Tag Archives: civil rights act

Federal court weighs key decision on LGBT-workplace bias

A rare full-court session of a U.S. appeals court in Chicago heard arguments this week on whether protections under a 1964 Civil Rights Act should be expanded to cover workplace discrimination against LGBT employees, as hopes dim among some gay rights activists that the question will be resolved in their favor following Republican election victories.

Several of the 11 judges at the 7th U.S. Circuit Court of Appeals signaled they are ready to enter what would be a historic ruling broadening the scope the 52-year-old landmark law, with the court directing the toughest questions during the hourlong hearing at a lawyer who argued only Congress could extend the protections.

Judge Richard Posner repeatedly interrupted the lawyer representing an Indiana community college that was sued by a lesbian for alleged discrimination and at one point asked: “Who will be hurt if gays and lesbians have a little more job protection?” When attorney John Maley said he couldn’t think of anyone who would be harmed, Posner shot back, “So, what’s the big deal?”

Even if the 7th Circuit becomes the first U.S. appellate court to rule that the law covers sexual-orientation bias, legal experts say the issue is likely to land before the Supreme Court. Chances of a majority of justices agreeing that workplace protections should include LGBT workers will be slimmer if President-elect Donald Trump fills a high court vacancy with a social conservative.

A GOP-majority House and Senate also makes it unlikely the next Congress will amend the statute, said Chicago-based labor lawyer Barry Hartstein.

“You can’t count on Congress or the courts,” said Hartstein, who wants the act to cover LGBT workers.

President Barack Obama’s administration has taken the position that the law already prohibits discrimination of LGBT workers. It has criticized courts for a reluctance to reach the same conclusion.

The 7th Circuit decided in October to rehear the case of teacher Kimberly Hively, who claimed Ivy Tech Community College didn’t hire her full time because she is a lesbian. The full court vacated the July finding by three of its own judges that the civil rights law doesn’t cover sexual-orientation bias. A new ruling is expected within several weeks.

The hearing focused on the meaning of the word ‘sex’ in Title VII of the Civil Rights Act, the provision that bans workplace bias based on race, religion, national origin or sex. Multiple court rulings back Maley’s contention that Congress meant for the word to refer only to whether a worker was male or female. Given that, he said it would be wrong to stretch the meaning of ‘sex’ in the statute to also include sexual orientation.

The school’s lawyer conceded the law is imprecise, but added: “That makes it an issue for Congress.”

Several judges challenged him for arguing it’s not a federal court’s place to mandate that a law do something lawmakers didn’t originally intend for it to do.

“You seem to think the meaning of the statute was frozen on the day it passed,” Posner said to Maley. “That, of course, is false.” And the judge added: “Are we bound by what people thought in 1964?”

He and other judges pointed to bans on interracial marriage as examples of laws that changed or were expanded by courts as societal norms changed.

In his presentation, the teacher’s lawyer pointed to what he described as the absurdity of one 1980s Supreme Court finding that if workers are discriminated against because they don’t behave around the office by norms of how men or women should behave, then that does violate the Civil Rights Law. But if a man or woman is discriminated against at work for being gay that was found not to violate the Civil Rights Act.

“You can’t discriminate against a woman because she rides a Harley, had Bears tickets or has tattoos,” attorney Gregory Nevins said. “But you can if she’s lesbian.”

 

Saks claims Title VII doesn’t apply to transgender employees

The Human Rights Campaign on Jan. 8 suspended Saks Fifth Avenue’s Corporate Equality Index score. The action was taken following Saks’ claims in response to a lawsuit that Title VII protections don’t apply to transgender employees and that the company is not legally bound by its own LGBT equality policies.

While HRC said in a news release that it honors the right of the company to defend itself against allegations of misconduct, the arguments made in Saks’ court filings go well beyond arguing the veracity of the allegations.

