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Tag: sex discrimination

In massive win for equality, Supreme Court rules no one can be fired for being gay or transgender

Posted on by Joan McCarter
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In a stunning 6-3 decision written by Justice Neil Gorsuch (!), the Supreme Court has ruled that LGBTQ people cannot be discriminated against on the basis of their sexual orientation or gender identity. It is now against the law to be fired from your job for being LGBTQ. Gorsuch wrote the majority opinion, with Chief Justice John Roberts joining: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” he wrote. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Title VII bars discrimination on the basis of “race, color, national origin, sex, and religion,” but the original statute did not define what “sex” meant. The Trump administration argued that the original intent of the drafters of the Civil Rights Act of 1964 would not have included LGBTQ workers, but was focused specifically on women and meant only cis women. Gorsuch doesn’t let them pass it off that way—he acts like an actual textualist. “Only the written word is the law,” he wrote, “and all persons are entitled to its benefit.”

This blog originally appeared at Daily Kos on June 15, 2020. Reprinted with permission.

About the Author: Joan McCarter is a Senior Political Writer for Daily Kos.


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The Trump administration wants to make it easier to fire women who act too ‘masculine’

Posted on by Ian Millhiser
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Thirty years ago, in Price Waterhouse v. Hopkins, the Supreme Court held that “sex stereotyping” is forbidden by a federal law banning employment discrimination. “We are beyond the day,” Justice William Brennan wrote in the court’s plurality opinion, “when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”

Nevertheless, the Trump administration filed a brief last week asking the Supreme Court to bring back the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.

The Trump Justice Department’s position in R.G. & G.R. Harris Funeral Homes v. EEOC wouldn’t nuke Price Waterhouse entirely. But it would severely weaken protections against sex discrimination, and give employers broad new authority to fire employees who do not comply with stereotypes about how people of a particular gender should appear.

It would do so, moreover, in service of the broader goal of denying civil rights protections to transgender workers. The thrust of the Trump administration’s position in Harris Funeral Homes is that, if existing law is broad enough to protect trans workers from discrimination, then that law must be rolled back — even if doing so will legalize a fair amount of discrimination against cis women in the process.

“Because of . . . sex”

Harris Funeral Homes involves Aimee Stephens, a trans woman who was fired because of her decision to transition. Her former boss claims to “believe that the Bible teaches that a person’s sex is an immutable God-given gift.”

In response to her termination, Stephens sued under Title VII of the Civil Rights Act of 1964, which provides that employers may not “discharge any individual…because of such individual’s race, color, religion, sex, or national origin.”

Thus, as a textual matter, Stephens should have an easy case. Title VII’s language is capacious. It forbids any discrimination “because of” an employee’s “sex” (a term that, in this context, refers to gender). As the federal appeals court that ruled in her favor explained, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”

The entire reason why Stephens was fired is that her employer believes that she is a man, and that men must dress and act a certain way. That’s discrimination because of sex.

Stereotyping

Setting aside this simple, textual argument explaining why Stephens should prevail, she also benefits from the separate line of cases prohibiting sex stereotyping — or, at least, she does under those cases as they currently stand.

Price Waterhouse is a bit of a confusing decision because it did not produce a single majority opinion. Nevertheless, a majority of the Supreme Court clearly agreed that sex stereotyping is not allowed. Brennan concluded, on behalf of himself and three other justices, that “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’”

Meanwhile, Justice Sandra Day O’Connor said that the plaintiff in Price Waterhousecould proceed with her lawsuit because she proved that “stereotypical attitudes towards women [played] a significant, though unquantifiable, role” in her employer’s decision not to make her a partner. So Brennan’s opinion plus O’Connor’s opinion equals five votes against sex stereotyping in the workplace.

Significantly, Justice Anthony Kennedy wrote a dissenting opinion, in which he argued that “Title VII creates no independent cause of action for sex stereotyping.” Though Kennedy conceded that “evidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent,” his dissenting opinion denied that sex stereotyping alone is a valid basis for a Title VII lawsuit.

