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.

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.


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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.


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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

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

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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

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,

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.

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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