Archive for month: October, 2019

After nearly 3 years without a head attorney, the EEOC has finally sworn in Sharon Gustafson as its new General Counsel. Will the first woman to hold the seat mean stronger protections for women facing gender discrimination, sexual harassment, and pregnancy discrimination? Or will LGBT advocates’ concerns prove true?

In this blog post, I will discuss the appointment of Sharon Fast Gustafson as General Counsel for the U.S. Equal Employment Opportunity Commission (EEOC). I will explain the role of the General Counsel, and how her appointment could affect the agency. I will also discuss the fact that Gustafson is the first woman to have held the seat, and what that could mean for future sexual discrimination cases.

EEOC Fills 3-Year Vacancy for General Counsel

The EEOC’s General Counsel is in charge of the agency’s litigation program. The officer is appointed by the President and confirmed by the U.S. Senate to a 4-year term. But the EEOC has been without its head of litigation since December 2016, when David Lopez resigned.

At the same time, the EEOC has also faced vacancies among its five commissioners. These commissioners oversee the policies, finances, and organizational development of the agency. The EEOC commission is intentionally bipartisan. Three commissioners are selected from the President’s political party and two from the opposition. When Commissioner Chai Feldblum’s term expired on January 3, 2019, there were only two commissioners left. That meant the agency as a whole has been operating without guidance or leadership for most of the year.

Then, on August 2, 2019, the U.S. Senate confirmed Democrat Charlotte Burrows for her second term as Commissioner (through July 1, 2023), and confirmed Sharon Fast Gustafson as the agency’s General Counsel. She was sworn in to the role on August 8, 2019, promising to uphold the charge of the agency to advance equal employment opportunity in the American workplace. In a statement issued by the EEOC, Gustafson said,

“My own experience so far in employment discrimination matters has not been to sit in a high seat, pulling the levers of power. Rather, I have been a solo lawyer most often repre­sent­ing the employee of modest means or the small business employer. My seat has been in a media­tion room, trying to invoke the agency’s remedies to help someone get his job back, to get compen­sa­tion for a wrongful termination, or to preserve the reputation of an employer wrongly accused. I think of my work as having been retail, street-level civil rights litigation. I look forward to using my decades of experience in employment law to conduct the litigation of the EEOC. My goal is to work with the EEOC’s career staff to prevent illegal discrimination in the workplace and to remedy it where it has occurred.”

Sharon Gustafson Becomes First Woman General Counsel to Lead EEOC

Gustafson’s confirmation is a historical moment. She is the first woman to hold the position of General Counsel. All three of the currently seated commissioners are women as well. This could imply that women facing gender discrimination, sexual harassment, or pregnancy discrimination at work may find a more sympathetic ear within the EEOC leadership.

That does appear to be at least partially true in Gustafson’s case. Prior to her confirmation, she worked for over 20 years as a solo employment attorney, representing employees and small businesses in employment cases and before the EEOC. She was also the attorney for Peggy Young, who took a pregnancy discrimination case all the way to the U.S. Supreme Court in 2015. Ms. Young had asked for pregnancy-related accommodations when her doctor recommended she limit how much weight she lifted. Her employer, UPS, refused those accommodations, which meant that Ms. Young lost her employee medical coverage at a time when she needed it most. Through Gustafson’s advocacy, the U.S. Supreme Court ruled that an employer is required to provide the same reasonable accommodations to pregnant women as they would any other employee with similar medical restrictions.

Civil Rights Groups Warn Against What Gustafson’s Confirmation Means to LGBT Workers

But not everyone is happy about Sharon Gustafson stepping into the role of EEOC General Counsel. Prior to her confirmation, a coalition of civil and human rights organizations wrote to the Senate Committee on Health, Education, Labor, and Pensions with concerns over how she will treat the rights of LGBT workers who file complaints with the EEOC. The Trump Administration’s treatment of gay and Trans* citizens has been checkered at best. While the EEOC has maintained its policy that Title VII of the federal Civil Rights Act protects against sexual orientation discrimination, the Department of Justice has argued to the Supreme Court that the law doesn’t apply to the rights of Trans* worker Aimee Stevens. The National Women’s Law Center and other advocacy groups are concerned that under Gustafson’s leadership the EEOC will fall short of “faithfully and robustly enforc[ing] civil rights laws and protect[ing] these vulnerable communities from unlawful discrimination.”

With Gustafson and Burrows’s confirmations, the EEOC will once again have the ability to create and modify policies and procedures for the agency. Given the civil rights groups’ concerns, it remains to be seen if these new changes will be to the benefit of women and LGBT workers, or if the EEOC will go the way of other agencies within the Trump administration, and away from underprivileged citizens across the country.

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.

All eyes turned to the U.S. Supreme Court on October 8, 2019, as the Justices heard oral arguments in three transgender and sexual orientation discrimination cases. Find out what happened, and what will happen next in the defense of LGBTQ employee rights.

In this blog post, I will review the oral arguments before the U.S. Supreme Court in the cases of Gerald Bostock and Donald Zarda’s sexual orientation discrimination case and Aimee Stephens’ transgender discrimination case. You can learn more about the cases here. I will discuss what the Justices had to say, and what will happen next in each case.

Sexual Orientation Discrimination Cases Rest “On the Basis of Sex”

The first set of oral arguments were on the consolidated cases of Bostock v Clayton County and Zarda v Altitude Express Inc. In both cases, male employees were fired from their jobs as a child welfare services coordinator and a skydiving instructor when their employers learned that they were gay and attracted to the same sex.

