EEOC says sexual orientation is protected under Title VII

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.  Gay Pride Flags

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.

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An EEOC update: Where are we now?

by Christopher J. Pyles

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

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Long wait for Dodd-Frank standards turns out to be much ado about nothing

by H. Mark Adams

“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.  Compliance Headlines Newspaper Torn New Business Regulations Com

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.

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Employers may be liable for transgender discrimination

by Ryan B. Frazier

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. Transgender

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.

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Here come the feds! POTUS, DOJ, DOL, and EEOC weigh in on LGBT issues

by Geoffrey D. Rieder

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.  Pride flag at city hall

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.

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DOJ is the latest federal agency to extend Title VII protection

by Leslie A. Sammon

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.  Transgender

DOJ explains its position

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New HHS website provides tips for accommodating lactating employees

by Kate DeForest

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.

ACA requirements

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Return-to-work woes: EEOC challenges medical release requests under ADA, GINA

by Geoffrey D. Rieder

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.  PrivateMedicalInformation


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Secretary of labor speaks at major federal contractor conference

by Emily L. Bristol

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.  Perez

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.”

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EEOC issues updated enforcement guidance on pregnancy discrimination

by Kevin McCormick

On July 14, the Equal Employment Opportunity Commission (EEOC) issued its “Enforcement Guidance on Pregnancy Discrimination and Related Issues.” This is the first comprehensive update the EEOC has provided on the subject since 1983. The guidance supersedes the earlier EEOC publication and incorporates significant developments in the law during the past 30 years.  Pregnant Employee

In addition to addressing the requirements of the Pregnancy Discrimination Act (PDA), the guidance discusses the application of the Americans with Disabilities Act (ADA) as amended in 2008 to individuals who have pregnancy-related disabilities. Much of the analysis in the new guidance is an update of long-standing EEOC policies that set out the fundamental PDA requirements that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions and that women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons similar in their ability or inability to work.

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