U.S. Supreme Court
U.S. Supreme Court

Over the last week or so, there have been two prominent Circuit Court decisions addressing whether Title VII (the federal law prohibiting employment discrimination on the basis of race, color, sex, religion and national origin) can be interpreted to also protect employees from being discriminated against because of their sexual orientation.

The Second Circuit, which covers Connecticut, basically said no in a decision last week in Christiansen v. Omnicom Group.  The court did open the door a bit to a claim that an employee was discriminated against because of sex stereotyping.

Yesterday, the Seventh Circuit created the first split at the appellate level, finding that Title VII does cover such claims in the Hivley v. Ivy Tech Community College case.   Jon Hyman, of the Ohio Employer’s Law Blog, does a good job addressing the historic nature of the case here.

Back in 2016, I wrote that it was somewhat disappointing that we were still having these battles at the federal level, considering that Connecticut already had state laws prohibiting discrimination on the basis of sexual orientation.  “Those who are gay, lesbian, bisexual or transgender frankly deserve better, in my view. They deserve their own federal law giving them the workplace protections that Connecticut has given.  Until then, the battles over the scope of Title VII will continue.”

Indeed, the battles are now going to get bigger. One or more of these cases are now likely to get heard at the U.S. Supreme Court level where it is far from certain whether Title VII can really be read so broadly.

Of course, Congress could end these debates once and for all by passing a bill prohibiting employment discrimination on the basis of sexual orientation as I discussed way back in 2008.

But unfortunately, we seem to be no closer to passage of a bill than we were a decade ago.

Connecticut employers should largely ignore the press reports about Title VII and instead focus on their obligations to comply with state law.  Eventually the federal courts will work these issues out, but the issue is mainly moot in Connecticut.

EEOC efforts a proverbial square peg.
EEOC efforts are a proverbial square peg.

When you’ve been blogging as long as Jon Hyman (of Ohio Employer’s Law Blog) and I have, your minds seem to work in a similar fashion.

For a few days, I’ve been working on a draft of a blog post about the EEOC’s goal of expanding Title VII’s reach to include sexual orientation discrimination claims.  Of course, before I could click “publish”, yesterday Jon published one that says almost the same thing.

In a thorough 27-page amicus brief filed last week, the Agency details why it believes that Title VII already prohibits sexual-orientation discrimination as unlawful sex discrimination.

The brief is not a surprise. Indeed, this was discussed at the ABA Labor & Employment Law Annual Conference last fall in Philadelphia. Nevertheless, the EEOC’s brief is clear about where it is trying to take the law.

Sexual orientation discrimination claims necessarily involve illegal sex stereotyping, illegal gender-based associational discrimination, and impermissible consideration of a plaintiff’s sex, placing them squarely within Title VII’s prohibition against discrimination on the basis of sex.

What IS different though about Ohio and Connecticut is that Connecticut has long since prohibited discrimination on the basis of sexual orientation.  Indeed, in the last fiscal year, 51 employment discrimination complaints on the basis of such a protected class were filed at the CHRO.

The law in Connecticut works well and is an important and vital part of the protections in the state.

And this is where I start to differ with Jon.  For years, I have been asking for the passage of ENDA – a bill that would explicitly ban discrimination the basis of sexual orientation at the federal level.  This would solve the issue clearly and easily.

But because Congress can’t seem to get anything done, that bill hasn’t gone very far.

So instead, the EEOC has been trying to expand the reach of Title VII.  Count me among the people that is a bit skeptical with the efforts.  The oft-used phrase “trying to fit a square peg into a round hole” comes to mind.

Why? Because for many years it was understood that the protections offered by Title VII on the basis of sexual orientation were limited.  Same-sex harassment, as the Oncale case was known, was the best example of where the protections of Title VII cover those who are gay from harassment.  But this means that the EEOC’s efforts are going to be at the whim of the courts.

This is not necessarily new. In fact, back in 2012, the EEOC took the position that Title VII covered sexual orientation discrimination.

Those who are gay, lesbian, bisexual or transgender frankly deserve better, in my view. They deserve their own federal law giving them the workplace protections that Connecticut has given.

Until then, the battles over the scope of Title VII will continue.

 

Over the past month, after the Supreme Court’s Hobby Lobby decision, much has been made in the press about how it is unprecedented for the court to consider a company’s religious beliefs in making its decisions.

