Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Monday, July 27, 2015

EEOC Says Sexual Orientation Discrimination Is Already Illegal

This is my first post (other than the blog carnival) since I got a concussion. A lot has happened in the interim, so I have a lot to catch up on. This week I want to cover what I think is probably the most important development in discrimination law in a long time. That is, the EEOC has issued a decision that Title VII's prohibition against sex discrimination also prohibits sexual orientation discrimination.

But this is nothing new, you say? Sure, EEOC has been opining that transgender employees are protected under sexual stereotyping. They've also overturned "unable to determine" dismissal letters, ordering investigators to process sexual orientation discrimination charges under the category of sexual stereotyping. 

What's different is that this is the first time the agency has recognized that sexual orientation discrimination is flat-out sex discrimination. That is, the employer is treating the employee differently because of their gender. Here's the reasoning:

Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. "Sexual orientation" as a concept cannot be defined or understood without reference to sex. A man is referred to as "gay" if he is physically and/or emotionally attracted to other men. A woman is referred to as "lesbian" if she is physically and/or emotionally attracted to other women. Someone is referred to as "heterosexual" or "straight" if he or she is physically and/or emotionally attracted to someone of the opposite-sex.  Sexual orientation refers to the sex of those to whom one is sexually and romantically attracted." It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and. therefore, that allegations of sexual orientation discrimination involve sex-based considerations. One can describe this inescapable link between allegations of sexual orientation discrimination and sex discrimination in a number of ways.  
Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex. For example, assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk , but does not suspend a male employee for displaying a photo of his female spouse on bis desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male. That is a legitimate claim under Title VII that sex was unlawfully taken into account in the adverse employment action. ("Such a practice does not pass the simple test of whether the evidence shows 'treatment of a person m a manner which but for that person's sex would be different.'"). The same result holds true if the peron discriminated against is straight. Assume a woman is suspended because she has placed a picture of her husband on her desk but her gay colleague is not suspended after he places a picture of his husband on his desk. The straight female employee could bring a cognizable Title VII claim of disparate treatment because of sex.

(citations omitted).
Put more simply, sexual orientation discrimination is sex discrimination because, if Jane loves Janice and she is discriminated because of that, had Jane been a man and loved Janice she would not have been subjected to discrimination. But for her gender, Jane would not have been discriminated against for loving Janice.

This is an argument I've made for years and people looked at me like I was insane. It's good to be vindicated.

This goes well beyond sexual stereotyping, which didn't cover all sexual orientation claims; it only applied where gay and lesbian employees didn't fit into stereotypical gender roles.

Will the courts apply this reasoning? I'm guessing some will and some won't, and we'll be back in front of the Supreme Court. If you ever thought that your choice of President doesn't matter, think of those Supreme Court appointments. What will the Court look like when this case finally gets to them? That's up to you.

Wednesday, July 15, 2015

Employment Law Blog Carnival: Summer Holiday Edition

I happen to be smack between summer vacations right now, so vacation is definitely on my mind. Odds are, you've either taken a summer vacation already or are getting ready to. Or are you like one of those people in the commercial who don't use your paid vacation days? I agree with the kid who says, "That's the stupidest thing I ever heard." What the heck are you working for if it isn't to pay for things like travel and fun?

Everyone knows about the Fourth of July, but did you know that July is chock full of holidays? You've already missed International Nude Day, Compliment Your Mirror Day, International Cherry Pit Spitting Day and Gruntled Workers' Day (time to calendar these for next year). But it's not too late. If you haven't already celebrated your independence from work this month, here are some holidays you may want to take time off to celebrate:

July 15 is Be a Dork Day. But don't be a dork and get the overtime rules wrong or you'll pay (and pay and pay) for it later. Read Eric Meyer's Five ways for proactive employers to prepare now for the new OT rules at The Employer Handbook while visiting the Cesar Chavez Monument in Keene, California if you want to avoid terminal workplace dorkdom.

