Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

A proposed ordinance in Helena, Montana which would prohibit sexual orientation discrimination is being opposed by those who cite a recent EEOC decision which held that under Title VII discrimination against a transgendered individual is a form of sex discrimination. They argue that the proposed ordinance is unnecessary because this EEOC decision could be applied to cases of gender-based stereotypes and “also impact gender-based stereotyping claims filed by lesbian, gay and bisexual individuals.”

Said the Mayor, “If I’m understanding this right, the goals of the people who are advocating our city ordinance are going to be met, as long as this EEOC decision stands.”
 

The EEOC decision cited in Helena was the subject of our April 25th blog, where we commented noted that transgendered individuals can now file charges of such discrimination with the EEOC. In that case, a transgendered woman was refused hiring after she disclosed her transgendered status. Although the EEOC did not pass upon the merits of her case, it nonetheless ruled that under the famous Supreme Court case of Price Waterhouse v. Hopkins where the Court held that sex discrimination under Title VII related to gender, as well as biological sex, “gender discrimination” included discrimination against transgendered people.

The opponents of the Helena bill fail to note that the EEOC decision has not as yet been reviewed or tested by any court, and, in any event, only applies to transgendered individuals, not to gender stereotypes or gender identiity.   As Helena City Commissioner Katherine Haque-Hausrath commented, “Plenty of lesbian and gay people conform to gender stereotypes. I don’t think we can necessarily hang our hat on that.”

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Thanks for this blog entry goes to Cathy Brennan, Esq., whose blog, Gender Identity Watch is a valuable resource.  We quote her blog:

 "Grand Island City Council rejected Ordinance 9407 to protect people from being denied employment, housing, or public accommodation because of their sexual orientation or gender identity.

The ordinance would have defined “gender identity” as “the actual or perceived appearance, expression, identity, or behavior of a person as being male or female, whether or not that appearance, expression, identity, or behavior is different from that traditionally associated with the person’s designated sex at birth.”

Council Summary of Ordinance 9407

See our previous blog for a discussion of other municipalities which have rejected or repealed similar laws.   

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The city of Helena, Montana may be next to join the “national trend” in passing laws to protect lesbian, gay, bisexual, and transgender people from employment discrimination.  Already, Bozeman and Missoula have such laws.

Interestingly, what also may be included in the proposed law is non-discrimination based upon “familial status,” which, according to Helena City Attorney Jeffrey Hindoien (who is drafting the proposed law) “isn't presently covered, expressly as a protected class for purposes of employment under either state or federal law."
 

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On August 16th we quoted a University of Utah law professor who said that laws to prohibit employment discrimination based upon sexual orientation are “a national trend.”   We also reported on August 5th that business groups even in "red states" are concerned that their communities will be left behind in recruiting and commerce if they lack such protection, and noted that Idaho plans to “pay very close attention” to whether commerce or recruitment are affected by the lack of protection for sexual orientation.   

Nonetheless, we noted that Jacksonville bucked this "national trend" by voting down such a law.  We have just learned that we can add two Kansas towns -- Salina and Hutchinson, to the list of cities which are similarly bucking the “national trend.”    

In Salina, a new city ordinance prohibiting employment (and other) discrimination because of sexual orientation and gender identity went into effect on June 4th. However, a petition opposing this ordinance has been certified, which means that repeal will be left to voters. 
 

In Hutchinson, a new ordinance was approved by the city council on June 5th, but prohibits only firing from a job because of a person's sexual orientation. One citizens’ group has petitioned to expand the ordinance to prohibit all types of employment discrimination based upon sexual orientation, while another group seeks to repeal the ordinance. The City Council will consider the petitions on September 4th. 
 

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On May 23rd we wrote: “Add Jacksonville, Florida to the growing number of municipalities which are considering or passing laws which would add sexual orientation, gender identity or expression to the list of protected classes of employees.”   We made that bold statement because the Jacksonville City Council had conducted a hearing on the bill which would have amended the current law, which prohibits employers from discriminating based on race, religion, age, disability and marital status, to add the words "sexual orientation, gender identity or expression."

