Several new governors have signed anti-discrimination executive orders. So did Florida Gov. Ron DeSantis, but his had no mention of sexual orientation or gender identity.
Source: Lorene D. Park, Labor Law Journal, Vol. 69 no. 4, Winter 2018
This is part two of a multi-part series on the evolution of labor and employment law in the United States.
When President Lyndon B. Johnson urged Congress, in the wake of President John F. Kennedy’s assassination, to pass the Civil Rights Act of 1964 (Title VII), he spoke of the need to eliminate “every trace of discrimination and oppression that is based upon race or color.” Here we are, more than 50 years later, and antidiscrimination laws are still a work in progress, moving in directions that earlier generations of lawmakers would likely find surprising: for example, cases involving religious accommodation of atheists, debates over whether adverse actions due to spousal jealousy are “because of ” sex, and discrimination based on perceived disabilities, to mention a few.
New laws have been enacted, including GINA and the OWBPA, and existing laws have expanded, including the ADA and its definition of disability. Court precedent has also evolved in significant ways. For example, some courts now hold that discrimination based on sexual orientation is discrimination “because of … sex” under Title VII, while other courts hold otherwise. Our political climate too has fostered rapid changes in how agencies enforce labor and employment laws, and employers are having a hard time keeping up.
All of this has been influenced, of course, by wave after wave of social movements large and small, usually with a catchphrase and now often prefaced with a hashtag (e.g., #Black Lives Matter, #MeToo). Given the ever-changing legal landscape of antidiscrimination laws, the purpose of this article is to assess what the state of the law is and to consider the directions we are going…..
L&E Evolution: Redefining Employment Relationships
Source: Lorene D. Park, Labor Law Journal, Vol. 69 No. 1, Spring 2018
Rapidly advancing technology, cultural changes, and a sharply divided political landscape have so changed the workplace that lawmakers are struggling to catch up and tailor labor and employment laws to reflect these changes, to establish cross-jurisdictional consistency, and to enable employers and practitioners to make decisions based on solid ground. Nowhere is this more obvious than in battles over the most basic of definitions: “employer” and “employee.” This is no simple matter of black letter law, at least not anymore. For example, the proliferation of smart phones and other technology has led to online platforms for gig workers, and a simple “click” of the mouse can create a contract on which companies may rely to require arbitration or to disclaim a traditional employment relationship…..
From the abstract:
The federal government lags behind in progressive civil rights policies in regard to universal workplace antidiscrimination laws for lesbian, gay, bisexual, and transgender (LGBT) Americans. The slow progress matters to inclusionary workplace practices and the theory and practice of public administration generally, as recognition of LGBT rights and protection are constitutive of representative bureaucracy and promoting social equity. This study examines the turnover intention rates of self-identified LGBT employees in the U.S. federal government. Using the Office of Personnel Management’s inclusion quotient (IQ), and 2015 Federal Employee Viewpoint Survey (FEVS), we identify links in the relationships between workplace inclusion and turnover outcomes among LGBT individuals. We also examine the impact of agency type on LGBT turnover rates based on Lowi’s agency classification type. Key findings suggest that LGBT employees express higher turnover intentions than those that identify as heterosexuals/straight, and LGBT employees who perceive their agencies as redistributive or communal are less likely to experience turnover intentions. However, an open and supportive workplace environment had a positive impact on turnover, suggesting that to implement effective structural change in an organization’s culture of inclusion, public sector managers must do more than merely “talk the talk.” This finding is also suggestive of LGBT employees’ desire to avoid the stigma of being LGBT and hide their identities. Institutions must heed the invisible and visible identities of their employees to be truly inclusive. Workplace practices that acknowledge the invisible and visible identities of their employees are a positive step toward real workplace inclusion.
….White’s concerns represent only some of the potential obstacles that people from underrepresented demographic groups face when applying for positions in the library field—a field that remains about 86% white and 97% able-bodied (per the 2017 ALA Demographic Survey, which did not ask about sexual orientation.)
Because the library profession has been trying to diversify itself for a long time—particularly racially, and particularly through initiatives such as diversity task forces and diversity fellowships—some may be surprised that people from underrepresented communities still encounter barriers to library employment….
From the press release:
Today, the Human Rights Campaign (HRC) Foundation, the educational arm of the nation’s largest lesbian, gay, bisexual, transgender and queer (LGBTQ) civil rights organization, in partnership with the Equality Federation Institute, announced that a record-setting 78 cities across the nation earned perfect scores in the seventh annual Municipal Equality Index (MEI), meeting the most demanding and pioneering criteria since the report’s debut in 2012. The MEI is the only nationwide rating system of LGBTQ inclusion in municipal law, policy and services.
The 2018 MEI evolved dramatically this year, instituting new benchmarks ensuring equal access to single-user facilities in public spaces, as well as protecting LGBTQ youth from bullying in city services and from dangerous so-called “conversion therapy.” Additionally, this year the MEI deducted points for laws that include provisions licensing discrimination against the LGBTQ community.
But even with these more stringent MEI requirements, cities and municipalities are meeting and exceeding our standards with innovative measures to protect LGBTQ people. A record 78 cities earned perfect scores for advancing LGBTQ-inclusive laws and policies — up from 68 in 2017 and 11 in 2012, the first year of the MEI. And in the current political reality, welcoming cities like these are more important than ever….
