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Are we getting a mixed message from the new administration on priorities in the civil rights area?

In her first public comments since her appointment as the new acting chair of the EEOC, Victoria Lipnic just last week (February 8) said that the agency will not be making major changes and “is committed to its core values and mission, to enforce civil rights laws in the workplace.”

Yet – just a few days later on Sunday, February 11, The New York Times reported that the new administration has decided not to appeal a nationwide injunction issued by a judge in Texas to block Department of Education guidelines which stated that schools had to give transgender students access to facilities according to their chosen gender, as a matter of law.  It is not clear now whether this signals that the Trump administration’s position on transgender rights, a significant initiative of the EEOC in the Obama administration, will change and what position the new DOJ will take in the Grimm v. Gloucester County case, now pending before the US Supreme Court.

One is a statement from one agency and the other is a decision by another, but clearly there is going to be a shift of focus and priorities.…

Continue Reading New EEOC Chair Says There Will be No “Major Changes” But – the DOJ Seems to be Calling a Truce in the Transgender Battle – What Direction Are We Heading?

As President-Elect Donald Trump moved into the White House on Inauguration Day last Friday, the excitement and political tensions were not confined to the nation’s capital.  LGBTQ rights supporters decorated with rainbow ties and socks filled the Second Circuit courtroom that morning to hear oral argument on a charged issue in Matthew Christiansen v. Omnicom Group, Inc. et al., No. 16-748-cv.

In this case, Matthew Christiansen, a homosexual advertising executive, sued his employer, DDB Worldwide Communications Group Inc., for discrimination based on sexual orientation under Title VII of the Civil Rights Act of 1964.  Title VII prohibits discrimination by an employer against an employee on the basis of “sex,” but does not explicitly prohibit discrimination on the basis of “sexual orientation.”…

Continue Reading Title VII and Sexual Orientation – Front and Center at the Second Circuit on Inauguration Day

The Seventh Circuit reversed and vacated the panel decision holding that Title VII does not protect employees from anti-gay discrimination and will re-hear the case, Hively v. Tech Community College, en banc.  Kimberly Hively claims that her former employer, Ivy Tech Community College, violated Title VII when she was denied full-time employment and promotions…

Unlike many of us, the courts were not on vacation during the month of August in the area of LGBTQ law.  We have seen a number of rulings which seem to signal that the courts are trying to “slow down” the EEOC and other federal agencies as they pursue their stated goal of advancing the rights of LGBTQ employees in the workplace.  These decisions also should send a message to Congress and the Supreme Court that it is time for one or both of these bodies to act and clarify the obligations of an employer to gay, lesbian and transgender employees.

We reported on the Seventh Circuit’s ruling in Hively v. Ivy Tech, where the Court (reluctantly) held that Title VII did not cover discrimination on the basis of sexual orientation.  In so doing, the Court was openly conflicting with the EEOC on this important issue and signaled that either Congress or the Supreme Court needed to address this question.  The EEOC on August 30 asked the full 7th Circuit to reconsider that ruling. Hively v. Ivy Tech Community College, No. 15‐1720 (7th Cir. July 28, 2016)…

Continue Reading Is There a Change in the Wind for LGBTQ Law?

On July 28, 2015, the United States Court of Appeals for the Seventh Circuit (“Seventh Circuit”) ruled that Title VII does not protect against sexual orientation discrimination.  See, Hively v. Ivy Tech Cmty. Coll., 2016 BL 244172, 7th Cir., No. 15-1720, 7/28/16.  The Seventh Circuit ruling is the first by a federal circuit to address the question since the EEOC held in an administrative ruling that bias based on sexual orientation is sex discrimination violating Title VII.

The Seventh Circuit did not discuss the merits of Ms. Hively’s case, who alleged Ivy Tech Community College did not promote her because she is a lesbian.  Instead, the Court discussed the “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”  Judge Rovner wrote:

For although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so….Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, “You are a hard‐working employee and have added much value to my company, but I am firing you because you are gay.” And the employee would have no recourse whatsoever—unless she happens to live in a state or locality with an anti‐discrimination statute that includes sexual orientation. . .…

Continue Reading What the Seventh Circuit’s Recent Title VII Ruling Means for Sexual Orientation Discrimination in the Workplace

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.…

Continue Reading A Conflicted 7th Circuit Holds Title VII Does Not Cover Sexual Orientation Discrimination

The Supreme Court stayed a Fourth Circuit ruling that requires schools to allow transgender students to use the bathroom of the gender they identify as. We are monitoring the case for its impact on employers going forward. For our past analysis on this issue, please refer to the following posts:

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In recent years, state and federal courts have consistently ruled in favor of those seeking to define their gender identity.  However, the Supreme Court has yet to weigh in — a situation that is about to change as the accelerating national discussion of transgender rights finally makes its way to the Supreme Court.

In 2015, G.G., a transgender high school student attending school in Gloucester County, Virginia, challenged his school’s policy requiring students to use restrooms and locker rooms that match their genders assigned at birth.  G.G. alleged that the policy violated both the Constitution’s guarantee of equal protection under the laws and Title IX.  The District Court ignored the constitutional claim and ruled that a 1975 regulation that allows school to provide “separate toilets, locker room, and shower facilities on the basis of sex,” barred his Title IX claim.

This April, the Court of Appeals for the Fourth Circuit reversed the lower court’s decision.  It pointed to the Department of Education’s January 7, 2015 opinion letter from the Department of Education’s Office of Civil Rights, which concluded that if schools opt to separate students in restrooms based on their sex, a school generally must treat transgender students consistent with their gender identity.  Ultimately, a divided Fourth Circuit deferred to the Department of Education’s interpretation of its own regulations.  The Fourth Circuit’s ruling was the first by an appeals court to find that transgender students are protected under federal laws that bar sex-based discrimination.  Further, the Fourth Circuit declined to stay its ruling and remanded the case to the District Court, which issued a preliminary injunction requiring the school board to allow G.G. to use the boys’ restroom while the parties litigate the case on its merits.…

Continue Reading Supreme Court Poised to Weigh in on Transgender Rights

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.…

Continue Reading EEOC LGBT Cases in the News