Leyth Jamal, a transgender former employee of Saks, filed an employment discrimination lawsuit under Title VII of the Civil Rights Act of 1964 alleging discrimination and harassment/hostile work environment based on her gender identity.

In a motion to dismiss the case and in contrast to clearly established positions of the U.S. Department of Justice and the Equal Employment Opportunity Commission, Saks claimed that the “Plaintiff’s discrimination and harassment claims fail to state a claim upon which relief can be granted because transsexuals are not a protected class under Title VII.”

Additionally, Saks claims that it is not bound by its own corporate non-discrimination policies because “employee handbooks are not contracts as a matter of law.”

The Equal Employment Opportunity Commission concluded in 2012 that sex discrimination under Title VII of the Civil Rights Act of 1964 includes discrimination based on gender identity. The decision makes clear that transgender people across the country who have experienced workplace discrimination can file a claim with the EEOC under existing federal sex discrimination law.

Likewise, in December 2014, U.S. Attorney General Eric Holder announced that the U.S. Department of Justice will recognize transgender discrimination as sex discrimination.

“Saks’ arguments are hugely concerning to us,” said Deena Fidas, director of HRC’s Workplace Equality Program. “In its court filings, Saks attempts to secure a motion to dismiss Ms. Jamal’s allegations by simultaneously calling into question the validity of its own non-discrimination policy and the larger, crucial protections afforded by Title VII. The policies our CEI advances are not window dressings for any company to prop up or disregard in the face of individual allegations of misconduct. Saks is publicly undercutting  the applicability of its own policies reported in the CEI and we must suspend Saks’ CEI score until further notice.”

HRC has contacted Saks and asked them to clarify the two issues and amend their legal filings.

Justice Department: Civil Rights Act protects transgender workers

U.S. Attorney General Holder said on Dec. 18 that Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status.

“The decision by Attorney General Holder to fully embrace the legal standard set forth in Macy will go a long way towards advancing equality for the transgender community,” said Sarah Warbelow, legal director for the Human Rights Campaign, the nation’s largest LGBT civil rights group. “Transgender people continue to face some of the highest levels of discrimination in the workplace. We are thrilled to see the Department of Justice take this important step.”

Holder informed all Department of Justice heads and U.S. attorneys in a memo that the department will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity, including transgender discrimination, reversing a previous Department of Justice position taken by the Bush administration.

Title VII makes it unlawful for employers to discriminate in the employment of an individual “because of such individual’s…sex,” among other protected characteristics.

Holder said in a statement, “This important shift will ensure that the protections of the Civil Rights Act of 1964 are extended to those who suffer discrimination based on gender identity, including transgender status. This will help to foster fair and consistent treatment for all claimants.  And it reaffirms the Justice Department’s commitment to protecting the civil rights of all Americans.”

Holder’s memo is designed to foster consistent treatment of claimants throughout the government and reduce confusion.

In addition to applying to the department’s civil obligations in defending federal interests, this memo clarifies the Civil Rights Division’s ability to file Title VII claims against state and local public employers on behalf of transgender individuals.

The Department of Justice does not have authority to file suit against private employers.

Carter: U.S. dormant on inequalities between black and white

Former President Jimmy Carter on Tuesday night lamented continuing inequalities between black and white Americans during a 50th anniversary celebration of the Civil Rights Act in Texas that will feature four of the five living U.S. presidents this week.

Carter said “too many people are at ease” with black unemployment rates that exceed the national average and schools in some places that he described as basically still segregated.

Carter, 89, was the first president to speak at the Lyndon B. Johnson Presidential Library in Austin, which is holding the three-day summit to mark the anniversary of the landmark 1964 law that banned widespread discrimination against racial and ethnic minorities and against women.

“We’re pretty much dormant now,” Carter said. “We accept self-congratulations about the wonderful 50th anniversary – which is wonderful – but we feel like Lyndon Johnson did it and we don’t have to do anything anymore.”