Which brings us to the Trump administration’s argument in is Harris Funeral Homesbrief:

Stephens’s and the Sixth Circuit’s sex-stereotyping argument rests on the incorrect premise that Price Waterhouse construed Title VII to prohibit sex stereotypes per se. But that case, which produced no majority opinion, merely recognized that a plaintiff can use evidence that an employer engaged in sex stereotyping to show that the employer discriminated because of sex under the ordinary Title VII rubric. It did not recognize sex stereotyping as a novel, freestanding category of Title VII liability.

See the problem here? This passage does not describe the majority’s view in Price Waterhouse at all. To the contrary, it’s the exact same view that Justice Kennedy took in dissent.

Having confused the majority’s view with a dissent, the Trump administration then claims that much of Price Waterhouse must be rolled back.

Indeed, it’s notable that the Trump administration is only able to cite one lower court opinion that supports its novel view of Price Waterhouse, and that opinion is a concurring opinion by Judge James Ho — a Trump judge known for writing aggressive opinions that read more like Fox News editorials than like judicial decisions. The Ho opinion that Trump’s Justice Department relies upon does not cite any other case that shares his reading of Price Waterhouse.

Price Waterhouse, moreover, is hardly an obscure case. It is a seminal decision that recognized an entire branch of American civil rights law. According to the legal research database Lexis Advance, 6,265 court decisions cite Price Waterhouse. The fact that Judge Ho (and the Trump administration) wasn’t able to find a single one that supports his reading of Price Waterhouse is compelling evidence that Ho is wrong.

It’s unclear just how drastically the Trump administration’s reading of Price Waterhousewould roll back protections for women generally, but one line in their brief suggests that the rollback would be quite significant. Unless Price Waterhouse is read narrowly, the Trump Justice Department warns, “a dress code that required men to wear neckties, for example, would be susceptible to challenge as predicated on sex stereotypes.”

Perhaps. A prototypical example of sex stereotyping is declaring that men must look a certain way and women must look another way (although some lower courts permit gender-specific dress codes so long as they are “equally burdensome” on men and women). At the very least, the Trump administration appears eager to strip all American workers of their right to keep their job even if they don’t tailor their appearance to their employer’s gender norms.

One lesson of Harris Funeral Homes, in other words, is likely to be that the fate of various civil rights plaintiffs are unavoidably linked. Denying trans workers the right to be free of employment discrimination means rolling back doctrines that protect other workers as well.

If the Supreme Court joins the Trump administration’s crusade against trans rights, the consequences will spill over to all workers.

This article was originally published by Ian Millhiser on August 20, 2019. 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.


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Supreme Court to decide if LGBTQ workers are protected by US civil rights law

Posted on by Casey Quinlan
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The U.S. Supreme Court in its upcoming session will hear arguments on whether anti-LGBTQ employment discrimination is sex discrimination.

The court will hear arguments on October 8 about whether LGBTQ workers are protected by the Title VII of the Civil Rights Act of 1964.

“This is a momentous occasion. It is a pivotal moment and the public should be paying attention,” Omar Gonzalez-Pagan, senior attorney at Lambda Legal, a civil rights organization focused on LGBTQ people, told ThinkProgress.

“These cases will affect the ability of LGBTQ people to be full members of society and to contribute to society by entering the workplace and be free of discrimination.”

In the worst case scenario, LGBTQ people would have to rely on a patchwork of state protections for employment protections and the Equality Act, a sweeping LGBTQ nondiscrimination bill passed by the U.S. House of Representatives in May, would become even more critical to protecting LGBTQ rights.

Twenty-one states, the District of Columbia, and two territories explicitly prohibit employment discrimination based on sexual orientation and gender identity.

Christy Mallory, senior counsel for the UCLA School of Law’s Williams Institute, said, “The court may decide that neither sexual orientation or gender identity discrimination are forms of sex discrimination prohibited by Title VII. This would remove existing non-discrimination protections for LGBT people under Title VII, which would have a particularly significant impact on LGBT people who live in states without statewide non-discrimination laws.”

