Articles Posted in LGBT

Lev Craig

On October 5, 2017, U.S. Attorney General Jeff Sessions issued a memo to the heads of all federal government agencies and all U.S. attorneys, stating that the U.S. Department of Justice (DOJ) is now taking the position that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination on the basis of gender identity or transgender status. The memo reverses the DOJ’s previous stance on the issue and runs contrary to the position taken by the Equal Employment Opportunity Commission (EEOC), as well as various federal appellate and district courts.

While Title VII explicitly prohibits discrimination on the basis of sex, there has been heated debate in recent years over whether that prohibition includes discrimination against transgender workers. The status of legal protections for transgender employees is complicated: no federal law explicitly forbids discrimination against transgender people in the workplace, state and city employment protections vary widely, and the U.S. Supreme Court has yet to address the question of whether Title VII covers gender identity­–based discrimination. The EEOC views discrimination against transgender people as discrimination based on sex and therefore a violation of Title VII, but the EEOC’s interpretations of Title VII are not legally binding, and federal appellate and district courts have differed in their applications of the statute to transgender workers.

Owen H. Laird

The Harman Firm blog has run several stories over the past year about the evolving case law concerning sexual orientation discrimination under Title VII of the Civil Rights Act.  Last week, a plaintiff in a sexual orientation discrimination case in the Eleventh Circuit, Evans v. Georgia Regional Hospital, requested that the United States Supreme Court take up the issue.

To recap: Title VII is one of the foundational federal anti-discrimination statutes; it protects employees against discrimination on the basis of sex, race, color, national origin, and religion.  Sexual orientation is not one of the protected statuses enumerated in Title VII.  In 2016, however, the U.S. Equal Employment Opportunity Commission (“EEOC”) – the federal agency tasked with administering Title VII – filed two lawsuits asserting sexual orientation discrimination claims under Title VII.  This was a major change, as both the EEOC and nearly every federal court had previously taken the position that sexual orientation discrimination was not prohibited under Title VII.

Owen H. Laird and Walker G. Harman, Jr.

On Wednesday, President Trump and his administration took two major actions against LGBT rights: First, President Trump tweeted that transgender people would no longer be allowed to serve in the U.S. military; then, the Department of Justice (DoJ) filed a brief in an ongoing Second Circuit case, arguing that Title VII of the Civil Rights Act of 1964 (Title VII)—a major federal anti-discrimination statute—does not prohibit discrimination based on sexual orientation. These two actions clearly demonstrate Trump’s position on LGBT rights: He does not support them, and his actions are disturbing and intolerant. As Trump forces the LGBT community—and all of us—to take giant steps backward, we all need to bear arms (so to speak) to protect the rights of all those marginalized within the LGBT community.

Last year, President Obama instituted a new policy allowing transgender people to serve in the military. On Wednesday, President Trump, via Twitter, announced that transgender people would no longer be able to serve, claiming that the armed forces could not afford the “tremendous medical costs and disruption” supposedly caused by transgender people serving in the military. Trump provided no empirical support for his offensive statement. The backlash against Trump’s statement was swift, with Democrats and LGBT advocates swiftly decrying the decision. There are estimated to be anywhere between 5,000 and 15,000 transgender people currently serving in the U.S. military, and Trump’s announcement puts their careers at risk.

By Harrison C. Paige

On April 18, 2017, the U.S. Circuit Court of Appeals for the Second Circuit affirmed the U.S. District Court for the Eastern District of New York’s decision in Zarda v. Altitude Express, dismissing Donald Zarda’s sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (“Title VII”). In reaching its decision, the Second Circuit relied on its 2000 decision in Simonton v. Runyon, where the court held that Title VII does not protect against discrimination based on sexual orientation. However, on May 25, 2017, the Second Circuit granted en banc review in Zarda, signaling that the Second Circuit may be ready to reexamine Simonton and revisit its position on Title VII sexual orientation discrimination claims.

In Simonton, Dwayne Simonton, a postal worker, was harassed because of his sexual orientation. The harassment was so severe that Simonton suffered a heart attack as a direct result of the abuse. While the Second Circuit’s decision noted the severity of the harassment and rebuked the behavior, the court nonetheless held that Title VII’s prohibition against discrimination based on “sex” does not include discrimination based on sexual orientation and dismissed Mr. Simonton’s Title VII sexual orientation discrimination claims. The precedent set by Simonton has prevented countless individuals from bringing sexual orientation discrimination claims under Title VII, leaving individuals stranded in their search for justice.

Lev Craig

The U.S. District Court for the Eastern District of Pennsylvania recently refused to dismiss Kate Lynn Blatt’s gender and disability discrimination claims in Blatt v. Cabela’s Retail, Inc. Blatt, a transgender woman, brought suit against her former employer under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), alleging that Cabela’s had discriminated against her based on her gender identity and her diagnosis of gender dysphoria.

Being transgender does not necessarily involve a diagnosis of gender dysphoria. Whereas a transgender person is someone whose gender identity differs from the sex that they were assigned at birth, gender dysphoria is a condition recognized by the American Psychological Association (APA), characterized by a “marked difference between [an individual’s] expressed/experienced gender and the gender others would assign [them],” which is present for at least six months and “causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.”

Lev Craig

On May 3, 2017, in Philpott v. State of New York, the U.S. District Court for the Southern District of New York refused to dismiss sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (Title VII). Judge Alvin K. Hellerstein of the Southern District of New York joined a growing number of courts across the country in finding sexual orientation discrimination cognizable under Title VII, stating, “I decline to embrace an illogical and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination.”

