Washington Splits Over Sexual Orientation and Gender Identity Discrimination

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Is sexual orientation and gender identity discrimination illegal? Should it be? The recent passage of the Equality Act by the United States House of Representatives comes even as the nation’s highest court is considering what protections are available to LGBTQ employees under the federal Civil Rights Act. But the Republican-led Senate and the Trump Administration have shown this won’t be an easy fight.

In this blog post I will discuss legislation to amend the 1964 federal Civil Rights Act to include prohibitions on sexual orientation and gender identity discrimination. I will address the Equality Act’s passage in the House and opposition from the White House and Senate majority members. I will also discuss what options LGBT employees have now to protect themselves against discrimination and harassment, even if the bill does not pass.

The Civil Rights Act May, or May Not Protect Against Sexual Orientation and Gender Identity

The question of whether Title VI of the federal Civil Rights Act covers sexual orientation and gender identity is up for debate before the United States Supreme Court right now. In some areas of the country, courts have held that sexual orientation and gender identity discrimination are necessarily forms of gender discrimination, relying on stereotypes about how men and women dress and act, and who they love. But in other parts of the country, courts have held that Congress did not intend to protect LGBTQ workers in 1964 when the law was first passed.

The U.S. Supreme Court has granted certiorari to three cases in its next term to consider the issue. It appears that by June 2020, the Justices will provide an answer to whether the Civil Rights Act as it stands already protects against sexual orientation and gender discrimination nationwide.

The Equality Act Would Protect Gay and Trans Employees, Renters, Students, and More

But Democratic legislators aren’t willing to wait. After the Democrats took control of the U.S. House of Representatives in the 2018 election, Representative David N. Cicilline (D-RI), himself a gay man, introduced H.R. 5, known as the Equality Act. The bill, if passed would explicitly prohibit discrimination based on sex, sexual orientation, and gender identity in:

  • Employment
  • Housing
  • Education
  • Credit
  • Federal funding
  • Jury systems
  • Public accommodations and facilities

It would allow the Justice Department to intervene when issues of sexual orientation and gender identity discrimination came to court under equal protection claims. It also would explicitly prohibit covered facilities from denying access to restrooms, locker rooms, and dressing rooms that align with the individual’s gender identity.

Democrats in the U.S. House stood firmly behind the bill, passing it with a vote of 236-to-173 (including eight Republicans).  House Speaker Nancy Pelosi (D-Calif.) said:

“No one should be forced to lose his or her job, their home or to live in fear because of who they are and whom they love.”

Representative Cicilline added:

“Despite significant advances, L.G.B.T. people across the country remain vulnerable to discrimination on a daily basis and too often have little recourse,” said “It is past time for the Equality Act to be written into law.”

Notably, several large corporations, each employing thousands of individuals nationwide, also supported the bill, including Google, Apple, and General Motors. IBM tweeted:

“While this is a historic milestone to be celebrated, we know there’s still much work ahead. IBM will continue to push for final passage of the Equality Act to prevent discrimination against Americans for being who they are.”

Opposition Stands in the Way of Easy Passage of Broader LGBT Protections

But before the Equality Act can become law it has two large hurdles to face: the Republican-controlled Senate, and the President’s desk. Republicans in the House and the Senate have opposed the bill, claiming that it would interfere with the religious freedom of those who hold “time-honored views” of marriage. They also say it could cause problems in sports where they claim men could pose as women and deny female athletes opportunities to compete at the highest levels.

The Trump Administration has also made its stance on sexual orientation and gender identity discrimination abundantly clear. The administration has rolled back several policies and rules intended to protect gay and transgender individuals, including their service in the military, access to equal protection in schools, and even their ability to define their own gender. Last year, the Department of Health and Human Services tried to establish a legal definition of sex as a biological, unchangeable condition defined by the individual’s genitalia at birth. While these efforts have faced stiff opposition in the courts, they also indicate that President Donald Trump is unlikely to sign the Equality Act even if it gets to his desk.

