hunter of justice

EEOC rules that Title VII covers gender identity discrimination

The EEOC has issued a decision holding that it will consider gender identity discrimination to be a form of sex discrimination prohibited by Title VII. The ruling comes in Macy v. Holder, a case brought by a transwoman against an agency within the Department of Justice. The EEOC decision cites precedent established in a series of federal court decisions that have come to the same conclusion.

The decision in the Macy case covers only gender identity discrimination and does not include any discussion of whether sexual orientation discrimination is also covered under Title VII.

The ruling clarifies that EEOC offices around the country will accept and process claims of gender identity discrimination, a practice that has been spotty in the past.

From MetroWeekly:

An employer who discriminates against an employee or applicant on the basis of the person's gender identity is violating the prohibition on sex discrimination contained in Title VII of the Civil Rights Act of 1964, according to an opinion issued on April 20 by the Equal Employment Opportunity Commission (EEOC). The opinion, experts say, could dramatically alter the legal landscape for transgender workers across the nation.

The opinion came in a decision delivered on Monday, April 23, to lawyers for Mia Macy, a transgender woman who claims she was denied employment with the Department of Alcohol, Tobacco, Firearms and Explosives (ATF) after the agency learned of her transition. It also comes on the heels of a growing number of federal appellate and trial courts deciding that gender-identity discrimination constitutes sex discrimination, whether based on Title VII or the constitutional guarantee of equal protection of the laws.

The EEOC decision, issued without objection by the five-member, bipartisan commission, will apply to all EEOC enforcement and litigation activities at the commission and in its 53 field offices throughout the country. It also will be binding on all federal agencies and departments.

In the decision, the EEOC states, ''[T]he Commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition ....''

Updates from the end of 2011

Here's what we've missed from the last two weeks:

 It's a Navy tradition that when a ship returns to home port, there is a lottery to pick the sailor who gets to be the first to kiss a loved one. Petty Officer 2d Class Marissa Gaeta won the prize on December 22, and when her ship docked in Virginia Beach, she got to kiss her girlfriend Citlalic Snell. The crowd cheered. Another example of the disastrously horrible effect on morale and unit cohesion of repealing Don't Ask Don't Tell.  Not.

In Keeton v. Anderson-Wiley, the Eleventh Circuit Court of Appeals ruled that Augusta State University could require a remediation course for a graduate student in its counseling program who wanted to recommend conversion therapy for gay patients. The student had argued that her religious freedom was violated, but the court found that the university's actions were neutral and a legitimate requirement in light of the concern that Keeton would violate ethical codes governing counselors during her counseling practium, which involved actual patients.

The death of John Lawrence, one of the men who resisted prosecution for gay sex in a case that went to the Supreme Court and produced a ruling that criminal laws prohibiting (most) consensual sex are unconstitutional. Sadly, his co-defendant Tyron Garner had died earlier. 

Michigan Governor Rick Snyder signed into law a measure prohibiting state government agencies from offering benefits to unmarried partners of employees. It is reportedly unclear whether the new law applies to public universities in the state, because universities have some degree of autonomy under state law.

Debates arose in Zimbabwe over whether drafters of the new constitution should include a provision guaranteeing the rights of lgbt people.

The Victory Institute announced that 48 out of the 50 states have at least one openly gay elected official (to answer your question: Alaska and South Dakota).

Welcome to 2012...

Sure am glad I'm not defending DoMA today

At 9 a.m. PST on Friday, U.S. District Judge Jeffrey White will hear oral arguments on the constitutionality of DoMA after having asked that the lawyers spend their 45 minutes of alloted time addressing two pages of specific questions rather than rehashing what is in their briefs. From what's on that list, it looks like Judge White is going to give the DoMA defenders a rocky ride, with lots of reminders of the irrationality of their contentions.

At issue is defendant's motion to dismiss and plaintiff's motion for summary judgment in the case brought by federal employee Karen Golinski, seeking to add her spouse to the federal employee health insurance plan. In line with the Justice Department's policy of enforcing DoMA but not defending its constitutionality, the DoMA rationale will be argued by lawyers hired by Congressional Republicans. 

