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ABA Study Finds Attorneys with Disabilities or in the LGBTQ+ Community Face Prevalent Discrimination

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Discrimination can take many forms, and target many different kinds of minorities. Until now, most studies of discrimination within the legal community have focused on traits you can see: race, gender, age, etc. Now a recent study has looked into the “invisible” traits of disabilities, sexual orientation and gender identity. The study found that attorneys with disabilities or in the LGBTQ+ community face prevalent discrimination as well.

ABA Survey Studies Diversity and Inclusion Among Lawyers

In Spring 2020, researchers from the Burton Blatt Institute at Syracuse University partnered with the American Bar Association to investigate issues of diversity and inclusion within the American legal profession. Their report, published in the University of the District of Columbia’s Law Journal, holds itself out as “among the first and largest undertaking of its kind to focus on attorneys with disabilities or that have health impairments and conditions, and lawyers who identify as LGBTQ+.”

Previous studies had focused on “visible” minorities, such as race and gender. But lawyers across the spectrum of disabilities, gender expressions, and sexual orientations are “among the groups most stigmatized by society and in the workplace.” This report, the first in a longitudinal study, intended to document LGBTQ+ and disability discrimination within the industry, and suggest ways to mitigate the effects of that stigma.

The Demographics of the Study

To do this, the ABA sent out nearly 200,000 emails to lawyers associated with disability organizations and the LGBTQ+ community. Of the 3,590 responses received:

  • 6% identified as lesbian, gay, or bisexual (LGB)
  • 1% identified as transgender, non-binary, non-binary-non-gender-conforming, gender fluid, gender nonconforming, androgynous, or agender
  • 4% identified as other sexual orientations including demi-sexual or pan-sexual
  • 25% reported a health impairment, condition, or disability

The report acknowledged that the study was trying to oversample lawyers with multiple marginalized identities (representing intersectionality). However, very few lawyers fit into that group. Among those who reported health and disability issues, only 18.7% identified as LGB and 1.4% reported other gender identities. However, 42.1% were in later stages of their career, which suggested their disabilities may have been age-related.

Study Identifies Gender Discrimination and Sexual Orientation Discrimination Within the Legal Industry

This study reinforced prior work showing that the LGBTQ+ community faces negative attitudes and stereotypes in the workplace. This often causes them to be passed over for advancement, or be paid less based on conscious and unconscious biases about their performance.

During the past 10 years, the number of openly LGBTQ+ lawyers has more than doubled, but they are still not widespread in the industry. They are most often found in public interest organizations and are geographically focused in four major cities: New York, Washington D.C., San Francisco, and Los Angeles.

Even when they are able to advance, professionally, gay and Trans* workers often experience organizational barriers from verbal and nonverbal microaggressions to intentional bias. Across the study, about 40.2% of respondents said they had experienced some form of bias and descrimination. This included:

  • 9% experiencing bullying
  • 0% experiencing discrimination
  • 7% experiencing subtle and intentional biases
  • 5% experiencing subtle but unintentional biases

Among the LGB respondents, more than 47% said they had experienced implicit bias within the legal industry.

Disability Discrimination Takes More Overt Forms, Including Refusing Accommodations, Study Says

One quarter of all respondents reported having some health impairment, condition, or disability. Out of the 830 lawyers who answered the question, almost one third (30.8%) reported a mental condition, including:

  • Depression
  • Anxiety
  • Learning disabilities
  • ADHD
  • Autism
  • Sleep disorders

The study found that these attorneys with disabilities “reported experiencing proportionally more overt forms of discrimination, such as bullying and harassment, as compared to people who do not have such conditions.”

