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On LGBT Job Discrimination, The Courts Are Finally Correcting Congress

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Courts May Finally Prohibit Employment Discrimination On The Basis Of Sexual Orientation And Gender Identity

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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 “blue states” have passed nondiscrimination laws that cover sexual orientation and gender identity, most “red states” 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. Hopkins (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.

https://www.youtube.com/watch?v=hMp0D4bAnokÂ

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 is 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.  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 “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination is necessarily an allegation of sex discrimination under Title VII.”

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.

“Whether 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,” she wrote.Â

Noting that since the EEOC ruling that sexual orientation discrimination is sex discrimination, many district courts, which she described as the “laboratories on which the Supreme Court relies to work through cutting-edge legal problems,” are beginning “to ask whether the sexual orientation-denying emperor of Title VII has no clothes.”

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 “a 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.”

She observed that “Discrimination 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 do—for example, that men should have romantic and sexual relationships only with women, and women should have romantic and sexual relationships only with men.” 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 “the absurd conclusion . . . that the law protects effeminate men from employment discrimination, but only if they are (or are believed to be) heterosexuals.”

She added: “our [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 norms—wearing pants instead of dresses, having short hair, not wearing make up—but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman.”

The law, she concluded, “protects ‘flamboyant’ gay men and ‘butch’ lesbians but not the lesbian or gay employee who act or appear straight.”

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.

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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 described Hively v. Ivy Tech 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. “That 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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Trump Could Face 20 Years Behind Bars for ‘Serious Felonies’ at Mar-a-Lago: Legal Analyst

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A legal analyst for ABC News pointed out that former President Donald Trump is potentially facing 20 years in prison for “serious felonies” after the search of his Mar-a-Lago home.

Dan Abrams told ABC host Jonathan Karl that the Department of Justice could indict Trump for multiple crimes after finding classified documents during the search.

“They’re very serious,” Abrams said of the charges. “And the one that’s being talked about most is this espionage act because it has the word espionage in it. But the truth is that when it comes to potential criminal sentences, the obstruction of justice statute is the one with the most potential prison time.”

“There you’re talking about up to 20 years behind bars,” he added. “So these are not sort of minor crimes we’re talking about here. We’re talking about the potential for serious felonies with regard to all three of the crimes being investigated.”

But Abrams threw cold water on the idea that a Trump prosecution would be easy.

“The fundamental question is going to be intentionality,” he opined. “How much do they believe that they did this on purpose? Were they intentionally ignoring subpoenas? Were they literally destroying documents?”

Watch the video below from ABC.

 

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Trump Makes False Claims About Classified Documents – And Obama

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Donald Trump is responding to news reports he is under FBI investigation for actions covered by the Espionage Act by making apparently false claims about his mishandling of classified documents and about former President Barack Obama.

“Number one, it was all declassified,” Trump says in a post on his Truth Social site, a claim legal experts say is incorrect. For any president to declassify documents, experts say, there is a process that involves actions being taken on each individual document. They also say the president does not have legal authority to declassify documents related to nuclear weapons.

“Number two,” Trump continues, “they didn’t need to ‘seize’ anything. They could have had it anytime they wanted without playing politics and breaking into Mar-a-Lago. It was in secured storage, with an additional lock put on as per their request.”

READ MORE: FBI Agents Searched Mar-a-Lago for ‘Classified Documents Relating to Nuclear Weapons’: Report

Again, according to reports, that too is false. DOJ issued a subpoena after the National Archives tried to get all the documents back and Trump still did not comply.

“They could have had it anytime they wanted—and that includes LONG ago,” he continues in a separate post on Truth Social. “ALL THEY HAD TO DO WAS ASK.”

Again, multiple reports say they did, numerous times.

READ MORE: DOJ Served Trump With Grand Jury Subpoena for Classified Documents Months Before FBI Raid: Report

None of his responses explain why he had at Mar-a-Lago what we now know were at least 35 cartons – 20 retrieved on Monday and 15 earlier this year – of items including confidential, classified, and top secret documents that were required by law to have been handed over to the National Archives.

“The bigger problem is,” Trump says, “what are they going to do with the 33 million pages of documents, many of which are classified, that President Obama took to Chicago?”

That is also false.

The National Archives on Friday issued a statement after Trump repeatedly spread the false claim that former President Barack Obama had 33 million documents in his possession.

“President Barack Hussein Obama kept 33 million pages of documents, much of them classified. How many of them pertained to nuclear? Word is, lots!” was one of Trump’s false attacks on his Truth Social site.

“The National Archives and Records Administration (NARA) assumed exclusive legal and physical custody of Obama Presidential records when President Barack Obama left office in 2017, in accordance with the Presidential Records Act (PRA),” the Archives said in a statement posted to its website Friday.

“NARA moved approximately 30 million pages of unclassified records to a NARA facility in the Chicago area where they are maintained exclusively by NARA,” the Archives added. “Additionally, NARA maintains the classified Obama Presidential records in a NARA facility in the Washington, DC, area. As required by the PRA, former President Obama has no control over where and how NARA stores the Presidential records of his Administration.”

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‘So Much Worse!’ Morning Joe Rips GOP for Defending Trump After Burying Clinton Over Classified Info

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MSNBC’s Joe Scarborough hammered Republicans for spending years excoriating Hillary Clinton’s handling of classified materials and then turning around defending Donald Trump over far worse allegations.

The FBI carried out a search of Mar-A-Lago this week, where agents reportedly expected to find nuclear secrets among the classified materials Trump took from the White House, and Scarborough and “Morning Joe” co-host Mika Brzezinski laid into Republicans for attacking law enforcement to protect the former president from serious allegations.

“The conundrum you just put out there,” Brzezinski said, “about it being just as bad when a Democrat has some improper use of classified documents as when a Republican does, on this show, you will see us saying the same thing in each situation. Roll the tape, you know, rewind the tape — critical of Hillary Clinton, everything to do with the email, very, very critical. Here, you have a situation where Trump’s following and his friends on TV won’t cover the story the same way. In fact, they will go to fantastical lengths to not ask the right questions, to twist the truth, to push his big lies. It is dangerous.”

Scarborough said there was no comparison between what Clinton did and what Trump has been accused of doing, even as the facts remain scant.

READ MORE: ‘Deranged’ Republicans have gone off the rails with FBI attacks after Mar-a-Lago search: conservative

“What is so maddening about the Republican response to this is, despite the fact — and I hope our liberal friends can deal with this — despite the fact we brought up Hillary Clinton’s emails, in this same time, we’re bringing up Donald Trump’s classified information that he’s reportedly taken to Mar-A-Lago, there is no moral equivalency,” Scarborough said. “The two are brought up because what Donald Trump has done is so much worse, so much more dangerous.”

An Ohio man tried to force his way into FBI headquarters in Cincinnati on Thursday, apparently prompted by Republican attacks on law enforcement officials over the Trump search, and Scarborough called out their violent rhetoric.

“The order of magnitude is overwhelming, and I bring it up to make a bigger point about Republican hypocrisy,” Scarborough said. “They were worried about a former secretary of state’s emails. They’re completely discounting the possibility of nuclear secrets being stolen from the White House and taken down to Mar-A-Lago and hidden from the Department of Justice.”

“Where are the Republicans? Where are the Republicans? Where are the Republicans?” he added. “Hold a press conference, condemn these actions, condemn the hate speech, condemn the targeting of law enforcement officers. Condemn the targeting of FBI agents and professionals at the Department of Justice. Is there not one that will do it?”

Watch the video below or at this link.

 

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