Deciphering the feds’ changing position on LGBT employment protections under Title VII

November 19, 2017 0 COMMENTS

by Molly DiBianca

In a memo issued on October 4, 2017, U.S. Attorney General Jeff Sessions formally declared that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on transgender status. The memo directly conflicts with the position of the Equal Employment Opportunity Commission (EEOC), which has long argued that gender identity is protected by federal law. Here’s what employers need to know.  Gay pride

Unanswered question

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Diversity and inclusion director gets a little inclusion

August 20, 2017 0 COMMENTS

by Michelle Lee Flores

The California Court of Appeal threw a solitary bone to Toyota’s director of diversity and inclusion when it reversed a trial court’s dismissal of his sexual orientation discrimination claim. The court of appeal held that the former employee had provided sufficient evidence that a senior manager’s perception that he was “too gay” was a substantial motivating factor for his termination. However, his evidence of sex or gender stereotyping didn’t support, and therefore didn’t save, his retaliation and wrongful discharge claims, both of which were dismissed by the trial court without going to the jury.  Justice is served

Diversity and inclusion director feels excluded

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Sex stereotyping, same-sex harassment, and transgender issues in the workplace

May 15, 2016 0 COMMENTS

by Amanda Shelby

We typically think of sex discrimination and sexual harassment as involving two employees of the opposite sex, but that unlawful activity can occur between employees of the same sex, too. Although federal law doesn’t explicitly recognize gender identity or sexual orientation as protected characteristics, several states and cities have passed ordinances prohibiting adverse action on the basis of gender identity and sexual orientation. Additionally, in its 2013-16 Strategic Enforcement Plan, the Equal Employment Opportunity Commission (EEOC) emphasized the emerging issue of LGBT rights in the workplace. Gender Identity

A brief overview of the law

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Training too weird even for Austin

August 16, 2015 0 COMMENTS

by Mark R. Flora

Perhaps you have already heard about the recent firestorm created during a diversity training session for city employees in, of all places, Austin, the capital of political correctness. The training was actually held in March, but the uproar followed an article in the Statesman in May. The hue and cry was loud enough to be heard in Washington, D.C., after the Washington Post weighed in. How can diversity training, which is good, go so bad? Business training

By way of background, I should explain that the Austin City Council now has a female majority for the first time, which may well have been the impetus for the training session. City spokesman David Green said the intent of the training session was to celebrate the female commissioners’ success stories and provide an opportunity to learn from the women themselves. As we all know, however, the road to hell is paved with good intentions.

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Employers may be liable for transgender discrimination

June 14, 2015 1 COMMENTS

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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Reconsidering the status of sexual orientation in the workplace

December 15, 2013 0 COMMENTS

by Harold Pinkley

From the time I began practicing employment law (too many) years ago―and probably for longer than that―employment lawyers have been quite comfortable advising clients that Title VII of the Civil Rights Act of 1964 (the federal law that prohibits discrimination based on gender and other protected status) does not cover sexual orientation. Many states’ laws don’t prohibit discrimination based on sexual orientation, either. In other words, when it comes to homosexual or bisexual employees, discriminate away.  SexualOrientation

However, it has become fairly clear that such glib advice is incomplete and perhaps even wrong not just from an ethical standpoint but also in terms of legal liability. This article provides an overview of some changes and developments to be mindful of when addressing sexual orientation issues in the workplace.

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Transgender employee, sex stereotyping, and a heart attack

September 15, 2013 0 COMMENTS

by Steven T. Collis

Do an employer’s criticisms of a transgender employee’s unruly hair, disheveled clothing, poor writing and speaking skills, and negative client interactions support a discrimination claim based on her failure to conform to a gender stereotype? The U.S. District Court for the District of Colorado recently said no to that question. However, the employee’s termination following a heart attack raised sufficient issues of fact to allow her disability discrimination claim to proceed.

Employee receives mixed performance reviews

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Beware of sex-stereotyping claims

May 19, 2013 2 COMMENTS

by Taylor Chapman

In many situations, it is relatively easy to understand what constitutes discrimination on the basis of sex. For instance, you cannot refuse to hire an applicant because she is a woman or treat a female employee differently from a male employee because of her sex. The legal requirements become more uncertain, however, when an employee claims you engaged in unlawful sex stereotyping, as one Virginia employer recently learned.

What is sex stereotyping?

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