Workplace Discrimination based on Seual Orientation and Gender Identity Must End

[TheProgressivePatriot]

While many states have laws against workplace discrimination based on sexual orientation and gender identity, many others do not. For employers to be able to fire someone for posting his or her wedding photos on social media is a travesty. In that Congress is paralyses, and the fact that it will likely take decades longer for some states to come around and offer protections, it is imperative that the federal courts step in now.

Here is the current situation

https://www.americanprogress.org/wp-content/uploads/issues/2012/06/pdf/state_nondiscrimination.pdf

Fortunately, issue is being brought to the forefront by a number of groups , spearheaded by

47 Businesses, States, EEOC and Civil Rights Groups Urge Federal Court to End Sexual Orientation Employment Discrimination

47 businesses, attorneys general from 15 states and the District of Columbia, the nation’s leading LGBT rights organizations, and several other organizations submitted friend-of-the-court briefs to the U.S. Court of Appeals for the Eighth Circuit in support of Lambda Legal client Mark Horton, a gay man whose job offer from a St. Louis-based health management organization was withdrawn after the company’s owners learned Horton is gay.

“

The nation’s top corporations recognize that discrimination is bad for business. Our economy cannot thrive unless all people are welcome both as employees and customers,” said Omar Gonzalez-Pagan, Lambda Legal Staff Attorney. “Companies across all industries know that when an employee like Mark can bring their whole selves to work without fear of retaliation, they can focus on their jobs and succeed. Mark was recruited because of his recognized skills, which is what matters – and not his sexual orientation.”

There is a growing consensus among business leaders, government officials, and scholars, that discrimination against LGBT employees is not just wrong, but counter-productive,” Lambda Legal Employment Fairness Project Director Greg Nevins added.

Links to the various cases appear throughout the article.

 

[Tijn Von Ingersleben]

No one cares about your penis placement. Keep it to yourself and out of the workplace.

 

[TheProgressivePatriot]

No one cares about your penis placement. Keep it to yourself and out of the workplace.

Thank you for that well thought out, informative and cogent response to an important civil rights issue. I will nominate you for a Nobel Peace Prize at one. You are a valuable contributor to the USMB as well

 

[The Professor]

Let's talk about Federal law.

Lower courts have issued conflicting opinions on this issue and the United States Supreme Court (SCOTUS) has not made a decision on the issue. However in the case of Price Waterhouse v Hopkins the SCOTUS concluded that discrimination based upon sexual stereotypes is a violation of Title VII. The case involved a woman who was denied a promotion because he employer thought she was not feminine enough in the way she walked, talked, dressed and acted. Here are the details:

“Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Supreme Court recognized that employment discrimination based on sex stereotypes (e.g., assumptions and/or expectations about how persons of a certain sex should dress, behave, etc.) is unlawful sex discrimination under Title VII. Price Waterhouse had denied Ann Hopkins a promotion in part because other partners at the firm felt that she did not act as woman should act. She was told, among other things, that she needed to "walk more femininely, talk more femininely, [and] dress more femininely" in order to secure a partnership. Id. at 230-31, 235. The Court found that this constituted evidence of sex discrimination as "n the . . . context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender." Id. at 250. The Court further explained that Title VII's "because of sex" provision strikes at the "entire spectrum of disparate treatment of men and women resulting from sex stereotypes." Id. (quoting City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (internal citation omitted)).”

Examples of Court Decisions Holding LGBT-Related Discrimination Actionable Under Title VII

(Note: The above link also gives examples of lower court rulings showing that sexual orientation is protected against discrimination.)

It seems to me me that if discrimination based upon sexual stereotyping is a violation of Title VII so would discrimination based upon sexual orientation. After all, the disparate treatment of gays and lesbians is based upon their non-conformity to the stereotype of what others expect their sexual behavior to be. I expect the SCOTUS to find that sexual orientation is afforded the full protections of Title VII. Further, the SCOTUS has shown that they generally give deference to rulings made by the Equal Employment Opportunity Commission (EEOC) and The EEOC has already taken a position that Title VII of the Civil Rights Act affords protection from discrimination on the basis of sexual orientation.

