Courts May Finally Prohibit Employment Discrimination On The Basis Of Sexual Orientation And Gender Identity
The difficulty in passing a national bill protecting LGBT workers from employment discrimination highlights the dysfunction of American government. Despite the fact that a large majority of Americans supports such legislation, Republicans have steadfastly blocked proposed nondiscrimination laws through a variety of tactical maneuvers or poison pill amendments. However, the courts may finally do what Congress has been unwilling to do.
Currently, LGBT people are partially protected from employment discrimination by a patchwork of state and local laws, executive orders, and court rulings.
Although there is no federal law explicitly addressing employment discrimination based on sexual orientation and gender identity, executive orders–the first of which was issued in 1995 by President Bill Clinton–prohibit discrimination on the basis of sexual orientation and gender identity in federal employment and–thanks to President Obama–by government contractors.
While most â€œblue statesâ€ have passed nondiscrimination laws that cover sexual orientation and gender identity, most â€œred statesâ€ provide no state-wide protection for LGBT employees, though cities in many of them provide limited protection.
Courts have generally ruled on equal protection grounds that public employees are protected from discrimination on the basis of sexual orientation and gender identity, but have been reluctant to extend such protection to employees in the private sector absent state statutes or municipal ordinances.
While most large businesses have voluntarily adopted nondiscrimination policies that cover sexual orientation and gender identity, most small businesses in red states have not.
However, recent interpretations of Title VII of the Civil Rights Act of 1964 by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing federal laws that make it illegal to discriminate against employees and job applicants, provide hope that LGBT individuals will soon enjoy protection against discrimination even in red states and even by private employers.
The EEOC has determined that Title VII prohibits discrimination on the basis of sexual orientation and gender identity. The determination is binding on all federal agencies and departments and governs EEOC enforcement and litigation activities throughout the country. Although courts are not bound by the EEOC’s interpretations, they often give deference to them.
The EEOC has recently announced that sexual orientation and gender identity is now a strategic enforcement priority for the agency. They are expected to mount an aggressive program of litigation on behalf of LGBT people who have experienced employment discrimination.
Gender Identity As a Protected Classification
Recent court rulings, at both the district and appellate levels, have affirmed that transgender people are protected from discrimination in employment.
For example, on December 6, 2011, the Eleventh Circuit Court of Appeals in Glenn v. Brumby upheld a lower court ruling that the Georgia General Assembly discriminated against Vandy Beth Glenn, a transgender woman who was fired from her job as Legislative Editor after she told her supervisor that she planned to transition from male to female.
In a forceful opinion authored by Judge Rosemary Barkett for a unanimous three-judge panel, which included one of the most conservative judges on the federal bench, Judge William Pryor, the Court declared, “An individual cannot be punished because of his or her perceived gender-nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual. . . . A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”
The decision stated unequivocally: “We conclude that a government agent violates the Equal Protection Clause’s prohibition on sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.”
The victory was the first ruling on transgender rights from the Eleventh Circuit, considered one of the most conservative circuits. The ruling brought the Eleventh Circuit in line with other circuits in applying to transgender individuals the U.S. Supreme Court ruling in Price Waterhouse v. HopkinsÂ (1989) that said that gender non-conformity is included in the Civil Rights Act’s prohibition of discrimination on the basis of sex.
The plaintiff in the case, Vandy Beth Glenn, worked for two years in the Georgia General Assembly’s Office of Legislative Counsel as an editor and proofreader. In 2007, Glenn informed her immediate supervisor, Beth Yinger, that she planned to transition from male to female, and showed Yinger photographs of herself in professional female attire. Yinger passed the information on to her boss, the General Assembly’s Legislative Counsel, Sewell Brumby, who promptly fired her.
A 2012 ruling by the EEOC itself also held that gender identity discrimination is prohibited by Title VII of the Civil Rights Act of 1964. The decision was issued in Macy v. Holder, a case in which Mia Macy, a transgender woman who was denied employment with the Department of Alcohol, Tobacco, Firearms and Explosives (ATF) after she revealed her intention to transition from male to female, claimed that she suffered discrimination because of her gender identity.
