Sexual Discrimination

Sexual Orientation Discrimination: Who Will Put on the Big Boy Pants?

For several years the U.S. Equal Employment Opportunity Commission (EEOC) has been advocating the position that discrimination based on sexual orientation amounts to unlawful sex discrimination.

Last year, for the first time, the EEOC actually ruled in a case, Baldwin v. Foxx, that discrimination based on sexual orientation is necessarily sex discrimination under Title VII.  The EEOC argued that sexual orientation discrimination necessarily involves sex discrimination because (1) it always involves consideration of sex, (2) it is associational discrimination because it discriminates based on the gender of who the employee dates or marries, and (3) it is a form of stereotyping based on gender norms, which the Supreme Court has ruled is unlawful sex discrimination.  Although each of the EEOC’s arguments has appeal, the decision has not been universally accepted for the simple reason that sexual orientation is distinct from gender.  For example, a manager who discriminates against both male and female homosexuals because of orientation would not seem to be engaging in discrimination based on gender, but on orientation only, so the argument goes.

Now comes the U.S. Court of Appeals of the Seventh Circuit in Hively v. Ivy Tech Community College, decided July 28, which rejected the EEOC position, but noted there is “writing on the wall” that sexual orientation discrimination in employment may not be legal for long, as it is widely regarded as unacceptable today.  The opinion is a tour de force, discussing not only the history and evolution, but also the inconsistencies in the law on this hot topic.

The Seventh Circuit opinion highlighted the tremendous progress in recent years in civil rights for the LGBT community, including the U.S. Supreme Court decision in 2015 legalizing gay marriage in all 50 states, and saw “an emerging consensus that sexual orientation discrimination in the workplace can no longer be tolerated.”  Nevertheless, the court held that it was bound by precedent in the Seventh Circuit – which matches the precedent in almost all other federal appellate courts – holding that Title VII does not protect against sexual orientation discrimination. As the court noted, Congress has rejected repeated efforts to amend the law to protect employees based on sexual orientation.

The Hively court also pointed out the absurdity of court decisions on the topic, especially with regard to sex stereotyping, leaving “a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms – wearing pants instead of dresses, having short hair, not wearing make-up – but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman.”

In the meantime, regardless what appellate courts, Congress, and the President do, employees in about half of the country continue to be protected – at varying levels – by state laws against discrimination based on sexual orientation and gender identity.  At the federal level, the law protects only employees of federal contractors against such discrimination.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLCFor more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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Sexual Discrimination

Male Tax Lawyer Pleads: Put Me In, Coach, I’m Ready to Play against ‘Girl Power’

In a lawsuit that combines leather goods, tax lawyers and tales of domineering Amazonian women, a former in-house counsel at Coach, Inc., has accused the company of reverse sex discrimination.

Todd Lenart, the former Divisional Vice President of International Tax at Coach, claims that he suffered a hostile work environment and discriminatory termination because he is a male.  Lenart unpacked a bagful of emasculating allegations against Coach in his federal court complaint, including claims that the Senior Vice President of Coach’s Treasury Department said on numerous occasions she wanted “a staff of all women,” and stating that she had created “a girl power team based in New York.”  This prompted Lenart’s co-workers to comment that the SVP wanted a “team of Amazon women” (this was not a reference to the Seattle-based company founded by Jeff Bezos).  Lenart also alleged that Coach had a practice of subjecting male applicants to additional hurdles – such as psychological tests – that female applicants did not have to endure.

Lenart’s allegations survived a motion to dismiss in September, and now will be subjected to the scrutiny of discovery and depositions, and possibly trial.

Employers struggle every day to promote diversity aggressively without crossing the line into blatant reverse discrimination.  The gender wage gap and the glass ceiling remain issues, even with national retailers like Coach that serve a customer base primarily of women.  One can therefore understand the desire of executives at Coach and elsewhere to look for opportunities to promote women.  Nevertheless, the law continues to require equal opportunity for all (male and female, white and black, Christian and atheist), and if the allegations against Coach hold up, the company might need to open its hand-rubbed, snakeskin purse for a settlement or verdict payment.

Tips for promoting diversity and equal opportunity without crossing into reverse discrimination:

  • Get buy-in on the importance of diversity from the top – e.g., the CEO.
  • Expand efforts to recruit a diverse pool of candidates for every opening.
  • Train managers on equal opportunity – including (1) avoiding stereotypes, (2) avoiding the natural tendency to hire “someone like me,” and (3) prohibiting reverse discrimination (no “girl power” departments).
  • Do not establish diversity quotas and do not designate specific jobs or departments as being set aside for any demographic group.
  • Consider evaluating efforts to promote diversity and equal opportunity in manager performance reviews and bonus decisions.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLCFor more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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Discrimination, Sexual Discrimination, Sexual Harassment in the Workplace

‘Borgata Babes’ weight policy and skimpy costumes not sex bias.

A New Jersey trial court this summer rejected the claims of 22 female cocktail servers at Borgata Hotel Casino and Spa in Atlantic City who charged that the casino’s requirement for them to wear skimpy costumes and not gain more than 7 percent body weight after hire was sex discrimination.

In Schiavo v. Marina Dist. Dev. Co., LLC, Superior Court Judge Nelson C. Johnson acknowledged that the plaintiffs, known as “Borgata Babes,” may have felt that the policies subjected them to an atmosphere of sexual objectification, but that sex appeal is a common basis for marketing products and services in today’s society and the law does not regulate issues of “taste, philosophy or personal notions of morality.” He went on to explain that, under New Jersey law, Borgata could base its employment decisions and policies on notions of sexuality and attractive appearances, as long as it did not use gender stereotypes “to impose a professional disadvantage on one sex or the other.” The weight standards applied evenly to both males and females, the court found.

Borgata’s dress policy required the female “Babes” to wear tight skirts and bustier tops, while male servers wore slacks, a club-style T-shirt and black shoes.

Licentious details aside, it is difficult to find many useful takeaways for employers that do not use sexual objectification of employees’ bodies as part of their business model. Nevertheless, the case highlights that it is not sex discrimination for an employer to seek to hire attractive and fit employees for positions, or to require them to abide by a reasonable dress code, so long as the requirements do not disadvantage one gender, apply evenly to both males and females, and are not otherwise discriminatory.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLCFor more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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