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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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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Are generic antigay comments considered harassment?

November 17, 2013 1 COMMENTS

by Steve Jones

Q I have an employee who is outwardly gay. He is a great employee and says he loves working at my business. However, he recently mentioned that he doesn’t like when a specific coworker uses antigay slurs. The slurs are not directed toward the gay employee. Instead, the slurs are generic comments such as “That’s so gay.” Are the comments a form of harassment under the law? 

A It depends. Sexual orientation―specifically, lesbian, gay, bisexual, and transgender (LGBT) status―is not a federally protected category. Therefore, we must look to state law for guidance. Currently, 21 states and the District of Columbia have laws that prohibit sexual orientation discrimination in employment. Twenty-nine states do not prohibit sexual orientation discrimination.

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