The issue of taking into account a corporation’s religious belief in the workplace has been also catapulted to the center of the discussion regarding consideration of the Employment Non-Discrimination Act (ENDA), a bill which would prohibit discrimination in employment on the basis of sexual orientation on a federal level.

Some are now asking that ENDA, if passed, have an exception for religious organizations.  In response, a number of prominent civil rights groups have withdrawn their support for the bill.

A joint statement issued by several organizations, including the ACLU, said the following:

ENDA’s discriminatory provision, unprecedented in federal laws prohibiting employment discrimination, could provide religiously affiliated organizations – including hospitals, nursing homes and universities – a blank check to engage in workplace discrimination against LGBT people. The provision essentially says that anti-LGBT discrimination is different – more acceptable and legitimate – than discrimination against individuals based on their race or sex.

Here’s the thing, rightly or wrongly, the notion of a religious exemption in an employment discrimination law isn’t unprecedented; Connecticut passed one 23 years ago.

And it hasn’t been amended since.

I can now hear from many of you: Wait, what?

Yes, right there in Conn. Gen. Stat. Section 46a-81p is a specific exemption for religious corporations to the prohibition of sexual orientation employment discrimination.

The provisions of sections 4a-60a and 46a-81a to 46a-81o, inclusive, shall not apply to a religious corporation, entity, association, educational institution or society with respect to the employment of individuals to perform work connected with the carrying on by such corporation, entity, association, educational institution or society of its activities, or with respect to matters of discipline, faith, internal organization or ecclesiastical rule, custom or law which are established by such corporation, entity, association, educational institution or society.

Now, before you start reading “religious corporation” to include companies like Hobby Lobby, the answer may not be that simple.

For one thing, the sexual orientation anti-discrimination laws don’t define what they are explicitly; elsewhere in state law there is a reference however, to “religious corporations” and societies.  Conn. Gen. Stat. § 33-264a states that: “Three or more persons uniting for public worship may form a corporation or a voluntary association. Such a corporation shall be called a religious corporation and such a voluntary association shall be called a religious society.”

So perhaps including a company like a Hobby Lobby into this definition may not fit.

But what IS meant by “religious corporations” in this particular section on employment law? How do courts define it? Is it just a church or something more, like an organization’s for-profit bookstore? Well, I haven’t located a court case that has confronted the issue head on.

The Connecticut Supreme Court has only cited the statute by off-handed refereces that the legislature made an exemption for “religious organizations.”  But that too is a bit odd, because the word “organizations” isn’t in the statute itself. (See, for example, the court’s use in Patino v. Birken Manufacturing.)

I’ve taken a look at the bill analysis from the Office of Legislative Research from its passage in 1991 and it isn’t all that helpful. It states merely that “the bill exempts religious organizations from these employment provisions but only as to their employment of people to carry out their work.” (There’s that use of “organizations” again.)  An earlier version of the bill had a narrower exemption too, but that was expanded through a bill amendment at the time.

The Connecticut legislature has considered amendments, over time, that would, for example, put the sexual orientation anti-discrimination laws into the more general provisions prohibiting discrimination, but even this year’s Senate Bill 385, which would make that type of change, would keep the language of the “religious corporation” exemption as is.

I suppose that the lack of litigation on the state’s law exempting “religious corporations” from compliance with the anti-discrimination law may be indicative of its general acceptance here in Connecticut or its narrow application. And perhaps a court looking at this will find that for-profit corporations are just inherently different than religious ones and that the use of the language here precludes a broader interpretation.

But I suspect that the lack of discussion of this exemption is also due to the fact that many people are unaware of its existence or the specific language of the exemption either.

Either way, in light of the Hobby Lobby decision from the Supreme Court, perhaps we will see the Connecticut General Assembly revisit this statute. While an exemption for a “religious corporation” may have been a necessary compromise in 1991 at the time of the bill’s original passage, I wonder if legislators believe it should be construed as broadly as some might argue after Hobby Lobby.

After all, if corporations are “people” too, it’s not that far of a leap for someone to argue that they can be “religious corporations” as well.

A federal bill banning workplace discrimination (known as the Employment Non-Discrimination Act “ENDA) on the basis of sexual orientation cleared a key procedural hurdle last night as the Senate voted to begin debate on the measure, 61-30.   Passage by the Senate is now expected later this week.   (You can find my prior coverage of ENDA beginning here.)

It’s a significant step for sure. But the prospects for ENDA in the House of Representatives look grim. 

A spokesperson for Speaker John Boehner said the Speaker would not support the bill.  “The Speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs.”