There are three cases but two questions before the court. Zarda v. Altitude Express and Bostock v. Clayton County have been consolidated to consider sexual orientation as sex discrimination and Harris Funeral Homes v. EEOC will consider discrimination against transgender people.

The Zarda case involved an employee named Donald Zarda being fired from Altitude Express, where he worked as a skydiver. He informed a woman he was gay while they were strapped to each other because he thought it would make her feel more comfortable. She later informed his employer that she wasn’t happy with his sharing his being gay and he was subsequently fired. Zarda died in 2014 but his estate pursued the case.

The Bostock case focuses on Gerald Bostock, a child welfare services coordinator who was in a gay recreational softball league. He said his participation in the league and his sexual orientation became a problem with someone at work. Then he was fired for “conduct unbecoming of a county employee,” which he said was tied to his sexuality.

Harris involves Aimee Stephens, a trans woman, who was fired from her job at a funeral parlor after she informed the funeral director she worked for that she was transgender. She had worked in funeral services for nearly 20 years and received positive feedbackfrom her employer.

The briefs from plaintiffs and their supporters have focused on a textualist understanding of the law — hewing closely to the original text of the Constitution, which the conservative justices may be more inclined to accept — rather than legislative intent, or what lawmakers had in mind in passing related legislation.

Several law professors have argued in their briefs that the court can look to Price Waterhouse v. Hopkins (1989), which says employers can’t use sex-based stereotypes when taking employment actions.

Gonzalez-Pagan said one doesn’t need to believe that anyone can be transgender. Despite the mountains of evidence, “the reality is that in the discrimination in this case against this employee, Aimee Stephens, she did not conform to the expectations of her birth-assigned sex that the employer had.”

The Alliance Defending Freedom, a legal group whose attorneys have linked marriage equality with a “degradation of our human dignity,” and filed a petition asking the court to hear one of these cases, has argued that lower courts “redefined” sex in the law. Mallory pointed out that Title VII itself does not define the term “sex.”

But plaintiffs and others can also argue that when discriminating against queer and trans people, you necessarily have to consider sex.

“The fact is that in the arguments we are making, that plaintiffs are making, and others are making in this case, this is really about the text of the statute. This is really a very conservative argument — textualist and adhering to the letter of the law. And the reality is that when you consider somebody’s same-sex attraction, somebody’s transgender status — by definition you have to consider their sex,” Gonzalez-Pagan said.

“You are impermissibly considering sex in taking an employment action. There’s no way around that. It’s not that we are in this case proposing that there be another definition of sex. It is being elucidated in other cases and in scientific literature and the medical establishment and there is a consensus that is built but we don’t even have to go there. Because either way, because no matter the definition you consider of sex, you’re still considering that sex in making that employment decision.”

Some historians have argued in an amicus brief that the understanding of sex in the 1940s, 50s, and 60s was such that LGBTQ people could have been understood to be included. They wrote, “This broad understanding of sex, as evoking a range of sex roles, sexual expression, and sexual instincts, shaped public knowledge about LGBT individuals. Mid-twentieth century writers sometimes grouped LGBT people under the term ‘sex variants’—a term introduced by psychiatrist George Henry to mean primarily persons he considered homosexuals, though he sometimes also included individuals who wished to change their sex, regardless of their sexual desires.”

They added, “The word ‘sex’ thus covered a broad range of meaning in the mid-twentieth century—one that encompassed the behavior, practices, and identities of LGBT individuals.”

Gonzalez-Pagan said that a common argument against the Equal Rights Amendment in the 1970s was that by prohibiting sex discrimination, one could apply it to LGBTQ people.

“[O]pponents of LGBTQ equality that are trying to dismantle these protections recognized by EEOC and federal courts and vast majority of public — what they’re trying to do is have their cake and eat it too,” he said.

“They are saying these protections aren’t necessary because they will essentially protect LGBTQ people and now they’re saying they don’t cover LGBTQ people. So it’s really illustrative of their bad faith.”

He added, “It’s not about not whether we have arguments on our side, but whether the court will adhere preferences for statutory interpretation, or political ideology. That’s what really what’s at stake here.”

