Labor Days News and analysis from Kelley Drye’s labor and employment practice Wed, 03 Jul 2024 06:27:13 -0400 60 hourly 1 Gay Bias Is Still In The News Mon, 12 Jun 2017 17:15:07 -0400 The Second Circuit has announced that it is scheduling en banc review and has asked the EEOC to weigh in on the controversial question of whether Title VII covers discrimination on sexual orientation. The court has invited the EEOC to brief and participate in oral argument in the case of Zarda v. Altitude Express, Inc. (15-3775), where a gay skydiving instructor has accused his employer of unlawful discrimination.

The Seventh Circuit has already held that Title VII does prohibit sexual orientation discrimination. There is also a pending en banc appeal of this issue in the Eleventh Circuit.

We will be monitoring this and other Second Circuit cases closely and will let you know as things develop.

A Conflicted 7th Circuit Holds Title VII Does Not Cover Sexual Orientation Discrimination Fri, 05 Aug 2016 12:10:25 -0400 In a precedent-setting decision, the U.S. Court of Appeals for the Seventh Circuit ruled on July 28th that Title VII does not protect against sexual orientation discrimination. The case is Kimberly Hively v. Ivy Tech Community College, No. 15‐1720 (7th Cir. July 28, 2016).

The 7th Circuit upheld a district court’s decision to dismiss a lawsuit brought by Kimberly Hively, a lesbian professor, who had sued Ivy Tech Community College, in August 2014. Hively claimed that she was repeatedly passed over for promotions and a full-time position because of her sexual orientation.

The 42-page unanimous decision is interesting, as while the Court upheld the dismissal of the case, it clearly felt conflicted over what it described as “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” (Order at 33.) Indeed, since Obergefell v. Hodges, 135 S. Ct. 2584 (2015), federal law now guarantees anyone the right to marry another person of the same gender. However, Title VII also permits an employer to fire an employee for exercising this right.

As we have covered in this blog, the EEOC has been clear that it views sexual orientation discrimination as discrimination on the basis of “sex,” within the meaning of Title VII. This was most recently confirmed in the EEOC decision, Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641, at *5, *10 (July 16, 2015).

This 7th Circuit ruling is the first federal appeals court decision to come in the wake of these decisions and to specifically consider whether Title VII’s protections extend to sexual orientation bias. There are currently two other federal appeals courts which have pending cases considering this same question.

The Hively Court engaged in a lengthy discussion of how the distinction between discrimination on the basis of gender nonconformity, which is prohibited under Title VII, and sexual orientation discrimination, which is not prohibited under Title VII, was a thorny distinction to make “because, in fact, it is exceptionally difficult to distinguish between these two types of claims.” (Order at 15.) However, despite this acknowledgment, the Court still concluded that “[b]ecause we recognize that Title VII in its current iteration does not recognize any claims for sexual orientation discrimination, this court must continue to extricate the gender non-conformity claims from the sexual orientation claims.” (Order at 23.)

Judge Rovner stated that “[p]erhaps the writing is on the wall,” meaning that it is time for either Congress or the Supreme Court to step in and provide guidance. However, the Court held that “writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, [this Court] must adhere to the writing of our prior precedent.” (Order at 42.)

The new legislation the Court is referring to is the passing of the Equality Act, which is legislation that would amend the Civil Rights Act to include sexual orientation and gender identity as prohibited categories of discrimination.

Even if the Equality Act is not passed, it is now likely that the Supreme Court will weigh in. The Supreme Court has already taken up the case of Gloucester Cty. Sch. Bd. v. G.G. ex rel. Grimm, No. 16A52, 2016 WL 4131636, at *1 (S. Ct. Aug. 3, 2016), where the Court will address the subject of the accommodation of transgender students. Thus, the High Court is clearly poised to address these issues. As Judge Rovner put it: “the district courts – the laboratories on which the Supreme Court relies to work through cutting-edge legal problems – are beginning to ask whether the sexual orientation-denying emperor of Title VII has no clothes.” (Order at 31.)

So what do employers need to take away from the 7th Circuit ruling?

While the law under Title VII may be unsettled, the EEOC plainly takes the position that sexual orientation discrimination is covered under Title VII. Thus, when making policy, question whether you want to “make law” by getting in the crosshairs of the EEOC.

In addition, almost half of the states have laws prohibiting sexual orientation discrimination in employment (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington and Wisconsin). So, you need to be aware of the law in every state where you do business.

While Hively may be considered a “win” for employers, the prevalent view is that sexual orientation discrimination is unlawful and the legal landscape is rapidly changing and a Supreme Court decision may soon be on the horizon.

