into another hypothetical. “Could a federal contractor refuse to provide services to LGBTQ people, including in emergencies, without risk of losing federal contracts?”

“Likewise, but I would say to you — are you citing Title VII for this? Or the guidance? I’m not sure that’s covered by it, but I’ll look.”

It is highly unbelievable that Sessions had never considered these examples prior to Wednesday. More than two years ago, when he was still in the Senate, Sessions was one of the original co-sponsors of the First Amendment Defense Act (FADA), a bill that would grant those who have religious objections to same-sex marriage a license to discriminate. Many of the provisions in the new guidance mirror FADA’s language.

 In response to that bill’s introduction, the ACLU and LGBTQ advocacy groups pushed back, saying that it would be used to prop up discrimination. The ACLU, in particular, outlined FADA’s “parade of horribles” in a 2015 blog post, including the following two:
  • [It would] permit government employees to discriminate against married same-sex couples and their families – federal employees could refuse to process tax returns, visa applications, or Social Security checks for all married same-sex couples.
  • [It would] allow federal contractors or grantees, including those that provide important social services like homeless shelters or drug treatment programs, to turn away LGBT people or anyone who has an intimate relationship outside of a marriage.

Those are nearly identical to the hypotheticals Durbin asked Sessions to respond to on Wednesday. Still, years after they’d been highlighted by advocacy groups, Sessions claimed they had somehow never occurred to him before.

After Sessions’ dodged Durbin’s hypotheticals, the senator asked the attorney general to comment about the fact that “people are discriminating in the name of their own personal religious liberty.”

Sessions responded:

Yes, I would say that wherever possible, a person should be allowed to freely exercise their religion and not to carry out activities that further something they think is contrary to their faith. But at the same time, if you participate in commercial exchanges, you have limits on what you can do under those laws — public accommodation type laws. And so the balance needs to be properly struck — and I think we have. Those issues were discussed as we wrestled with this policy.

It’s unclear with whom Sessions discussed those issues. The Department of Justice apparently held “listening sessions”, but has refused to name which groups it consulted. The reason the public even knows these consultations took place at all is because the Alliance Defending Freedom — an anti-LGBTQ hate group that defends business owners who discriminate and challenges nondiscrimination protections in the name of “religious freedom” — bragged that it had participated in them.

Given Sessions said in an interview last week that he believes such discrimination should be allowed in the case of the anti-gay baker whose case is headed to the Supreme Court, it’s not hard to imagine how he might respond to Durbin’s hypotheticals, if pressed.

This article was originally published at ThinkProgress on October 18, 2017. Reprinted with permission. 

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. In 2014, The Advocate named Zack one of its “40 under 40” in LGBT media, describing him as “one of the most influential journalists online.” He has a passion for education, having received a Bachelor’s in Music Education at Ithaca College and a Master’s in Higher Education at Iowa State University, and he relishes opportunities to return to classroom settings to discuss social justice issues with students. He can be reached at zford@thinkprogress.org.

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
.

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.

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