Is There Sexual Orientation Discrimination Protection for LGBT Employees?

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If you are a gay or lesbian employee, you may not feel comfortable coming out at work. You may be afraid that your employer will discriminate against you based on your sexual orientation. People across the country have been fired because of who they love. That may leave you wondering if there is any protection against sexual orientation discrimination for LGBT employees.

In this blog post, I will discuss the recent change in the Equal Employment Opportunity Commission’s (EEOC) policy regarding sexual orientation and what it means for members of the LGBT community. I will explain how a few federal cases could result in stronger sexual orientation discrimination protection for gay and lesbian employees nationwide.

Title VII and Sexual Orientation Discrimination

Title VII of the United States Civil Rights Act does not explicitly include sexual orientation as a protected trait like race or sex. Because of that fact, for years, courts and the EEOC held that your employer could fire you because you were gay, lesbian, or bisexual. In fact, many state civil rights statutes still work that way.

However, in recent years, the EEOC has changed its position. The law itself has not changed, but the EEOC has begun to interpret Title VII’s prohibition against sex discrimination to include protections for employees discriminated against or harassed based on their sexual orientation.

Sex Stereotyping and Discrimination

The earliest protections against sex orientation discrimination date back to a U.S. Supreme Court case, Price Waterhouse v. Hopkins, in 1989. The case was based on sex stereotypes – that is, assumptions on how a person of a certain sex should dress or behave. The Court found that when sex stereotyping caused an employer to treat people of different genders differently, sex discrimination had occurred.

While that case did not explicitly speak out against same-sex harassment, a decade later, in Oncale v. Sundowner Offshore Services, the Supreme Court ruled that because Title VII prohibits discrimination based on sex, that must extend to sex-based discrimination of any kind, including same-sex behaviors. Similarly, a lower court has stated that negative comments about a lesbian’s sex life were brought about by a gender stereotype that assumed men or women should only be attracted to persons of the opposite gender.

Sexual Orientation Discrimination Protections

More recently, federal courts have begun to uphold employees right to be protected from discrimination based on sexual orientation. In 2014 a federal court struck down a state law prohibiting same-sex marriage law, calling it an unlawful discrimination based on sexual orientation. Some courts have explicitly said that sexual orientation discrimination is sex discrimination. Other courts have followed existing case law saying there is no Title VII sex discrimination claim for sexual orientation harassment, but have asked that the issue be addressed either at the Supreme Court or by the legislature.

The EEOC and Sexual Orientation Discrimination Lawsuits

In December 2012, the EEOC updated its Strategic Enforcement Plan (SEP) to include coverage of gay, lesbian, bisexual, and transgender individuals under Title VII’s sex discrimination provisions. The EEOC is now actively pursuing lawsuits based on employers’ illegal sexual orientation discrimination. The agency filed two separate federal lawsuits on March 1, 2016, both based on Title VII’s protection against sex discrimination:

In EEOC v. Scott Medical Health Center, PC, the claim was that the complainant’s superior knew he was gay and regularly used highly offensive anti-gay epithets, and vulgar language based on sex stereotypes. This amounted, in the EEOC’s estimation, to sexual harassment contrary to Title VII.

In EEOC v. Pallet Companies d/b/a/ IFCO Systems NA, Inc, the EEOC filed suit because an employer terminated an employee for complaining about harassment based on her sexual orientation. Specifically, the EEOC said the employer discriminated against her, including making sexually suggestive gestures, based on the fact that the employee did not conform to stereotypical female gender norms.

Sexual Orientation Discrimination Remedies Out of Court

While the question of whether a plaintiff can pursue a Title VII lawsuit is still up for debate in the federal courts, it is clear that wrongfully terminated employees and their attorneys can get help from the EEOC’s regulatory process. In 2015, the EEOC received 1,412 claims of sexual orientation and gender identity discrimination – up over 25% from previous years. Through the claims process and voluntary agreements with employers, the agency awarded over $3 million to LGBT workers that year alone.

How Can I Get Help Fighting Sexual Orientation Discrimination at Work?

When your employer uses who you love as a weapon against you it can make every work day a nightmare. You shouldn’t have to hide your spouse or partner just to keep your job. If you believe you have been the victim of sexual orientation discrimination or harassment, the employment discrimination attorneys at Eisenberg & Baum can help. We have years of experience dealing with sex discrimination claims, and we are committed to making our office a safe space for you and your loved ones. If you feel like your employer is using your sexual orientation against you, contact us. We’ll meet with you and help create a strategy that protects you and your rights.

Did FedEx Discriminate Against Deaf Employees and Job Applicants?

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If you are deaf or hard-of-hearing, it can sometimes be hard to get your employer to address your needs. Lack of reasonable accommodations can make your work life miserable, and make it harder for you to do your job. Is that what happened at FedEx Ground? Did FedEx discriminate against deaf employees and job applicants? The Equal Employment Opportunity Commission (EEOC) believes it did, and it is going to court to prove it.

In today’s blog post, I will discuss the EEOC’s lawsuit against FedEx Ground Package System, Inc. I’ll cover what the case is about, how you can get involved if you are a deaf or hearing disabled FedEx employee, and how you can connect with a deaf-friendly law firm that’s ready to take on big businesses in favor of disabled employees.