EEOC LGBT Cases in the News Thu, 07 Jul 2016 12:32:14 -0400 Settlement of Sexual Orientation Case - The EEOC and a Maryland employer have settled a landmark sexual orientation discrimination case. EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc. was filed in March 2016, and was among one of the earliest EEOC lawsuits against a private employer, alleging discrimination on the basis of sexual orientation. At the same time that the EEOC filed this case, the agency also filed suit for discrimination based on sexual orientation in Pennsylvania federal court against Scott Medical Health Center of Pittsburgh, which we reported on at the time. The Pennsylvania case is still pending.

The lawsuit alleged that employee, Yolanda Boone, was repeatedly harassed by her supervisor because of her sexual orientation. Her supervisor allegedly made comments to her about her sexual orientation and her appearance, such as: “I want to turn you back into a woman” and “you would look good in a dress.” It is also alleged that the supervisor “blew a kiss at her and circled his tongue at her in a suggestive manner.” After Boone reported the incidents to management and called an employee hotline, she was fired, supposedly in retaliation.

Under the terms of the Maryland settlement, Pallet Companies will pay $202,000 to settle the case: $182,200 will be paid to Boone, and $20,000 will be donated to the Human Rights Campaign Foundation’s workplace equality program. The settlement also provides that the employer will strengthen its discrimination policies by developing an employee training program that has a section on LGBT workplace issues, and it will post workplace notices informing employees that the company “will conduct its hiring and employment practices without regard” to an individual’s sexual orientation. In addition, all employees will receive wallet cards containing the toll-free number and web address of the company’s hotline for bias complaints.

New Transgender Discrimination Case - Yesterday the EEOC filed yet another case against Bojangles Restaurant, in North Carolina, alleging discrimination against a transgender female employee. According to that complaint, the employee was harassed and then fired after complaining of the harassment. The allegations include claims that she visited the store when she was off duty, wearing female clothing, and was told never to enter the store dressed as a woman. A store assistant manager also allegedly made comments to plaintiff like, "Boy, you need to pray.” She was then threatened with a transfer because she put a braid in her hair. The EEOC complaint alleges that she was then fired after making a hotline complaint. Bojangles disputes these allegations, and claims that the plaintiff was fired for misconduct, which included insubordination.

The Maryland settlement, the pending Pennsylvania case, and this new lawsuit are a continuing signal of the EEOC’s expansive view of Title VII and its aggressive enforcement of rights for gay and transgender employees. Title VII prohibits employers from discriminating against employees on the basis of sex, but does not explicitly cover sexual orientation or transgender status. This has not stopped the EEOC, which has taken the view that discrimination or harassment based on sexual orientation or transgender status are sex discrimination, as a form of gender stereotyping and has made this one of its enforcement priorities. Currently, there are 22 states that have statewide laws prohibiting discrimination in employment based on an individual’s sexual orientation. However, the EEOC’s position creates a national standard.

Thus, all employers – no matter what your state law – should be aware of this trend and should be actively educating managers, and updating policies, so you are not the next case to make news in this area.

Transgender Rights In the News Tue, 17 May 2016 15:43:37 -0400 Almost every day the news has some new legal development involving the rights of LGBT employees.

We already reported on the litigation heating up between North Carolina and the DOJ concerning that state’s now infamous ‘bathroom law’, which the DOJ contends violates Title VII of the Civil Rights Act. The rulings which come out of that case should be watched closely, as they will set the stage for other litigation concerning transgender rights. Given the trend in the caselaw in recent years, I am putting my money on the DOJ, as the courts have been giving Title VII an expansive definition and have already held that the law extends beyond traditional definitions of “sex” and gender.

At the end of last week, the Obama administration published its recommendations that schools give transgender students access to the restroom of the gender they ‘identify’ with, which may not be the same as their biological gender. Not surprisingly, this is generating a great deal of comment and controversy. The Governor of Texas has announced that his state will not follow this guidance, and other parties are weighing in with objections and comments.

A recent settlement between the EEOC and a private staffing company, while not getting as much national press as the North Carolina case, also caught my eye and is a case employers – particularly staffing firms – should consider. It is yet another six figure settlement in a case brought by the EEOC on behalf of a transgender plaintiff. In what seems to have become a familiar fact pattern, the plaintiff alleged that, shortly after telling her colleagues she was transitioning, she was terminated from her position.

The EEOC reports that it concluded, after an investigation, that the employer was wrong and had discriminated against the plaintiff. However, a third point that is easily overlooked is the ‘joint employer’ issue here. Plaintiff was a temp working at the company through a staffing firm. She was assigned to work at a college, performing IT services. She was fired when the staffing company was told by the college that it did not want her on campus any longer. Even though the staffing company did not make the decision, as the “employer” it was held legally accountable for it. This is something that staffing companies, and the employers who engage them, should keep in mind going forward.

- Note that Kelley Drye partners Barbara Hoey and Mark Konkel are speaking tomorrow about this emerging issue of LGBT Rights in the Workplace, at a full day legal conference, sponsored by the Association of Corporate Counsel in New York. For more information about the ACC conference, please click here.