Well, we were a little premature in our prediction.  News4Jax.com has just reported that the City Council voted 17-2 against this bill.  Moreover, even when the words “gender identity or expression" were deleted from the bill, so that the bill would only protect “sexual orientation,” the Council still voted it down 10-9.
 

This is the first time in awhile that we are aware of such a bill to protect gays and lesbians being voted down.  Such laws are “a national trend,” said University of Utah law professor Clifford Rosky. 
Indeed, as we reported on August 5th, business groups even in "red states" are concerned that their communities will be left behind in recruiting and commerce if they lack such protection, and noted that Idaho plans to “pay very close attention” to whether commerce or recruitment are affected by the lack of protection for sexual orientation.   

Moreover, yesterday we blogged that 477 of the 2012 FORTUNE 500 Companies “voluntarily include sexual orientation in their employment non-discrimination policies.”

Add Jacksonville, Florida to those communities that are bucking the national trend.

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U.S. Politics Today has just published the results of the Equality Forum "Fortune 500 Non-Discrimination Project" which reports that 477 of the 2012 FORTUNE 500 Companies “voluntarily include sexual orientation in their employment non-discrimination policies.”  The Equality Forum has disclosed the identity of all of the companies that do and do not provide sexual orientation protection at www.equalityforum.com/fortune500.

The report notes that in 2004, only 323 of the FORTUNE 500 Companies provided sexual orientation workplace protection, and also comments that all of the presidential and vice presidential candidates support the passage of ENDA (the federal Employment Non-Discrimination Act) – except Mitt Romney.  Since according to recent polls more than 75% of Americans support the inclusion of sexual orientation in ENDA, we may be forgiven if we conclude that Mitt Romney will soon jump on that bandwagon.
 

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The Spokesman-Review of Spokane, Washington published an article today about the wave of laws being passed countrywide, and especially in neighboring Utah (!), which ban discrimination on the basis of sexual orientation, and titled it ”Some Employers Push To Expand Rights - Idaho Interested In Whether Lack Of Protective Policy Will Affect Recruitment.”

It seems that 15 cities and counties in Utah have enacted such ordinances, although not the state itself. At a panel discussion in Salt Lake City in January, top state business leaders said they want Utah to pass a nondiscrimination law to make it easier for them to do business.

We blogged on May 23, 2012 that “What is compelling about the groundswell of support for these laws, especially in “red states,” is that the local business communities have generally backed them as being ’good for business.’” We quoted the former Mayor of Jacksonville, Florida who, in a full page newspaper ad sponsored by the business group, Jacksonville Civic Council, said that "Businesses won't relocate here. They won't come here if we don't have this thing in the books.”

Now Idaho, a neighbor of Utah, is worried.   Idaho recently refused to pass an amendment to its Human Rights Act banning discrimination on the basis of sexual orientation or gender identity, and only one town in Idaho, Sandpoint, has passed such a local nondiscrimination ordinance.  Betsy Z. Russell of the Spokesman-Review quotes Idaho Department of Commerce Director Jeff Sayer as stating that Idaho plans to “pay very close attention” to whether commerce or recruitment are affected by the lack of protection for sexual orientation, “because as that issue evolves and develops, we’re going to need to be prepared to respond to it.”

Such laws are “a national trend,” said a University of Utah law professor Clifford Rosky, who participated in the Salt Lake City discussion.

Hewlett-Packard, a major employer in Idaho, issued a statement about its own non-discrimination policy that “We believe it has affected our bottom line for the better.”

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Creve Coeur, Missouri's town council has just unanimously amended its non-discrimination ordinance by banning employment (and other) discrimination based upon gender identity and sexual orientation.   

As the Sacramento Bee reports "Five other St. Louis-area cities have passed similar measures. They are St. Louis, University City, Olivette, Richmond Heights and Clayton."
 

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Central MichiganLife has reported that the Mount Pleasant City Commission  has just unanimously approved a new human rights ordinance under which “traits including race, religion, color, national origin, gender, sex, age, marital status, physical or mental disability, family status, sexual orientation and gender identity are covered to prevent discrimination in the employment, housing and public accommodation of individuals.”