When the U.S. House passed the Equality Act it made a statement that it believes sexual orientation and gender identity discrimination are wrong and should be illegal regardless of any forthcoming Supreme Court decision. But as important as that statement was, it seems unlikely that the bill will become the law of the land, at least until after the next election.

At Eisenberg & Baum, we understand the importance of federal civil rights protection for gay and trans* Americans. Our employment discrimination attorneys, help LGBTQ workers and students protect their rights under Title IX, Title VII, and other civil rights laws. We stay on top of changes in the law, so that you know we are using the best strategies against the discrimination you face at work, school, and in housing. If you have been the victim of sexual orientation or gender identity discrimination, contact us. We’ll meet with you and help create a strategy that protects you and moves you closer to equality.

New York Law Gives Epstein’s Sexual Assault Victims Their Day in Court

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How long should children have to report sexual assault once they reach adulthood? Three years? How about 10? The New York State Child Victims Act, passed this year, extends the time for state prosecutions and civil lawsuits in these kinds of cases, giving Epstein’s sexual assault victims and others a chance to come forward on their own time.

In this blog post, I will discuss the indictment against Jeffrey Epstein for child sex assault and related civil litigation for sexual assault of minors. I will discuss how the Child Victims Act extends the deadline for Epstein’s sexual assault victims to file their claims, and explain how survivors of long-ago sex abuse and sex trafficking have one year to file their claims without worrying about how long it took to come forward.

New York Prosecutors Indict Billionaire Jeffrey Epstein for Child Sex Abuse

Billionaire Jeffrey Epstein is a very influential person. He has rubbed elbows with at least two presidents (Clinton and Trump) and owns homes in several states, Paris, and the U.S. Virgin Islands. He also has a reputation for engaging in prostitution with young girls. In 2008, Epstein pleaded guilty to two state prostitution charges in Florida. This conviction caused him to serve 13 months in prison, pay restitution to his victims, and register as a sex offender. It was the result of a settlement called the “deal of a lifetime” following a federal investigation by the FBI, headed up by then-U.S. Attorney Alexander Acosta, who is now President Donald Trump’s labor secretary. The settlement agreement was between Epstein and the U.S. Attorney’s Office and Florida state prosecutors.

However, that deal has never felt like justice to the Epstein’s sexual assault victims. Even though the investigation involved 36 child victims of sexual assault, those victims and their families were not consulted before the deal was struck. In February, 2019, Federal District Court Judge Kenneth Mara said that by removing Epstein’s sexual assault victims from the bargaining table, the Department of Justice had violated federal law.

Perhaps in response to that decision, the federal prosecutors in New York recently unsealed a criminal indictment showing that Epstein had operated a sex trafficking ring in the state, abusing dozens of girls as young as 14, and paying them hundreds of dollars cash. The indictment indicates the girls were directed to give Epstein massages, often nude or partially nude, while he engaged in sex acts including touching their genitals or masturbating.

Epstein’s attorneys are arguing that the U.S. Attorney’s Office cannot file new charges because of the 2008 settlement. However, New York prosecutors say that they weren’t part of that agreement and can proceed on their own with criminal felony charges.

New York Child Victims Act Gives Prosecutors New Freedom in Old Sex Abuse Cases

This new indictment comes on the heels of the New York legislature approving the Child Victims Act. This statute, passed into law on January 24, 2019, extends the periods for criminal prosecution of sexual offenses against a minor, and related civil lawsuits. Under the new statute of limitations, the clock does not even begin to run until either:

  • The abusive behavior is reported to the police or the statewide central register of child abuse
  • The victim turns 23 years old.

This means state prosecutors are now allowed to bring cases for child sexual assault victims as old as 28 years old. The extended deadline, along with the federal court’s ruling in February gives New York prosecutors and their federal counterparts the flexibility to bring the new indictment and fight for justice for Epstein’s sexual assault victims.

