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.

The U.S. Supreme Court this morning came out with two controversial decisions that will impact employers in Connecticut.

The first one, Harris v. Quinn, dealt with whether non-union public employees could be forced to pay union dues.  The court issued a relatively narrow holding, ruling that “partial” public employees could not be required to do so.  In doing so, it made a distinction with “full-fledged” public employees.

The second one, Burwell v. Hobby Lobby, dealt with whether for-profit employers could be required to provide contraceptive coverage under the Affordable Care Act. The court again issued a (relatively) narrow holding, ruling that closely-held corporations (where more than 50% of stock is held by 5 or fewer individuals) can opt out of the contraceptive coverage for religious reasons.

There is going to be lots of coverage this week on the impact of these decisions generally, but I thought I would touch on a few thoughts for Connecticut employers.

First, employers shouldn’t overread the decisions. While these decisions may lay the groundwork for broader decisions from the court in the future, these decisions aren’t as broad as some reports suggest.

Second, a very interesting issue is developing about whether employers could use this decision to discrimination against employees on things like race, gender or sexual orientation based on their religious beliefs. The majority opinion takes pains to discount that notion:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. … Our decision today provides no such shield. The Government has a compelling interest inproviding an equal opportunity to participate in the workforce without regard to race, and prohibitions on racialdiscrimination are precisely tailored to achieve that critical goal.

Third, the decision also raises the question of the impact on state anti-discrimination laws. For sexual orientation and gender identity claims, “religious corporations” are given a specific exclusion of coverage.  Could a company like Hobby Lobby now be considered a “religious corporation” under state law? Or can it claim some other type of exemption given that Connecticut is already excluding some employers? And what is the impact of this decision on the other types of anti-discrimination laws that Connecticut has set up that are much broader than federal law?

It is this last set of questions that I think is most intriguing and necessitate some further review.

Connecticut law also prohibits discrimination against employees because of theirreligious beliefs too. How will the Hobby Lobby decision impact that aspect as well?

Today’s opinions will no doubt have an impact on employers. The real question that remains to be seen in the upcoming months and years is, “How Much?”

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.

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. 

Let’s play the “law school hypothetical” game for a minute.  (I know, not as exciting as a cat being chosen in Monopoly, but bear with me.)

You hear the following allegations:

  • An gay, male employee starts works as a teacher in an “New Beginnings Alternative” program at a public school.
  • During his employment, he is subject to derogatory statements by a fellow teacher, a school police officer and a supervisor.
  • Allegedly a supervisor tells a social worker that the employee is “too flaming” or “too flamboyant”. Also, a fellow teacher is alleged to have said to the employee at a department meeting that “You are so overdramatic, you are being a bitch just like a woman.”
  • The employee is criticized for not being a “team player” and that his “apparent proneness towards using sarcasm and humor (that is often not understood by others) must change.”
  • The employee believes that the supervisor’s comments regarding how he and others cannot understand the employee’s sense of humor “stems from their divergent social views and pervasive stereotypes on gender and sexuality.”
  • Ultimately, the employee is informed that his contract may not be renewed which does, in fact, lead to a non-renewal of the contract.

Assuming, as you must for the moment, that the allegations are all true, does the employee have any claims? If so, what are they?

Continue Reading Can Being Called “Too Flamboyant” Be Basis for State Gender Discrimination Claim?

President Obama was re-elected to a second term last night (something forecasted by stats guru Nate Silver). What does it mean for employers?

Four More Years

I won’t go quite as far as fellow blogger Jon Hyman, who said this morning that “it just doesn’t matter” who won last night.  I think it matters in part.

But the impact for employers will probably be far less than was suggested during the campaign season.  Much will depend on the level of compromise that comes out of Washington.