Examples of the judge's questions:

• Why should the court not subject DOMA to heightened scrutiny for impacting marriage, as a basic fundamental freedom and an exercise of personal decision-making, protected by the right of privacy?
• What is the authority for the proposition that only the right to opposite-sex marriage is fundamental as opposed to the right to marriage generally?
• How does BLAG [the entity defending DoMA] distinguish the line of authority treating classifications based on religious affiliation as a suspect class from classifications based on sexual orientation?

The list goes on from there. Judge White even presses BLAG (which stands for Bipartisan Legal Advisory Group, a statutory entity that is composed of three members from the majority party in the House and two from the minority party) on whether it is legitimately constituted. One query to be answered: "Does BLAG have the support - and funding for the increasing cost of defending DOMA - from a majority of Congress or just from the House of Representatives?"

Should be fun for the plaintiffs.

Cuyahoga County settles anti-discrimination case

Two months ago, I described a federal court decision in Cleveland that allowed a county employee to pursue her claim that the discrimination against her based on sexual orientation was prohibited by the Equal Protection Clause. The agency for which Shari Hutchinson worked had an anti-discrimination policy in place, and I wrote about her case to note how little protection is provided by policies that do not have enforcement mechanisms. Hutchinson v. Cuyahoga County Board of County Commissioners (2011 WL 4452394).

Now the case has been resolved in the way most such claims are concluded after a motion to dismiss is denied: the parties have settled.  According to Freedom to Work, Hutchinson obtained a $100,000 settlement from the defendant. Because the employer was a public sector agency and therefore an arm of the state, the Constitution applied to its actions.

Ohio is one of those large and important states - Pennsylvania and Michigan are others - that has no anti-discrimination law protecting lgbt workers. If Hutchinson had worked in the private sector in Ohio, she would not have had any legal basis to challenge the discrimination. This may have been a rather small scale lawsuit (except for Hutchinson), but that gap in the law is an outrage. 

The holiday weeks ahead: December 12 - New Years 2012

December 16 - Oral argument before Judge White
of the Northern District of California in Golinski v OPM, another challenge to the constitutionality of Section 3 of DoMA. Karen Golinski (photo/left), a staff attorney with the Ninth Circuit Court of Appeals, sought to add her partner Amy Cunninghis to her health insurance plan. As in the other DoMA cases, the Justice Department has switched sides to support Golinski's arguments, and lawyers for House Republicans are defending the constitutionality of DoMA.

11th Circuit panel signals support of trans employee

Sounds like things went extremely well for the Lambda Legal argument in the Glenn v. Brumby case before the 11th Circuit this morning, with support from all three members of the panel. It's dangerous to assume too much from an oral argument, and the decision below which the Court of Appeals is being asked to affirm was not without its shortcomings. But if this prediction holds and the 11th Circuit rules in Glenn's favor, it will be even more clear than it is already that Title VII prohibits discrimination based on gender identity, because it is a form of sex discrimination. Most circuits have already adopted that position. Congress and the Executive Branch should take steps to solidify this interpretation, and that should become much easier politically with the precedents created by these decisions. (from AJC:)

A panel of three federal appeals court judges on Thursday appeared strongly inclined to grant a legal victory to Vandy Beth Glenn, a transgender woman who was fired as a legislative editor at the General Assembly after she disclosed she was going to make the transition from man to woman.

During oral arguments, Judges Rosemary Barkett and Bill Pryor said U.S. Supreme Court precedents appear to support a lower-court judge's finding that Glenn was the subject of sex discrimination.

"We have direct evidence of intentional discrimination, it seems to me," Pryor told Richard Sheinis, a lawyer representing the state of Georgia. "You can't discriminate against someone because they don't behave the way you expect them to behave because of their sex," Pryor added.

Barkett repeatedly told Sheinis she couldn't understand the basis of the state's arguments.

Last year, U.S. District Judge Richard Story ruled that Glenn was discriminated against because of her sex, and the state is appealing that decision.

Glenn was hired as a legislative editor in October 2005 at a time when she was presenting herself as a man with the name of Glenn Morrison. Two years later, when she told Sewell Brumby, head of the Office of Legislative Counsel, that she intended to transition into being a woman, Brumby fired Glenn.

During the arguments, Senior Judge Phyllis Kravitch noted that no members of the legislative counsel staff had complained about Glenn's transition from man to woman. "No one complained but him," Barkett added, referring to Brumby.

