Category Archives: LGBTQIA

‘LGBTQIA + Discrimination’

Source: Shirley Lin, Ezra Cukor, Employment Discrimination Law & Litigation, 2020

From the abstract:
From the chapter “LGBTQIA+ Discrimination” in Employment Discrimination Law & Litigation (Thomson West 2020), available on Westlaw:

Asserting and defending the employment rights of lesbians, gay men, bisexual, and transgender, queer, intersex, and asexual people (LGBTQIA+) is a decades-long civil rights struggle. Increasing awareness and acceptance of LGBTQIA+ individuals in U.S. society does not mean that society has not always been sexually diverse, or that sex has only recently been recognized as socially, rather than “biologically,” defined.

In June 2020, The Supreme Court decided a trio of cases wherein it acknowledged for the first time that federal workplace protections reach anti-LGBTQIA+ discrimination. In the landmark decision Bostock v. Clayton County, the Court held that because under Title VII an employer cannot rely on sex as a but-for cause, even if not the sole or primary cause, to fire an employee, an employer who fires someone for being gay or transgender “defies the law.” The landmark decision is a result of generations of advocacy by LGBTQIA+ communities and their advocates inside and outside of the courtroom. Although Title VII has prohibited sex discrimination since its enactment, early decisions rejected claims by LGBTQIA+ people as outside the statute’s ambit. Even as the doctrine generally reflected a broader understanding of sex discrimination, leading up to Bostock there existed only a patchwork of lower-court and agency precedent that Title VII covered LGBTQIA+ people (see §§ 27:2, 27:3, 27:5, 27:7.25). As a result, a LGBTQIA+ employee’s ability to seek redress for discrimination against a private employer depended on her zip code, even under federal law. The Supreme Court’s forthright decision opened courthouse doors throughout the country to LGBTQIA+ workers.

The achievement of Title VII protection is a vital milestone but not the end point in addressing discrimination: LGBTQIA+ people have long faced unacceptable levels of workplace discrimination. Despite a dramatic increase in public acceptance post the Supreme Court’s decision in Obergefell, during the administration of President Trump, the hateful rhetoric, and the policy positions taken by the President and his administration concerning LGBTQIA+ people, public tolerance for accepting LGBTQIA+ individuals declined. Moreover, because LGBTQIA+ workers who are Black, Indigenous, or people of color face disproportionate employment discrimination, the ongoing struggle for racial justice is integral to achieving meaningful equality for LGBTQIA+ people. Winning a workplace discrimination case can be devilishly difficult, especially for low-income workers who often face formidable barriers even to accessing counsel. Because LGBTQIA+ people face significant hostility and misunderstanding from a variety of social forces, including some courts, lawyers litigating for equal treatment for their LGBTQIA+ clients must innovate and educate as well as advocate. Not only does discrimination in the workplace injure and deprive individual LGBTQIA+ workers of their livelihoods, it stigmatizes LGBTQIA+ people as a group.

The Landmark Bostock Decision: Sexual Orientation and Gender Identity Bias in Employment Constitute Sex Discrimination under Federal Law

Source: Susan Bisom-Rapp, Thomas Jefferson School of Law Research Paper No. 3664374, July 30, 2020

From the abstract:
On June 15, 2020, the Supreme Court of the United States (Supreme Court or SCOTUS) issued a widely anticipated decision holding that the federal statutory ban on sex discrimination in employment includes a prohibition of discrimination based on sexual orientation and gender identity. A landmark case in every sense of the term, Bostock v. Clayton County (Bostock) is important for a number of reasons. Besides being a significant victory for civil rights advocates, LGBTQIA people, and their allies, the 6-3 decision was notable for its discussion of an ascendant theory of statutory interpretation, the majority’s well-reasoned analysis of the principles of causation, and the fact that a conservative judicial appointee of President Donald Trump authored the majority opinion. The decision also underscores the value of a carefully constructed LGBTQIA rights litigation strategy that was decades in the making. Perhaps most importantly, Bostock lays the groundwork for nationwide protection of sexual minorities from discrimination in housing, education, health care, and public accommodations, among other areas.

Despite polls showing that a majority of Americans support civil rights for LGBTQIA people, reaction to the case, both for and against, has been strong. Strong partisan response is in part driven by the Trump administration’s agenda vis-à-vis the rights of sexual minorities. Indeed, one hallmark of Trumpism has been the continuous attack on civil rights advances for the LGBTQIA community, with a great deal of hostility aimed at transsexuals. Given the antipathy of the administration towards a vulnerable population, civil rights advocates see Bostock as a much needed course correction and cause for celebration. Cultural conservatives, on the other hand, argue that Bostock strikes a blow against religious freedom and constitutes usurpation by the Court of the federal legislative function. The fears of cultural conservatives, however, were likely assuaged somewhat by a pair of SCOTUS decisions, which were issued just three weeks after Bostock. While those cases may presage limitations on the reach of Bostock, and seem to prioritize religious freedom over other fundamental rights, this Dispatch cautions that the human right to be free of workplace discrimination based on sexual orientation and gender identity must be safeguarded as the rule rather than the exception.

The Landmark Bostock Decision: Sexual Orientation and Gender Identity Bias in Employment Constitute Sex Discrimination under Federal Law

Source: Susan Bisom-Rapp, Thomas Jefferson School of Law Research Paper No. 3664374, Date Written: July 30, 2020

From the abstract:
On June 15, 2020, the Supreme Court of the United States (Supreme Court or SCOTUS) issued a widely anticipated decision holding that the federal statutory ban on sex discrimination in employment includes a prohibition of discrimination based on sexual orientation and gender identity. A landmark case in every sense of the term, Bostock v. Clayton County (Bostock) is important for a number of reasons. Besides being a significant victory for civil rights advocates, LGBTQIA people, and their allies, the 6-3 decision was notable for its discussion of an ascendant theory of statutory interpretation, the majority’s well-reasoned analysis of the principles of causation, and the fact that a conservative judicial appointee of President Donald Trump authored the majority opinion. The decision also underscores the value of a carefully constructed LGBTQIA rights litigation strategy that was decades in the making. Perhaps most importantly, Bostock lays the groundwork for nationwide protection of sexual minorities from discrimination in housing, education, health care, and public accommodations, among other areas.

