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Posts Tagged ‘sexual orientation’

U.S. Supreme Court Rules 6-3 That Federal Employment Law Prohibits Discrimination On The Basis Of Sexual Orientation Or Gender Identity

Posted on: June 17th, 2020

By: Ryan Greenspan

In perhaps the most significant and far-reaching employment-law decision in decades, the U.S. Supreme Court ruled on June 15, 2020 that the 1964 Civil Rights Act’s prohibition of discrimination “because of… sex” necessarily includes discrimination based on one’s sexual orientation or gender identity. This decision resolves a circuit split that had developed over the last three years, which meant that the question of whether sexual-orientation or gender-identity discrimination was unlawful depended on the federal circuit in which the case arose. In some circuits it was unlawful, in others it was not. Now there is uniformity on this issue throughout the country.

Before the Court were three cases from three different federal circuits:  Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission. The plaintiffs in Bostock and Zarda alleged they had been terminated because of their sexual orientation, while the plaintiff in Harris Funeral Homes alleged she had been terminated due to her gender identity.

The Supreme Court’s decision largely turned on the phrase “because of… sex” in the statute. As Justice Neil Gorsuch wrote in the majority opinion:

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. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

What does this mean for employers? Companies, including government agencies, that discriminate against a worker for being gay or transgender now face the same exposure as if they discriminate against an employee on the basis of race, color, religion, sex, or national origin. These remedies can include back pay, attorney’s fees, and compensatory and punitive damages up to the statutory caps from $50,000 to $300,000, depending on the size of the employer. While 21 states and the District of Columbia already had such protections in place for gay and transgender employees, the Bostock decision adds an extra layer of protection at the federal level, which applies to all states. Employers should adjust their policies accordingly.

It bears noting the 1964 Civil Rights Act applies only to employers with 15 or more employees, so smaller employers are not affected by this ruling (or the Civil Rights Act in general). It is also important to note that, because this decision is interpreting a statute, Congress has the authority to revise or amend the existing law, though there is no indication that it intends to do so.

It will be interesting to see how the Supreme Court’s decision may affect other laws. As Justice Samuel Alito noted in his dissent, over 100 other federal statutes also prohibit discrimination because of sex. If the very concept of sex discrimination necessarily includes discrimination because of sexual orientation or gender identity, as the majority opinion reasons, then these other laws, too, may well be impacted.

If you have questions or would like more information on this decision and its impact on the law, please contact Ryan Greenspan at [email protected].

FMG Client Headed to Supreme Court in Landmark Title VII Case to Resolve LGBT Employment Standards

Posted on: April 23rd, 2019

The Supreme Court yesterday agreed to review two federal circuit court decisions that reached differing conclusions as to whether Title VII of the Civil Rights Act of 1964 covers sexual orientation. For approximately 40 years, the EEOC and the federal circuit courts have unanimously held that Title VII does not encompass sexual orientation. The EEOC changed its position in 2014 and determined that Title VII encompasses sexual orientation. The Seventh Circuit likewise reversed its position in 2017, and the Second Circuit changed its position in early 2018 and held in Zarda v. Altitude Express that Title VII encompasses sexual orientation. Later in 2018, the Eleventh Circuit re-affirmed circuit precedent and held in Bostock v. Clayton County that Title VII does not prohibit discrimination on the basis of sexual orientation. The Supreme Court agreed to review Bostock and Zarda and consolidated the two cases.

Freeman Mathis and Gary, LLP represents Clayton County in Bostock and will argue that Title VII does not apply to a claim of discrimination on the basis of sexual orientation.

In addition, the Supreme Court granted certiorari in the Sixth Circuit case of R.G. & G.R. Harris Funeral Homes v. EEOC. That case raises the question of whether Title VII provides protection to transgender persons. That case is similar in some regard to the Bostock and Zarda cases, however, their distinctions are evident in that the Court did not consolidate the Harris case with Bostock and Zarda.

In granting certiorari in the Harris case, the Supreme Court may revisit a concept outlined in its 1989 decision in Price Waterhouse v. Hopkins, which held that it was unlawful sex discrimination under Title VII to discriminate against employees because they do not conform to ideas of how a certain gender should behave.

These cases will be argued and decided sometime during the Court’s 2019-2020 term, which begins in October.

If you have any questions or would like more information, please contact us at [email protected].

Women On Board

Posted on: October 16th, 2018

By: Rebecca Smith

Nearly one-quarter of California-headquartered publicly held domestic or foreign corporations have no female directors.  No later than the close of the 2019 calendar year, those companies will need to add at least one.  Senate Bill 826 (SB 826) signed by Governor Brown on September 30, 2018 has mandated this change.  And, if the board of directors of a corporation is larger than four board members, the required number of women on the board increases.  If the number of directors is six or more, the corporation must have a minimum of three directors, if the number of directors is five, the corporation shall have a minimum of two directors.  Corporations will be allowed until the close of the 2021 calendar year to add the additional female directors beyond one.