Connecticut’s experience with its own workplace ban on sexual orientation discrimination does not support the Speaker’s arguments.

According to the statistics from the Connecticut Commission on Human Rights and Opportunities, in 2009-2010 (the last readily accessible statistics) there were only 53 employment claims statewide claiming sexual orientation discrimination.  There were nearly 10 times the number of race discrimination claims that were filed over the same period. 

That’s not to say that some of those complaints aren’t frivolous. Indeed, there were several claims that same year that were readily dismissed by the CHRO without further investigation. 

But that hardly justifies allowing a company to purposely discriminate against someone because of his or her sexual orientation or gender identity.  Apple’s CEO Tim Cook nailed it in a recent op-ed in the Wall St. Journal. 

Our good friend, Jon Hyman, posted about this yesterday:

Anti-discrimination laws that exclude sexual orientation and gender identity suggest that these forms of discrimination are permissible. Additionally, while I look forward to embracing the day that all forms of discrimination cease to exist, I would not argue for the abolition of all anti-discrimination laws if that were to occur. Instead, I would argue that the laws are working, and are needed as a deterrent to maintain the status quo.

For employers in Connecticut, there will be less impact from ENDA then in many other states. But for employers that still think its ok to treat your employees differently because of their sexual orientation, your time is thankfully running short.

Back in June, after the Supreme Court’s ruling on same-sex marriage, I made a fairly easy prediction:

The federal FMLA is also anticipated to undergo some pretty big changes in states that approve same-sex marriages. Already in 2010, the FMLA regulations suggested that married same-sex couples could take time off to care for a newborn child; now FMLA policies will have to be tweaked to make it plain that employees can take time off to care for a same-sex spouse where it is legal.

Last week, the U.S. Department of Labor went ahead with those revisions in an updated “Fact Sheet”.  But before I spell that out, let’s talk about the employers that this affects:

  • If you have fewer than 50 employees, you are probably not covered under the FMLA.  The USDOL’s guidance won’t change that.
  • Similarly, if you have 75 or more Connecticut employees, you are probably covered by the state version of the FMLA.  The CTFMLA has protected same-sex spouses now for a few years.  The USDOL’s updated fact sheet won’t change much.
  • For employers in Connecticut with 50-74 employees, only the federal FMLA has technically applied. For these employers, the changes announced by the USDOL will have an impact.

The USDOL clarified that the definition of a “spouse” will depend on the state law:

Spouse: Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.

Obviously, in Connecticut, which recognizes same-sex marriages now, that means the FMLA will now cover same-sex spouses.  For employers in states other than Connecticut which recognize such marriages, this also means the FMLA will also apply to such spouses.

But here’s the rub, as a JD Supra post highlighted:

The DOL’s FMLA “spouse” definition does not cover situations in which an employee in a same-sex marriage resides in a state that does not recognize same-sex marriage, but was married or works in a state that does recognize such marriages. If the DOL wishes to expand the “spouse” definition, it will be unable to do so through fact sheets or interpretive guidance, but instead must act through a public notice-and-comment rulemaking process.

For employers, the change should not be surprising. But it does mean employers should do what typically needs to be done in these situations: Train supervisors, update policies, and seek additional guidance if you have employees in states that do not recognize same sex marriages.

As many wait for the Supreme Court’s decision later this term on same-sex marriages, one issue that seems to get lost in the shuffle is the fact that there is still no federal law prohibiting discrimination in employment on the basis of sexual orientation.

For employers in Connecticut, this is basically a non-issue because Connecticut has long since prohibited it.  But for employers who want consistency and for those who believe that discrimination on the basis of sexual orientation is just outdated, the lack of a federal bill rubs some the wrong way.

Earlier this week, Senator Chris Murphy of Connecticut hosted his first Google Hangout.  (Again, for those still new to the technology, you can get your primer here.)  It is now found on YouTube. 

He was kind enough to take questions over Twitter (another reason you should get on there) and responded to my question: What are the prospects for ENDA — the federal bill that would prohibit sexual orientation discrimination?

At about the 17:15 mark of the talk, he provided an in-depth discussion about what the bill is and its prospects.

“My hope is that we see an absolute sea change in the rights of gays and lesbians in the next month or so” after the Supreme Court’s ruling next month on gay marriage, Murphy said.  But “save for that action by the Supreme Court, we should pass ENDA.” 

As for the prospects itself? “Not too good” given that “largely social conservative Republicans control the House of Representatives,” said Murphy. 