Workplace accommodations is one way disability discrimination varies from other forms of bias. Under the Americans with Disabilities Act, disabled workers may request reasonable accommodations from their employer to make it easier for them to perform their assigned tasks. In the study, more than one-quarter of total respondents (28.4%) had requested workplace accommodations. Among those who identified as a person with a disability, that number increased to 65.0%. These accommodations included:

  • 3% asked for changes to a work schedule (including flex time, shift changes, or part-time work)
  • 3% asked for modifications to their personal work environment (such as orthopedic chairs or lowered desks)
  • 8% asked to work from home or telecommute

When workers did request accommodations, their requests were granted 76% of the time, and another 15% had some accommodations made. However, in more than 10% of cases, their requests for accommodations were denied.

What Can Be Done to Mitigate Discrimination Against “Invisible” Traits

Mitigating discrimination in the legal industry, and other workplaces, requires employers to break down unintentional biases and take active steps against more overt discriminatory practices. The study asked respondents to gauge the effect mitigation efforts in their organization. Nearly half (46%) of respondents said mitigation efforts had been effective in lessening bias against discrimination. This can serve as a guide for employers looking to improve the diversity and inclusion in their workplace:

  • 5% said mentoring within the organization helped
  • 4% said external mentoring was effective
  • 1% said membership in specialized law networks or support groups also helped

Ultimately, the study’s authors encouraged the legal industry to change the way they think about diversity and inclusion to focus on 3 core areas:

  • Diversity of talent (appreciation and meaningful representation of valued benefits)
  • Inclusion of talent (understanding, accepting, and engaging with those with different perspectives)
  • Accommodation of talent (providing meaningful support to enable people to contribute to the maximum extent possible)

The study concluded:

“These diversity, inclusion, and accommodation strategies, both individually and in combination, contribute to an organization’s mission and success. They also contribute to individual commitment to and satisfaction with the organization.”

By narrowing “the divergence between the person’s particular profile of job-related strength and needs, and their work environment” the authors say employers can mitigate social biases and help everyone in their workplace feel accepted and work to their greatest potential.

At Eisenberg & Baum, we understand how to work with state and federal law to fight back against sexual orientation, gender identity, and disability discrimination at work. Our employment discrimination attorneys, help LGBTQ+ and disabled workers protect their rights under Title VII, the Americans with Disabilities Act, and state civil rights laws. If you have been the victim of disability, 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.

Supreme Court Extends Civil Rights Protections to LGBTQ Employees

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Can you be fired from your job for coming out as gay or transgender? Not anymore. In a landmark case, the Supreme Court has extended Title VII civil rights protections to LGBTQ employees nationwide. The opinion, written by Trump appointee, Justice Neal Gorsuch, surprised legal commentators and solidified gay and trans* workers’ right to be free from workplace discrimination because of their sexual orientation or gender identity.

A Queer-Friendly Ruling from a “Conservative” Supreme Court

June was pride month across the U.S. and around the world. It also lines up with the end of the Supreme Court’s yearly term. In recent years, that has meant that LGBTQ advocates have looked forward to June as a time for big decisions on gay rights coming down from the country’s highest court. However, the appointment of two conservative Supreme Court justices in recent years meant that this June brought more anxiety than anticipation.

Last October, the Supreme Court heard oral arguments on three consolidated cases involving sexual orientation and gender identity discrimination:

  • Bostock v Clayton County, where a child welfare services coordinator was discriminated against based on sexual orientation and gender stereotyping
  • Zarda v Altitude Express Inc, where a skydiving instructor was fired for revealing he was gay
  • RG & GR Harris Funeral Homes Inc v EEOC, where a transgender woman was fired after informing her employer she would be presenting as a woman at work and complying with female dress codes

Following oral arguments, commentators found it hard to tell whether the Supreme Court would side with the LGBTQ employees, or find in favor of the employers. While the newly-appointed conservative justices had asked some questions tending to show their support for LGBTQ civil rights protections, those familiar with the Court warned that it is never wise to assume what will happen between oral argument and the release of a written decision. That is why the final opinion, written by Justice Neal Gorush and released on June 15, 2020, caught some by surprise.

