by Courtney Bru
The last few years have seen a dramatic expansion of rights on the basis of sexual orientation and gender identity. In 2013, the U.S. Supreme Court found unconstitutional the heterosexual definitions of “marriage” and “spouse” in the federal Defense of Marriage Act (DOMA). And earlier this year, the Court found same-sex marriage is a fundamental right protected by the federal constitution.
Another potentially more significant development has received less attention: the Equal Employment Opportunity Commission (EEOC) has recently taken the position that Title VII of the Civil Rights Act of 1964 affords protection from discrimination on the basis of sexual orientation.
The Equal Employment Opportunity Commission (EEOC) has been celebrating its own birthday this year, marking its 50th anniversary. In August, the EEOC published “American Experiences Versus American Expectations,” a report documenting changes in employee demographics since 1965 and using data through 2013 as an update to a 1977 report titled “Black Experiences Versus Black Expectations.”
The full report, available on the EEOC website, details a number of changes over nine job categories for women, African Americans, Hispanics, Asian Americans, and American Indians/Alaskan Natives. Drawing on decades of data from mandatory EEO-1 filings, “American Experiences Versus American Expectations” reports that participation of women in the “professionals” category, which was 14 percent in 1966, had increased to more than 53 percent by 2013. Moreover, there have been significant percentage increases for African Americans, Hispanics, and Asian Americans in senior-level positions. However, the report also shows that there are still heavy concentrations of minorities in lower-paying positions. The full report may be accessed at www.eeoc.gov/eeoc/statistics/reports/american_experiences/index.cfm.
“Much ado about nothing” is just one literary turn of phrase that comes to mind when considering the initial uproar over Section 342 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the long wait for its implementing regulations. Here’s some background to add some perspective to that observation.
Section 342 of Dodd-Frank, passed by Congress and signed into law by President Barack Obama at the end of 2010, directed each of 12 affected federal financial industry regulators to establish an Office of Minority and Women Inclusion (OMWI) and to publish, no later than January 21, 2011, proposed regulations designed to increase diversity in the financial industry, in both employment and contracting. Now, nearly five years later, six of the agencies have finally met their “deadline” with the joint release on June 9, 2015, of their final diversity and inclusion standards.
The legal landscape related to sexual orientation and gender identity has been shifting in recent years. The impact of same-sex marriage on employers and other topics involving homosexual employees and their partners have been featured in previous issues of this newsletter. Recent lawsuits and statements by key governmental officials have now placed transgender/gender identity discrimination and other issues at the forefront.
There is no universally accepted definition of “transgender.” The term usually refers to an individual whose gender identity does not match his or her biological gender. Transgender is sometimes confused with sexual orientation, but gender identity is an independent issue. Further, some transgender people may undergo medical procedures to physically align their gender to their gender identity. As this article illustrates, employers need to keep an eye on this rapidly changing area of the law.
Significant expansion of the antidiscrimination protections afforded to members of the LGBT community was accomplished in 2014 through executive action by President Barack Obama, the U.S. Department of Labor (DOL), and the attorney general (AG). The push for more protection of LGBT employees culminated in two lawsuits in which the Equal Employment Opportunity Commission (EEOC) challenged the layoff and termination of employees undergoing gender transition procedures. The EEOC’s litigation posture, bolstered by executive action, suggests that employers should anticipate increased enforcement activity in this unsettled area.
Title VII of the Civil Rights Act of 1964 has always prohibited discrimination, harassment, and retaliation “because of sex” and “on the basis of sex.” Some states have adopted statutes that broaden that concept to include not only “sex” but also “sexual orientation [and] gender identity.” Although Title VII doesn’t explicitly prohibit sexual orientation or gender identity discrimination, the EEOC has now taken the position that discrimination based on gender identity (specifically, a “change in gender”) is discrimination “based on sex.” Similar pronouncements are found in the EEOC’s “Strategic Enforcement Plan, FY 2013-2016,” issued on December 17, 2012. However, many federal courts around the country have ruled that the language of Title VII doesn’t extend to the issues encompassed by the new executive actions.
Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination by all private employers, state and local governments, and educational institutions with 15 or more employees. We are all familiar with Title VII’s prohibition against sex discrimination in the workplace. In recent years, the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing Title VII, has found that claims of sex stereotyping by lesbian, gay, and bisexual individuals are covered under the Act’s prohibition against sex discrimination. The EEOC has also interpreted Title VII to prohibit discrimination based on an individual’s gender identity, including transgender status. On December 14, 2014, the U.S. Department of Justice (DOJ) announced a reversal of its previous position and has now joined the EEOC in extending the protection of Title VII to allow claims based on an individual’s gender identity.
DOJ explains its position
A lesser-known provision of the Affordable Care Act (ACA) requires employers that are covered by the Fair Labor Standards Act (FLSA) to provide a private area for mothers to nurse or express breast milk during the workday. The U.S. Department of Health and Human Services (HHS) is making the requirement known with a new website from the Office of Women’s Health. The website includes resources for employers that seek to comply with the ACA.
In a lawsuit filed in September, the Equal Employment Opportunity Commission (EEOC) alleges that a Minnesota-based power company violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) by requiring an employee returning from medical leave to execute overbroad medical release forms for a fitness-for-duty medical examination. In EEOC v. Cummins Power Generation, currently pending in the federal district court in Minnesota, the agency asserts that the employer violated both the ADA and GINA when it attempted to obtain certification that the employee was medically qualified to return to work from medical leave. The EEOC’s aggressive approach in this case suggests that employers may be well-advised to review policies and practices governing employees’ return to work following medical leaves of absence.
To focus on the importance of the federal contractor community’s role in President Barack Obama’s commitment to enacting change with the “power of the pen,” Secretary of Labor Thomas Perez spoke in early August at the 2014 National Industry Liaison Group’s (NILG) national meeting in Washington, D.C. This was the first time a sitting secretary of labor spoke to the NILG. Secretary Perez emphasized the importance of federal contractors making inclusion and opportunity a part of the “DNA” of companies in the American workforce.
Highlighting an issue with opportunity gaps in the labor force, Perez told federal contractors that having a culturally competent and linguistically diverse workforce is important and that inclusion is how we can succeed in the economy. Because of their affirmative action and nondiscrimination obligations under regulations imposed by the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP), federal contractors must make inclusion and opportunity a part of their business, and they are at what Perez called the forefront of the “orchestra of opportunity.”