Webinar: What is on the EEOC's Agenda? LGBT Rights in the Workplace Fri, 13 May 2016 11:29:40 -0400 Please join Kelley Drye's Labor and Employment practice group for a special webinar presentation on May 25th that will explore the shifting, often controversial, and important landscape for employers regarding LGBT rights in the workplace.

With the right to same-sex marriage established, the workplace has become the next civil rights frontier. The tide has clearly turned: While Title VII does not expressly prohibit discrimination against LGBT individuals, the U.S. Equal Employment Opportunity Commission has now pronounced that federal law offers protection. The DOJ and the OFCCP are also backing this approach, while Congress considers federal legislation protecting LGBT individuals.

To RSVP, please click here.

EEOC Acts Again on LGBT Rights Mon, 09 May 2016 10:16:59 -0400 The EEOC has again taken the reins on LGBT rights by issuing some “Bathroom” guidance, giving employers a further strong indication of where the agency is leaning when it comes to enforcement of LGBT rights in the workplace.

In the guidance, the EEOC makes clear again its position that Title VII prohibits discrimination against employees who are transgender – a term the guidance explains covers any person whose “gender identity or expression is different from the sex assigned to them at birth.”

The EEOC highlights the Macy v. Dept of Justice case, (April 2012) when the EEOC first ruled that denying an employee “equal access to a common restroom – corresponding to that employee’s gender identity – is a form of sex discrimination.”

  • The employer cannot condition use of that bathroom on proof that the employee had surgery or a medical procedure.
  • The employer cannot get around this requirement by offering the employee access to a single sex or private bathroom.
  • Also, the guidance expressly states that differences between state and federal law cannot be used as a basis to discriminate against LGBT workers.
In answering the question as to how an employer can “accommodate” the beliefs of other employees, who may not be comfortable with this, the agency is very clear:

“Supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Title VII prohibits discrimination based on sex, whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort”.

What is your takeaway? This is clearly a priority for the EEOC, and you do not want to get in the agency’s crosshairs on this important issue.

  • You must educate your managers. Make them aware that the company will not condone poor treatment of gay or lesbian employees, and that they must be sensitive to the needs of transgender employees.
  • If an employee identifies as transgender, make sure that a manager brings this to the attention of senior management and Human Resources, so that the company can consider carefully how it is going to respond. Enlist outside legal assistance, as needed. More importantly, open a line of communication with the employee. No one can offer pat answers as to how to handle this sensitive issue, but having an open dialogue with the employee (and his/her manager) will lead to a better outcome.
  • If an employee is transitioning, again communication with that employee and his/her peers is key. How does the employee want to announce the transition? How does the employee want to be addressed? Will there be a name change? How should other workers be informed?
  • The EEOC is now crystal clear on this bathroom issue: the transgender employee must be given access to the restroom of their chosen gender. It does not matter if there has been surgery. Again, communication with the employee and candid discussions with other staff will be crucial in getting through this potentially difficult issue.
Most employees today, given our times, are much more open and accepting of colleagues with different lifestyles. Thus, with some frank discussion and open lines of communication, most will be accepting of LGBT colleagues. The EEOC and many courts have made clear that employees who are not accepting, under federal law, are engaging in discrimination. As an employer, a company cannot ‘tolerate’ discrimination against the LGBT community, any more than it would ‘tolerate’ discrimination based on gender or race or any other protected group.

Disability Laws and LGBT Rights in the Workplace Thu, 31 Mar 2016 15:09:15 -0400 fdsa

Kelley Drye's Communications and Labor and Employment practice groups are hosting a webinar on labor issues affecting communications and technology companies on April 19, 2016 from 12:00 - 1:00 pm EST.

Among the top priorities of Equal Employment Opportunity Commission’s 2016 “Strategic Plan” is enforcement of the alphabet soup of disability laws (the Americans with Disabilities Act, the Family and Medical Leave Act, and the Genetic Information Nondiscrimination Act, or ADA, FMLA, and GINA) – as well as championing the rights of lesbian, gay, bisexual and transgender (LGBT) employees in the workplace. We saw this in action in February, when the EEOC filed its first lawsuit claiming sexual orientation discrimination, with more to come. Combined with a steady uptick in disability-related claims, we can expect LGBT issues to be at the forefront of lawsuits, enforcement actions, and employers’ liability.

This webinar will explore these intersections. For example:

  • Is sexual orientation protected under federal law or not? And what does that mean for employers?
  • What would your company do if a transgender employee asked for accommodations relating to his/her physical condition or “transition”?
  • How do you deal with the “bathroom” issue?
  • How do you deal with a workforce that may be less comfortable with the “new normal” in LGBT issues than the EEOC is?
  • When an employee due back from a leave says “I need another two weeks” or “I can come back, but can’t travel anymore,” do your managers know how to handle these situations?
When employees are injured, disabled or become ill on the job, they may be entitled to medical and/or disability-related leave under federal and state disability laws. It is imperative that employers understand their responsibilities related to medical and disability-related leave, including information about where the laws intersect and overlap. Some of these same laws may also apply to the transgender employees.