Extended Civil Lawsuit Window Gives Epstein’s Sexual Assault Victims Their Day in Court

The law goes even further for civil lawsuits filed by the child victims of sexual assault and their families. Lawsuits to recover for physical, psychological, or other injuries from child sex abuse cases can be filed until the victim turns 55 years old. This applies to intent-based and negligence claims of:

  • Sexual assault against a person under 18 years of age
  • Incest against a person under 18 years of age
  • Child pornography or sexual performances using a person under 18 years of age

This gives child victims decades to come forward, honoring the need to process such traumatic incidents before bringing the matter to court.

Long-Ago Child Sex Assault Victims Have 1-Year Window to Revive Claims

The Child Victims Act also creates a one-year retroactive window, between July 24, 2019 and July 24, 2020, for the victims of long-ago child sex assault to revive their claims. Anyone whose lawsuits were previously dismissed because they waited too long (violating the statute of limitations) or failed to file the right notices of claim may refile their lawsuits within that 1-year window and get their day in court. Retroactive laws of this kind are rare, so the victims affected are encouraged to talk to a sexual assault attorney right away to preserve their claims.

But they must act quickly. After July 24, 2020, Epstein’s sexual assault victims and survivors of child sex abuse will once again face claims that they have waited too long to file suit. That’s why it is essential to speak to an experienced attorney today to develop your case and get it filed within the one-year window.

At Eisenberg & Baum, LLP, our experienced sexual abuse attorneys know how to put the New York Child Victims Act to work for you to fight back against child sexual abuse. We can meet with you and your family at our headquarters in the heart of New York City, or conference with you remotely, to help you find protection and compensation under federal, state, and local laws. Contact Eisenberg & Baum, LLP, today to talk to a sexual abuse attorney.

What the Equal Employment Opportunity Commission Did for Employees in 2018

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The #MeToo movement and national attention to sexual harassment issues made 2018 a big year for the Equal Employment Opportunity Commission. So why are their charge numbers down? Find out why changes at the EEOC may lead more employees to use private lawsuits to get the recovery they deserve.

This blog post will review the 2018 enforcement and litigation statistics recently released by the Equal Employment Opportunity Commission (EEOC). I will compare FY2018 to prior years and discuss options for employees who find their interests are not fully represented in the EEOC complaint process.

Retaliation, Sexual Harassment Top the List of EEOC Charges

On April 10, 2019, the Equal Employment Opportunity Commission released its 2018 enforcement and litigation statistics for workplace discrimination of all kinds. The EEOC tracks all its complaints and charges by year, state, and type of misconduct. Here are the highlights of last year’s data.

In FY2018, which ended on September 30, 2018, the EEOC received 519,000 calls, 34,600 emails, and 200,000 in-person inquiries from members of the public. These resulted in 76,418 total charges. More than half (51% ) of those charges included claims of retaliation.

The #MeToo movement made its mark as well. In 2018, the EEOC received 7,609 sexual harassment charges, which was a 13.6% increase over FY2017. The agency also received 24,655 sex discrimination charges (32.3% of all charges) and an additional 1,066 Equal Pay Act charges. Other claims included:

  • Disability and ADA violations (24,605 or 32.2%)
  • Race (24,600 or 32.2%)
  • Age (16,911 or 22.1%)
  • National Origin (7,106 or 9.3%)
  • Color (3,166 or 4.1%)
  • Religion (2,859 or 3.7%)
  • Genetic information (220 or 0.3%)

(Percentages add up to more than 100% because some charges included more than one type of violation.) All together, the EEOC secured $505 million in damages for employees of private employers, state and local government offices, and federal workplaces.

Smaller Case Load Signals Changes at the Equal Employment Opportunity Commission

As large as those numbers seem, they actually represent a significant reduction in case load at the Equal Employment Opportunity Commission. While EEOC employees opened over 76,000 charges, they closed 90,558 charges of discrimination, either through informal facilitation, settlement or case resolution. In total, the agency reduced its workload by 19.5% over the course of the year.