Supreme Court Says Sexual Orientation and Gender Identity Discrimination are Necessarily “On the Basis of Sex”

The question before the court boiled down to whether sexual orientation and gender identity discrimination were forms of discrimination “on the basis of sex” under Title VII of the federal Civil Rights Act, or whether they were different forms of discrimination beyond what the legislature had intended to cover at the time it passed the law in 1964. The opinion said:

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The 33 page majority opinion was signed by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan, making it a 6-3 decision. Justices Alito and Kavanaugh each filed dissenting opinions, and Justice Thomas joined with Justice Alito’s dissent.

Those who read the opinion closely may have been disappointed to see that it framed questions of sexual orientation and gender identity discrimination on the basis of sex, “referring only to biological distinctions between male and female.” Transgender advocates in particular often try to distance questions of gender identity and expression from the sometimes arbitrary assignments of sex made by doctors at the time of a child’s birth.

However, this language reflects Justice Gorush’s attempts to tie the opinion as closely as possible to the actual wording in the federal civil rights statute, which says it is “unlawful . . . for an employer . . .  to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s . . . sex.” The Court emphasized that Title VII complaints need only show that a person’s sex was a motivating factor in an employer’s decisionmaking.

“So, taken together, an employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.”

The Court said this is an individual right, and that employers violate Title VII when they act against an individual because of that person’s sexual orientation or gender identity, even when the employer would treat all gay or transgender employees or applicants the same (by firing them or refusing to hire them).

What the Ruling Means for LGBTQ Employees

When the Supreme Court found that “homosexuality and transgender status are inextricably bound up with sex” it unlocked access to all of Title VII’s civil rights protections for LGBTQ employees. Workers across the nation who are fired because of who they love or their gender expression may now file complaints with the EEOC and have their cases heard in federal court. This has already been true in parts of the country, including New York where the state Human Rights Law explicitly includes sexual orientation and gender identity. However, in the 29 states without explicit state-level protections, queer and LGBT workers can now rest assured that their rights will be protected under federal law.

At Eisenberg & Baum, LLP, our gender discrimination attorneys make it our job to stay on top of changes in the law, here in New York, and across the country. 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.

$90,000 Settlement Shows Discrimination in the Workplace Against HIV Positive Employees

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Can you be denied a job because you are HIV positive? Many LGBTQ+ employees and others who live with this diagnosis worry any time an employer requires a medical check. But a recent settlement shows that HIV discrimination is illegal under the Americans with Disabilities Act. Find out what you can do if you believe you lost a job because of your health circumstances.

Ex-Cop Faces Discrimination Based on HIV Status

In 2012, a former police officer, Liam Pierce, was denied a job with the Iberia Parish Sheriff’s Office in Louisiana after his pre-employment medical evaluation revealed he was HIV positive. Pierce had experience as a police officer, volunteer firefighter, and paramedic, and seemed well qualified for the position. The ex-cop had lost a previous job over a claim of misconduct. However, he and his employment discrimination attorneys said that misconduct had been addressed during his interviews. “They said it wasn’t a problem,” Pierce’s attorney said. Everything was “perfectly on track” for Pierce to become a deputy sheriff with the department.

But then Pierce underwent a pre-employment medical exam. He told the medical team that he was HIV positive. While he says the doctors told him having HIV didn’t disqualify him from the job, it didn’t take long for the sheriff’s office to deny him the job after the results of the exam were sent in. Suddenly, Pierce’s past misconduct became a problem — a pretense for the true basis for the denial: workplace discrimination against HIV positive employees.

The ADA and Disability Discrimination in the Workplace

The Americans with Disabilities Act (ADA) prevents employers from treating employers or applicants differently because of their medical disabilities. Unfavorable employment decisions could include anything from shift assignments to rejecting an otherwise qualified applicant. The ADA requires employers to provide reasonable accommodations to employees or job applicants who have a medical diagnosis or disability, unless the needed accommodation would cause significant difficulty, expense or “undue hardship” to the employer.