This webinar presentation will discuss these laws and strategies employers can use to handle disability-related absences, payments to employees who are not working and replacement costs, and address the difficult questions related to workplace rights being asserted by LGBT employees and “reasonable accommodations”.

To RSVP, please click here.

Company to Pay $115,000 to Settle Sex Discrimination Suit on Behalf of Transgender Employee Mon, 01 Feb 2016 11:08:47 -0500 As predicted, the news in the Labor/Employment world continues to center on developments in the area of legal rights for transgender employees. On January 21, the EEOC announced a $115,000 settlement of a complaint against a company which had been accused of discriminating against a transgender female employee. According to the EEOC press release, the employer – Deluxe Financial – was accused of failing to allow an employee who was hired as a male, but later informed her manager that she was transgender and began to "present as a woman" to use the female restroom. Plaintiff also alleged that managers and co-workers teased her and subjected her to a hostile environment.

In addition to the payment of monetary damages to the plaintiff, the employer was required to issue her a letter of apology and is now under a 3 year consent decree with the EEOC. The consent decree requires the employer to revise its EEO policies to cover transgender status, and to give employees additional training on sex -stereotyping and gender identity discrimination.

The EEOC's press release makes the Agency's position clear: "This settlement underscores EEOC's commitment to securing the rights of transgender individuals under Title VII in the federal courts." The EEOC goes on to note that this is the agency's second settlement of such a lawsuit, with a Florida eye clinic paying $150,000 to settle a similar claim by an employee who was transitioning from male to female

What does this mean for all employers? Clearly, EEOC settlements and consent decrees are no fun and are best avoided. So, what should you do? It is simple – BE SMART! Discrimination against LGBT and transgender employees may or may not be explicitly a violation of the law in your city or state, but the federal government clearly considers such discrimination to be a violation of Title VII. Apart from amending your policies, the most important thing that you can and must do as an employer is EDUCATE your management, so they understand that an employee who 'present' as one gender when hired, can lawfully present as another gender at some point later in the employment relationship. Such an employee must be accommodated, and cannot be the subject of jokes, teasing or harassment. From my experience counselling numerous clients through these situations, I know this is often easier said than done, as management may also encounter other employees who do not understand, are wary of this situation, or simply do not want to accept it. You need to be respectful of all of your staff, but you simply cannot tolerate discrimination against transgendered employees, just as you would not tolerate race discrimination.

These situations need to be monitored and handled carefully, so that you do not find yourself in the crosshairs of the EEOC or a plaintiff's attorney.

We are clearly in uncharted waters in this era of transgender rights, but it is the law, so all employers must take the right steps to be in compliance.

The EEOC continues to recognize sexual orientation discrimination as sex discrimination under Title VII Thu, 14 Jan 2016 12:24:17 -0500 On January 6, 2016, the EEOC field an amicus brief in Barbara Burrows v. The College of Central Florida arguing, for the first time, that Title VII of the Civil Rights Act of 1964 protects workers against sexual orientation discrimination. The brief begins by acknowledging that the EEOC’s position has evolved over time citing its historic ruling in July that workplace sexual orientation discrimination is illegal under federal law. The EEOC’s argument can be summarized as follows.

First, the EEOC argues that Title VII prohibits employers from discriminating against individuals in employment matters because of an individual’s sex. Although Congress may not have considered sex discrimination to include sexual orientation, statutory analysis does not end with the consideration of Congress’s initial intentions. Ultimately, it’s the law that governs not the legislator’s intent when passing the law.

Second, sexual orientation discrimination necessarily involves sex stereotyping, as it results in the adverse treatment of individuals because their orientation does not conform to heterosexually defined gender norms, the stereotype of opposite sex attraction. Intentional discrimination on the basis of the gender of an individual’s preferred partner-whether that individual is lesbian, gay, bisexual, or straight-necessarily implicates stereotypes relating to “proper” sex-specific roles in romantic and/or sexual relationships. Even if the employee exhibits no other gender nonconformity, when his or her sexual orientation gives risk to discrimination, the discrimination violates Title VII. Because such discrimination is at heart based on gender stereotypes, it violates Title VII’s prohibition against discrimination against employees because of sex.

The EEOC then advances the argument that sexual orientation discrimination violates Title VII’s prohibition against sex discrimination because it treats individuals differently based on the sex of those with whom they associated. It is a well settled principle of law that where a plaintiff claims discrimination based upon an interracial marriage or association, he alleges he has been discriminated against because of his race. Thus, if a plaintiff is in a relationship with someone of the same sex, and an adverse employment consequence results from that relationship, discrimination has occurred because of the plaintiff’s sex.

Finally, the EEOC argues that sexual orientation discrimination is inherently sex based discrimination because sexual orientation cannot be understood without referring to an individual’s sex.