But even in the Senate, it’s prospects were less than clear.  As Murphy observed: “I bet you we could get 50 votes in the Senate” but he didn’t think there were 60 votes which is now the new magic number to get bills passed to break a potential filibuster. 

“So, Daniel, I think the answer to your question is, unfortunately though you’ve got a lot of strong voices like myself, it’ll be hard to get that done.”

I thank Senator Murphy for taking the time to address this issue.

Since Murphy’s comments earlier this week, a opinion piece was also posted in the Washington Post calling for passage of ENDA

So, while its prospects right now are weak, is Senator Murphy correct that we will see a change after the Supreme Court’s decisions on gay marriage? Only time will tell. 

The United States Department of Labor late today issued a new interpretation of what a "son or daughter" is under the federal Family and Medical Leave Act (FMLA) to make it clear that an "employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship."  You can download the administrative interpretation here. 

The practical effect of the regulation is that "non-traditional families", as the Department has termed them, " including families in the lesbian-gay-bisexual-transgender community, who often in the past have been denied leave to care for their loved ones", will now be covered in a limited fashion under the federal FMLA.

According to the Department’s press release:

"No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill," said Secretary of Labor Hilda L. Solis. "No one who steps in to parent a child when that child’s biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. The Labor Department’s action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA."

How can the DOL do this, you might ask? Well, the statute already provides coverage to children of a person standing "in loco parentis". Because the DOL has the authority to interpret this phrase, the DOL has now said that so long as a person is acting as the child’s parent, that person can be covered under the FMLA.  As the DOL notes in the guidance, "There is no specific set of factors that, if present, will be considered to be dispositive in determining in loco parentis status."

A few items of note, particularly to Connecticut employers:

  • This only applies for care of a son or daughter; it does not allow an employee to take FMLA leave to care for a gay spouse or civil union partner.  
  • Connecticut already had this protection in place (and in fact, it’s broader) under the state FMLA law. 
  • Many employers also already cover this type of leave and have their own FMLA policies that cover various types of "non-traditional families", including civil unions.  Employers have been free to adopt a FMLA policy that is broader than that required by law.
  • This only affects traditional FMLA leave; as the DOL is quick to note, this does not address an employee’s entitlement to take military FMLA leave for a son or daughter, which is determined by separate definitions. See 29 C.F.R. Sec. 825.122(g),(h).
  • There are other implications as well. Because of divorces, the new DOL interpretation could allow a child to have four "parents" under the statute if each parent in the divorce remarries, for example.  All that is required is a "simple statement [from the alleged parent] asserting that the requisite family relationship exists." 

So, while this may cause a stir around the country, I anticipate the impact on employers in Connecticut to be fairly minor.

 

The Society for Human Resource Management (SHRM) has an article out today on their website (subscription may be required) about the effect that same-sex marriage laws and rulings are having on employers. The article compares California’s Proposition 8 initiative with Connecticut’s recent decision legalizing same-sex marriages. 

As you will see, the reporter was kind enough to talk with me about the issue. Although I discussed some of the similar themes I’ve raised before, the contrast with California is pretty striking. 

“Same-sex marriage in Connecticut is here and very likely is here to stay,” Daniel Schwartz, an attorney with Pullman and Comley in Hartford, Conn., told SHRM Online Nov. 18. …

However, Schwartz also noted that since Connecticut already had a civil union law, “this isn’t going to change that much if employers have had employees who have entered into civil unions.” From a practical point of view, employers need to give employees who have entered into civil unions the same benefits as they would to married couples, he explained.

He went on to say however, that where the differences may come is that “there are a lot of employees who did not enter into civil unions who will now get married.” He advised employers to take three steps in light of the change in the law:

• Review polices and make sure that they are non-gender or sexual orientation specific to account for same sex marriage. How do you do that? Use terms like “spouse,” instead of “husband and wife.”

• Update any anti-discrimination provisions to reflect that fact that employees who are part of a same-sex couple won’t be discriminated against.

• Look at benefits. Get a grasp on what the change will do to benefit plans. Look at how insurance companies are dealing with the new law. Make sure that summary plan descriptions and other documents (governing non-ERISA benefits) take into account same-sex marriage.

 

There’s a lot more in the article, so check it out here.

While you’re at it, be sure to check out the rest of SHRM’s website, which is in the midst of a pretty big overhaul. There are some great resources available and it’s always a pretty good source of information regarding legislative developments as well.