…. Recently, we conducted a qualitative study in which we interviewed 53 lesbian, gay, or bisexual (LGB) employees in the U.S. across various industries and job types. Specifically, we asked about their work-family experiences at their current organizations. Our study was motivated by the observation that, since its inception more than 30 years ago, research on work-family conflict in organizations has assumed that employees belong to a heterosexual family structure (one man and one woman). Our goal was to determine whether previous research on employees’ experiences of work-family conflict applied similarly to LGB employees and their families.
We found that, although LGB employees experience many of the same work-family conflicts that their heterosexual colleagues do — for example, work time interfering with family time, or feeling unable to separate from work at home — they experience a range of additional conflicts related to their stigmatized family identity. These include a sense of tension over whether to take advantage of family-related benefits for fear of revealing their same-sex relationship, feeling conflicted over whether to bring spouses to work events, and feeling uneasy about discussing with a supervisor the family-related challenges that impact their work life. ….
– Case tests reach of ban on sex discrimination in workplace
– Trump administration agencies divided over legal question
A group of 16 states urged the U.S. Supreme Court Aug. 23 to rule that companies can fire workers based on their sexual orientation and gender identity without violating federal workplace discrimination law.
The states, led by Nebraska Attorney General David Bydalek, asked the justices to overturn an appeals court decision against a Michigan funeral home that fired a transgender worker. They said Congress didn’t intend the ban on sex discrimination in Title VII of the 1964 Civil Rights Act to cover bias against lesbian, gay, bisexual, or transgender employees….
From the abstract:
In 2015, the Supreme Court in Obergefell v. Hodges settled a decades-long national debate over the legality of same-sex marriage. Since Obergefell, however, local and state legislatures in conservative and mostly rural states have proposed and passed hundreds of anti-LGBTQ bills. Obergefell may have ended the legal debate over marriage, but it did not resolve the cultural divide. Many rural Americans feel that they are under attack. Judicial opinions and legislation protecting LGBTQ people from discrimination are serious threats to rural dwellers because they conflict with several core tenets of rural identity: community solidarity, individual self-reliance, and compliance with religiously informed gender and sexual norms. This conflict is amplified by the relative invisibility of gay and transgender people who live in rural areas, and the predominately urban media representations of gay and transgender people. In several respects, the conflict is merely perceived and not real. It is at these junctures of perceived conflict that we can draw important lessons for bridging the cultural divide, thereby protecting LGBTQ people across geographic spaces.
This Article examines the sources and modern manifestations of rural LGBTQ resentment to provide foundational insights for the ongoing fight to protect all vulnerable minorities. Pro-LGBTQ legislation and judicial opinions symbolize a changing America in which rural inhabitants see their identities disappearing, devalued, and disrespected. The left, popularly represented in rural America as urban elites, characterizes anti-LGBTQ views as bigoted, and many people in small towns feel victimized by this criticism. Drawing on a robust body of social science research, this Article suggests that these feelings of victimization lead to resentment when outside forces like federal judges and state and big-city legislators tell rural Americans how to act, think and feel. Rural Americans resent “undeserving” minorities who have earned rights and recognition in contrast to the identities of and at the perceived expense of white, straight, working-class prestige. They resent that liberal, largely urban outsiders are telling them that they must change who they are to accommodate people whom they perceive as unlike them. Opposing LGBTQ rights is thus one mechanism to protect and assert rural identity. It is important to unearth and pay attention to rural anti-LGBTQ resentment in the post-Obergefell era because it is part of a larger force animating conservative politics across the United States.
Source: Transgender Law Center, 2018
Transgender Law Center (TLC) is the largest national trans-led organization advocating self-determination for all people. Grounded in legal expertise and committed to racial justice, TLC employs a variety of community-driven strategies to keep transgender and gender nonconforming people alive, thriving, and fighting for liberation.
The Rockefeller Institute of Government and the Government Law Center at Albany Law School recently hosted “How Can State Constitutions Respond to a Shifting Supreme Court?” to examine the role state constitutions can play if the Supreme Court begins to roll back federal protections.
With the retirement of Supreme Court Justice Anthony Kennedy and the recent nomination of Brett Kavanaugh to take his place, the Supreme Court is expected to shift further to the conservative end of the ideological spectrum, with the potential for weakening or even extinguishing important constitutional protections.
Much attention is being paid to the possible implications for reproductive rights, protections for immigrants, affirmative action, environmental protections, LGBTQ rights, and other issues. So what does it mean for New Yorkers — or for states more generally? Although we often don’t think of state constitutions, many of them offer protections above and beyond what is provided in the federal Constitution.
What role can state constitutions play if the Supreme Court begins to weaken federal protections? In many ways, your position on the states-versus-federal rights issue often depends upon where you sit. Last year the Rockefeller Institute and Government Law Center at Albany Law School issued a report on the topic.
Protections in the New York State Constitution Beyond the Federal Bill of Rights
Source: Edited by Scott N. Fein and Andrew B. Ayers, the Government Law Center at Albany Law School and the Rockefeller Institute of Government, April 18, 2017