“In 2012, David Baldwin, a federal employee, filed an administrative charge of discrimination with the EEOC, alleging he was discriminated against because of his sex and sexual orientation. Specifically, Baldwin alleged he was denied a promotion because he is gay. In its decision, the EEOC relied upon the existing prohibition on discrimination based on sex-based stereotypes or assumptions, concluding it “applies equally in claims brought by lesbian, gay and bisexual individuals under Title VII.” According to the EEOC, “sexual orientation is inseparable from and inescapably linked to sex.” Without resolving the merits of the claim, the EEOC ultimately found that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” See Baldwin v. Foxx, FAA-2012-24738 (EEOC June 15, 2015).”

EEOC says sexual orientation protected under Title VII | JD Supra

Conclusion: If State law does no afford you a proper remedy, federal laws should. I suggest you see an attorney.

NOTE: I wrote the above article well over a year ago and there may have been some new developments since that time. I'm sure that any changes will show greater concerns for the protections of lesbians and gays.

 

[DarkFury]

If the OP wants to stop work place violence or sexual assault I suggest he stop doing it.

 

[Tijn Von Ingersleben]

No one cares about your penis placement. Keep it to yourself and out of the workplace.

Thank you for that well thought out, informative and cogent response to an important civil rights issue. I will nominate you for a Nobel Peace Prize at one. You are a valuable contributor to the USMB as well

You know...you might be a flaming lib queen, but thank you for those kind words.

 

[harmonica]

we had gays at our work ....no one ever gave them trouble/etc
you are blowing this out of proportion just like the blacks do with race
''various cases''....people get fired/laid/off screwed over all the time by employers
please prove this deviant discrimination is a major, chronic problem

 

[harmonica]

Gay and transgender workers deserve federal legal protections to combat the high rates of discrimination they experience in the workplace.

high rates?? prove this
if you can do a job well, they usually hire you and keep you --no matter what gayness you are

 

[DGS49]

The Price Waterhouse case cited above is an outlier, and will eventually be overturned, when the USSC decides to deal with it (or one raising the same issue). Abnormal sexual orientation (or affectation) is NOT a protected class under Federal law.

Interestingly, the "arguments" that discrimination based on sexual or perceived sexual irregularity is "bad for business" are irrelevant. What might be bad for business is having employees who look and/or act like they are performers in a freak show, but that's for each employer to decide.

The reason why Congress has not tackled this thorny issue is that sexual orientation is not legally definable, and a law purporting to prohibit such discrimination would be little more than a tool for lawyers and advocacy organizations to bring a tsunami of groundless, costly, pointless lawsuits against people and organizations that they simply don't like.

The unfortunate and confounding fact is that NO EMPLOYER CARES ABOUT YOUR SEXUAL ORIENTATION. Not even the United States Army. Furthermore, unless YOU DO SOMETHING OVERT to call your employer's attention to your sexual orientation, it will not know. After 50-odd years of employment in my own case, no employer ever asked me who I slept with or desired to sleep with. They simply didn't care.

 

[TheProgressivePatriot]

Let's talk about Federal law.