Here are four areas where we should keep an eye on:

  • “Obamacare” — With Obama’s re-election, the idea that universal healthcare will somehow be repealed is done.  With implementation of key provisions due in 2014, employers who have been on the fence about the changes that are required to their benefit system should now start moving forward.  Verdict: It’s happening.
  • NLRB — The National Labor Relations Board has been flexing its muscle under Obama’s first term.  This political agency will likely try to continue to push forward changes to election rules and posters — even as the litigation regarding those items promises to slow things down.   This is one area that employers ought to pay close attention to. Verdict: NLRB remains an agency to watch.
  • ENDA — The Employment Nondiscrimination Act, which would prohibit employers nationwide from discriminating against employees based on their sexual orientation, has been discussed a lot. But with same-sex laws passing in Maine and Maryland, the sentiment in the country appears to be shifting.  While this won’t have much impact in Connecticut (where state law already prohibits such discrimination), I wouldn’t be surprised to see a new push for this bill’s passage.  Verdict: Some compromise bill is likely on ENDA.
  • Paycheck Fairness Act — Stephanie Thomas of the Proactive Employer blog suggests this morning that the gender pay gap was an issue in the last term and will remain a priority in the next term.  (Check out her post for other potential issues.) I tend to agree with her, but with a Republican-controlled House of Representatives, it’s hard to see how a compromise is going to be shaped here.  Verdict: My guess is that we won’t see passage of this bill anytime soon.

But as I said before, it’s still too early to figure out what the next four years will bring.  Even driving into work, I heard a dozen differing opinions about what the election “means”.  We tend to overstate the results from elections on the morning after, and I think the same applies here.

The fact is we’ve had gridlock on the Hill for the last two years; no employment laws have been passed. Will the gridlock in Washington continue? Perhaps.  But if it starts to break, then perhaps we will start to see some more compromise measures being passed.

 

All this week, this blog (and other employment law blogs — here, here, here and here) are posting employment law-related questions for the major-party candidates for President and Vice President.  Today’s turn: Mitt Romney.

Courtesy Mitt Romney Campaign

(For a recap of this process — and a reminder that these questions should not be interpreted as being “for” or “against” a candidate — see my post from yesterday.)

  • On your campaign website,you state that the “first step in improving labor policy will be to ensure that our labor laws create a stable and level playing field on which businesses can operate. As they hire, businesses should not have to worry that a politicized federal agency will rewrite the rules of the employment game without warning and without regard for the law.”  Yet, the NLRB is — by its nature — a political agency that shifts its agenda depending on who the President is.  Under George W. Bush, it became more pro-business and under Obama, it became more pro-union.  Are you suggesting that you would try to de-politicize the NLRB? If so, how? And if not, aren’t the changes you propose simply adding to the political nature of the NLRB?
  • In 1994, as a candidate for Senate, you supported the Employment Non Discrimination Act, which would prohibit employers from discriminating on the basis of sexual orientation.  In 2007, you indicated that you would not support ENDA and that you believed this policy is best implemented at a state level.  Why have you changed your mind on this and why are sexual orientation discrimination policies best left for individual states when we already have federal laws on age, race and gender discrimination?
  • More retaliation claims are filed with the EEOC than any other protected characteristic. Indeed, the Supreme Court — in some cases unanimously — has endorsed a fairly broad view of such claims. Do you believe there is an epidemic of retaliation claims? Do you believe the issue needs to be addressed through legislation?  

What employment law questions would you like to see Mitt Romney address? Feel free to add them in the comment section below.

The Connecticut Supreme Court, in a decision that will be officially released on May 15, 2012, today ruled unanimously that Connecticut’s anti-discrimination laws implicitly create a claim for hostile work environment based on an employee’s sexual orientation.  The state’s anti-discrimination laws have long been interpreted to bar a hostile work environment based on gender, but this is the first time the court has expanded the scope to include sexual orientation.

The decision in Patino v. Birken Manufacturing has long been anticipated and is an important decision affirming the broad protection the state’s anti-discrimination laws give to sexual orientation.  You can find more background on the case here

According to the court:

We conclude that the phrase ‘‘terms, conditions or privileges of employment’’ constitutes a term of art with a fixed legal meaning, and the legislature’s use of that phrase in § 46a-81c (1) evidences its intent to permit hostile work environment claims where employees are subject to sexual orientation discrimination.

I’ll have more on the decision in an upcoming post next week.