Despite polls showing that a majority of Americans support civil rights for LGBTQIA people, reaction to the case, both for and against, has been strong. Strong partisan response is in part driven by the Trump administration’s agenda vis-à-vis the rights of sexual minorities. Indeed, one hallmark of Trumpism has been the continuous attack on civil rights advances for the LGBTQIA community, with a great deal of hostility aimed at transsexuals. Given the antipathy of the administration towards a vulnerable population, civil rights advocates see Bostock as a much needed course correction and cause for celebration. Cultural conservatives, on the other hand, argue that Bostock strikes a blow against religious freedom and constitutes usurpation by the Court of the federal legislative function. The fears of cultural conservatives, however, were likely assuaged somewhat by a pair of SCOTUS decisions, which were issued just three weeks after Bostock. While those cases may presage limitations on the reach of Bostock, and seem to prioritize religious freedom over other fundamental rights, this Dispatch cautions that the human right to be free of workplace discrimination based on sexual orientation and gender identity must be safeguarded as the rule rather than the exception.

The Relationship between Prejudice and Wage Penalties for Gay Men in the United States

Source: Ian Burn, ILR Review, Volume 73 Issue 3, May 2020
(subscription required)

From the abstract:
This article estimates the empirical relationship between prejudicial attitudes toward homosexuality and the wages of gay men in the United States. It combines data on prejudicial attitudes toward homosexuality from the General Social Survey with data on wages from the U.S. Decennial Censuses and American Community Surveys—both aggregated to the state level. The author finds that a one standard deviation increase in the share of individuals in a state who are prejudiced toward homosexuals is correlated with a decrease in the wages of gay men of between 2.7% and 4.0%. The results also suggest that the prejudice of managers is responsible for this correlation. The author finds that a one standard deviation increase in the share of the managers in a state who are prejudiced toward homosexuals is associated with a 1.9% decrease in the wages of gay men. The author finds no evidence that the wage penalty for gay men is correlated with the prejudice of customers or co-workers.

Transgender Status, Gender Identity, and Socioeconomic Outcomes in the United States

Source: Christopher S. Carpenter, Samuel T. Eppink, Gilbert Gonzales, Volume 73 Issue 3, May 2020
(subscription required)

From the abstract:
This article provides the first large-scale evidence on transgender status, gender identity, and socioeconomic outcomes in the United States, using representative data from 35 states in the Behavioral Risk Factor Surveillance System (BRFSS), which asked identical questions about transgender status and gender identity during at least one year from 2014 to 2017. More than 2,100 respondents, aged 18 to 64 years, identified as transgender. Individuals who identify as transgender are significantly less likely to be college educated and less likely to identify as heterosexual than are individuals who do not identify as transgender. Controlling for these and other observed characteristics, transgender individuals have significantly lower employment rates, lower household incomes, higher poverty rates, and worse self-rated health compared to otherwise similar men who are not transgender.

How pronoun policies can help HR referee when gender and religion clash

Source: Ryan Golden, HR Dive, October 18, 2019

In general, employers have a lot of leeway over workplace policies, but they should be careful with phrasing, attorneys told HR Dive. ….

….This particular case concerns public-sector employment and state law claims but it may not be too much of a stretch to imagine how a similar situation could arise in the typical U.S. workplace.

Consider the landscape: nearly one-fifth of U.S. adults in a 2019 Pew Research Center survey said they personally know someone who uses pronouns such as “they” over pronouns such as “he” or “she.” A recent report by the Chicago Tribune on inclusive language policies at IBM indicated employers are beginning to encounter issues around pronouns more frequently. And at this year’s annual Society for Human Resource Management conference, pronouns were included as part of an early session on LGBTQ awareness and best practices for the workplace.

So could an employer, hypothetically, discipline an employee who does not adhere to a rule that employees must properly address co-workers, pronouns included? Does it matter if the employee cites a sincerely held religious belief?….

How LGBTQ Union Activists Transformed the Labor Movement

Source: Kim Kelly, Teen Vogue, No Class, June 7, 2019

….In 28 U.S. states, queer and trans workers can still be fired due to their sexual orientation and gender identity, and a strong union contract is often the only legally binding workplace protection available to LGBTQIA workers to fight employment discrimination. This is especially important because of the high unemployment rates for transgender and non-binary people — 16% overall — which can be compounded by other factors like racial discrimination, age discrimination, or national origin discrimination…..

Amid Strikes and Shortages, Governors Prioritize State Workers’ Plight

Source: Katherine Barrett and Richard Greene, Governing, February 25, 2019

Protesting teachers likely won’t be the only public employees who see pay raises and workplace improvements this year. ….

– In their State of the State addresses and executive orders this year, many governors are making public workforce issues a priority.
– They are particularly targeting teachers and corrections staff for pay raises.
– Several governors are focused on fighting sexual harassment and LGBT discrimination in state government…..

L&E Evolution Part II: Discrimination

Source: Lorene D. Park, Labor Law Journal, Vol. 69 no. 4, Winter 2018
(subscription required)

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…..

Related:
L&E Evolution: Redefining Employment Relationships
Source: Lorene D. Park, Labor Law Journal, Vol. 69 No. 1, Spring 2018
(subscription required)

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…..