This article was originally published at Think Progress on August 17, 2019. Reprinted with permission.

About the Author: Casey Quinlan covers policy issues related to gender and sexuality. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, Teen Vogue, The Atlantic, and In These Times. They studied economic reporting, political reporting, and investigative journalism at the CUNY Graduate School of Journalism, where they graduated with an M.A. in business journalism.

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Caster Semenya gets reprieve from discriminatory regulations, but it’s not all it’s cracked up to be

Posted on by Lindsay Gibbs
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On Monday, news outlets around the globe ran headlines reporting that South African middle-distance runner Caster Semenya won an important court battle. The two-time Olympic champion in the 800 meters had filed an appeal last week to challenge the Court of Arbitration in Sports’ (CAS) ruling that she must artificially lower her testosterone levels in order to compete in her best events.

The Swiss Federal Supreme Court (SFT) provided Monday’s announcement on the matter, ruling that the International Association of Athletics Federations (IAAF) would have to temporarily suspend its testosterone regulations for Semenya, while her appeal awaits decision. As such, she is currently permitted to participate in competition without having to self-administer hormone treatments.

But while these headlines provide an optimistic spin on these events, they hardly paint a realistic picture.

First of all, the suspension of CAS’s ruling is very temporary — right now, it only lasts until June 25, 2019. Furthermore, this three-week grace period only applies to Semenya. Any other women with naturally-occurring levels of testosterone above five nanamoles per liter (nmol/L) are still required to undergo medical treatment to artificially suppress their testosterone levels if they want to compete in IAAF events from 400 meters to a mile.

It’s fair to say that this decision has left athletes more perplexed than ever.

“There’s widespread confusion and even panic among athletes and coaches about whether they can compete, at what level, and what this implementation means for them,” Dr. Katrina Karazis, a senior visiting fellow at Yale University’s Global Health Justice Partnership and co-author of Testosterone: An Unauthorized Biography, told ThinkProgress.

Semenya has been battling the IAAF for the right to run in the body she was born in for 10 years now, ever since she first burst onto the scene at the 2009 World Championships. In May, CAS upheld the ability of the IAAF to target athletes with disorders of sex development (DSD). People with DSD — a condition which is commonly referred to as intersex — might have hormones, genes, or reproductive organs that develop outside the gender binary.

CAS agreed with Semenya that the IAAF regulations were discriminatory. However, the majority of the people serving on that panel endorsed the decision anyway.

“The Panel found that the DSD Regulations are discriminatory, but the majority of the Panel found that, on the basis of the evidence submitted by the parties, such discrimination is a necessary, reasonable, and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics in the Restricted Events,” the ruling states.

In her appeal, Semenya’s team argued that forcing Semenya and other women with DSD to artificially suppress their testosterone levels is a human rights violation. However, on Tuesday, the IAAF released a defiant open letter to a group of women’s rights organizations that have opposed the testosterone regulations. The letter provides a window into the IAAF’s mindset, painting the members of the governing body as angered at having their wisdom challenged. And the IAAF is not only is it doubling down on its decision, it is doing everything short of explicitly calling Semenya a man along the way.

“It is not fair and meaningful for biological women (with XX chromosomes that lead to ovaries that produce much lower levels of testosterone) to compete against men,” the letter reads.

“The challenge that the IAAF faces is how to accommodate individuals who identify as female (and are legally recognised as female) but who — because of a difference of sex development — have XY chromosomes that lead to testes that produce high levels of testosterone, and therefore have all the same physical advantages over women for the purposes of athletics as men have over women,” it continues.

It is worth noting that if Semenya competed against the men, her time in the 800 meters would not put her anywhere near even qualifying for the Olympics.

“I am a woman and I am a world-class athlete,” Semenya said in her appeal last week. “The IAAF will not drug me or stop me from being who I am.”

For now, the IAAF will have until June 25 to fight this temporary suspension. If it does not get the suspension overturned, or misses the deadline, Semenya will be able to continue to compete in her best events in the body she was born in until there is a ruling on her appeal — a process that could take a year or more, depending on the SFT’s actions.

