The Second Obama Term: New Employment Protections for LGBT Individuals Possible

by Morgan Lewis
Contact

President Barack Obama's second term will likely bring new employment protections for lesbian, gay, bisexual, and transgender individuals.

President Barack Obama's election in 2008 ushered in a period of increased regulation of U.S. employers. The Equal Employment Opportunity Commission (EEOC or Commission) promulgated new employee-friendly guidance on the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Age Discrimination in Employment Act, and the use of background checks in employment decisions. As President Obama begins his second term, it is anticipated that this trend will continue, with more employee-friendly FMLA and ADA regulations. But perhaps one of the largest changes on the horizon—one that could have a dramatic impact on the EEOC's enforcement focus and lead to a significant uptick in civil litigation—is the potential addition of sexual orientation and gender identity to the list of categories protected by federal anti-discrimination laws.

Employment Non-Discrimination Act and EEOC Cases Under Title VII

Currently, 21 states and the District of Columbia prohibit employment discrimination on the basis of sexual orientation; 16 states and the District of Columbia also protect gender identity. However, federal law currently does not protect either category. Proposed legislation known as the Employment Non-Discrimination Act (ENDA) would change that, banning discrimination on the basis of both sexual orientation and gender identity. ENDA has percolated in Congress for years without much attention, but it has gained traction recently and is expected to be taken up again in 2013. Indeed, it appears that President Obama intends to push ENDA to the front of his agenda, calling in his recent inaugural address for lesbian, gay, bisexual, and transgender (LGBT) equality under the law and explicitly comparing the fight for LGBT rights to the historic battles for civil rights and women's equality. If the positive public response to the inaugural address is any indication, we can expect ENDA to gain momentum this year. But, even if ENDA does not pass right away, many advocates anticipate that President Obama will introduce some federal protection for LGBT workers by executive order, banning federal contractors from discriminating against employees on the basis of sexual orientation and gender identity. Many believe that such an executive order by President Obama would lay the groundwork for the passage of ENDA in the same way that President John F. Kennedy's 1961 executive order prohibiting race discrimination by federal contractors paved the way for the Civil Rights Act of 1964.

The passage of ENDA would alter the landscape of employment law, particularly in jurisdictions where sexual orientation and gender identity are not already protected categories under state law. ENDA would expand these protections nationwide and would give the EEOC jurisdiction to investigate, conciliate, and litigate on behalf of LGBT individuals with vigor. The EEOC has already forecast its focus on this population, listing the protection of LGBT employees as one of its target priorities for 2013-2016—with or without ENDA—by bootstrapping protection for sexual orientation and gender identity onto Title VII.[1]

To accomplish this goal, the EEOC has adopted a broad interpretation of Title VII's prohibition of discrimination on the basis of gender stereotypes. For example, in Veretto v. Donahoe,[2] the EEOC concluded that Title VII prohibits harassment on the basis of sexual orientation where a complainant can show that the harassment occurred because of his or her failure to conform to conventional gender norms. In that case, Jason Veretto, a mail carrier in Connecticut, complained of verbal and physical harassment by a co-worker that escalated after Veretto announced in a local newspaper that he had married his male partner. The case was initially dismissed because sexual orientation is not a protected category under Title VII. On appeal, however, the EEOC held that Veretto had stated a Title VII claim because the alleged harassment was based upon Veretto's marriage to another man—conduct that was, in the eyes of the harassing co-worker, outside the boundaries of the stereotypical male gender role.

The EEOC relied upon the same reasoning in Macy v. Holder where the full Commission held that Title VII covered claims brought by a transgender woman who had been purportedly denied a job with the Bureau of Alcohol, Tobacco, Firearms and Explosives after the agency learned that she was in the process of transitioning from male to female.[3] According to the EEOC, Title VII's prohibition against "gender stereotyping" protects individuals who fail to conform to gender-based expectations or norms. Discrimination against a male who is presenting as a female, the Commission reasoned, is a type of sex discrimination.

The EEOC's broad application of the "gender stereotyping" theory reflects a growing trend, as more and more plaintiffs around the country attempt to use the theory to transform what should be petty nuisances into actionable conduct. For example, a prison guard in Vermont brought a claim for sex-stereotyping discrimination after his supervisor criticized him for taking medical leave to recover from a groin injury. The supervisor commented, "Way to milk it buddy," and an inmate remarked, "Good luck making kids with that package." On a motion to dismiss, the U.S. District Court for the District of Vermont concluded that the two alleged comments were sufficient to state a claim for gender stereotyping since it was plausible that the remarks were motivated by a perception that the plaintiff had failed to conform to stereotyped expectations of masculinity.[4] The increase in these "gender stereotyping" claims, coupled with the passage of ENDA, could lead to a substantial increase in litigation for many employers in the coming years.[5]

Even beyond ENDA, there may still be further changes relating to the employment of LGBT individuals in 2013 if the U.S. Supreme Court affirms the U.S. Court of Appeals for the Second Circuit's holding that the Defense of Marriage Act (DOMA) is unconstitutional.[6] Currently, section 3 of DOMA provides that, for purposes of federal law, "marriage" means only a legal union between one man and one woman and that the term "spouse" refers only to a person of the opposite sex. If DOMA is overturned, however, the meaning of these terms would be broadened to include legally married same-sex couples. This would have a sweeping impact on employee benefit plans, requiring that same-sex spouses be given the same access as opposite-sex spouses to numerous benefits, including health plans, retirement and insurance plans, and family leave.

What Employers Can Do to Get Ready for These Changes

Given that the EEOC already has fashioned arguments out of existing law to protect LGBT persons in the workplace, even before the passage of ENDA and in keeping with its Strategic Enforcement Plan, employers should consider taking policy steps to manage and decrease associated risks.

Employers doing business in jurisdictions that already protect sexual orientation and/or gender identity should make certain that these categories are included in their anti-discrimination policies; even employers who operate outside these jurisdictions should consider taking this step. Likewise, employers around the country should now include "gender stereotyping," sexual orientation, and gender identity in their anti-harassment training programs and adopt appropriate prohibitions on gender-based jokes and anti-LGBT slurs, similar to those applied to other protected classes.


[1]. See U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2013-2016 (Dec. 17, 2012), here; Macy v. Holder, No. 0120120821, 2012 WL 1435995 (U.S. Equal Emp't Opportunity Comm'n Apr. 20, 2012).

[2]. Veretto v. Donahoe, No. 0120110873, 2011 WL 2663401 (U.S. Equal Emp't Opportunity Comm'n July 1, 2011).

[3]. Macy v. Holder, No. 0120120821, 2012 WL 1435995 (U.S. Equal Emp't Opportunity Comm'n Apr. 20, 2012).

[4]. Davis v. Vermont Dep't of Corr., 868 F. Supp. 2d 313, 324-25 (D. Vt. 2012).

[5]. See, e.g., Sibilla v. Follett Corp., 2012 WL 1077655 (E.D.N.Y. Mar. 30, 2012) (female plaintiff alleged gender-stereotype discrimination because her employer purportedly assumed that she was unproductive and lazy because she was obese); Navedo v. Nalco Chemical, Inc., 848 F. Supp. 2d 171 (D. P.R. 2012) (male plaintiff alleged harassment based upon a gender stereotype because his employer criticized him for not drinking heavily and for failing to spend time socializing in bars).

[6]. See Windsor v. United States, 699 F.3d 169 (2012), cert. granted, 2012 WL 4009654 (Dec. 7, 2012).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morgan Lewis | Attorney Advertising

Written by:

Morgan Lewis
Contact
more
less

Morgan Lewis on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.