  • The EEOC acknowledges that “its understanding of Title VII’s application to claims of sexual orientation discrimination –like society’s understanding of homosexuality more generally – has evolved over time.” As demonstrated by the cases cited by the EEOC, its position has been recognized by numerous courts in finding that Title VII’s protections cover sexual orientation discrimination.
  • Nineteen states, the District of Columbia, and Puerto Rick have statutes that protect against both sexual orientation and gender identity. Several state statutes already explicitly include the protection. This trend continues to advance. Employers should consider adopting their own policies prohibiting discrimination based upon sexual orientation.
  • Train employees that company policies prohibit all forms of discrimination, including those based on sexual orientation or gender identity.
  • If you need assistance drafting company policies or training employees, contact an employment attorney.

IN FASHION: Kelley Drye Fashion and Retail Law Summit 2016 Mon, 21 Dec 2015 11:03:35 -0500 Gay, lesbian, bisexual and transgender (LGBT) issues are at the forefront of new issues and challenges in the workplace and in employment law. How should employers adapt? Partners Barbara Hoey and Mark Konkel will explore the world of new issues, stumbling blocks for employers, and best practices to accommodate the ever more fluid boundaries of gender in the workplace at a complimentary full-day seminar presented by Kelley Drye & Warren LLP on Thursday, January 21 in New York.

For more information and to RSVP, please click here.

Join Kelley Drye on November 5 for a CLE Seminar on LGBT Rights in the Workplace Wed, 28 Oct 2015 15:32:19 -0400 As reported in an editorial by The New York Times over the weekend, New York now is a leader in the area of gender rights. The state already explicitly prohibited discrimination against employees based on sexual orientation, and now Governor Cuomo has proposed regulations which will amend the State Human Rights Law to include a prohibition against discrimination against the transgender.

Transgender is defined in the regulations as a person who is "perceived as having a gender identity, self-image, appearance, behavior or expression....that is different from that traditionally associated with the sex assigned to the person at birth." It also include those suffering from the condition known as "gender dysphoria," which is now defined as a "disability" under the law.

Individuals who believe that they have been discriminated against or denied reasonable accommodations will have all of the same remedies under the law as those subject to other forms of employment discrimination. Namely, they can file a charge with the state Division of Human Rights, sue in court, or file a charge with the Attorney General.

Kelley Drye will discuss these new regulations as well as other developments in this rapidly-evolving area of employment law at a complimentary CLE seminar, which we are offering on November 5, 2015, in our New York office. For details and to register please visit our website.

Kelley Drye to Host Complimentary CLE Seminar on LGBT Rights in the Workplace Tue, 29 Sep 2015 10:12:27 -0400 On November 5, 2015, Kelley Drye will host an afternoon seminar at its New York office, addressing discrimination against LGBT individuals in the workplace. The seminar will be presented by Kelley Drye partners Barbara Hoey and Mark Konkel, joined by partner Anne Clark of Vladeck, Raskin & Clark, P.C, who will provide perspective from the plaintiff’s point of view. Click here to register.

With the right to same-sex marriage established, the workplace is likely the next civil rights frontier. While Title VII does not expressly prohibit discrimination against LGBT individuals, the EEOC has won favorable Title VII decisions based on “sexual stereotyping” allegations. The DOJ and the OFCCP are also backing such theories, while Congress considers federal legislation protecting the LGBT population.

The seminar will focus on key issues employers face when balancing obligations to their business and employees such as:

  • Receive an update on both state and federal litigation relating to LGBT workplace discrimination.
  • Review the states and localities which have passed legislation, and the status of pending legislation.
  • Get tips on how to revise employer discrimination and harassment policies to reflect the evolving landscape, such as the latest guidance on the “exterior issue.”
  • Review the EEOC latest activity and guidance.
  • Learn how sexual stereotyping has been used as a theory in cases involving both transgender and gay employees.
  • Find out how the right to same-sex marriage will impact the employee benefits arena.
  • Discuss real-life cases, and how HR can devise practical solutions to resolve conflicts between and among employees with divergent or more “conservative” viewpoints.
Click here for more information. Click here to register for this complimentary CLE program.

Recent Ruling in LGBT Case Another Reminder That Religion Cannot Justify Discrimination Wed, 12 Aug 2015 17:34:51 -0400 We predicted in blog posts on July 24th and July 7th that we would be seeing more in the way of LGBT litigation. I also recommended that managers be given extra training or reminders that in states where LGBT discrimination is unlawful it will not be tolerated. Further, managers cannot allow their personal or religious beliefs about anything to invade the workplace, or to affect how they treat LGBT employees.

Both predictions now ring true.

In a decision issued last week, Judge Weinstein of the US District Court for the Eastern District of New York affirmed a jury verdict against UPS, based on claims of harassment and discrimination of a lesbian employee by a male manager. Roberts v. United Parcel Service, 13 – cv-6161.