But this narrow ruling will have consequences in the meantime, as all other women with DSDs will have to either take medication, undergo invasive surgery, or abandon events between 400 meters and one mile if they want to continue to compete against women in elite competitions. If the temporary suspension is overturned on June 25, Semenya has stated that she will not take medication or suppress her testosterone levels in any way; she plans to compete in events longer than one mile, such as the 2,000 meters.

Semenya is scheduled to compete in one event in the next three weeks, the Meeting de Montreuil outside of Paris, France, on June 11.

This article was originally published in ThinkProgress on June 4, 2019. Reprinted with permission. 

About the Author: Lindsay Gibbs covers sports. SportsReporter CoHost  Tennis  Mystics   


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Missouri Supreme Court opens the door to LGBTQ nondiscrimination protections

Posted on by Zack Ford
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The Missouri Supreme Court ruled Tuesday that a gay employee’s case alleging sex discrimination in the workplace could proceed, reversing a lower court ruling and establishing a new precedent that could help protect embattled non-heterosexual workers in the future.

The court also ruled on a separate but similar case involving a transgender student who claimed his school discriminated against him by blocking him from bathrooms and other facilities, saying the student deserved a fair hearing.

At stake in the first case is the extent to which gay, lesbian, and bi people in Missouri are protected on the basis of their sex. State law does not extend employment nondiscrimination protections on the basis of “sexual orientation,” meaning it’s fully legal to fire someone based on their sexuality. But in this case, while the plaintiff acknowledged that he is gay, he claimed that he faced discrimination because of sex stereotyping, not because of his sexual orientation.

Harold Lampley, an employee in the state’s Department of Social Services Child Support Enforcement Division, filed a complaint arguing that he was harassed at work for his non-stereotypical behaviors, noting that employees with stereotypical behaviors were not similarly treated. He claimed to have experienced regular verbal abuse and forced closed-door meetings about his performance. After he complained, he also alleged that he experienced retaliation in the form of poor performance evaluations not consistent with his work.

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Lampley’s friend and coworker Rene Frost likewise claimed that she suffered discrimination merely for her affiliation with Lampley. The employer allegedly violated her privacy by publicly announcing her performance review. After she complained, she said she faced retaliation, such as having her desk moved away from Lampley’s and other coworkers with whom she collaborated. Frost claimed she was also banned from eating lunch with Lampley and allegedly faced similar verbal abuse and harassment.

The Missouri Commission on Human Rights concluded this discrimination wasn’t actionable because Lampley’s sexual orientation isn’t protected, and a lower court agreed. It relied on a similar ruling against a recycling company employee named James Pittman, who claimed he had been called a “cocksucker,” asked if he had AIDS, and harassed for having a same-sex partner. The Western District Missouri Court of Appeals ruled in 2015 that Pittman could find no relief under state law, and a circuit court concluded the same must be true for Lampley and Frost.

But in Tuesday’s ruling, the Missouri Supreme Court concluded that being gay does not preclude an employee from protection on the basis of “sex,”which includes sex stereotyping. “[A]n employee who suffers an adverse employment decision based on sex-based stereotypical attitudes of how a member of the employee’s sex should act can support an inference of unlawful sex discrimination,” the majority wrote.

“Sexual orientation is incidental and irrelevant to sex stereotyping. Sex discrimination is discrimination, it is prohibited by the Act, and an employee may demonstrate this discrimination through evidence of sexual stereotyping,” they explained. The Commission was wrong not to give them an opportunity to demonstrate their sex-stereotyping claim, and the Court ordered it to issue Lampley and Frost right-to-sue letters.

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The second case on which the Court ruled this week similarly focused on the debate over protections on the basis of sex.

Student “R.M.A.” filed a complaint against Blue Springs School District for denying him access to the boys’ restrooms and locker rooms. The school initially countered both that “gender identity” was not protected under the state’s “sex” protections and also that it should not be considered a “public accommodation” and thus the nondiscrimination law should not apply to it at all. Without specifying which reasoning informed its opinion, a lower court dismissed R.M.A.’s complaint outright.