Issued without dissent by the five-member, bipartisan Commission, the decision states unambiguously “that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.”
“When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment related to the sex of the victim. This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person.”
Masen Davis, then head of the Transgender Law Center (TLC), which brought the case on behalf of Mia Macy, described the decision as a “big leap forward,” because now “transgender people who feel they have faced employment discrimination can go into any of [the Commission’s] 53 offices and the EEOC will consider their claims. What’s more, the EEOC could take action itself to sue the employer for discrimination.”
He added, “Given that transgender people do not have employment protections in the vast majority of states, this creates a whole new fabric of legal support for our community.”
The TLC first pursued Macy’s complaint through the Office of Equal Opportunity of the ATF, which is responsible for considering complaints of discrimination by the agency. When the ATF’s equal opportunity officer denied that Title VII applied to transgender employees, the TLC filed suit, asking the EEOC to clarify the law.
Sexual Orientation as a Protected Classification
Although it is now clear that Title VII’s prohibition of sex discrimination covers discrimination on the basis of gender stereotypes and gender identity, it is not yet firmly established that it also covers discrimination on the basis of sexual orientation.
At least two federal lawsuits are currently underway that may clarify the question.
One isÂ Baldwin v. Foxx, a suit in which David Baldwin, a former Federal Aviation Administration employee, alleges that he was denied a promotion and suffered harassment based on his sexual orientation. Â Baldwin first filed a complaint with the EEOC in 2012; finally, in July 2015, the EEOC ruled that sexual orientation is indeed covered by Title VII and permitted the lawsuit to go forward. It is currently pending in the U.S. District Court for the Southern District of Florida.
The uncertainty about whether sexual orientation is a protected classification was also recently confronted in an extraordinary ruling in the U.S. Court of Appeals for the Seventh Circuit issued on July 28, 2016 in a case known as Hively v. Ivy Tech. Judge Ilana Rovner, writing for a three-judge panel, called attention to the dilemma the court faced in considering the case of a lesbian, Kimberly Hively, who alleged that she had been discriminated against by Ivy Tech Community College in South Bend, Indiana.
Hively, who worked as a part-time adjunct professor for many years, claimed that she had repeatedly been passed over for full-time employment and promotions because of her sexual orientation. Her claim was dismissed by the district court in response to a motion by Ivy Tech, which claimed that Title VII does not ban discrimination on the basis of sexual orientation, a holding that the Seventh Circuit had made in other cases decided several years ago.
Feeling bound by Seventh Circuit precedent, the appellate panel affirmed the district court’s ruling, but Judge Rovner spent the great bulk of her opinion describing the changing legal landscape for LGBT people. She noted that the EEOC recently declared that â€œsexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination is necessarily an allegation of sex discrimination under Title VII.â€
She also observed that district and appellate courts have handled the question of whether Title VII prohibits sexual orientation discrimination very differently. Some have disallowed any claims where sexual orientation and gender non-conformity are intertwined, while others have tried to tease apart the sexual orientation and gender non-conformity claims and look only at those that appear to address gender-nonconformity, which the Supreme Court has held is protected under Title VII.
â€œWhether the line is nonexistent or merely exceedingly difficult to find, it is certainly true that the attempt to draw and observe a line between the two types of discrimination results in a jumble of inconsistent precedents,â€ she wrote.Â
Noting that since the EEOC ruling that sexual orientation discrimination is sex discrimination, many district courts, which she described as the â€œlaboratories on which the Supreme Court relies to work through cutting-edge legal problems,â€ are beginning â€œto ask whether the sexual orientation-denying emperor of Title VII has no clothes.â€
Judge Rovner also pointed out that the U.S. Supreme Court rulings in Windsor, which struck down the Defense of Marriage Act in 2013, and in Obergefell, which in 2015 mandated that same-sex couples had a constitutional right to marry, created â€œa paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act. For although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so.â€
She observed that â€œDiscrimination against gay, lesbian, and bisexual employees comes about because their behavior is seen as failing to comply with the quintessential gender stereotype about what men and women ought to doâ€”for example, that men should have romantic and sexual relationships only with women, and women should have romantic and sexual relationships only with men.â€ Thus, she implied, following the reasoning of Price Waterhouse, sexual orientation discrimination as well as gender identity discrimination should be prohibited.