Seems like a groundswell even from the cities and towns of heartland America to include sexual orientation and gender identity as protected classes under the anti-discrimination laws.

Will Congress ever include these categories in federal law such as Title VII?

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A great resource has been posted online for employers, lawyers, and anyone interested in a compendium of all state laws regarding gay and transgender employees. Written by Jerome Hunt and just released by the Center for American Progress Action Fund, this 84-page report notes that there is no current federal law which provides the gay and transgender workforce protections against workplace discrimination based on real or perceived sexual orientation or gender identity.

And Congress has yet to pass the Employment Non-Discrimination Act, or ENDA, which would apply to all federal, state, and local government agencies; employment agencies; unions; and private employers with 15 or more employees.

The report further notes (as we have discussed in frequent blog entries) that “Sixteen states and Washington, D.C. have passed laws that prohibit discrimination on the basis of sexual orientation and gender identity. An additional five states have passed laws or enacted policies that prohibit discrimination on the basis of sexual orientation, but not gender identity.”

After this preface, the report catalogues which states have such laws, ranks the state laws as to the degree of protection afforded to gay and transgender employees, and recites the remedies and penalties under each law.

This could become an indispensable tool in employment law.

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We recently wrote that Title VII does not prohibit dress or grooming rules per se, but that such rules may run afoul of Title VII if they have a disparate impact on, for example, employees who have religious beliefs which require a certain dress or hair style.

With regard to hair styling in particular, we quoted a Missouri Department of Labor spokeswoman:
"An employer may condition a job on an employee's compliance with the employer's hair styling preferences, unless the employee's alternative hair styling preference is connected with the employee's inclusion in a protected category. For example, a particular hair style may be a tenet of the employee's religion, or the employer may decline to hire a prospective employee because the employee is considered to be disabled because of his or her hair style (such as believing someone without hair to be suffering from cancer)."

We just found a very comprehensive article on workplace dress codes, and whether they may impact not only the religious beliefs of employees, but also have a disparate gender impact.

The Business Management Daily of June 4, 2012 prefaces its article by noting that “Female employees who are accused of wearing clothing that is too revealing may complain of sexism. Male employees prohibited from wearing shorts, for example, may argue that a double standard exists because females are permitted to wear skirts. But don’t let employees’ complaints prevent you from upholding your company’s appearance standards. Employers have the right to define appropriate attire in their workplaces.”

The article then goes on to describe what is appropriate workplace dress, and what is appropriate workplace dress codes, and poses a set of questions and challenges you to “Test your casual dress code policy against these questions to see if you are on safe ground.”

Read it!
 

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Add Jacksonville, Florida to the growing number of municipalities which are considering or passing laws which would add sexual orientation, gender identity or expression to the list of protected classes of employees. The City Council conducted a hearing yesterday on the bill, 2012-296, which would amend the current law, which prohibits employers from discriminating based on race, religion, age, disability and marital status to add the words "sexual orientation, gender identity or expression."

See, for example: Hutchinson, Kansas (blog of May 15th), Omaha and Lincoln, Nebraska (blogs of March 18th and May 6th), Anchorage, Alaska (blog of April 1st) and South Bend, Indiana (blog of March 27th ).

What is compelling about the groundswell of support for these laws, especially in “red states,” is that the local business communities have generally backed them as being “good for business.”  As we wrote on March 27th, The South Bend Tribune reported that supporters of the law, such as Mayor Pete Buttigieg, cited the need to improve business prospects: "In today's economy and today's competition for talent — if we fail that test, if we remain outside the American mainstream any longer — South Bend could be typecast as a prejudiced and backward-looking community and our economic comeback will be that much harder to bring about."

Similarly, News4Jax.com reports that the former Mayor of Jacksonville, John Delaney, was quoted in a full page newspaper ad sponsored by the business group, Jacksonville Civic Council, as saying that this is not only a fairness issue, but that "Businesses won't relocate here. They won't come here if we don't have this thing in the books.”

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On March 18th we reported that Omaha had just passed the “Equal Omaha” law, prohibiting employment discrimination based on sexual orientation or gender identity. There is no such federal or Nebraska law, so that Omaha would be the only place in the state with such a civil rights law.