The unemployment rate for blacks was 12 percent in February, compared with 5.8 percent for whites.

Carter, who grew up in Georgia, recalled being influenced by black culture and calling for the end of racial discrimination after he was elected governor of that state in 1970. But four decades later, Carter expressed regret at racial and gender inequalities that he says are persistent.

The 39th president touched on wage gaps between women and men and reiterated his support for gay marriage. During a wide-ranging interview to a packed auditorium, Carter also chalked up loosened rules on political campaign contributions as partly the reason for a new era of gridlock in Washington.

“What happens is that the political environment is flooded with money since the Supreme Court made that stupid decision,” Carter said, a reference to the high court’s 2010 Citizens United ruling.

“A lot of that money that pours into the campaigns is spent on negative commercials. … So by the time the election’s over, you have a polarized Texas or polarized Georgia, red and blue states. Then, when people get to Washington, they don’t trust each other,” he said.

President Barack Obama is scheduled to give the keynote address Thursday. Bill Clinton will speak today, and George W. Bush will be the event’s final speaker Thursday.

George H. W. Bush, 89, is the only living president not attending the summit. He said in a statement that he regretted that he couldn’t attend.

Johnson’s presidency is often viewed in the dark shadow of the Vietnam War, but the library believes his legacy deserves as much attention for the Texan’s victories on civil rights.

The summit began with former Republican Mississippi Gov. Haley Barbour and San Antonio Mayor Julian Castro, a fast-rising Democrat, urging Congress to tackle immigration reform before the end of the year.

“The stupidest thing we can do economically is make them leave. We don’t have anybody to replace them,” said Barbour, referring to the estimated 11 million immigrants who are in the country without legal documentation. “So the impracticality of sending them home should be obvious to everyone.”

Their discussion was interrupted by a woman in the crowd shouting she was a DREAMer and calling on Castro to urge Obama to stop deportations of families.

No one removed the woman, who began shouting again when the panel was over.

Castro, the keynote speaker at the 2012 Democratic National Convention, did not respond to the woman but later said he was troubled by families who are deported after minor crimes such as traffic stops.

“My hope is that his administration will go about it in a different way. I’m not comfortable with the number of deportations,” Castro said.

The library also has a “Cornerstones of Civil Rights” exhibit that features the original Civil Rights Act of 1964 and Voting Rights Act of 1965, both signed by Johnson, and a copy of the 1863 Emancipation Proclamation signed by President Abraham Lincoln that declared all slaves in Confederate states free.

Steak house to pay $600,000 in widespread same-sex harassment case

New York City’s Sparks Steak House will pay $600,000 and take other steps to settle a same-sex sexual harassment and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission.

According to a news release from the White House, the EEOC filed the lawsuit in the Southern District of New York, after 22 male waiters were subjected to harassment based on their sex, chiefly by one male manager, over a nearly eight-year period.

The misconduct included the manager groping the buttocks of the male waiters, making lewd sexual comments and attempting to touch their genitals.

Many of the waiters complained to other managers and Sparks’ owners, but the harassment did not stop. Some victims of harassment suffered retaliation for complaining by being given more difficult work assignments and/or ultimately being suspended.

Sexual harassment and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to paying the $600,000 in damages to be distributed among the victims, the restaurant must prohibit further sexual harassment and retaliation.

The settlement also requires the restaurant to:

• Establish a complaint hotline for reporting incidents of discrimination; 

• Distribute an amended policy prohibiting sexual harassment and retaliation to all employees;

• Conduct anti-discrimination training for employees;

• Post a public notice about the settlement;

• Report all sexual harassment and/or retaliation complaints to the EEOC.

“The EEOC is serious about upholding the law, which includes protection against same-sex harassment,” stated Charles F. Coleman Jr., lead trial attorney on the case for the EEOC. “When an employer fails to address harassment and responds by retaliating against the victims, it compounds the violation. We believe this is a fair resolution.”