She characterized the Seventh Circuit precedents that bound her as leading to â€œthe absurd conclusion . . . that the law protects effeminate men from employment discrimination, but only if they are (or are believed to be) heterosexuals.â€
She added: â€œour [circuit’s] understanding of Title VII leaves us with a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender normsâ€”wearing pants instead of dresses, having short hair, not wearing make upâ€”but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman.â€
The law, she concluded, â€œprotects ‘flamboyant’ gay men and ‘butch’ lesbians but not the lesbian or gay employee who act or appear straight.â€
The unusual decision, which pointed out the absurdity of the current position in the Seventh Circuit, seemed to be begging for the plaintiff to ask for an en banc hearing to reconsider the case. Outdated precedents within a circuit can be overturned only by a Supreme Court ruling or by an en banc review by all the active judges within the circuit.
In response, Lambda Legal, representing Kimberly Hively, quickly filed a request for an en banc review, which was promptly granted on October 6, 2016. Oral arguments in the case have been scheduled for November 30.Â
Inasmuch as en banc reviews are rarely granted, and seldom expedited as this case apparently has been, it seems likely that the Seventh Circuit will reverse the finding in favor of Ivy Tech and adopt the position of the EEOC that discrimination on the basis of sexual orientation is forbidden by Title VII of the Civil Rights Act.Â
If the Seventh Circuit does reverse, their decision will probably be appealed to the Supreme Court, which may accept it for review in order to render a final decision as to whether Title VII prohibits discrimination on the basis of sexual orientation.
Ian Milhiser, who has describedÂ Hively v. Ivy TechÂ as “the most important gay rights case since marriage equality was won,” has pointed out that if Hillary Clinton is elected president and appoints a liberal justice to replace the late Justice Antonin Scalia on the Supreme Court, SCOTUS will soon be the most liberal court in history. “ThatÂ opens up the very real possibility that workplace discrimination on the basis of sexual orientation will be illegal throughout the entire nation.”
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‘This Is a Business’: New Footage of Trump Family Emerges From Jan. 6 Investigation
The family allowed Holder to gain exclusive access to them and the former president’s inner circle in the period between the 2020 election and the attack on the U.S. Capitol, and Politico obtained a new trailer for the upcoming documentary “Unprecedented,” which will stream on the Discovery+ network.
“Ivanka frets about a line on her dress, and jokes about covering it with a pet roaming about. ‘Can I borrow your dog?’ she asks her makeup artist,” Politico reported. “Jared nervously repositions his tie and asks, ‘Is that okay?’ Don Jr., seen at a rally, screams, ‘We will make liberals cry again!’ Eric is caught on a phone call, mysteriously saying, ‘For the sake of this country, we’re going to get these guys.'”
Those mundane moments build up to Jan. 6, and the film shows Donald Trump encouraging his supporters to march down Pennsylvania Avenue to the Capitol, and Holder’s photographer joins the throng.
“We’ve got to get the roaches out, all of them,” a Trump supporter yells to the photographer.
The documentary crew also recorded scenes from the ensuing attack, and Holder has turned over the raw footage to the House select committee investigating the riot.
“Gaining power is easy,” the narrator says in the trailer. “Surrendering it is not.”
Watch the video below or at this link.