But plenty of medical conditions have no effect on an applicant’s ability to do the job at all. Employees and applicants may be able to manage their symptoms through medication or other treatments, or the expressions of the condition may not overlap with the needs of the job. In these cases, it is illegal for employers to treat an employee less favorably because he or she:

  • Used to have a condition
  • Has a history of health-related events
  • Has a current diagnosis
  • Is believed to have a permanent or lasting condition (even if false)
  • Is related to a person with a disability

HIV Job Discrimination Leads to $90,000 Settlement

Pierce’s lawsuit had to do with this form of asymptomatic disability discrimination in the workplace. After he was passed over for the job in 2012, his attorney helped him file a complaint with the Equal Employment Opportunity Commission (EEOC). In 2018, the EEOC said that Pierce had probable cause to bring a lawsuit based on what happened to him. Two years later, on April 24, 2020, he announced that the case had settled. Pierce is set to receive $90,000 in damages for his HIV job discrimination claim.

HIV Discrimination Based on Biases and Bad Data

Pierce was represented by the LGBTQ+ advocacy firm Lambda Legal. Earlier this year, the firm also won an argument in a similar HIV discrimination case against the U.S. Air Force. There, the 4th Circuit Court of Appeals upheld a preliminary injunction preventing the Air Force from discharging soldiers simply because they tested HIV positive. They also have 2 other lawsuits pending against other branches of the U.S. military.

HIV discrimination is especially challenging because many people are affected by decades-old stigma and bias against the disease. HIV is difficult to transmit and when treated can even be reduced to undetectable levels. Even in jobs where there are risks of contact with bodily fluids, the Centers for Disease Control says the risk of spreading HIV is “near zero.”

Still, many employers hold entrenched beliefs that people with HIV are somehow “dirty” or “bad.” Much of this stems from false information about the disease from the 1980s and 1990s. Those who are HIV-positive must also deal with homophobia and sexual orientation discrimination because HIV and AIDS were originally thought to primarily affect gay men.

Lawsuits that fight against discrimination in the workplace based on HIV status are important to help employees understand that the ADA protects them too. All too often, employees suffer the stigma related to this disease in silence, not realizing they have the right to demand better. At Eisenberg & Baum, our experienced employment discrimination attorneys know how to use the ADA and other state and federal anti-discrimination laws to protect HIV-positive and LGBTQ+ workers. If you have been turned down for a position because of your condition, we will help you explore your options, and protect your rights. Contact us today to schedule a free consultation.

Jacksonville Reinstates Anti-LGBTQ Discrimination Ordinance after Courts Struck It Down

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Cities all across America have passed anti-LGBTQ discrimination ordinances to protect their residents from hate. But these ordinances often face stiff opposition and even lawsuits from right-wing advocacy groups like Liberty Counsel. Find out what happened when one court in Florida struck down a local law, and how a recent U.S. Supreme Court case is coming to the Queer community’s aid.

Court Strikes Down LGBTQ Discrimination Ordinance Over Formatting

In 2017, after five years of public debate, the Jacksonville City Council passed the city’s Human Rights Ordinance (HRO). This ordinance, like other state and local Human Rights laws in New York and across the country, prohibited discrimination in the workplace and in residential housing based on sexual orientation and gender identity. However, the ordinance also included exemptions for religious organizations including hospitals and emergency shelters that did not apply to other forms of discrimination banned by the law.

But five years of debate wasn’t enough to guarantee even these limited protections to Jacksonville’s LGBTQ residents. After the ordinance became law, the right-wing group Liberty Counsel took the matter to court. They represented John Parsons, a Jacksonville resident, who said the new HRO injured his “personal bodily privacy, modesty and dignity,” along with Liberty Ambulance Service and Diamond D. Ranch. These businesses claimed that the HRO conflicted with their religious beliefs.

Liberty Counsel’s complaint was dismissed in late 2017. Senior Circuit Judge Michael Weatherby called their injuries “speculative” and insufficient to justify the action. However, the case pressed on through an appeal to the 1st District Court of Appeals in Florida.