Lower courts have issued conflicting opinions on this issue and the United States Supreme Court (SCOTUS) has not made a decision on the issue. However in the case of Price Waterhouse v Hopkins the SCOTUS concluded that discrimination based upon sexual stereotypes is a violation of Title VII. The case involved a woman who was denied a promotion because he employer thought she was not feminine enough in the way she walked, talked, dressed and acted. Here are the details:

“Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Supreme Court recognized that employment discrimination based on sex stereotypes (e.g., assumptions and/or expectations about how persons of a certain sex should dress, behave, etc.) is unlawful sex discrimination under Title VII. Price Waterhouse had denied Ann Hopkins a promotion in part because other partners at the firm felt that she did not act as woman should act. She was told, among other things, that she needed to "walk more femininely, talk more femininely, [and] dress more femininely" in order to secure a partnership. Id. at 230-31, 235. The Court found that this constituted evidence of sex discrimination as "n the . . . context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender." Id. at 250. The Court further explained that Title VII's "because of sex" provision strikes at the "entire spectrum of disparate treatment of men and women resulting from sex stereotypes." Id. (quoting City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (internal citation omitted)).”

Examples of Court Decisions Holding LGBT-Related Discrimination Actionable Under Title VII

(Note: The above link also gives examples of lower court rulings showing that sexual orientation is protected against discrimination.)

It seems to me me that if discrimination based upon sexual stereotyping is a violation of Title VII so would discrimination based upon sexual orientation. After all, the disparate treatment of gays and lesbians is based upon their non-conformity to the stereotype of what others expect their sexual behavior to be. I expect the SCOTUS to find that sexual orientation is afforded the full protections of Title VII. Further, the SCOTUS has shown that they generally give deference to rulings made by the Equal Employment Opportunity Commission (EEOC) and The EEOC has already taken a position that Title VII of the Civil Rights Act affords protection from discrimination on the basis of sexual orientation.

“In 2012, David Baldwin, a federal employee, filed an administrative charge of discrimination with the EEOC, alleging he was discriminated against because of his sex and sexual orientation. Specifically, Baldwin alleged he was denied a promotion because he is gay. In its decision, the EEOC relied upon the existing prohibition on discrimination based on sex-based stereotypes or assumptions, concluding it “applies equally in claims brought by lesbian, gay and bisexual individuals under Title VII.” According to the EEOC, “sexual orientation is inseparable from and inescapably linked to sex.” Without resolving the merits of the claim, the EEOC ultimately found that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” See Baldwin v. Foxx, FAA-2012-24738 (EEOC June 15, 2015).”

EEOC says sexual orientation protected under Title VII | JD Supra

Conclusion: If State law does no afford you a proper remedy, federal laws should. I suggest you see an attorney.

NOTE: I wrote the above article well over a year ago and there may have been some new developments since that time. I'm sure that any changes will show greater concerns for the protections of lesbians and gays.

Thank you. However, it appears that the current Justice Department is at odds with the EEOC

Justice Department Says Rights Law Doesn’t Protect Gays

The Justice Department has filed court papers arguing that a major federal civil rights law does not protect employees from discrimination based on sexual orientation, taking a stand against a decision reached under President Barack Obama.

The department’s move to insert itself into a federal case in New York was an unusual example of top officials in Washington intervening in court in what is an important but essentially private dispute between a worker and his boss over gay rights issues.

“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” the Justice Department said in a friend-of-the-court brief, citing the 1964 Civil Rights Act, which bars discrimination in the workplace based on “race, color, religion, sex or national origin.” “It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”

 

[TheProgressivePatriot]

Gay and transgender workers deserve federal legal protections to combat the high rates of discrimination they experience in the workplace.

high rates?? prove this
if you can do a job well, they usually hire you and keep you --no matter what gayness you are

Gay and Transgender People Face High Rates of Workplace Discrimination and Harassment - Center for American Progress

Any more questions?

 

[TheProgressivePatriot]

If the OP wants to stop work place violence or sexual assault I suggest he stop doing it.

Thank you for that BRILLLLLLLIANT response

 

[TheProgressivePatriot]

The Price Waterhouse case cited above is an outlier, and will eventually be overturned, when the USSC decides to deal with it (or one raising the same issue). Abnormal sexual orientation (or affectation) is NOT a protected class under Federal law.

We know that it's not provided for in Federal Law. That's why the courts need to intervene . We'll see what happens here. Your pejorative reference to abnormal sexual behavior tell me all that I need to know about what you hope the outcome will be.

