Brody and Associates LLC » Sexual Orientation

Gender Identity – the New Sex Discrimination?

Robert G. Brody — Wed, 16 May 2012 12:51:41 +0000

In a landmark decision, the Equal Employment Opportunity Commission held that discrimination against transsexual employees constitutes “sex discrimination” in violation of the Title VII of the Civil Rights Act of 1964. While there has been a progressive shift toward protection of gender identity in state and federal court decisions and state statutes, the EEOC’s decision in Macy v. Holder marks the first time a court or agency with nationwide authority has held that transsexuals are protected by Title VII.

A transsexual is someone who identifies with a gender other than his or her biological sex. The term applies both to those who have had sex reassignment surgery and those who have not. It is not the same as sexual orientation, which refers to a person’s sexual preference. A number of other terms, such as “transgender,” describe similar concepts.

The EEOC’s decision, and some of the court decisions on the subject, extends coverage under Title VII only to transsexuals. While some argue that similar logic should be used to extend coverage to gay, lesbian, and bisexual employees, few courts have done so. Most employment protection for gay, lesbian, and bisexual employees comes from state statutes.

Now What?

Even if federal courts ultimately chip away at the EEOC’s decision, for now employers who discriminate against transsexuals are subject to the EEOC’s enforcement powers. To protect yourself, you should review your policies and practices to be sure they are not discriminatory. Consider not only hiring, firing, and promotion decisions, but also workplace harassment and the provision of workplace facilities – lockers and bathrooms, all of which fall within the purview of the EEOC.

If your sexual harassment training does not already cover gender identity and sexual orientation, it is probably time for an update. Workplace harassment and retaliation are among the hottest areas of discrimination, and transgender claims of discrimination fit into these issues perfectly. Even if your state does not prohibit discrimination on the basis of sexual orientation, the shifting tide of federal decisions under Title VII suggests employers should not ignore sexual orientation when dealing with harassment issues.

While the EEOC’s decision does not directly address restroom use policies, this is a common concern for employers and employees. Many people are uncomfortable with sharing restrooms with members of the opposite sex, and a transsexual employee’s choice of restroom may cause discomfort for co-workers or customers. To manage this concern, many employers choose to designate one or more single-stall restrooms as unisex. Consider implementing such an option, even if you have no transsexual employees, to avoid potential problems down the road.

The EEOC’s decision is characteristic of the Obama Administration’s propensity to expand the scope and enforcement of existing laws, rather than enacting new legislation. The words of Title VII are unchanged, but how employers need to view their obligations to gay, lesbian, bisexual, and transsexual employees under the law is rapidly changing.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or203.965.0560.

Changing Gender – The New Sex Discrimination

Robert G. Brody — Thu, 02 Feb 2012 20:28:34 +0000

As seen in the January, 30 2012 CT Law Tribune

EEOC Has Record-Setting Year

Robert G. Brody — Wed, 18 Jan 2012 23:30:40 +0000

The Obama Administration may go down in history as the Administration of Enforcement: investigations of worker misclassification and wage and hour issues are way up. Now we’re seeing it also applies to the civil rights arena.

Last year was a record-setting year for the Equal Employment Opportunity Commission. It received more charges than ever, resolved more charges and obtained more monetary relief through mediation than ever, and reduced its pending charge inventory by nearly 10 percent. The agency secured several multi-million dollar consent decrees in class actions against large employers. To top it off, the EEOC accomplished these feats despite a hiring freeze.

The EEOC is on an upswing, so compliance is more important than ever. Employees are filing charges in record numbers, in part due to outreach programs in which the EEOC encourages employees to go after employers who have violated the law. In addition, the mandatory EEOC poster contains a toll-free number for employees. For details of this program, click here .

As with many of the Obama Administration’s initiatives, the revitalized EEOC is not about changing the law but about increasing scrutiny. This can be more significant for employers because new laws do not necessarily lead to more enforcement, but when an agency steps up enforcement of existing laws, employers need to be ready.

Take this opportunity to make sure you know whether you are in compliance. Have you trained your supervisors? Do your employees, and more importantly supervisors, understand the ramifications their behavior can have for the company? Is your handbook up to date? When did you last have an HR audit? Make sure your company is ready if the Government focuses on you.

Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general. We also help employers with all aspects of Human Resource audit and compliance strategies. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Lawyer As Employer: Training Sessions One Way To Head Off Harassment

Robert G. Brody — Thu, 12 Jan 2012 16:13:57 +0000

As published in the July 25, 2011 CT Law Tribune

FMLA and COBRA May Soon Extend Benefits to Same-Sex Couples

Robert G. Brody — Tue, 19 Jul 2011 12:41:40 +0000

Last month, New York became the sixth state to legalize same-sex marriage. With the increasing legalization of same-sex marriage, state and federal governments will now have to contend with whether same-sex couples will be allowed to enjoy the same benefits as heterosexual couples. There are several bills introduced in Congress to address this issue.

Representative Jackie Speier (D-CA) recently introduced a House bill which would extend COBRA benefits to same-sex couples and their partner’s children. The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) provides employees the opportunity to continue health insurance coverage after losing their job. Currently, COBRA benefits only extend to an employee, their legal spouse and legal dependents. This bill would allow domestic partners and same-sex spouses to receive COBRA benefits as well. These COBRA requirements would only apply to employers who already voluntarily provide health insurance benefits to same-sex couples. The bill’s main goal is to protect the children of domestic partners from losing their health insurance. Republicans oppose the bill, as they say it will increase costs for employers.

In addition, the Family and Medical Leave Inclusion Act was introduced into the Senate by Senator Dick Durbin (D-IL) which would allow an employee to take leave under the Family and Medical Leave Act (FMLA) to care for a domestic partner, same-sex spouse, or the family members of a domestic partner or same-sex spouse. Currently, the FMLA does not require an employer to allow such leaves. Employers should continue to keep an eye on the state and federal laws surrounding this issue. If the laws change, you may need to change your workplace policies. Brody and Associates regularly advises management on complying and remaining up to date with state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Increased Protections for Gay and Transgender Workers – Are Your Policies Up to Date?

Robert G. Brody — Wed, 16 Dec 2009 02:31:36 +0000

Tampa and Salt Lake City became the latest cities to join over 100 others offering employment protections to gay and transgender employees. On November 19^th, Tampa’s city council approved an ordinance adding “gender expression and identity” to the list of protected classes. Two days earlier, Salt Lake City passed an ordinance prohibiting discrimination on the basis of sexual orientation or gender identity.

This is a growing trend reflected on the state level as well. Currently, 21 states consider sexual orientation a protected class and 12 also include transgender status. As this trend continues, you need to keep up to date with the law in all jurisdictions where you have operations. You should also consider discrimination and harassment free policies that include sexual orientation and transgender status even if the law does not mandate it. This is generally a good policy and keeps you ahead of the ever evolving laws.

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

New York Court Overturns Law Requiring Contractors to Extend Benefits to Domestic Partners

Robert G. Brody — Tue, 15 Mar 2005 15:52:14 +0000

A state appeals court recently overturned a New York City law requiring city contractors and vendors to extend employee benefits to domestic partners ( Council of the City of New York v. Bloomberg, N.Y. App. Div. No. 5995 3/15/05). The New York City Council passed the law (Local Law 27) in July 2004 citing states and localities around the United States enacting similar legislation. Opponents, including Mayor Michael Bloomberg who initially vetoed the bill, expressed concern the law would negatively affect contract procurement.

After a lower court granted the council’s request to order the law’s implementation, the appeals court overturned the decision holding the law was pre-empted by both state and federal law. The court reasoned the provisions of New York’s General Municipal Law providing for competitive bidding allowed the city to obtain the best work for the lowest price. Thus, the court found Local Law 27 “expressly excludes a class of potential bidders for a reason unrelated to the quality or price of the goods or services their offered” in conflict with the goals of New York’s General Municipal Law. The court also held the law pre-empted by the Employment Retirement Income Security Act (ERISA). For additional articles on civil rights issues, click here.

Brody and Associates counsels its clients regarding laws such as these. Should you have any questions, or require any help in keeping abreast of these developments, please contact us at (203) 965-0560 or at info@brodyandassociates.com.

New York Governor Signs Bill Banning Sexual Orientation Discrimination

Robert G. Brody — Sat, 15 Feb 2003 20:11:21 +0000

New York Governor George Pataki (R), signed a bill that prohibits discrimination based on sexual orientation in employment, housing, public accommodations, education and credit. The bill defines “sexual orientation” as “heterosexuality, homosexuality, bisexuality, or asexuality, whether actual or perceived.”

The Sexual Orientation Non-Discrimination Act covers public and private sector employees, since state employees have been covered for years pursuant to governor-issued executive orders. New York joins twelve other states with similar laws.

Should you have any questions about this article, please call or e-mail Brody and Associates, LLC. We can be reached at (203) 965-0560 or info@brodyandassociates.com.