The judge started the decision by stating “[a]s the nation’s understanding and acceptance of sexual orientation evolve, so does the law’s definition of appropriate behavior in the workplace ... The jury found improper under the law repeated ‘advice’ from plaintiff’s supervisor that her sexual orientation as a lesbian was evil and needed to be changed in accordance with religious dictates. Appeals to the bible, or theology generally, cannot justify management’s condoning the harassing of a lesbian in the workplace. Defendant’s central administration failed to protect plaintiff from such abuse.”

According to the decision, the plaintiff, Tameeka Roberts, a lesbian who was married and had 3 children, was assigned to work under “Bob W,” a manager. Over the course of several years, Bob repeatedly told Ms. Roberts that she was “evil” and the bible prohibited her lifestyle. He also made comments to the effect that her behavior was “not natural” and she was “going to hell.” She complained to her union, to HR and other UPS managers. After several complaints, senior management and HR did investigate, but concluded that Bob’s behavior was not a violation of the UPS harassment policy. At trial, several UPS executives testified that they did reach that conclusion. Thus, Bob was never formally disciplined. Ms. Roberts claimed that Bob then retaliated by changing her time card and hitting her with packages. She eventually quit the job and claimed constructive discharge.

The District Court, in affirming the jury’s verdict, went to great lengths to set forth the history of LGBT legal protections, and explore the debate in the law as to whether Title VII prohibited discrimination based on sexual orientation. The Judge noted that the EEOC had just recently concluded that this was a prohibited form of discrimination under federal law, and that a number of states had enacted laws which prohibited such discrimination.

He then went on to note that New York State and City law specifically prohibit this discrimination and that Ms. Roberts’ allegations of “discriminatory comments about plaintiff’s sexual orientation made over a number of years, show adverse differential treatment. So too do the significant failures of supervisors to protect plaintiff against discrimination.” Based on the record, he affirmed the verdict of compensatory and punitive damages for the plaintiff.

What lessons can employers take from this case?

  • You cannot turn a blind eye (or ear) to claims that a supervisor is making negative comments about gay, lesbian or transgender employees. This is especially true if you are in a state like New York, where such conduct is explicitly prohibited.
  • You must make sure that all of your Human Resource staff understand the importance of your harassment and discrimination policies, and that they should be a resource that employees can turn to for help if they do perceive that behavior occurring in the workplace. We often find that if a company can address a complaint internally, it is far better than fighting it out with a former employee in court.
  • As society changes the workplace must evolve also. Don’t let your workplace be caught behind the times. The time you spend now educating your employees and ensuring that LGBT harassment does not occur will pay for itself if you avoid even one lawsuit.

New Developments in Protections for LGBT Workers Fri, 24 Jul 2015 11:13:02 -0400 It’s been a busy few weeks for developments in the area of LGBT rights since the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 1039 (2015).
  • The “Equality Act” - Yesterday, the House and Senate introduced federal legislation to extend job protections to gay, lesbian and transgender workers. As of now, only 19 states have laws prohibiting such discrimination, so this would be a significant change in the law in those states which are not among that group. Interestingly, the new bill specifies that the Religious Freedom Restoration Act cannot be used to “permit” discrimination against LGBT workers. This likely is the result of recent attempts by certain businesses to use religious freedom as an excuse to deny service to gay and lesbian customers. Many large companies as well as legislators from both parties have endorsed this legislation, so the political wind certainly seems to favor its passage.
  • On Friday July 17, the EEOC issued a decision confirming its position that discrimination based on sexual orientation is prohibited under Title VII. In this most recent case, an air traffic controller complained that he was not promoted to a managerial position due to his sexual orientation. The agency had previously dismissed his complaint as time–barred, but reversed that decision in this most recent ruling. In so doing, it confirmed its view that sexual orientation discrimination is “associational discrimination on the basis of sex.” The ACLU, in the wake of this ruling, issued a statement praising the decision, but further stated that this underscores the need for comprehensive federal legislation protecting gay and transgender employees from job discrimination.

It is not clear whether the courts will agree with the EEOC, but this is certainly a signal of a growing trend in favor of broader employment rights for LGBT workers. In fact, given the current political climate, the passage of federal legislation seems likely, as even the more conservative members of the federal legislature seem to sense that the tide has turned overwhelmingly in favor the expanding the protections afforded to the LGBT population.