In his ruling, Story said Glenn could get her job back. But that decision was stayed, pending the outcome of the appeal before the 11th U.S. Circuit Court of Appeals in Atlanta. Standing outside the courthouse after the hearing, Glenn said she was eager for the court to issue its decision. "I felt it went very well," said Glenn, standing by her lawyer, Gregory Nevins of the Lambda Legal Defense and Educational Fund. "It took a long time to get here."

LGBT cases before 11th Circuit draw majority liberal panel of judges

Judges Rosemary Barkett, Phyllis Kravitch, and William Pryor will decide two lgbt-related cases to be argued this week before the 11th Circuit Court of Appeals. Barkett and Kravitch (who is on senior status) are two of the liberal members of what is usually a conservative circuit; they were appointed by Presidents Clinton and Carter, respectively. Pryor, considered to be a strong conservative, was appointed by President George W. Bush.

On Thursday, they will hear arguments by the Georgia legislature that its firing of a transgender employee did not constitute sex discrimination. This will follow tomorrow's appeal by a self-proclaimed Christian who was ordered by Augusta State University either to provide non-judgmental counseling to gay clients or participate in a remediation plan. Lambda Legal attorney Greg Nevins (photo) will seek affirmance of the lower court decision in Glenn v. Brumby, the trans case, which granted judgment for the plaintiff. In the other case, the former ASU graduate student is being represented by the Alliance Defense Fund, which makes regular appearances on the opposite side of lgbt rights advocates.

The panel before whom they will argue presents a study in contrasts.

Judge Barkett is well known for her spirited arguments in dissent in both the panel decision and the denial of an en banc rehearing in Lofton v. Department of Children's Services, a challenge to the Florida law that prohibited adoption by lesbians and gay men. Barkett argued that the anti-gay adoption rule was unconstitutional if one followed the Supreme Court's decisions in Lawrence v. Texas and Romer v. Evans. (Florida has since abandoned its defense of the law.)

Judge Kravitch was a trailblazer for women in the judiciary. Only the third woman ever appointed to a U.S. Court of Appeals, she received the ABA's Margaret Brent Woman Lawyer of Achievement Award and an award for service to the profession from her alma mater, the University of Pennsylvania Law School. She began her career by joining her father's practice in Savannah, when no major firms would hire a woman. She later litigated important local civil rights cases.

Judge Pryor became Attorney General of Alabama in 1997 and served until he joined the 11th Circuit. Although nominated in 2003, Senate Democrats filibustered his appointment until President George W. Bush gave him a recess appointment in 2004. The Senate confirmed him the following year as part of a compromise on judicial appointments reached by the "Gang of 14." During his confirmation hearing, he reaffirmed his belief that Roe v. Wade was "the worst abomination of constitutional law in our history." 

Although these three judges will announce the first decision in the two cases, it might not be the last. A decision from the panel in any U.S. Court of Appeals case may be rescinded if the full Circuit grants a rehearing en banc.  The case is then re-argued before all the judges who are members of that Circuit.

The week ahead: November 28, 2011

[ADDED] Tuesday, November 29 - Oral argument in the 11th Circuit in Keeton v. Anderson-Wiley, in which Jennifer Keeton, a graduate student in counseling at Augusta (GA) State University, is challenging the ruling of a District Court that ASU was justified in requiring her to complete a remediation plan after she refused to counsel gay clients.

Thursday, December 1 - Oral argument in the 11th Circuit in Glenn v. Brumby, in which the Georgia state legislature has appealed a ruling that it discriminated against Vandy Beth Glenn on the basis of sex. Glenn, an MTF transperson, was fired from her job as an editor and proofreader. 

Also December 1 - The final set of briefs is due from the defendants in Gill v. OPM, one of the challenges to the constitutionality of Section 3 of DoMA. This closes the briefing; the parties await scheduling of oral argument. 

Friday, December 2 - Briefs in Perry v. Brown are due to the Ninth Circuit on the issue of how the court should respond to the advisory decision from the California Supreme Court that the Prop 8 proponents should have standing to defend it in the litigation.

Anti-gay lobbyist tries to hide moralism with "pro-business" arguments

Earlier this year, the Tennessee state legislature passed a bill prohibiting local governments from requiring businesses which had contracts with them to agree not to discriminate based on sexual orientation or gender identity. Its purpose was to torpedo a Nashville city ordinance adopted in April, which it did. The Tennessean has now published the fascinating back story behind the conservatives' campaign to kill anti-discrimination protections. The article is based on documents obtained in discovery in a lawsuit filed by proponents of the anti-discrimination law, represented by Abby Rubenfeld (photo).

