The dubitante judicial opinion affirms a result, but casts suspicion on the underlying law or basic fairness of the decision. Two recent, split Title VII opinions fall into this category. The Seventh Circuit declined to overrule its decades' old precedent holding that Title VII does not cover sexual-orientation discrimination, and the D.C. Circuit applied its case law that denials of lateral transfers are generally not "adverse employment actions." Yet both opinions sow the seeds for future challenges to these questionable and unfair outcomes.
The Maine Human Rights Act protects employees who express "actual or perceived ... bisexuality." The First Circuit holds that the district court erred in not crediting evidence that two women employees who began dating at work, and who were discouraged from expression of their relationship in the workplace (while Theres were allowed to do so), were subjected to a hostile work environment. The district court also erred in handling a termination claim, misperceived as a constructive discharge claim.
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.
On a day when we can celebrate a major legal victory for marriage rights - the Ninth Circuit's rejection of California's Proposition 8 - a court on the other side of the country quietly issues a complementary decision, holding that a public employer need not accommodate the anti-gay religious beliefs of a benefits counselor who declares her refusal to assist same-sex couples.
The Eleventh Circuit declares that transsexualism is a protected classification under the federal Equal Protection Clause, and holds that "a government agent violates the Equal Protection Clause's prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity." The result is affirmance of summary judgment for the employee.
In a recent decision of the Third Circuit, we are reminded that millions of federal civilian employees still have no protections against discrimination on account of gender orientation or identity.