  • Also last week, a federal judge in Oklahoma found that a transgender professor at Oklahoma State University could pursue a Title VII claim against the university based upon the theory that she was discriminated against based on her “presented gender.” The Department of Justice (DOJ) sued the university in March, claiming that the professor was denied tenure because she did not conform to gender stereotypes and then was the victim of retaliation after she complained. The professor, Dr. Rachel Tudor, then filed an intervener complaint to join the DOJ lawsuit. The District Court most recently denied a motion to dismiss Tudor’s complaint, finding that she had sufficiently pled a claim under Title VII and that the actions Defendants took against her were “based upon their dislike of her presented gender.” Dr. Tudor identified as a man when she was hired in 2004, but began presenting as a woman in 2007. She was denied tenure in 2009. Among her allegations she claimed that she was “forced” to use the single–sex disabled restroom, and warned not to wear short skirts. She also alleged that one VP told her that being transgender was a “grave offense to his religious sensibilities.” The court found that the allegations that Tudor was harassed “because she was a female, yet Defendants regarded her as male,” were also sufficient to support a discrimination and harassment claim under Title VII.
  • And finally, last week a class action was filed against Wal-Mart by a proposed class of LGBT employees – alleging that the company had discriminated against them in its benefits packages. The class is represented by the Gay & Lesbian Advocates & Defenders and the Washington Lawyers Committee For Civil Rights. The plaintiff, a Wal-Mart employee, claims that her same sex spouse was diagnosed with cancer in 2012. Since she was not covered by Wal-Mart’s benefit plan, the couple incurred over $150,000 in uncovered medical expenses. At the time, they were legally married in Massachusetts. Interestingly, Wal-Mart changed its policy to cover same sex spouses in 2014. The plaintiff’s theory is that Wal-Mart violated title VII by failing to cover same-sex spouses prior to that date, using the rationale adopted by the Supreme Court in the King case – that same sex marriage is a right.
The proposed legislation and these new cases are a further illustration of what we see as a new era of expanding activism and broader LGBT rights in the workplace. This underscores the importance of training and educating your workforce, especially your front line managers and executive staff. All of your employees, but especially those who have the responsibility to oversee and discipline others, must be made to understand that, even if they harbor biases or are “against” the LGBT lifestyle, they cannot allow such biases to invade the workplace. In short, LGBT workers – like the rest of your employees - should be judged based on their performance, and not on their lifestyle.

The Supreme Court’s Same-Sex Marriage Ruling & Its Employment Implications Tue, 07 Jul 2015 09:39:35 -0400 Unless you’ve been living under a rock, you probably are well aware that on June 26, 2015, the U.S. Supreme Court ruled that same sex couples have a constitutional right to marry and have their marriages recognized across the country. Obergefell v. Hodges, 135 S. Ct. 1039 (2015). This was a landmark ruling for the gay rights movement, but …… What does Obergefell mean for employers?

The good news is that for most companies the decision should not require any significant changes in policies, as a number of states already allowed same-sex marriages or recognized domestic partnerships. However, even if you do not need to modify any policies, same sex marriage is an emotional issue for many people. With all of the publicity surrounding this decision, this is a good time to be aware of possible hostility or tensions toward LGBT employees or any simmering issues in your workplace.

Discrimination Issues

LGBT Discrimination – Obergefell was an important decision because there is no federal law which expressly prohibits discrimination on the basis of sexual orientation or gender identity. However, almost one half of the states and numerous municipalities, including large states like New York and California, already allow same sex marriage and prohibit discrimination based on sexual orientation. If you do business in those areas, your policies should already prohibit such discrimination. Again, this is an opportune moment to remind your managers and employees that your company will not tolerate discrimination or harassment of any employee based on sexual orientation, or gender identity.

Marital Status Discrimination - Even if you are not in a state which currently has such a law, a number of states, including New York, New Jersey, Connecticut, and California, as well as states like Michigan, Nebraska, and North Dakota ( where same-sex marriage was banned until last week’s ruling), prohibit discrimination on the basis of marital status. Such protections are now unequivocally also extended to same-sex marriages and spouses. This is also something to be aware of as an employer, in that you may have employees who are opposed for moral or religious reasons to same sex marriage. While they have a right to their beliefs, they should not be permitted to allow those attitudes to invade the workplace. Thus, if an LGBT employee chooses to get married, the marriage should not affect their job. Moreover, whatever privileges and benefits the company extends to heterosexual couples must now be extended to same sex couples.

Lastly, even if Obergefell does not change the law in your state or city, we often observe an “uptick” in claims where there is a new decision or verdict in a specific area, as the issue suddenly becomes “top of mind” with your employees. Thus, this may be a good time to remind your management that such discrimination is both against the law and against your policies, and to be aware of events occurring in your workplace.

Leave and Benefit Policies

The impact of this decision on employee benefit plans and policies may not be significant, as this was already clarified by the IRS and the DOL in the aftermath of United States v. Windsor, the 2013 Supreme Court decision striking down the Defense of Marriage Act. The IRS and DOL took the position that such a union should be considered valid. Now, Obergefell has eliminated this issue by virtue of the opinion’s declaration that same-sex marriage is a constitutional right. Nonetheless, this is a good time to audit your policies.

FMLA Leave. In the case of the Family Medical Leave Act, earlier this year the DOL issued a final rule expanding the definition of “spouse,” under which an otherwise eligible employee is allowed to take FMLA leave to care for a same-sex spouse regardless of whether the employee lives in a state that recognized their marital status. Many of the questions raised by the final rule are now moot, since after Obergefell states can no longer prohibit same-sex marriage.