Then, in May 2020, Liberty Counsel got what it wanted, if not for the reasons it had told the press. The appeals court struck down the LGBTQ discrimination ordinance, saying the way that it was passed violated state and local laws. The appellate decision didn’t address Liberty Counsel’s claims that the HRO was unconstitutional religious discrimination. Instead it focused on the practical problems with the bill’s formatting.

Because of a clerical error, the section of the bill that outlines which statutes and ordinances would be amended was missing. Without that language the 2017 HRO was just a promise to change the Jacksonville non-discrimination ordinance — not an actual amendment to the law. Because of this, the court of appeals struck the ordinance down, essentially telling the City Council to try again.

Jacksonville City Council Quietly Reinstates Anti-LGBTQ Discrimination Ordinance in a Video Conference

The up-side to the court of appeal’s use of a technicality to strike down the HRO is that it was easy to fix. About a month after the court issued its decision, the Jacksonville City Council quietly reinstated the anti-LGBTQ discrimination ordinance. Unlike the 2012 version, or even the 2017 law that passed, this one happened without public controversy or uproar.

Because of COVID-19, the City Council met virtually, via video conference. There were no public speakers, and no discussion among the councilmembers over reinstating the bill. The new human rights ordinance passed with a veto-proof majority of 15 to 4, and was signed into law, again.

Supreme Court’s Bostock Opinion Gives Allies a Tool in Defending the New Non-Discrimination Ordinance

It may seem like reinstating the ordinance will just give Liberty Counsel a chance to file a new lawsuit — maybe with stronger plaintiffs this time. However, since the initial complaint was filed in 2017, a much bigger decision has made any new lawsuit much harder to win.

In June 2020, the U.S. Supreme Court issued its opinion in Bostock v Clayton County, which consolidated three different workplace discrimination cases involving gay and Trans* employees. The opinion, written by Justice Neal Gorush, established a nationwide law that sexual orientation discrimination and gender identity discrimination are necessarily forms of sex discrimination under Title VII — the federal anti-discrimination law. While LGBTQ advocates may have preferred a more sweeping decision than they received from the conservative justice, they will undoubtedly use the language in Bostock to defend against attacks on state laws and local ordinances designed to protect LGBTQ residents in the future.

At Eisenberg & Baum, we understand the damaging affects of sexual orientation and gender identity discrimination. We know how to use federal and state laws as well as local ordinances to stop the harassment and diffuse toxic working environments. From our office in New York City, our employment discrimination attorneys travel nationwide, helping LGBTQ workers negotiate with employers who simply do not understand the recent changes to the law. 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, gender identity or expression against you, contact us. We’ll meet with you and help create a strategy that protects you against genderqueer discrimination.

Are Misgendered Pronouns Gender Discrimination at Work?

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For transgender and nonbinary workers, a supervisor using the right name and pronoun can be a sign of affirmation and respect. But what if coworkers or supervisors refuse to refer to you in your preferred way? Are misgendered pronouns gender discrimination at work?

States Offer Gender-Netural IDs, No-Questions-Asked Gender Changes

Before 2017, every U.S. resident’s driver’s license or state ID said one or two things: M or F, Male or Female. Many states required complicated procedures, and even proof of surgery before transgender individuals would be allowed to change that M to F or F to M. But ideas of gender identity are changing quickly.

In July 2017, Oregon became the first state to issue gender X IDs. Washington DC followed soon after. Three years later, 14 jurisdictions have non-binary or gender-neutral options for their residents’ driver’s licenses or state IDs:

  • Oregon
  • Washington DC
  • Arkansas
  • Minnesota
  • Maine
  • Utah
  • Colorado
  • California
  • Indiana
  • Nevada
  • Vermont
  • Maryland
  • New Hampshire
  • Hawaii

In addition, several states have begun to allow residents to change the gender markers on their IDs simply by signing an affidavit, rather than providing invasive doctors notes and proof of medical procedures.