In a 5-2 ruling this week, the state Supreme Court reached a different conclusion. Rather than considering sex stereotyping, the majority recognized that once a transgender individual has legal changed their sex, as R.M.A. has, they are protected on the basis of that sex. In a footnote, the majority called out the dissenting justices for relying on a distinction between “legal sex” and “biological sex” that is not actually found anywhere in the law. R.M.A. is a boy, and if he’s not being allowed to use boys’ facilities, then he deserves his day in court.

This pair of rulings opens the door to far greater protection for LGBTQ people under Missouri state law — but with some limitations.

The first ruling, for example, accepts the premise that sexual orientation is not itself connected to sex stereotyping, even though expectations about the gender of a person’s romantic partners are obvious stereotypes themselves. This means that while Lampley and other gay, lesbian, and bi workers will now have an opportunity to pursue discrimination claims moving forward, it will require them to prove that they were targeted because of sex stereotypes not directly connected to their sexual orientation.

Likewise, the ruling in favor of R.M.A. seems to rely on transgender people legally changing their sex designation before they are eligible for protection. State law requires transgender people provide proof of surgery to update their birth certificates, although some judges have granted the new gender markers without that requirement. This means that there may still be inconsistent financial and medical obstacles to qualifying for legal protection.

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Neither ruling weighs the merits of the discrimination claims, so it also remains to be seen whether Lampley or R.M.A. will prevail once their complaints are given due consideration.

This article was originally published at ThinkProgress on February 26, 2019. 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.


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

Posted on by Zack Ford
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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.


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EEOC lawsuits allege sex discrimination in physical ability tests

Posted on by The Attorneys of Passman and Kaplan
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Three different cases. Three different theories of gender discrimination. But one common thread – an old school presumption that certain blue-collar jobs are a “man’s work.”

The Equal Employment Opportunities Commission (EEOC) has filed suit against three U.S. employers for sex discrimination in hiring. The lawsuits allege overt bias against female job candidates in the form of bogus physical tests, physical appearance, and a blatant “no girls allowed” hiring policy.

EEOC takes a strong stand against gender bias

Perhaps it was simply a coincidence of timing. But the EEOC is sending a message in three unconnected cases that gender discrimination will not be tolerated in 21st century America. When the EEOC was unable to resolve each of the cases through pre-litigation channels, it filed suit against a railroad (CSX Transportation), a shipping company (R&L Carriers) and a parking management service.

  • At CSX, female applicants failed physical requirement tests at a substantially higher rate than male candidates. Rather than indicating women are physically unfit for the industry, the EEOC contends that the tests favor men through arbitrary benchmarks.

Apparent rationale: They all take the same test. Not our fault if the ladies can’t cut it.

  • In the Eagle Parking case, a woman was turned down on the presumption – based on nothing more than her appearance – that she could not handle the “physicality” of the job. She was urged to apply for a desk job instead.

Apparent rationale: In the manager’s professional opinion, based on years of parking cars, a woman could not perform such a back-breaking feat.

  • In the R&L Carriers case, the EEOC alleges straight-up discrimination; no women are hired as dockworker and loaders, even when they are qualified candidates.

Apparent rationale: Some jobs are for dudes, and you’re not a dude.

Physical requirements can be an unfair barrier to women

The EEOC litigation will prompt a close look at physical ability requirements in candidate screening and hiring, particularly in traditionally male occupations. Courts have generally upheld the right of employers to use physical ability as a hiring criteria, with a few caveats: (a) physical tests must reflect the actual job duties, and (b) minimum requirements cannot be set arbitrarily high to exclude women.

For instance, only 7 percent of U.S. firefighters are female, chiefly because so few can pass the rigorous obstacle course exams. Through equal opportunity lawsuits, the physical ability standards have been scaled back in many jurisdictions to give female applicants a fighting chance to win the job and prove themselves. Detractors say the revised standards are watered down and compromise safety. Proponents say the standards were based on male demographics and were unnecessarily tough — no firefighter performs all those feats in an actual fire call.