The Arguments For and Against Sexual Orientation Discrimination Protections

Attorney Pamela Karlan speaking on behalf of the employees, summarized their position by saying:

“When a[n] employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII. The employer has, in the words of Section 703(a), discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex, again in the words of Section 703(a), because the adverse employment action is based on the male employee’s failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men.”

In other words, because a gay man is fired for loving a man but a straight woman isn’t fired for the same behavior, that is illegal sex discrimination. She continued:

“And when you tell two employees who come in, both of whom tell you they married their partner Bill last weekend, when you fire the male employee who married Bill and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event, that’s discrimination because of sex.”

But the attorney for the employers and the Solicitor General from the U.S. Department of Justice disagreed. They said there was a fundamental difference between sex and sexual orientation. When Congress passed Title VII of the Civil Rights Act, they couldn’t have meant to include sexual orientation discrimination in prohibiting discrimination “on the basis of sex”. After all, they said, at that time the act of gay sexual intercourse was illegal in many states. As long as an employer would treat gay men and lesbians the same — based on their attraction to the same sex — they argued that Title VII shouldn’t apply.

Transgender Discrimination Case Asks if Status or Gender Identity is Enough to Trigger Protections

The second set of oral arguments were in RG & GR Harris Funeral Homes, Inc v EEOC, where the funeral home fired Aimee Stephens, a transgender woman, when she informed her employer she would be presenting as female and complying with women’s dress code standards at work.

The Arguments For and Against Transgender Discrimination Protections

Attorney David D. Cole of the American Civil Liberties Union (ACLU) presented Aimee Stephens’s argument. He said:

“Harris Homes is treating Aimee Stephens differently because of her sex assigned at birth. If she had a female sex assigned at birth, she would not be fired. Because she had a male sex assigned at birth, she is fired. That is discrimination because of sex.”

The employee’s argument again was that what had happened was discrimination “on the basis of sex”, in this case, the sex assigned to Ms. Stephens at birth, and the sex stereotypes the funeral home owner held about how men and women identify, behave and dress. He continued:

“[T]he notion that somehow discriminating against someone because they are transgender is not discrimination, discriminating against them because of their sex I think falls apart because to say I’m discriminating against you because you are transgender is to say I am treating you differently from other people who have the same gender identity, because of your sex assigned at birth.”

The funeral home’s attorney, John Bursch, told the court, “Treating women and men equally does not mean employers have to treat men as women. That’s because sex and transgender status are independent concepts.” He and the Solicitor General refused to recognize transgender women, instead referring to them as “a man who identifies as a woman”. They said that Congress never included protections for a transgender classification independent of sex. Once again, the Solicitor General referred the Court to the fact that Congress had not yet amended Title VII to include separate protections for gender identity and sexual orientation.

The Justices’ Take on the Transgender and Sexual Orientation Discrimination Cases

It is always difficult to know what Supreme Court Justices are thinking just by listening to the oral arguments. Still, these hearings are the first opportunity attorneys and advocates have to gauge where the newly appointed Justices may fall on the issues of LGBTQ employee protections.

Several judges asked whether the employees were asking the Court to change the language of the statute to expand protections against transgender and sexual orientation discrimination. Justice Ginsburg and Chief Justice Roberts pushed for clarity on what Congress meant to do in 1964. Justices also asked whether this could be considered a “bona fide occupational qualification” to justify treating men and women differently, and whether there should be a religious exemption for employers who maintained sincerely held religious beliefs.

The Justices also spent a significant amount of time trying to anticipate the kinds of cases that could arise if they ruled in favor of protections for transgender employees on the basis of sex. They debated how the law could apply to sex-segregated bathrooms and sports teams.

At the end of the arguments, it seemed most of the Justices were leaning in their predicted directions. The Court’s 4 liberal Justices appeared to side with the employees while the more conservative Justices favored the employers. However, recently-appointed Justice Gorsch surprised commentators by asking questions that tended to swing in favor of LGBTQ protections. Even Justice Kavanaugh asked the employers’ attorney how the Court could distinguish “between the literal meaning of ‘because of sex’ and the ordinary meaning of ‘because of sex.’”

What Happens Next for LGBTQ Employee Protections

The oral arguments may be over, but that doesn’t mean advocates and attorneys can expect a decision soon. Most commentators believe the Court will wait until June 2020 to issue its decision, as it has in many other LGBTQ cases. At the same time, the U.S. House of Representatives have passed the Equality Act, which would explicitly add sexual orientation and gender identity to the list of protected traits under Title VII, though the Senate has not yet taken up the matter. Given the statements of certain key senators, it seems unlikely they will vote in favor of the law.

Even if the Supreme Court and Congress both fail to act to protect against transgender and sexual orientation discrimination, residents in many states, including New York, can still turn to their state Human Rights laws for additional protections. However, residents of other states, including the states where Aimee Stephens, Gerald Bostock and Donald Zarda were employed, could be left without important protections available to their cisgendered and straight coworkers.

At Eisenberg & Baum, we understand the importance of federal civil rights protection for gay and trans* Americans. Our employment discrimination attorneys, help LGBTQ workers protect their rights under Title VII, and state 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. If you have been the victim of transgender or sexual orientation discrimination, contact us. We’ll meet with you and help create a strategy that protects you and moves you closer to equality.