I promised last week to cover one more Hot Button employment law issue to look for in 2017. Of course I didn’t tell you what it would be. I doubt you will be surprised to hear it though. The last Hot Button issue revolves around the rights of LGBT employees. Yes, I know I already wrote about that here and here among other places. At the same time though, we all know that in our ever-changing world, nothing remains static, and this issue is no exception. OK then, let’s learn some more so we know what to watch for, after the jump…
(image from masterandmore.eu)
Regarding rights of the LGBT population in the workplace, we know the following: a) Title VII of the Civil Rights Act of 1964 does not explicitly prohibit discrimination on the basis of sexual orientation or gender identity; b) the EEOC takes the position that sex discrimination under Title VII does include sexual orientation and gender identity; c) the Employment Non-Discrimination Act (ENDA) has been introduced in Congress but has not garnered enough support to pass, d) under Executive Order 13672 federal contractors are prohibited from discriminating against employees on the basis of sexual orientation and gender identity; and, e) many states and localities have also passed similar legislation. Is there anything left? Yes. Read on.
The US Supreme Court has not yet ruled on this issue. The circuit courts of appeals have tended to construe Title VII very strictly, but the Seventh Circuit and/or Second Circuits may be about to buck that trend. In Kimberly Hively v. Ivy Tech Community College, an adjunct professor sued the school in 2014, alleging that it blocked her from full-time employment, because she is a lesbian. The U.S. District Court for the Northern District of Indiana, applying the strict interpretation of Title VII, dismissed the case. Ms. Hivey appealed to the Seventh Circuit. In July, 2016 the appellate panel reluctantly affirmed the District Court’s decision. It said its hands were tied by precedent. Ms. Hively then requested a re-hearing from the full court. (She had backing from the EEOC, along with members of Congress that have introduced legislation that would specifically amend Title VII to include sexual orientation and gender identity among the prohibited bases for employment discrimination.) In November 2016 during a hearing, the court actually questioned whether it need apply such a strict construction of Title VII, and pointed to other federal laws, such as the Sherman Act, that are now interpreted much differently than when they were first enacted.
In September, the Second Circuit, in Christiansen v. Omnicom Group Inc. et al., brought by an ad agency executive, alleging discrimination against him because he is gay. Second, the losing party of both cases is likely to appeal. If either or both of those cases side with the EEOC, there will be a split among the circuits which will make it more likely that the US Supreme Court will agree to hear one or both cases on appeal. (While either case could still be appealed, and the SCOTUS could still agree to hear such an appeal, it is more likely to do so when there is a split among the circuits. Other times it must/will evaluate based on the politics of the issue or other considerations). So yes, this issue is still alive and well and far from settled, but there is more.
Remember when we looked at the issue of bathrooms in the workplace, and, specifically, the rights of transgender employees to use the bathroom of their choice? Click here and here if you missed that one. You may also be aware that the State of North Carolina made national headlines in March, by passing laws that visitors and employees at government buildings use the bathroom corresponding to their birth sex. These laws have been challenged to say the least. Specifically, in March the ACLU, on behalf of two transgender men and one lesbian law professor at the University of North Carolina, alleging that the law violates the U.S. Constitution and Title IX of the Civil Rights Act.
Then the federal government joined in with its own lawsuit, alleging that North Carolina’s law violates Titles VII and IX of the Civil Rights Act, along with the Violence Against Women Act. The plaintiffs sought a preliminary injunction against application of the law. In August a federal judge denied application of a broad injunction but did enjoin the University from enforcing the law against the three plaintiffs in the case. The ACLU has appealed. But wait. That’s not all. Both suits are stayed (i.e. held in abeyance) by joint stipulation, while the Supreme Court decides another case, in which a transgender high school student alleges that he was barred from using the men’s bathroom. The issue in that case: Can the U.S. Department of Education under Title IX ban gender identity discrimination in schools? While this case only focuses on Title IX, it still could significantly impact what happens with North Carolina’s bathroom law.
So there you have it. We ended 2016, and have started 2017 with some thought-provoking employment law issues. Stay tuned for more developments!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
Are you a N.J. employer/business owner? Join the new LinkedIn group, New Jersey Business Litigation Forum, run by my friend and colleague, Gene Killian. Click here for more info.
Click here to register for my webinar, Legal Issues Concerning Employees with Psychiatric Illness, on Thursday, January 12, 1 PM EST.
Before choosing an attorney, you should give this matter careful thought.
The selection of an attorney is an important decision.
If you find this communication to be
inaccurate or misleading, you may report it to the Committee on Attorney Advertising
Hughes Justice Complex, CN 037, Trenton, NJ