July 18 is International Nelson Mandela Day. Maybe a trip to South African isn't in the cards this year, but you can honor him by learning more about discrimination. Listen in on What is Workplace Discrimination? A Podcast Interview with Casey Sipe at Blogging 4 Jobs by Jessica Miller-Merrill to catch up on the latest info about workplace discrimination while visiting The King Center in Atlanta.

July 20 is Ugly Truck Day, and ugly trucks seem to go in hand with Confederate Flags. In honor of this holiday, check out Daniel Schwartz's post at the Connecticut Employment Law Blog, Can Employee Display a Confederate Flag on Facebook as Free Speech? Or Can Employer Take Action? while heading to South Carolina or the nearest monster truck rally.

July 20 is also National Get Out Of The Doghouse Day. There's no better way to get in the doghouse with employees than to screw up on Family and Medical Leave. In the Employment Essentials blog by Jana Grimm and Marty Saunders you can read about the latest case on this sometimes confusing law, Worth the Price Of Admission: Third Circuit Defines "Overnight Stay" Under The FMLA while staying overnight in your favorite hotel.

July 24 is Tell An Old Joke Day. Some of those old jokes are, let's say, NSFW. But when can an employee get away with making racist comments at work? Jon Hyman's post Racist comments as protected concerted activity (really!) at the Ohio Employer's Law Blog will enlighten you while you're on your way to visit your local comedy club.

July 24 is also National Tequila Day. You can celebrate by reading about English-only workplace rules. Michael McClory's post Mid-Summer Pop Quiz: Cold Beer From The Enforcement Agencies? at Bullard's Employment Law Age gives you a pop quiz you can take while heading to your local Mexican restaurant for a pitcher of margaritas.

July 25 is National Dance Day. Since there's lots of dancing at weddings, and there are lots of same-sex weddings going on nationwide, this is a fine day to read Heather Bussing's Religion v. Law post at HR Examiner while visiting the Supreme Court in DC.

July 26 is All Or Nothing Day. It's a good day to talk to your boss about paying all the expense reimbursements you are owed. Sharlyn Lauby's Company Refuses to Reimburse Expenses – Ask #HR Bartender may help. And if you finally get reimbursed, you can take that weekend vacation and celebrate.            

July 26 is also Disability Independence Day. You can celebrate by reading Hanna Weiss's post at Blogging 4 Jobs, What Companies That Hire with Disabilities Won't Tell You while visiting the American Veterans Disabled for Life Memorial next to the U.S Botanic Gardens in DC.

July 26 is National Parents' Day (a popular day for holidays!). To understand the rights of soon-to-be parents, read Robin Shea's EEOC’s revised pregnancy guidance: Now, just barely more flexible! at Employer and Labor Insider while on your way to a romantic getaway for two (while you can) or Disney if that ship has sailed.

July 27 is Walk On Stilts Day. If your boss thinks it's a good idea to make you walk on stilts at work, is it a constructive discharge? Read Stuart Rudner's post Deconstructing Constructive Dismissal to find out. Sounds like a good day to visit the circus or the Ringling Brothers Museum.

July 30 is the International Day of Friendship. Can't we all just get along? It's a good day to revisit how we treat transgender employees. Janette Levey Frisch's post at The Employerologist, What OSHA Has To Say About Restroom Access For Transgenders just might help us treat transgender employees a little better.

July 30 is also Medicare's Birthday. You can celebrate the 16.4 million people who have gained healthcare coverage thanks to the Affordable Care Act by reading Ari Rosenstein's What the ACA Supreme Court Decision Means To Small Employers at the Small Biz HR Blog while patronizing a small bed and breakfast.

July 31 is National Talk In An Elevator Day. An elevator may be just the place to corner a witness you want to talk into providing an affidavit. But will it be admissible? Find out by reading Robert Fitzpatrick's A Sham or Just Self-Serving? Either Way, Affidavits Are Admissible at Fitzpatrick On Employment Law while headed to the Empire State Building.

So c'mon folks. Use those vacation days and enjoy your summer. Because, as they say in the commercial, one more day is priceless.