Is the job really that rigorous?

Most blue-collar jobs do not require “American Ninja” strength and agility. Basic physical fitness is typically sufficient, and those who truly can’t do the work will soon quit or be let go. Too often, the barrier to employment is not women’s muscles but men’s outdated attitudes.

This blog was originally published at passmanandkaplan.com on August 8, 2017. Reprinted with permission.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.


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Justice Department brief argues against protections for LGBTQ workers

Posted on by Casey Quinlan
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On Wednesday evening, the Department of Justice moved to undermine rights for LGBTQ people to ensure they are treated fairly in the workplace. The department filed a brief arguing that prohibition of sex discrimination under federal law does not include the prohibition of discrimination on the basis of sexual orientation.

The federal law in question is Title VII, which is part of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.

The case before the U.S. Second Circuit Court of Appeals, Zarda v. Altitude Express, centers on a now deceased skydiver. In 2010, Zarda said he was fired because of his sexual orientation. In April, the Second Circuit decided that it would not accept the argument that discrimination on sexual orientation isn’t permitted under Title VII. However, Lambda Legal requested that the ruling be reconsidered, which is why the Justice Department planned to file its amicus brief.

The power of the federal government to influence LGBTQ workplace rights can’t be underestimated, said Sharita Gruberg, associate director of the LGBT Research and Communications Project at the Center for American Progress. ThinkProgress is an editorially independent news site housed in the Center for American Progress Action Fund.

“It is the Justice Department of the U.S. It’s not just anyone, so it’s definitely going to have a lot of weight because it is the position of the U.S. government, so it will be interesting to see how Second Circuit takes those arguments,” Gruberg said.

The role of Title VII in protecting lesbian, bisexual, and gay people against discrimination has been fuzzier than the issue of whether it can protect transgender people from discrimination. The U.S. Equal Employment Opportunity Commission recognized that Title VII protects transgender people from discrimination in 2012. In 2015, the agency also held that Title VII covers claims of discrimination on the basis of sexual orientation. But court decisions on sexual orientation protections have been mixed.

The strongest decision for the recognition of sexual orientation discrimination under Title VII was in Hively v. Ivy Community College, in which the Seventh Circuit held that sexual orientation was covered under sex discrimination in Title VII for three reasons. In that ruling, Chief Judge Diane Wood referenced Price Waterhouse V. Hopkins, a case that is commonly used to support sexual orientation as protected through Title VII by arguing that says sex discrimination includes sex stereotyping. If a stereotypical woman is considered to be heterosexual, then dating women is a failure to conform. Looking at it another way, if a woman were a man dating a woman she would not face discrimination; therefore she is facing discrimination because she is a woman. And yet another way to consider discrimination would to look at the matter of association. The Loving v. Virginia case found that discrimination based on association with someone of a different race is discrimination on the basis of race. In the case of sexual orientation, Wood used this “associational theory” to say that a refusal to promote someone based on their association with someone of the same sex qualifies as sex discrimination.

Gruberg said that with conflicting decisions from the courts, including a March 11th Circuit ruling that Title VII does not cover sexual orientation, and statements from judges such as Chief Judge Robert Katzmann of the Second Circuit U.S. Court of Appeals that discrimination on the basis of sexual orientation is likely covered under Title VII, the issue could come before the U.S. Supreme Court.

“There has been an indication last time they considered this, where Chief Katzmann noted that this is still a developing issue in courts and he felt that court should reexamine whether sex orientation discrimination is covered under Title VII, so it has been mixed,” Gruberg said. “We’re already at a circuit split so it’s something I am convinced is going to be in front of the Supreme Court soon.”

In the brief, the Justice Department noted in Hively, Judge Diane Sykes said sex as “common, ordinary usage in 1964” means “biologically male or female.” Gruberg, who commented before the brief was released, said it would not make sense for the department to address gender identity, given the courts’ past rulings.

“Courts have been much more willing to see that gender identity discrimination is straight up sex discrimination. That has not really been a question. Sexual orientation is a little bit [of a question], so it is shocking that DOJ would bring that [gender identity] up,” Gruberg said. “That is not as contested in federal courts and yet they are bringing it up as an assault on the idea that trans people have civil rights protections.”