 

[TheProgressivePatriot]

nterestingly, the "arguments" that discrimination based on sexual or perceived sexual irregularity is "bad for business" are irrelevant. What might be bad for business is having employees who look and/or act like they are performers in a freak show, but that's for each employer to decide.

Hardly irrelevant . You stating an opinion disguised as a fact based on your clinging to outmoded stereotypes

 

[TheProgressivePatriot]

The reason why Congress has not tackled this thorny issue is that sexual orientation is not legally definable, and a law purporting to prohibit such discrimination would be little more than a tool for lawyers and advocacy organizations to bring a tsunami of groundless, costly, pointless lawsuits against people and organizations that they simply don't like.

Not easily definable?? Another opinion. No one wants to bring groundless lawsuits -they want to stop discrimination and need the tools to do so. Employers can avoid problems simply by doing the right thing

 

[TheProgressivePatriot]

“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” the Justice Department said in a friend-of-the-court brief, citing the 1964 Civil Rights Act, which bars discrimination in the workplace based on “race, color, religion, sex or national origin.” “It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”

Yes, the Sessions/Trump Justice Department

 

[harmonica]

Gay and transgender workers deserve federal legal protections to combat the high rates of discrimination they experience in the workplace.

high rates?? prove this
if you can do a job well, they usually hire you and keep you --no matter what gayness you are

Gay and Transgender People Face High Rates of Workplace Discrimination and Harassment - Center for American Progress

Any more questions?

15 percent to 43 percent

hahahahhahahahah
15 out of 100 is not a high rate
that's a real, scientific ACCURATE ''study'' !!! anywhere between 15 and 43 % !!???!!
I've just been applying for jobs and there are NO questions about gay/hetero/etc !!!!!!!!
no more questions--you've proved the ''study'' [ ] is very inaccurate/biased/etc

hahahahah--what BULLSHIT..here is one of the cases in your link!!

2. The facts. In June of 1984, the police department began investigating alleged violations of narcotics laws by members of the department. [Note 2] Several officers were ordered to report to the department's Internal Investigation Unit (I.I.U.)

The chief of police, Paul Fenton, suspended Carney that same day for refusing to answer the questions

he was being questioned about violations of narcotics laws!!!
nothing to do with gayness
this is a clear example of biased BULLSHIT
MICHAEL P. CARNEY vs. CITY OF SPRINGFIELD & others

 

[harmonica]

same crap--sure there is discrimination but not nearly as much as you would have us believe

 

[TheProgressivePatriot]

hahahahhahahahah
15 out of 100 is not a high rate
that's a real, scientific ACCURATE ''study'' !!! anywhere between 15 and 43 % !!???!!
I've just been applying for jobs and there are NO questions about gay/hetero/etc !!!!!!!!
no more questions--you've proved the ''study'' [ ] is very inaccurate/biased/etc

Hey, I don't care if you accept the findings or think that the percentages are high enough to warrant concern. Discrimination exists. The fact that you mentioned no question about sexual orientation on the job applications speaks volumes to you ignorance of the top and what is actually happening

 

[harmonica]

hahahahhahahahah
15 out of 100 is not a high rate
that's a real, scientific ACCURATE ''study'' !!! anywhere between 15 and 43 % !!???!!
I've just been applying for jobs and there are NO questions about gay/hetero/etc !!!!!!!!
no more questions--you've proved the ''study'' [ ] is very inaccurate/biased/etc

Hey, I don't care if you accept the findings or think that the percentages are high enough to warrant concern. Discrimination exists. The fact that you mentioned no question about sexual orientation on the job applications speaks volumes to you ignorance of the top and what is actually happening

the employers don't ask if your're gay or not!!!!
Carney was not fired/reinstated because he was gay--your link is crap/BS
please prove he was not reinstated for gayness and I will believe you
for now it's a LIE