LGBT Employment Law

Transgender Discrimination - Saks Fifth Avenue

Transgender Discrimination - The Lawsuit

A former employee of Saks Fifth Avenue is suing her former employer for transgender discrimination.  Saks has moved to dismiss, arguing that "transsexuals are not a protected class" under Title VII of the Civil Rights Act.  Saks claims that it "believes that all persons are protected against sex discrimination under Title VII" of the Civil Right Act.  Yet its court filings say the exact opposite.

The Plaintiff, Jeyth Jamal, a transgender woman, alleges that her managers referred to her as a man, instructed her to use the men's bathroom, and pressured her to present herself in a more masculine way.  She was also belittled and threatened by her colleagues.

The lawsuit is pending in federal court in Houston, TX.

Transgender Discrimination - The Law

The truth is, whether or not Title VII protects transgender individuals is an open question.  Title VII protects certain employees against discrimination on the basis of race, color, religion, sex or national origin.  The Supreme Court has not ruled on the issue of whether Title VII's prohibition against discrimination on the basis of sex extends to transgender discrimination, and lower court opinions are all over the map.  As a result, some states, including New York, have passed legislation which explicitly makes it unlawful to discriminate on the basis of sexual orientation and gender identity.  Unfortunately, New York is in the minority of states progressive enough to protect these people from discrimination.  The federal government has been similarly slow to act.  ENDA (a federal law designed to prohibit employment discrimination on the basis of LGBT status) continues to be held up in Congress.

Transgender Discrimination - The Upshot

How can discrimination against a person based on how that person expresses his or her gender not be considered gender discrimination? Does anyone honestly believe that the (alleged) treatment that Ms. Jamal endured is not related to her gender?  If she was born a woman, would there be any question?  Just imagine that a woman was referred to as a man, instructed to use the men's bathroom, and pressured to present her gender differently.  Surely that is discrimination.  Why does the fact that Ms. Jamal is transgender make it different?  Either the courts' understanding of Title VII has to change, or the law must change to protect LGBT people from discrimination.

lgbt employment discrimination

lgbt employment discrimination

Put a Stop to Discrimination on the Basis of Sexual Orientation - Congress Should Pass ENDA

Let's just put it out there - employment discrimination on the basis of sexual orientation is wrong.  Yet it is perfectly legal in most of the United States.  There is no federal law prohibiting employment discrimination on the basis of sexual orientation.  Currently, sexual orientation discrimination is a matter of state law, and only 21 states (and Washington, DC) have enacted laws that protect LGBTQ workers. The Employment Non Discrimination Act ("ENDA") seeks to end this by making discrimination on the basis of sexual orientation illegal under federal law.  ENDA was first proposed in 1994 but has repeatedly failed to become the law of the land.  Given the recent mid-term elections, perhaps it will stay that way.  That is not a good thing, and we should all do our part to see that this critical law be passed and that all employers with 15 or more employees be prohibited from such discrimination in the workplace (15 is the minimum number of employees an employer must have to be considered an employer under federal law).

The arguments that I have heard against ENDA boil down to two points: (1) it will lead to frivolous lawsuits and (2) sexual orientation discrimination is OK in some circumstances.

The first argument is nothing more than a misdirection.  Any law can lead to frivolous lawsuits - but that does not mean that we should not pass it.  For example, there are laws against discrimination on the basis of race.  And there are certainly frivolous lawsuits filed under these laws.  But that does not mean that we should permit racial discrimination just to avoid some frivolous lawsuits.  In fact, the logic is the opposite - a few frivolous lawsuits is the price we pay in order to protect against racial discrimination.

The second argument, with all due respect to those who make it, is little more than homophobia cloaked in the language of civil liberties.  Yes, of course this is a free country, and yes of course we are all free to discriminate as we choose in many respects.  But ENDA does not regulate how we think or who we choose to associate with in our personal lives.  Rather, ENDA prohibits companies with 15 or more employees from discriminating against people on the basis of sexual orientation.  And while some may think that it imposes an unfair responsibility upon business owners, they should also keep in mind the following three points: (1) all laws impose certain restrictions and/or responsibilities; (2) these same businesses receive considerable benefits from the same government that is imposing these laws; and (3) all that they really have to do is refrain from bigotry - is that really so hard to do?

Be proactive. Write to your representative and encourage the passage of ENDA.  And if you witness workplace discrimination, stand up and call it out.

And if you feel that you have been a victim of employment discrimination on the basis of sexual orientation, contact us.  We can probably help.

lgbt employment discrimination

lgbt employment discrimination

Laws that Protect LGBT Individuals from Employment Discrimination in New York

What are the laws that protect LGBT individuals from employment discrimination in New York? There are several laws that protect LGBT individuals from employment discrimination in New York. First, there is The Sexual Orientation Non-Discrimination Act (known as "SONDA"), which became effective in January 2003 and prohibits discrimination on the basis of actual or perceived sexual orientation in employment (as well as housing, public accommodations, education, credit, and the exercise of civil rights).  Under SONDA, sexual orientation is defined as "heterosexuality, homosexuality, bisexuality, or asexuality, whether actual or perceived." SONDA therefore protects individuals who are targeted either based on their actual sexual orientation, or based on what the discriminator believes their orientation to be.

Although SONDA does not explicitly cover discrimination against transgender people, it does apply when a transgender person is discriminated against based upon his or her actual or perceived sexual orientation. Furthermore, New York courts have held that transgender people are protected under provisions of the New York State Human Rights Law, including prohibitions against discrimination on the basis of sex and/or disability.  The New York City Human Rights Law expressly affords protection to transgender individuals.

And in terms of pending laws that protect LGBT individuals from employment discrimination in New York, in June 2014 the New York State Assembly voted to pass the Gender Expression Non-Discrimination Act ("GENDA"), which would strengthen New York's human rights law to prohibit discrimination in areas such as employment, housing, public accommodations, and education because of a person’s gender identity or expression. It would also expand the state’s hate crimes law to include crimes against transgender people. The bill must now be approved by the New York Senate.

If you feel you have been the victim of discrimination you can either file (1) a charge of discrimination with the New York State Division of Human Rights, or a local human rights agency, within one year of the most recent act of discrimination OR (2) a complaint directly in State court within three (3) years of the most recent act of discrimination.

lgbt employment discrimination

lgbt employment discrimination