Now comes news that at the urging of conservative state senator Beau McCoy, the state Attorney General (who is, not coincidentally, running for a US senate seat) has issued an opinion that “Nebraska statutes do not authorize political subdivisions in Nebraska, including municipalities, to expand protected classifications beyond the scope of the civil rights classifications created in state statute.” The City of Omaha appears to be willing to ignore this opinion and defend the law in court.
On May 14th, a similar ordinance will be voted on by the city council in Lincoln, Nebraska.  Lincoln Mayor Chris Beutler, citing the state motto, “equality before the law,” stated at a recent news conference that “The basic issue here is fairness. No one should fear losing their job because of sexual orientation.”

He said that “it’s time to make those words ring true for everybody.”

It is indeed interesting that when federal civil rights laws are contemplated, opponents argue that these issues should be decided “locally.” But when they are decided locally, they do a deft pivot and argue that the decision is up to politicians in the statehouse. Opponents of civil rights laws have disguised their substantive opposition to civil rights by making this “states rights” argument since well before the Civil War, and bank on it succeeding in a world with a global economy that no longer resembles 1860.

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We have written frequently about various states and municipalities outlawing discrimination in employment against transgendered individuals. (On November 18, 2011 we noted that Massachusetts became the 16th state to outlaw such discrimination, and  as recently as April 1st we wrote about a debate in Anchorage about this issue),  

Now the EEOC has held, for the first time, that under Title VII discrimination against a transgendered individual is a form of sex discrimination. Transgendered individuals can now file charges of such discrimination with the EEOC. 

See the excellent ediscussion of Macy v. Holder, EEOC case number 0210210821, by Professor Arthur Leonard of New York Law School. 

In this case Mia Macy, a transgender woman, who was a detective told that she would be hired by the federal ATF agency pending a background check, was not, in fact, hired after she disclosed her transgendered status. Although the EEOC did not pass upon the merits of Macy’s case, it nonetheless ruled that under the famous Supreme Court case of Price Waterhouse v. Hopkins where the Court held that sex discrimination under Title VII related to gender, as well as biological sex, “gender discrimination” included discrimination against transgender people.

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On May 3, 2011 we wrote that Nevada passed a law banning discrimination against trangendered individuals, and on November 18, 2011 we wrote that Massachusetts banned such discrimination.  And as recently as March 27, 2012, we noted that even South Bend, Indiana banned discrimination against lesbians and gays because, the mayor noted, it was good for business.       

And now even Anchorage, Alaska is debating (bitterly, by the way) its Proposition 5 ballot initiative which is up for a vote this week which would ban discrimination based upon sexual orientation and transgender identity.  According to the the National Gay and Lesbian Task Force, 16 states, 134 cities and counties, and the District of Columbia have discrimination laws for private entities that include protections for transgender individuals.

Read more: Fairbanks Daily News-Miner - Anchorage equal rights measure fuels passionate debate

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South Bend, Indiana just passed a law banning employment (and housing) discrimination against gays and lesbians.

The South Bend Tribune reported today that supporters of the law, such as Mayor Pete Buttigieg, cited the need to improve business prospects: "In today's economy and today's competition for talent — if we fail that test, if we remain outside the American mainstream any longer — South Bend could be typecast as a prejudiced and backward-looking community and our economic comeback will be that much harder to bring about."

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Great new article on the Glenn v. Brumby case (which we discussed on December 18, 2011) which held that the Fourteenth Amendment to the Constitution protects transgendered government employees from discrimination on the basis of their transgender identity.   Read David Kemp in the March 19th Verdict from Justia.com 

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On April 1, 2011, we noted that Congressman Frank was set to introduce H.R. 1397 in the House -- a bill known as ENDA ("the Employment Non-Discrimination Act"), which would bar discrimination in employment based on sexual orientation or gender identity.  He did, and found 111 co-sponsors for the bill.  We noted that then Acting EEOC Chairman Stuart J. Ishimaru said that the bill is “sorely needed” and “long overdue.”  

Now, The Idaho Agenda of March 15th has commented that since Republican-controlled House action is unlikely, LGBT groups are pressing for ENDA to get through a Senate committee and onto the Senate floor for full debate. 