EEOC Acting Chair Victoria A. Lipnic sees this as a point of pride. The Equal Employment Opportunity Commission’s press release on the data included her statement:

“The EEOC had a remarkable year working on behalf of those who came to the agency having experienced discrimination in their workplaces. . . . The statistics reflect the agency’s successes in taking advantage of new strategies to bring about the lowest inventory of private sector charges in a dozen years.”

She touted the agency as operating in a more efficient manner, and being more sharply focused on “meritorious charges and those that advance the public interest”. That also means the Equal Employment Opportunity Commission is doing less for the employees who contact them with harassment and discrimination claims. They are filing fewer lawsuits and turning more employees away by issuing Notices of Right to Sue.

“Efficiency” at EEOC Means More Employees Will File Private Employment Discrimination Lawsuits

With the EEOC tightening its belt, many private employees will end up looking elsewhere for help enforcing their rights under Title VII, the Equal Pay Act, and other anti-discrimination statutes. For workers whose circumstances don’t fall within the Equal Employment Opportunity Commission’s top priorities, the reduction in workload will mean they will need to file private employment discrimination lawsuits to get the damages and injunctive relief they need and deserve.

At Eisenberg & Baum, LLP, we know how to make the most of the EEOC process. We can help you prepare your charge, and gather your evidence, so you can make the most of your sexual harassment or gender discrimination claim. Whether you are preparing for a formal hearing or have been sent a Notice of Right to Sue, our employment discrimination lawyers will review your case and help you prepare a strategy to get the relief you need. Contact us today to schedule a free initial consultation and get your case started.

U.S. Supreme Court to Hear Sexual Orientation Discrimination Cases

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For years, the answer to whether American workers were protected against sexual orientation discrimination or gender identity discrimination has been “it depends”. Gay and Trans* workers’ access to civil rights protections have depended on their state’s laws, and on how their local courts had interpreted the federal anti-discrimination statute. Now, the U.S. Supreme Court has announced it will hear three sexual orientation discrimination and gender identity cases. The Justices’ decision could set the stage for Title VII protections for years, or even decades to come.

In this blog post, I will discuss the U.S. Supreme Court grant of certiorari in three cases related to sexual orientation discrimination and gender identity discrimination in the coming session. I will review the facts of each case and the lower courts’ opinions, and discuss concerns some commentators have over the effect Justice Kavanaugh may have on the Court’s decision.

Supreme Court to Answer the Question: Can You Be Fired for Being Gay or Trans*

On April 22, 2019, the Supreme Court announced it was granting certiorari to (agreeing to review) three employment discrimination cases on appeal from circuit courts across the country:

These are three cases among many in recent years to take up the question of whether you can be fired for being gay or trans*. Zarda and Bostock address sexual orientation discrimination, while RG & GR Harris Funeral Homes deals with gender identity discrimination. The way the court chooses to rule on these cases could provide a clear answer to whether Title VII protects gay and transgender workers from discrimination at work.

Title VII and Sex Discrimination

The three cases are all based on the same part of Title VII of the federal Civil Rights Act, which says:

“It shall be an unlawful employment practice for an employer … to fail or refuse to hire or to discharge … or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin ….”

Gender discrimination happens when an employer makes employment decisions, including hiring, firing, promotions, or pay determinations at least in part because of the sex or gender of the employee being considered. The question each court had to face is whether discrimination “on the basis of … sex” includes a person’s sexual orientation or gender identity. Here’s what each lower court decided.

Zarda v Altitude Express Inc

Donald Zarda was a skydiving instructor for Altitude Express Inc. Zarda was preparing for a tandem jump, where he and a female client were strapped hip-to-hip and shoulder-to-shoulder. Given the intimate nature of the position, Zarda told her that he was gay “and ha[d] an ex-husband to prove it.” Zarda was later fired at least in part because of his reference to his sexual orientation.