Trump Celebrates Fourth of July by Attacking His Enemies as Biden Hails the American ‘Idea’ of ‘Hope’
President Joe Biden is celebrating Independence Day by promoting the American “idea” of “hope” while his predecessor, Donald Trump, is spending the Fourth of July by attacking his enemies and airing his grievances. Later today the President and First Lady will “host a Fourth of July BBQ with military families and deliver remarks to celebrate Independence Day,” according to the president’s official schedule.
Trump is celebrating the most patriotic day on the calendar by attacking his enemies, revisiting his impeachments, the Mueller Report, the House Select Committee on the January 6 Attack, falsely characterizing global challenges, and declaring, “it’s not looking good for our Country right now.”
President Biden on Monday declared on Twitter, “America is an idea.”
“An idea that is stronger than any army, bigger than any ocean, more powerful than any dictator or tyrant,” Biden said. “It gives hope to the most desperate people on Earth, it guarantees that everyone is treated with dignity and gives hate no safe harbor. It instills in every person in this country the belief that no matter where you start in life, there’s nothing you can’t achieve if you work at it.”
Banned from Twitter and Facebook, Trump posts on the social media platform he owns to his 3.4 million followers, a small fraction of the 88.9 million followers he amassed on Twitter.
“I know it’s not looking good for our Country right now,” Trump says on his Truth Social platform, adding a series of claims like there’s “a major War raging out of control in Europe, the Highest Inflation in memory, the worst 6 month Stock Market start in History, the highest Energy Prices EVER, and that is the Good News. Happy Fourth of July!!! ((Don’t worry, We will MAKE AMERICA GREAT AGAIN, and remember, none of these terrible events would have happened if I were President!!!))”
He also criticizes the U.S. House Select Committee on the January 6 Attack as a group of “political thugs,” spreads false information about his impeachments and the Mueller Report, while painting himself as a victim.
Trump targets Committee Vice-Chair Liz Cheney, declaring that she “keeps saying, over and over again, that HER Fake Unselect Committee may recommend CRIMINAL CHARGES against a President of the United States,” which she did this weekend.
Image: The Bidens watch the fireworks from the White House on July 4, 2021. Official White House Photo by Adam Schultz.
‘Impeach Justice Clarence Thomas’: More Than One Million Signatures as Petition Goes Viral
U.S. Supreme Court Justice Clarence Thomas, like most federal judges, has an appointment for life, but the U.S. Congress has the right and ability to remove him through the impeachment process, and more than one million signatories to a petition that’s going viral are asking lawmakers to do just that.
“The right-wing rigged Supreme Court overturned Roe v. Wade last week, effectively taking away the right to privacy and bodily autonomy that’s been considered legal precedent for the past 50 years,” reads the Move On petition, which alleges the most right-wing jurist on the nation’s top court “has shown he cannot be an impartial justice.”
“Supreme Court Justice Clarence Thomas—who sided with the majority on overturning Roe—made it clear what’s next: to overturn high court rulings that establish gay rights and contraception rights,” it adds.
The petition, which has been gaining 100,000 signatures daily, notes that Justice Thomas voted “against a Supreme Court decision to compel the release of Donald Trump’s records regarding the January 6 insurrection and attempt to overturn the results of the 2020 presidential election.” It also points to “his wife—longtime conservative activist Ginni Thomas—was actively urging the White House to overturn election results both leading up to January 6 and after the deadly insurrection.”
Justice Thomas, the petition demands, “must resign—or Congress must immediately investigate and impeach.”
Some of those who have signed the petition offered their thoughts:
“The Supreme Court must be beyond reproach. Instead, they’re political pawns of a fascist right wing agenda.”
“He and his wife have an agenda, and the country will pay the price.”
“The overturning of women’s health, same sex and contraception rights is a huge impact on millions of women including myself. Why is a Judge like Clarence Thomas granted privilege to dictate women’s rights?”
“His inability to keep politics out of important Constitutional decisions has worsened, culminating with the repeal of Roe as case law, instantly turning US women into 2nd-class citizens who have no say over their own bodies.”
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