These movements are allowing transgender and non-binary individuals more freedom in adjusting their legal identity to match their personal gender identity. Trans* activists see this as a great step forward, and a signal that society is beginning to accept alternative genders.

Universities Use Stickers, Records to Let Students Identify Gender Pronouns

Following these changes to state laws, the first wave of non-gendered students are beginning to enroll in universities across the country. Respected institutions like Harvard often refer to students as Mr. or Ms. The addition of non-gendered students have put wrinkles into the system and revealed deeply held assumptions by many professors.

When Diego Garcia Blum started graduate school at Harvard last fall, he took his school-issued name placard and added his proper pronouns with a marker. He did that out of respect for another graduate student, Raven Graf, who is nonbinary and uses the pronouns they/them. Harvard’s John F. Kennedy School of Government, where Mr. Blum and Mx. Graf were enrolled has responded by providing clear stickers for the Winter 2020 semester with four pronoun options: He/Him, She/Her, They/Them, Ze/Hir.

Other universities have taken similar steps. New York University allows students to update class rosters with their preferred pronouns. The University of Minnesota enacted a pronoun policy allowing students to specify a name and gender that do not match their legal identities.

But these transitions have not always been smooth. Many pronoun protocols are voluntary “best practices” and some professors have chosen not to follow them.

Are Misgendered Pronouns Gender Discrimination at Work?

When this same behavior makes its way to the workplace, it can make everyday life difficult for transgender and nonbinary employees trying to express their true gender identity at work. When coworkers and supervisors ignore your requests and insist on using misgendered pronouns, it can quickly make you feel exposed and even unsafe.

Title VII and Misgendered Pronouns

Misgendered pronouns may be insulting, but it is not clear that on their own they would count as gender discrimination at work under Title VII of the federal civil rights act. Title VII does not explicitly protect against discrimination based on sexual orientation or gender identity. While many courts have said the protections apply, others have said they do not. The issue is currently pending before the U.S. Supreme Court. However, in that case the transgender worker was fired when she came out as a woman. It is not clear whether simply using the wrong pronouns could be so “severe” or “pervasive” that it creates a hostile work environment under federal law.

New York City Protects Transgender Workers

Even if misgendered pronouns are not gender discrimination under federal law, New York City’s Transgender Rights Law and New York State’s Human Rights Law may offer additional protections. The Transgender Rights Law explicitly requires employers to use the name, pronouns, and title a worker self-identifies, whether that matches their legal ID or not.

Gender-neutral IDs and nonbinary pronouns are going to be increasingly common among employees in New York City, statewide, and across the country. When employers are unable to keep up with the changes, it could result in gender identity discrimination and serious harm to nonbinary workers. At Eisenberg & Baum, we understand the impact misgendered pronouns can have on transgender and nonbinary employees. From our office in New York City, our employment discrimination attorneys help gender-nonconforming workers negotiate with employers and protect their rights. 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 gender identity or expression against you, contact us. We’ll meet with you and help create a strategy that protects you against misgendered pronouns and gender identity discrimination.

EEOC Swears in Sharon Gustafson General Counsel, First Woman to Do So

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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.

SCOTUS Hears Transgender and Sexual Orientation Discrimination Cases

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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.

The Federal Government’s Evolving Stance on Transgender Discrimination

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Announcing you will be transitioning at work can be nerve-wracking. You never know how your coworkers, or your employer will respond to your desire to live openly according to your gender identity. That’s why it is good to know that, for now at least, LGBT workers can turn to the Equal Employment Opportunity Commission to defend their rights and their transgender discrimination cases.

In this blog post, I will discuss the EEOC’s lawsuit against Ellucian, an educational services company, for transgender discrimination against one of its employees, which settled in 2016. I will discuss whether gender identity is still protected under Title VII and the pending U.S. Supreme Court case that could affect future gender identity discrimination claims. I will also explain how state laws can sometimes fill a gap left by federal anti-discrimination laws.

