The current chaos in our lives includes a pandemic that has put over twenty million people out of work and the seemingly unceasing killing of Black people by police. But last week, we saw glimmers of hope for a better future.
This week, two U.S. Courts of Appeals publish decisions about whether religiously-oriented employers were exempt from Title VII owing to alleged religious-liberty rights: a Methodist hospital wins in the Second Circuit, while a funeral home loses in the Sixth Circuit.
In the First Circuit, a woman lieutenant successfully defends a Title VII award of $545,000 for front pay and $161,000 for emotional damages. The exhaustive 60-page opinion addresses the admissibility of harassment outside of the workplace, application of the sex-plus theory where the "plus" factor is sexual orientation, and the degree of proof necessary for front-pay relief.
Co-Written by Outten & Golden LLP Paralegal Toby Rae Irving
In the six months since his inauguration, President Trump and his cabinet have been pushing forward to fulfill his myriad of campaign promises, with mixed success. Two days ago it became evident, however, that his continuity from the campaign ends with his supposed support of the LGBTQ community. Members of the trans community face challenges and lack of legal protection around the primary concerns of most Americans: employment, housing, and healthcare. Instead of addressing these issues central to daily life, President Trump has, once again, rolled the clocks backward on rights for trans people by banning transgender people from serving in the military. The President cited concerns around medical costs and "disruption."
Co-Written by Outten & Golden LLP Law Clerk Ryan Elias
Those of us in the LGBTQ community will never forget June 26, 2015, the day that the Supreme Court issued its decision in Obergefell v. Hodges, holding that the fundamental right to marry is guaranteed to same-sex couples by the fourteenth Amendment of the United States Constitution. Obergefell represented acceptance of the notion that we and our relationships deserve, as Justice Kennedy stated, "equal dignity in the eyes of the law."
This decision was an instant sensation in the news and social media: Title VII of the Civil Rights Act of 1964 held to protect employees from discrimination because of sexual orientation (and, presumably, gender identity as well). Digging into the majority and separate opinions, we can trace different possible outcomes when this question inevitably reaches the U.S. Supreme Court.
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. forx (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.
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).