The Second Circuit Court said that was illegal. In discussing Title VII, the court said:

“This ‘broad rule of workplace equality,’ … ‘strike[s] at the entire spectrum of disparate treatment’ based on protected characteristics, … ‘regardless of whether the discrimination is directed against majorities or minorities.’ … As a result, we have stated that ‘Title VII should be interpreted broadly to achieve equal employment opportunity.” (Internal citations omitted)

The court found three reasons a gay or lesbian employee could use to raise sexual orientation discrimination under Title VII:

  • Because sexual orientation discrimination is motivated at least in part because of an employee’s sex
  • Because sexual orientation discrimination is based on sex stereotyping and assumptions about how each sex can or should be
  • Because sexual orientation discrimination is based on “associational discrimination” and motivated by an employer’s objection to romantic relationships between people of particular sexes.

The court held that any of these reasons could be enough to sustain a Title VII sexual orientation discrimination lawsuit.

Bostock v Clayton County

Gerald Bostock was a child welfare services coordinator in Clayton County, Georgia, and a gay man. He filed a federal lawsuit under Title VII saying the county discriminated against him based on his sexual orientation and gender stereotyping.

The Eleventh Circuit reviewed his case and in a short, 3-page decision ruled that he could not sue for sexual orientation discrimination, because Title VII didn’t include sexual orientation in the list of protected traits. The court relied heavily on the fact that earlier courts had found in the same way, ignoring prior U.S. Supreme Court cases to the contrary. The court said:

“And under our prior panel precedent rule, we cannot overrule a prior panel’s holding, regardless of whether we think it was wrong, unless an intervening Supreme Court or Eleventh Circuit en ban decision is issued.”

EEOC v RG & GR Harris Funeral Homes Inc 

Aimee Stephens was born biologically male. She presented as male when she was hired to work at R.G. & G.R. Harris Funeral Homes, Inc. in Michigan. After several years, she sent the owner Thomas Rost, her boss and a practicing Christian, a letter saying that she intended to begin presenting as female and going by her female name, and that she would comply with the funeral home’s gender-specific dress code by wearing skirt suits at work. She was fired, in Mr. Rost’s words, because “he [Aimee] was no longer going to represent himself as a man. He wanted to dress as a woman.”

The court found that this was explicit gender identity discrimination and violated Title VII. It said firing Ms. Stephens based on her letter was motivated by sex stereotypes and gender norms. The court said that Title VII is violated when a person is discriminated against because of her sex, or her desire to change her sex. The court said:

“It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part by the employee’s sex.”

Aimee Stephens’ case also raises the issue of whether a religiously observant owner of a for-profit company can use his or her religious belief as a shield against Title VII enforcement. The federal Religious Freedom Restoration Act (RFRA) says that the government may not enforce a religiously neutral law against a person if doing so substantially burdens the individual’s religious exercise unless it is done in the “least restrictive way to further a compelling government interest.” The court found that the funeral home, which was for-profit and performed funerals for families of any faith or no faith, would not be substantially burdened by continuing to employee Stephens after her transition as a transgender woman.

Could a Conservative Supreme Court Cut Down LGBT Employment Protections?

These cases are the first LGBT employment law cases to come before the U.S. Supreme Court since Justice Anthony M. Kennedy stepped down. Kennedy was seen as a champion for LGBT rights on the Court. He personally wrote several key opinions. Now that he has been replaced by Justice Brett Kavanaugh, some commentators are wondering if the more conservative Court will roll back protections for gay and transgender workers. While Justice Kavanaugh has a history of conservative social views, he has stood behind some employees’ workplace discrimination cases in the past.

But trying to predict a U.S. Supreme Court decision is as risky as predicting the weather. Kavanaugh’s position on the particular issues of sexual orientation discrimination and gender identity discrimination remain to be seen, as does whether those opinions will sway any of the other justices on the bench.

At Eisenberg & Baum, LLP, our gender discrimination attorneys make it our job to stay on top of changes in the law. We know how to navigate the landscape of sexual orientation discrimination and gender identity discrimination. If you are gay or transgender and looking for help ending discrimination at work, contact us today to schedule a free consultation.