Ellucian Kicks Transgender Worker Off College Campus

Ellucian is a development and information technology company that provides technology support to college campuses across the country. But when one of those colleges got word that an Ellucian employee was planning to publicly transition from male to female in 2016, the college spoke up. And that created a transgender discrimination issue.

According to a press release by the Equal Employment Opportunity Commission (EEOC) in 2016, Ellucian cut off its employee’s access to her workplace on an unnamed college campus the day after she informed her coworkers that she planned to come out as transgender at work. When the college complained, the IT company, which performed contract work for the college, removed the employee from campus at their request.

Transgender Discrimination is Sex-Stereotyping Discrimination, for Now

When transgender discrimination happens, LGBT workers have the right to be protected by state and federal anti-discrimination laws. At the federal level, Title VII of the Civil Rights Act protects against discrimination based on a person’s sex or gender (among other traits). Several courts, including the U.S. Supreme Court, have ruled that this includes transgender discrimination. They say that employers cannot make adverse employment decisions against employees (including removing them from particular jobs) based on sexual stereotypes or assumptions, such as how a person should speak or dress.

In 2018, in EEOC v R.G. & G.R. Harris Funeral Homes, Inc., the Sixth Circuit Court said that announcing you intend to transition is enough to trigger transgender discrimination protections:

“Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”

The 2016 settlement announcement in the Ellucian case contained strong language about the EEOC’s position regarding transgender discrimination:

“EEOC’s recent work on sex discrimination on the basis of transgender status and sex stereotyping goes back four years, when the Commission issued an opinion in Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), in which EEOC ruled that employment discrimination against employees because they are transgender is sex discrimination which violates Title VII. Since that time, EEOC has focused on protecting transgender individuals as a strategic enforcement priority and has resolved several potential charges and lawsuits.”

But in more recent years, the EEOC has turned its focus elsewhere. There have been no more recent settlements or lawsuits filed on the basis of transgender discrimination. While the EEOC still says businesses are banned from discriminating against LGBT workers based on sex biases, other parts of the Trump Administration have sought to legitimize transgender discrimination at the federal level.

U.S. Supreme Court to Decide the Future of Transgender Workers’ Rights

The internal dispute about transgender discrimination within the Trump Administration is getting some very public attention. That’s because the U.S. Supreme Court has agreed to hear another EEOC case filed on behalf of a transgender worker, Aimee Stephens. That case (the same one quoted above), could shape the future of transgender workers’ rights and expand or limit their access to federal anti-discrimination laws.

While the EEOC originally filed the case, once the Trump Administration took over, Aimee Stevens and non-profit groups including the American Civil Liberties Union stepped in to protect her rights. That was especially important since it was the Justice Department, not the EEOC that would have been arguing the case at the U.S. Supreme Court level. And Attorney General Jeff Sessions’ position doesn’t match the one the EEOC quoted in 2016.

State Laws Remain Steady for LGBT Workers Facing Uncertain Futures

The good news is that even if the U.S. Supreme Court rules that Title VII of the federal Civil Rights Act doesn’t apply to transgender discrimination or announcements of the intent to transition, their state laws might. New York and several other states have passed more inclusive state-level anti-discrimination laws that protect LGBT workers against discrimination based on sexual orientation or gender identity. Even if the Supreme Court takes the Trump Administration’s perspective on Title VII, these laws will remain on the books and provide protection to workers within these states who face the fear of being fired for coming out or publicly transitioning to their appropriate gender identity.

At Eisenberg & Baum, LLP, our gender discrimination attorneys  make it a point to stay up-to-date on all the latest changes and trends in transgender discrimination law. We know how to use both state and federal laws to protect LGBT workers from discrimination based on sexual orientation or gender identity. If you are gay or transgender and looking for help ending discrimination at work, contact us today to schedule a free consultation.

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.

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.