EEOC v FedEx Ground

The EEOC has filed a lawsuit against FedEx Ground based on 19 separate charges of discrimination against deaf and hard-of-hearing employees and job applicants. Those employees are package handlers hired to physically load and unload packages from delivery vehicles and conveyor systems. They also scan, sort, and route packages to their destinations.

The FedEx employees and applicants say that the company discriminated against its deaf and hard-of-hearing employees and applicants by failing to provide communications-based accommodations like:

  • Closed captioning on mandatory training videos;
  • American Sign Language (ASL) translators for meetings and new-hire orientations;
  • Scanners that vibrate instead of beep;
  • Flashing lights on moving equipment.

The EEOC attempted to resolve the matter with FedEx, by eliminating barriers to recruitment, hiring, and employment, but when negotiations failed, the EEOC took FedEx to court. EEOC Philadelphia District Director Spencer H. Lewis, Jr. said in a statement:

FedEx Ground failed to engage in an interactive process with deaf and hard-of-hearing package handlers and applicants to address their needs and to provide them with reasonable accommodations. That’s why we filed this lawsuit — to remedy alleged pervasive violations of the ADA on a national level.

What Counts as Discrimination Against Deaf Employees?

The Americans with Disabilities Act (ADA) protects employees and potential employees with physical, mental, emotional, and perceived disabilities from discrimination by an employer. A “disability” includes any physical or mental impairment that substantially limits a major life activity, like hearing. Whether a person is presently disabled, has a history of disability, or is perceived as having a disability, that person may still be protected.

For a deaf or hard-of-hearing employee to file an ADA discrimination lawsuit, it must be clear that the person was qualified to do the essential work of his or her job. That requirement is where “reasonable accommodations” come in. For example, a deaf woman may not be able to answer telephone calls. However, she may request a text telephone, voice carry-over telephone, or a captioned telephone, which would allow her to perform the essential work of responding to phone calls. This would be a reasonable accommodation under the Americans with Disabilities Act unless it was unduly burdensome on the employer.

Before an ADA lawsuit can start, the employer must also have taken some “adverse employment action” against the deaf or hard-of-hearing employee. This could be refusal to hire, failure to promote, firing, or discrimination in shifts, positions, or hours. It could also include harassment, if the behavior is serious enough to create a hostile work environment.

The EEOC claims FedEx has refused to hire deaf and hard-of-hearing applicants. When they are hired, these employees face barriers to completing their work and participating in important workplace functions, like staff meetings and training. It has proposed reasonable accommodations which FedEx appears to have refused. FedEx has a self-reported revenue of $11.6 billion (as of 2014) and a staff of over 65,000 employees. The accommodations requested may cost the company some money, but the EEOC does not believe they would be unduly burdensome. According to EEOC Supervisory Trial Attorney maria Luisa Morocco:

The law is clear: Employers have to provide reasonable accommodations to ensure that deaf and hard-of-hearing job applicants and employees are afforded equal employment opportunities – which includes the full benefits and privileges of employment, such as being informed of performance expectations and safety requirements.

How Can a Deaf FedEx Employee Get Involved?

The EEOC originally filed the lawsuit in October 2014. It included a list of 168 employees and applicants who had been affected. The case is still pending in the U.S. District Court for the District of Maryland, where earlier this year, District Court Judge Mark R. Hornak denied FedEx’s request for dismissal. Now it looks like the case may be headed to trial.

That doesn’t mean it is too late to get involved. The EEOC wants to hear from any current or former deaf and hard-of-hearing package handler employees or applicants who believe they have been the target of discrimination. The agency asks that you call (215)-440-2670 or email fedexgroundlawsuit@eeoc.gov if you fall into any of these categories:

  • You are deaf or hard-of-hearing and applied for a Package Handler position at FedEx Ground any time since July 2007, and you believe you were discriminated against or not given reasonable accommodations (like ASL interpreting).
  • You are deaf or hard-of-hearing and worked as a Package Handler position at FedEx Ground any time since December 2006, and you believe you were discriminated against or not given reasonable accommodations.
  • You have any information about any of these claims.

View the ASL video about the FedEx lawsuit.

FedEx Discrimination Case

Please note this phone number and email are only for FedEx Ground related complaints. Complaints involving another employer should go to an EEOC field office. The employment discrimination attorneys at Eisenberg & Baum can help you file your complaint or lawsuit and preserve your rights.

How Can I Fight Deaf Discrimination at My Workplace?

Deaf discrimination in violation of the ADA can happen anywhere, at any job. If you believe you have been the victim of discrimination in hiring or at your office, the deaf rights lawyers and deaf client liaison at Eisenberg & Baum Law Center for Deaf and Hard of Hearing can help. We have a CODA attorney fluent in sign language and a deaf client liaison who are ready to help you get reasonable accommodations and fight back against workplace discrimination. We work hard to make sure our office is deaf-friendly and welcoming, and we are happy to provide ASL interpreters and Certi
fied Deaf Interpreters (CDI) whenever necessary. If you have faced discrimination at work because of your disability, contact us for a free consultation.