VA student’s transgender bathroom case will not pass ‘Go’ . . . yet

May 14, 2017 0 COMMENTS

by Rachael L. Loughlin

Transgender issues continue to be one of the hottest areas of the law today. Recent actions by the Trump administration backing away from the Obama administration’s forceful advocacy of transgender rights may have come as no surprise. Nonetheless, they certainly didn’t help clarify the law. In fact, if anything, the Trump administration’s backtracking has made things even more uncertain by pitting the interpretation of federal law banning sex discrimination in schools (Title IX of the Education Amendments of 1972) against federal law prohibiting sex discrimination in employment (Title VII of the Civil Rights Act of 1964) and by delaying critical guidance from the U.S. Supreme Court in a Virginia transgender student’s case.  All Gender Restroom

Issue in Grimm’s lawsuit

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When worlds collide: religious freedom laws and LGBT protections

June 19, 2016 0 COMMENTS

by Brent E. Siler

When the U.S. Supreme Court ruled that the U.S. Constitution prohibits states from banning gay marriage last year, many people who oppose same-sex marriage for religious reasons began worrying that the newly recognized constitutional right to gay marriage would conflict with their right to religious freedom. As a result, several state legislatures have enacted “religious freedom laws,” which generally provide statutory protections for people who refuse to act contrary to their deeply held religious beliefs. Religious freedom laws in North Carolina, Georgia, Indiana, and Mississippi have caused controversy in recent months, with proponents of these laws arguing that they are necessary to protect religious freedom and opponents arguing that these laws are legalized discrimination. Unfortunately, the conflict between religious freedom laws and the ever-expanding recognition of gay rights is far from over and will almost certainly spill into the workplace and create difficulties for employers.  Editing Erasing the First Amendment to U.S. Constitution

Tenets of religious freedom laws

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EEOC says sexual orientation is protected under Title VII

October 18, 2015 0 COMMENTS

by Courtney Bru

The last few years have seen a dramatic expansion of rights on tGay Pride Flagshe 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.

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

May 17, 2015 0 COMMENTS

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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It’s time to get on the winning side of the sexual orientation issue

April 19, 2015 1 COMMENTS

Not long ago, I heard a story about George Wallace, Alabama’s governor in the 1960s and one of the leading advocates for Jim Crow laws and segregation. He is well-known for his “stand at the schoolhouse door,” where he attempted to prohibit two black students from registering for classes at the University of Alabama. The story was told through the eyes of his daughter, who is now 63 with a family of her own. She talked about trying to overcome her father’s reputation and how she now works to promote racial healing. Gay Pride Flags

I felt sad for Wallace’s daughter, who acknowledged her father’s faults and is trying to change her family’s legacy. I was dumbfounded at the way someone could hold onto and promote an idea that denied individuals equality and had been rejected by the U.S. Supreme Court years before.

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Marriage equality comes to Arizona (and 16 other states in 2014)

November 16, 2014 0 COMMENTS

by Dinita James

On October 17, 2014, Arizona Attorney General Tom Horne issued a directive to the state’s 15 county clerks that they could begin immediately issuing licenses for same-sex marriages. With that letter, Arizona became the 30th state to permit same-sex marriage and recognize same-sex marriages celebrated in other states and countries.  Horne’s action came near the end of a dramatic two weeks that saw the number of states recognizing same-sex marriage rise from 19 to 32 by the end of the day on October 17, when Alaska and Wyoming also joined the parade (the number climbed to 33 on November 12 when a judge ordered South Carolina officials to stop enforcing a ban on same-sex marriage). With 17 states making same-sex marriage legal in 2014 and appeals in progress in 7 of the remaining 17 states with same-sex marriage bans, a closer look at the Arizona shift can be instructive for many employers.  Same-sex marriage Arizona

Waving the white flag

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50 ways to list your lover

June 15, 2014 0 COMMENTS

by Mark I. Schickman

Anyone who has filled out EEO-1 forms knows the challenge of fitting humans into demographic boxes. People’s backgrounds and orientations often defy ready definition, leaving you to your best guess under the circumstances. Facebook has the same problem since checking demographic boxes can be confusing or challenging for users. It has long had the “it’s complicated” box, which acts as shorthand for a relationship status with a difficult definition, but that isn’t specific enough to cover the broad scope of Facebook users’ relationships.  Gender Idenitity Chart

In terms of sexual identity, we started with the term “gay,” moved to “gay and lesbian,” and then to “LGBT,” which added bisexual and transgendered. Then came “Q” and “I.” (Ask different people, and you’ll get different answers about what those letters stand for.) Facebook has now opened the self-description gates wide with more than 50 terms that describe sexual identity. Among the heretofore less frequently used terms are androgynous, pangender, transperson, and gender-fluid.

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Are we evolving on sexual orientation/gender identity issues?

May 08, 2014 0 COMMENTS

Many states have statutes prohibiting discrimination against employees on the basis of sexual orientation or gender identity. Not all states have such prohibition, and since there is no broad federal prohibition on discrimination by private employers based on either category, that leaves local ordinances to address the issue. A look at what is happening in Texas can offer insight into these trends across the country.  Texas!!

Local ordinances across Texas

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ENDA may be coming soon—what will its impact really be?

January 19, 2014 0 COMMENTS

by John R. Merinar, Jr.

A great deal of attention has been focused on the U.S. Senate’s recent passage of the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination in the workplace based on sexual orientation and gender identity. The House of Representatives has yet to take up the bill, but there’s much speculation that supporters have the votes necessary to secure passage. Often, supporters can be heard using the phrase “fundamentally transform,” made popular by President Barack Obama, to describe the impact of ENDA in the workplace. But, in reality, the legislation may merely be an example of lawmakers catching up with the citizens they represent.  Senate

Behind the curve

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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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