Nevertheless, employers will want to make sure their FMLA policies, forms, and practices are current and accurately reflect this recent development, as well ensure they train supervisors and administrators accordingly. Employers should also be mindful of the differing definitions and applications of marriage under the varying state leave laws that may also apply and be sure to check with employment counsel to ensure compliance with obligations on both the federal and state levels.

Other Leave Policies. Employers that offer bereavement, non-FMLA medical, and/or military leaves should update the policies to reflect that the particular leave is extended to also include same-sex spouses and relatives of same-sex spouses.

Tax Issues. In addition, prior to Obergefell, in states which did not recognize same-sex marriages, employers were required to impute the value of benefits provided to same-sex spouses for state tax purposes or withhold state income taxes with respect to same-sex spouses. After Obergefell, however, such benefits should no longer be taxable for state tax purposes, and the previously inconsistent federal and state income tax treatment will no longer apply. Relatedly, in light of the potential income tax implications of the Obergefell decision, employers should also be prepared to update tax and withholding information upon the request of newly recognized same-sex spouses.

Domestic Partnerships. Notably, Obergefell has no impact on domestic partnership or civil union relationships recognized under state law. As a result, employers may now want to consider whether special treatment for such relationships is still appropriate post-Obergefell, where same-sex couples have the same rights and ability to marry as heterosexual couples. For its part, while the FMLA will now cover individuals who enter into a same-sex marriage, it does not protect civil unions or domestic partnerships. As such, employers will want to carefully consider the application of FMLA protection in certain situations but remain free to grant broader leave rights than those provided for under federal law.

In summary, employers should be ready to remind management of your anti-discrimination policies, and update any employee handbooks, policies, plan documents, forms, beneficiary designations and other personnel documents as necessary.

Update on EEOC Transgender Litigation Mon, 18 May 2015 17:32:17 -0400 The Equal Employment Opportunity Commission (“EEOC”) has continued its push for increased focus on LGBT discrimination issues, with two cases in federal courts in Florida and Michigan pushing its position that gender stereotypes violate civil rights afforded under Title VII. One case, EEOC v. Lakeland Eye Clinic, in which the EEOC alleged the Clinic fired an employee after she informed them that she was transgender and intended to start presenting as a woman, settled last month for $150,000. Meanwhile, the remaining case, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. continues to move forward.

In its complaint, the EEOC accuses Detroit-based R.G. & G.R Harris Funeral Homes, Inc., of having discriminated against a transgender funeral director and embalmer because she is transgender, was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.

The name plaintiff in the suit, Stephens, had been employed by Harris since October 2007 and had adequately performed the duties of her position during her employment. In 2013, Stephens gave Harris a letter explaining that she was undergoing a gender transition from male to female and would soon begin presenting to work in proper business attire consistent with her gender identity as a woman. She was fired two weeks later, her employer telling her that what she was “proposing to do” was unacceptable. In its complaint, the EEOC also takes issue with Harris’ provision of a clothing allowance for male employees but not female employees.

The funeral home moved to dismiss the complaint, arguing, among other things, (1) that “gender identity disorder” is not protected by Title VII, (2) the unsuccessful legislative efforts of the Employment Non-Discrimination Act (“EDNA”), infra, necessarily acknowledges these characteristics are not protected by Title VII, and (3) the EEOC’s contention that a transgender claimant is being punished for not conforming to his sex defeats its own premise, as presumably the transgender individual is being punished “precisely because he is conforming to his true sex.”

On April 21, 2015, U.S. District Court Judge Sean F. Cox denied Harris’ motion to dismiss for failure to state a claim, thereby allowing the case to proceed to discovery. The Court noted that “had the EEOC alleged that the Funeral Home fired Stephens based solely on Stephens’ status as a transgendered person” it would have been inclined to grant the motion to dismiss the complaint. The EEOC, however, also asserted that the Harris fired Stephens because she did not conform to the funeral home’s sex or gender-based preferences, expectation, or stereotypes. The Court, therefore, found that the EEOC had sufficiently pled a sex-stereotyping gender-discrimination claim under Title VII. Indeed, the Court also acknowledged that “even though transgendered/transsexual status is currently not a protected class under Title VII, Title VII nevertheless ‘protects transsexuals from discrimination for failing to act in accordance and/or identify with their perceived sex or gender.’”

While the Court did note that “there is no Sixth Circuit or Supreme Court authority to support the EEOC’s position that transgendered status is a protected class under Title VII,” Judge Cox’s decision certainly strengthens the EEOC’s position that Title VII might nevertheless protect the rights of transgendered workers discriminated against on the basis of their sex and or gender.

The EEOC has also filed an amici brief in a number of transgender discrimination cases across the country. Kelley Drye will continue to follow this case and update you on any developments in the ever changing landscape of LGBT discrimination.