It is surely a sign of the times that the successful lobbyist for the Tennessee Family Action Council used a strategy of not highlighting religious or moral objections to homosexuality when doing outreach to members of the state legislature. Instead, he painted the blockage of equal employment rights as pro-business, a gambit that paid off even though a number of businesses supported the Nashville ordinance and opposed the state law invalidating it.

Increasingly, an open and supportive environment for lgbt people is seen as going hand in glove with economic development. Not exactly a noble path to equal treatment under law, but it drives a wedge into conservative states when cities like Nashville, the Research Triangle in North Carolina, and Birmingham, Alabama start attracting knowledge industries in significant numbers.

From The Tennessean: 

The chief lobbyist for a state law that invalidated Metro protections for gay and transgendered individuals feared his moral thoughts on the measure would become public and distract from the economic argument he used to sell the bill, documents reveal.

Emails written by David Fowler, president of the Family Action Council of Tennessee and a former state senator, are included in thousands of pages of correspondence lawmakers submitted as part of a court battle over the constitutionality of the state law. The pending lawsuit alleges the law was motivated by prejudice rather than the economic concerns that were publicly argued.

The law dubbed the Equal Access to Intrastate Commerce Act nullified an ordinance the Metro Council passed in April requiring city contractors to pledge not to discriminate based on sexual orientation or gender identity. The ordinance extended protections already given to employees based on age, race, sex, color, national origin and disability, and it required contractors to follow a nondiscrimination policy Metro adopted for its own employees in 2009...

“Metro Council here in Nashville is considering requiring private businesses that do business with the city and those who lease property from the city have an employment policy to protect homosexual conduct and cross-dressing, etc.,” Fowler wrote in a Jan. 26 email to individuals including state Sen. Jack Johnson, R-Franklin. Fowler described how he hoped to persuade the Nashville Area Chamber of Commerce to oppose Metro’s planned ordinance. “Metro passed its homosexual ordinance for Metro employees by 24 to 15 in 2009 so the Council is clearly liberal.

“Please do NOT pass this on to anyone who you think might in the slightest pass it to anyone else,” Fowler continued later in the email. “We’ve learned that some folks we thought were friends cannot be trusted and we don’t need the Chamber backing off because it starts to appear to be too much of a Christian, right wing, homosexual issue rather than a business/economic issue.”

New global database on employment law

The International Labor Organization web page has launched an Employment Protection Legislation Database (EPLex). It's searchable on a variety of terms and contains the relevant text of each law catalogued. For example, the new resource makes it easy to identify the 31 countries with national laws prohibiting discrimination based on sexual orientation.

Massachusetts adds gender identity protection to state civil rights law

The Massachusetts state legislature has amended its state anti-discrimination code to prohibit discrimination based on gender identity in employment, housing, credit and education. The legislation also expands the state hate crimes law to cover gender identity. Protection from discrimination in public accommodations was dropped from the bill to ensure its passage. The amendment, which will take effect July 1, 2012, defines gender identity as 

a person's gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth. Gender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, as part of a person's core identity; provided however, gender-related identity shall not be asserted for any improper purpose. 

At the municipal level, but in a quite conservative locality, Oklahoma City has amended its employment policy for city employees to ban discrimination based on sexual orientation. This article in The Oklahoman gives a flavor of the debate that preceded the vote of the City Council, which adopted the new policy by a 7 to 2 majority.

Broward County requires contractors to offer DP benefits

From Equality Florida, which was instrumental in securing this legislation in Ft. Lauderdale:

[T]he Broward County Commission voted unanimously to approve Florida's first countywide Equal Benefits Ordinance (EBO), a measure that requires the county's vendors to provide domestic partners with benefits equal to those offered to spouses of married employees. In other words, if you want to do business with Broward County, you must treat domestic partners and married employees equally... 

Broward is the first county Florida to adopt an EBO. In 2005 Miami Beach became the first city in the state to pass an EBO, and the Miami Beach policy has been praised by the city commission and the staff, while reporting no negative fiscal impact.