Sen. Jeff Merkley (D-Ore.) is the chief sponsor of the bill, and, remarkably, there are three Republican sponsors -- Sen. Mark Kirk (R-Ill.), Sen. Susan Collins (R-Maine), and Sen. Olympia Snowe (R-Maine).     

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In a recent case from Georgia, a plaintiff who had been diagnosed with Gender Identity Disorder (“GID”), was fired from her job with the state of Georgia when she made it known that she was undergoing gender transition from male to female. The stated reason for termination was that plaintiff’s “intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make [plaintiff’s] co-workers uncomfortable.”   

Plaintiff sued alleging sex discrimination, but not under Title VII, which applies to both public and private employers, but solely under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (which applies to public employers, not private employers). The Court wasted no time in marshalling the caselaw starting with the Supreme Court’s Price Waterhouse case in 1989 which held that discrimination based upon gender stereotype is sex-based discrimination.  

Asking the question “whether discriminating against someone on the basis of gender non-conformity is sex-based discrimination under the Fourteenth Amendment, the Court answered in the affirmative, holding that this was so whether it was described as being sex or gender based. The Court stated that the employer’s discriminatory intent was amply demonstrated by direct deposition testimony.

Although this ruling applies solely to public employers because it was filed under the Fourteenth Amendment, private employers should take note of the clear signal given by the Court that “[i]f this were a Title VII case, the analysis would end here” - after the clear direct discriminatory evidence was adduced.     

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On Wednesday, the Massachusetts passed and sent to Governor Deval Patrick, a bill--H.3810, which outlaws employment discrimination on the basis of “gender identity.”  It is expected that Governor Patrick will sign the bill which will take effect on July 1, 2012.  

The proposed legislation would insert the phrase “gender identity’’ to chapters of state law governing discrimination in employment, housing, insurance, mortgage loans, and credit. However, it does not include special considerations to transgendered individuals in public accommodations, such as bathrooms and locker rooms.

The bill defines gender identity as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” The legislation also provides some non-exhaustive examples of how a person can establish they are transgendered.

If this bill is signed into law, as anticipated, Massachusetts employers must ensure their decision makers are aware that taking adverse action against a transgendered person is unlawful.  Internal anti-discrimination trainings, manuals and employee handbooks should also be revised, where necessary, to reflect this change.

We will keep you posted. 

Have a great weekend.

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On May 27, 2011, the federal Office of Personnel Management issued guidelines to federal agencies regarding transgendered employees, i.e., those who are in transition from one gender to another. They must “all be treated with dignity and respect” consistent with the government’s policy of providing a discrimination-free workplace. 

The "guidance" defines and describes "gender identity" as "the individual's internal sense of being male or female.  Gender identity is generally determined in the early years of an individual's life and, if different from the individual's physical gender, may result in increasing psychological and emotional discomfort and pain.  The way an individual expresses his or her gender identity is frequently called 'gender expression,' and may or may not conform to social stereotypes associated with a particular gender."

The "guidance" defines and describes "transgender" as "people with a gender identity that is different from the sex assigned to them at birth.  Someone who was assigned the male sex at birth but who identifies as female is a transgender woman.  Likewise, a person assigned the female sex at birth but who identifies as male is a transgender man.  Some individuals who would fit this definition of transgender do not identify themselves as such, and identify simply as men and women, consistent with their gender identity.  The guidance discussed in this memorandum applies whether or not a particular individual self-identifies as transgender."

Federal agencies are required to ensure that their policies and practices forbid discrimination on the basis of gender identity or perceived gender non-conformity, and that dress codes and bathroom access are consistent with the employee’s new gender. The agencies are permitted to allow a “reasonable temporary compromise” where an employee is in transition from one gender to another.              

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The Connecticut legislature recently passed a bill (which the Governor encouraged and promised to sign) which will ban discrimination on the basis of gender identity or expression in employment, public accommodation, housing, credit, and other areas, and would apply to any public or private employer that employs three or more people.  The law will go into effect on October 1, 2011.

Text of bill: http://www.cga.ct.gov/2011/FC/2011HB-06599-R000838-FC.htm.

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