Plaintiff Jeffery Philpott was employed at the SUNY College of Optometry as Vice President of Student Affairs, where, according to his complaint, he was subjected to years of discrimination and harassment because he is gay. Philpott alleges that his supervisors and coworkers mockingly called him “sensitive” and “flamboyant,” told him that “separate but equal treatment of gay people might be best,” dismissively referred to his relationship with his long-term domestic partner as “this marriage, or whatever you want to call it,” and refused to let him meet their families because they did not “want our children to be around homosexuality.” In addition, SUNY allegedly excluded him from meetings and projects because of his sexual orientation and implied that he deserved a lower salary because he is gay, telling him that “your team [i.e., gay people] doesn’t have kids. You have more than you need.” Shortly after Philpott complained to SUNY of the ongoing discrimination, Philpott claims, SUNY terminated his employment. Philpott filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), then filed suit in federal court, alleging hostile work environment, wrongful termination, and retaliation claims under Title VII.

Lev Craig

In October, we reported that the U.S. Court of Appeals for the Seventh Circuit had vacated its July 2016 decision in Hively v. Ivy Tech Community College, where a former adjunct college professor brought suit under Title VII of the Civil Rights Act of 1964 (“Title VII”), alleging that her employer had refused to hire her for a full-time position because she is a lesbian. Yesterday, April 4, 2017, the Seventh Circuit reversed the district court’s decision and became the first Court of Appeals to hold that “discrimination on the basis of sexual orientation is a form of sex discrimination.”

Kimberly Hively, who is openly gay, started teaching part-time at Ivy Tech Community College in 2000. Between 2009 and 2014, she unsuccessfully applied for six different full-time positions. When the college also failed to renew her part-time contract in July 2014, Hively filed a charge of discrimination with the Equal Employment Opportunity Commission and subsequently brought suit pro se in the U.S. District Court for the Northern District of Indiana, alleging that she had been denied employment opportunities because she is a lesbian. The district court dismissed Hively’s complaint on the grounds that Title VII did not cover sexual orientation discrimination, and Hively appealed.

Lev Craig and Harrison Paige

On March 27, 2017, the United States Circuit Court of Appeals for the Second Circuit reversed and remanded in part and affirmed in part the district court’s decision in Christiansen v. Omnicom Group, Incorporated, et al. Plaintiff Matthew Christiansen brought claims against his former employer under the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), alleging discrimination on the basis of his HIV-positive status and his failure to conform to gender stereotypes. The lower court dismissed Christiansen’s federal claims for failure to state a claim; the Second Circuit upheld the dismissal of the ADA claim, but reversed the dismissal of the Title VII claim, finding that Christiansen had plausibly alleged a Title VII gender stereotyping claim.

Christiansen, an openly gay man who is HIV-positive, was the creative director for DDB Worldwide Communications Group Incorporated (“DDB”), an international advertising agency and Omnicom subsidiary. According to the complaint, Christian’s direct supervisor, Joe Cianciotto, subjected Christiansen to a “pattern of humiliating harassment targeting his effeminacy and sexual orientation.” Cianciotto allegedly drew offensive, obscene caricatures of Christiansen on an office whiteboard, the most explicit of which depicted Christiansen naked with an erection, captioned with a mocking comment about same-sex marriage. On another occasion, according to the complaint, Cianciotto created a “Muscle Beach Party” poster, which he circulated amongst office members and posted on Facebook, displaying DDB employees’ heads photoshopped onto the bodies of people in swimwear; on the poster, Christiansen’s head was pasted onto a photo of a woman in a bikini, lying on the ground with her legs upright in the air “in a manner that one coworker thought depicted Christiansen as ‘a submissive sissy.’”

Lev Craig

Earlier this month, the United States Court of Appeals for the Eleventh Circuit affirmed in part and vacated and remanded in part the district court’s decision in Evans v. Georgia Regional Hospital, holding that Title VII of the Civil Rights Act of 1964 (“Title VII”) does not prohibit sexual orientation discrimination in the workplace.

Jameka Evans worked at Georgia Regional Hospital (the “Hospital”) in Atlanta, Georgia, as a security officer. Evans, who is a lesbian, had a masculine gender presentation at work: she wore the men’s security officer uniform, men’s shoes, and a short, masculine haircut. According to Evans’ complaint, the Hospital discriminated against her because of her sexual orientation and because she did not behave in a “traditional woman[ly] manner.” Evans alleged that she was denied equal pay, harassed, physically assaulted, targeted for termination, and retaliated against after making a complaint of discrimination to the Hospital’s Human Resources department.

Lev Craig

On Wednesday, President Trump rescinded protections implemented by the Obama administration which had, among other things, allowed transgender students to use the school restrooms and facilities corresponding with their gender identities.

Title IX of the Civil Rights Act of 1964 (Title IX) prohibits discrimination on the basis of sex in federally funded education programs, but does not explicitly protect transgender individuals. Last May, the Obama administration issued guidance regarding transgender students to all public schools in the U.S. in a joint letter from the Departments of Justice and Education. The guidance stated that both departments interpret Title IX’s prohibition against sex discrimination as encompassing “discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status” and that the departments “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” Effectively, the guidance required schools to treat transgender students the same as non-transgender students of the same gender for Title IX purposes—for example, schools could not subject transgender girls to different rules and policies than non-transgender girls—and prohibited schools from discriminating against students on the basis of transgender status.