Gruberg said that the department will likely take the most prevalent argument against including sexual orientation and say that the statute doesn’t explicitly mention sexual orientation.

“But it doesn’t say sex stereotyping either, and the courts ruled on that, and it doesn’t mention sexual harassment but we now see harassment as covered,” Gruberg said. “What it means under Title VII has been understood as far more broad than what Congress in 60s believed it meant… It is a willful disregard of the evolving definition of sex discrimination.”]
This article was originally published at ThinkProgress on July 26, 2017. Reprinted with permission.

About the Author: Casey Quinlan is a policy reporter at ThinkProgress.


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

Posted on by Ian Millhiser
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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.


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We’ve Finally Reached 2016 African American Women’s Equal Pay Day

Posted on by Elizabeth Kristen
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Today we commemorate “African American Women’s Equal Pay Day,” the day in the year when African American women’s wages finally catch up to what men earned last year.  It is important to note that African American Women’s Equal Pay Day comes nearly four months after “Women’s Equal Pay Day,”which included wages of women of all races, and was marked on April 12th of this year.  The four-month lag signifies the nearly 20-cent wider wage gap African American women face when compared to women of all races.  So, while the average wage gap for all women in the United States is 79 cents for every dollar a man makes, African American women’s wages are at just 60.5 cents on the dollar.  African American lesbian couples, who doubly experience the high wage gap (plus discrimination based on sexual orientation), have triple the poverty rate of white lesbian couples.

Eliminating the racial gender wage gap would provide concrete economic benefits to African American women. To give a concrete example, women could buy nearly three years of food for their families or pay rent for nearly two years with those additional wages.  Given that so many African American women and their families are struggling to make ends meet, receiving equal pay would make a life-changing difference.

Harriet Tubman portrait

Last year, California passed one of the strongest equal pay laws in the country, the California Fair Pay Act of 2015, which strengthened protection for workers who discuss or ask about their wages and the wages of others.  It also protects women who challenge gender based pay differences in jobs that are “substantially similar” to theirs.  For example, a female housekeeper who is being paid less than a male janitor could remedy the pay difference since the jobs are so similar and wage inequality would likely be unjustified.  The California Labor Commissioner is charged with enforcing the California Fair Pay Act.

This year, California State Senator Hall has introduced SB 1063, the Wage Equality Act of 2016, which would add race and ethnicity to California’s strong Fair Pay Act.  Under SB 1063, California employers would be prohibited from paying workers less for substantially similar work based on race or ethnicity.  An African American woman thus might have a claim that she is being paid less based not only on sex, but on race as well.  With SB 1063, she would be able to more effectively address racial wage inequality.

Certain cities already are specifically addressing wage inequality by sex, race and ethnicity.  For example, in San Francisco, city contractors will have to disclose data on what they pay their workers, broken down by both sex and race, to the City.  California state contractors may also be required to submit similar pay data reports under another bill that should reach the governor’s desk for approval.  And the federal Equal Employment Opportunity Commission intends to revise its Employer Information Report (EEO-1) data collection to include salary information based on ethnicity, race, and sex.

Our current laws against sex and race discrimination have proven inadequate to end race- and sex-based unequal pay since the pay gap remains depressingly large more than fifty years after passage of federal civil rights laws in these areas. Pay disclosure rules are an important step towards closing the pay gap for women and women of color in particular. They force employers to self-audit and identify unjustified pay disparities.  In the event they do not correct the disparities, disclosure enable government agencies to conduct targeted enforcement of equal pay laws.

It will reportedly be more than a decade before the first African American woman (Harriet Tubman) graces the face of U.S. currency.  With these new laws there is hope that before the Tubmans arrive, African American women will already be receiving the full value of those $20 bills and not just 60 percent.

The Legal Aid Society-Employment Law Center together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

This article was originally posted at CelaVoice.org on August 23, 2016. Reprinted with permission.

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid Society – Employment Law Center.


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