There is a strong likelihood that this new law will be challenged in the courts.  The first argument being made is that the law will displace an existing member of the board of directors solely on the basis of gender.  The new law has attempted to address this by indicating:  “A corporation may increase the number of directors on its board to comply with this section.”  The argument being made is that the law focuses too narrowly on gender instead of other aspects of diversity, including race and sexual orientation.  The government may have to prove not only that there is disparity in board representation among men and women, but also that such a divide is a sufficient reason to create a special law for women.

The other issue in the forefront is to which companies the law will apply.  While the statute provides that the companies will be determined by the location of the principal executive offices according to the corporation’s SEC 10-K form, challenges are being made that the law should not apply to businesses headquartered in California, but incorporated elsewhere.  The new Section 2115.5 of the Corporations Code has attempted to address this issue by indicating that the new requirements shall apply to a foreign corporation that is a publicly held corporation to the exclusion of the law of the jurisdiction in which the foreign corporation is incorporated.  That being said, the “internal affairs doctrine” may provide a basis for the challenge.  The internal affairs doctrine, a choice of law rule in corporation law, provides that the internal affairs of a corporation will be governed by the corporate statutes and case law of the state in which the corporation is incorporated.

So what happens if a company does not comply:  A fine of $100,000 for a first violation, and a fine of $300,000 for a second or subsequent violation.  For purposes of imposing the fine, each director seat required by the section to be held by a female, which is not held by a female during at least a portion of the calendar year is considered a violation.  For the time being, California companies with their principal executive offices in California should start to think about how to comply with the law by the end of 2019 and stay tuned for any changes.

If you have any questions or would like more information, please contact Rebecca Smith at [email protected].

Eleventh Circuit Again Rejects Claim That Title VII Prohibits Discrimination On The Basis Of Sexual Orientation

Posted on: July 23rd, 2018

By: Bill Buechner

In Bostock v. Clayton Co. Bd of Comm’rs, 723 F. App’x 964 (11th Cir. 2018), the Eleventh Circuit again held that Title VII does not prohibit discrimination on the basis of sexual orientation.   In doing so, the panel relied on prior circuit precedent in Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir.), cert. denied, 138 S.Ct.  557 (2017) and Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979).    Jack Hancock and Bill Buechner are representing the County in the case.

Last week, the Eleventh Circuit issued an order denying a request from a member of the Court for rehearing en banc.  Bostock v. Clayton Co. Bd. of Commissioners, 2018 U.S. App. LEXIS 19835,  2018 WL 3455013 (11th Cir. July 18, 2018).   The order was notable because it was accompanied by a dissent by two circuit judges sharply criticizing their colleagues for not agreeing to rehear the case en banc.

The plaintiff in Bostock had already filed a petition for writ of certiorari with the United States Supreme Court, and the County will be filing a response to that petition in the next few weeks.   The employer in Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc) also has filed a petition for writ of certiorari with the Supreme Court seeking review of the Second Circuit’s ruling that Title VII does prohibit discrimination on the basis of sexual orientation.

We will report on the outcome of these pending petitions for writ of certiorari with the Supreme Court.

If you have any questions or would like more information, please contact Bill Buechner at [email protected].

Second Circuit Joins Seventh Circuit In Holding That Title VII Prohibits Discrimination On Basis Of Sexual Orientation

Posted on: March 1st, 2018

By: Bill Buechner

The Second Circuit which covers New York, Connecticut and Vermont, has issued an en banc decision holding that Title VII prohibits discrimination on the basis of sexual orientation. Zarda v. Altitude Express, 2018 U.S. U.S. App. LEXIS 4608 (2d Cir. Feb. 26, 2018). The Seventh Circuit issued an en banc decision almost a year ago reaching the same conclusion.

The 10-3 decision is very lengthy and includes various concurring and dissenting opinions. The Second Circuit cited four primary grounds for its holding. First, the Court concluded that sexual orientation discrimination is merely a subset of sex discrimination, and that an employer cannot discriminate against an employee based on sexual orientation without reference to the employee’s sex. Second, the Court concluded that “but for” the employee’s sex, the employee would not have been terminated. In other words, the male employee was terminated because he is attracted to men, whereas a female employee who is attracted to men would not have been terminated. Third, the Court concluded that sexual orientation discrimination constitutes gender stereotyping that is unlawful under Price Waterhouse.  Finally, the Court concluded that sexual orientation discrimination constitutes association discrimination that is already prohibited by Title VII.

As previously discussed here, in Evans v. Georgia Regional Hospital, 850. F3d 1248 (11th Cir. 2017), the Eleventh Circuit re-affirmed prior circuit precedent and held that Title VII does not prohibit discrimination on the basis of sexual orientation.  The Eleventh Circuit subsequently declined to hear the case en banc, and the Supreme Court denied the plaintiff’s petition for certiorari in that case.

The Zarda decision increases the likelihood that other circuits (perhaps including the Eleventh Circuit) will revisit whether Title VII prohibits sexual orientation discrimination, and also increases the possibility that the Supreme Court may eventually decide to resolve this issue.  In the meantime, employers should monitor federal case law developments in their jurisdiction and keep in mind that the EEOC has taken the position that Title VII prohibits discrimination on the basis of sexual orientation.

If you have any questions or would like additional information, you may contact Bill Buechner at [email protected].