Co-Written by Outten & Golden LLP Law Clerk Ryan Elias
Major shifts in gender equality jurisprudence in recent years have led to expanded rights and benefits for LGBTQ employees. The Section devoted two panels at the Section Conference to the rapidly developing areas of anti-discrimination law, employee benefits, and sexual orientation and gender identity in the workplace. The scope of civil rights protections for LGBTQ employees under Title VII generated the most discussion in the wake of the Supreme Court's decision in Obergefell v. Hodges (2015) and the EEOC's decision in Baldwin v. Foxx (EEOC 2015). In Obergefell, the Court held that the 14th Amendment guarantees all couples, straight or gay, the fundamental right to marry under a due process analysis, although Justice Kennedy noted that the ruling derived in part from the Equal Protection clause.
In a recent blog post, on Hamilton & Griffin on Rights, Outten & Golden LLP associate Nina Frank touches on our current cultural backlash against anything seen as politically correct or hypersensitive to the feelings of women, racial and ethnic minorities, and LGBTQ individuals, using the success of Donald Trump's presidential campaign as just one example. In this environment, many courts have been misusing the "stray remarks" doctrine to dismiss employment discrimination claims before they get to a jury. Ms. Frank argues that dismissing these implicitly biased comments in the workplace as mere jokes or passing remarks, lionizing those who have the audacity to utter them unapologetically, and classifying those who were harmed by them as overly sensitive, does real damage.
Last Thursday, the EEOC issued a groundbreaking decision that held, in clear and unequivocal language, that claims of discrimination based on sexual orientation implicitly state a claim of sex discrimination under Title VII. See Complainant v. Foxx, EEOC DOC 0120133080, 2015 WL 4397641, at *10 (July 16, 2015). This decision comes on the heels of the Supreme Court's landmark decision granting same-sex couples the right to marry under the Fourteenth Amendment. Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015).
On a stormy summer evening, attorneys, former clients and members of the LGBTQ community joined Outten & Golden to celebrate Pride Month and honor former O&G partner Carmelyn P. Malalis in her new role as Chair of the New York City Commission on Human Rights. While guests nibbled at hors d'oeurves, partner and LGBTQ Committee co-chair Katherine Blostein took the podium. With her committee co-chair Sally Abrahamson, O&G associate, Blostein explained the significance of the weather with a short story from the previous evening with her family.
Last Friday, the United States Supreme Court forever changed the political landscape of this country in a 5-4 decision that the Fourteenth Amendment protects same sex-couples' right to marry. Obergefell v. Hodges, 576 U.S. ___, No. 14-556, slip op., *12 (2015). The decision came exactly two years after the Court held the Defense of Marriage Act, a federal law defining marriage as between one woman and one man, to be unconstitutional in United States v. Windsor, 133 S. Ct. 2675, 2696 (2013), and exactly twelve years after the Court held that a Texas statute criminalizing same-sex sexual conduct was unconstitutional in Lawrence v. Texas, 539 U.S. 558, 579 (2003).
EEOC to Investigate Denial of Gender-Appropriate Restrooms in Private Sector as Sex Discrimination under Title VII Post-Lusardi
On April 1st, the EEOC issued a groundbreaking ruling that found that the Army discriminated against a transgender civilian employee by denying her access to the women's restroom and created a hostile work environment by allowing a supervisor to intentionally misuse her former name and male pronouns.
On Monday, the Supreme Court declined to hear any of the seven same-sex marriage cases that were pending before it. Procedurally speaking, this means that the seven appellate decisions striking down bans on same-sex marriage will stand.
Signaling his continued support for both workers rights and LGBT individuals, President Obama recently signed an executive order that protects federal government workers, as well as workers for federal contractors, from discrimination on the basis of sexual orientation and gender identity. While we await a federal law that protects all LGBT workers, this significant step towards equality comes at a time where leadership on this issue is sorely needed.