The ordinance places Broward County's domestic partnership policies among the strongest in the country. In recent years EBOs have been adopted as a state law in California, and in the cities of San Diego, San Francisco, Los Angeles, Olympia, Minneapolis, and Portland. The ordinance was introduced by Mayor Sue Gunzburger and was co-sponsored by all members of the commission.

The EBO applies to companies who are in contracts of $100,000 or more with the county and who have 5 or more employees. If a company does not currently provide benefits to the spouses of their employees, then they are not required to provide benefits to the domestic partners of their employees. If companies are not able to provide benefits to domestic partners, they may provide the cash equivalent to the employee and still meet the requirements of the EBO...

The week ahead: October 31, 2011

Tuesday, November 1 - New York - The NYC LGBT Bar Association is sponsoring a CLE program on The Impact of Marriage Equality in New York. The event will be held from 6 to 8 pm at the LGBT Community Center. Discussion "will focus on many of the areas potentially impacted by marriage equality in New York, including estate planning, taxation, divorce/dissolution, pre-nups & post-nups, and adoption/second-parent adoption," plus a special session on "Lessons Learned from Massachusetts." 

Wednesday, November 2 - Newark, NJ -  Nathaniel Frank will speak at Seton Hall Law School on "The Aftermath of Don't Ask Don't Tell: A Discussion of the Ongoing Challenges Faced by LGBT Service Members." Frank is the author of Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America (2009).

Thursday, November 3 - Washington, DC - Lying in State tribute to Frank Kameny will be held at D.C.’s Carnegie Library at 9th and K Streets, N.W., between 3 and 8 p.m.

Also November 3 - Retired U.S. District Judge Vaughn R. Walker will deliver a lecture at Indiana University’s Maurer School of Law on the role of judges in dealing with politically controversial issues. 

USAID Broadens Anti-Discrimination Language for Contractors

USAID has announced a new policy of including language in its contracts that "strongly encourages all its contractors (at all tiers) to develop and enforce comprehensive nondiscrimination policies for their workplaces" that include the same prohibitions that USAID applies to itself.  These prohibited bases include sexual orientation and "sex (including pregnancy and gender identity)."

The new policy acknowledges that the contract language cannot be mandatory. Contractors are barred by existing law and regulation from discriminating based on certain characteristics, but not explicitly sexual orientation or gender identity. Businesses could argue that additional requirements, if mandatory, would contradict current law. 

What is required in order for USAID (and the rest of the federal goverment) to do more is an Executive Order adopting new rules for all federal contractors. Mr. President...

Openly gay men need not apply

The American Journal of Sociology has published a new study that provides direct evidence of patterns of employment discrimination against openly gay men. Most prior studies of job discrimination have utilized either wage studies or surveys in which lgbt persons self-report incidents of discrimination. For this study, the author, András Tilcsik, a graduate student at Harvard, sent matched fictitious resumes, with one containing a signal that the applicant was gay, in response to more than 1,700 posted job openings.

The study found that gay applicants were 40 percent less likely to be granted an interview than their heterosexual counterparts. The differential was comparable to that between white and black applicants in a similar study conducted in Boston and Chicago.

Tilcsik also found dramatic geographic differences: the gap was twice the overall average in Texas and Ohio, while there was no statistically significant difference in California, Nevada, New York and Pennsylvania. The study included a concrete example of the impact of the findings: an openly gay job applicant would have a 3.7% likelihood of a callback in Texas, but a 10.2% chance of getting an interview for the same kind of job in California.

In essence, then, this study suggests that at least this form of anti-gay discrimination, in these types of jobs, may be sharply regional, a U-shaped rather than a bell curve.

The research also found that employers seeking stereotypically heterosexual male traits were more likely to discriminate gay men. Gay applicants had lower callback rates when the employer described the ideal candidate for the job as "assertive," "aggressive," or "decisive.

For the study, Tilcsik sent two fictitious but realistic resumes to more than 1,700 entry-level, white collar job openings -- positions such as managers, business and financial analysts, sales representatives, customer service representatives, and administrative assistants. One resume for each opening stated that the applicant had been the treasurer of a gay organization in college, managing the organization's financial operations." The second resume Tilcsik sent listed experience in the "Progressive and Socialist Alliance" instead of the gay organization, in order to control for anti-progressive bias in general. 

This analysis is an enormous contribution to the literature on job discrimination, and I would bet that Tilcsik will be asked to testify in future legislative hearings and court cases.