lgbtq

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

EEOC Rules Transgender Status Protected from Discrimination Under Title VII

Employment Discrimination on the basis of gender includes discrimination on the basis of gender identity and transgender status.  If you believe you are the victim of employment discrimination on the basis of your gender or gender identity, our New York employment discrimination attorneys can help you fight for your rights. The U.S. Equal Employment Opportunity Commission (EEOC) recently determined that discrimination based on gender identity, change of sex or transgender status constitutes sex discrimination under Title VII of the Civil Rights Act of 1964.

Mia Macy claimed that she was denied a job at the Bureau of Alcohol, Tobacco, Firearms and Explosives when she announced that she would be transitioning her gender from male to female.  Macy applied for the job as a man and was told that she would get the job pending a background check, but was informed the position was no longer available after stating that she would be undergoing a sex change operation.

Believing she had been unlawfully denied the position, Macy filed a charge with the EEOC.  The EEOC determined that claims of discrimination based on transgender status, also referred to as claims based on gender identity, are cognizable under Title VII.  The EEOC explained that Title VII's protections encompass a person’s biological sex, as well as their gender, which includes cultural and social aspects associated with masculinity and femininity.

In making its determination, the EEOC relied on U.S. Supreme Court precedent holding that Title VII forbids employers from penalizing employees who fail to conform to stereotypical norms.  Under that precedent, Macy would have been discriminated against if she was denied a position due to the perception that her transgender status did not conform to gender stereotypes.

A copy of the decision is here:  https://www.pcc.edu/programs/paralegal/documents/macy-v-holder.pdf

If you believe you have been a victim of employment discrimination on the basis of your gender or gender identity, please contact one of our New York employment discrimination attorneys.