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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EEOC, Genetic Information Nondiscrimination Act, U.S. Equal Employment Opportunity Commission (EEOC)

‘Any Family History of Disease?’ EEOC Says Don’t Ask, Don’t Tell.

If employers had any doubt about whether they – or their fitness-for-duty doctors – were allowed to ask about family medical history or genetic information in pre-employment medical tests, the EEOC is putting that doubt to rest with a string of recent enforcement actions.

As one example of this trend, three agricultural employers in California recently agreed to pay $187,500 to settle a discrimination lawsuit filed by the EEOC (the U.S. Equal Employment Opportunity Commission) because they asked job applicants to disclose their medical histories and their family medical histories as part of pre-employment physical exams and health questionnaires.family tree

The EEOC takes the position – which the Update will not dispute here – that such inquiries violate the federal Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act. This is one of the first enforcement actions under GINA, but expect more to follow as the EEOC seeks to eliminate pre-employment inquiries into family medical history and genetic information.

“There are strict guidelines prohibiting inquiries into a job applicant’s medical condition and disability prior to hire,” states the EEOC’s Marla Stern-Knowlton. “Even after hire, employers should avoid asking questions about an applicant’s medical condition if it is not job-related. With respect to genetic information – or family medical history – the law is even more restrictive in that most employers may never ask or acquire genetic information from applicants or employees.”

Takeaway: Although healthcare providers hired to conduct fitness-for-duty medical exams may think it basic and vital to ask about family medical history or genetic conditions, employers should take immediate steps to ensure the process is cleansed of such inquiries and instead focuses on job-related capabilities.

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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EEOC, U.S. Equal Employment Opportunity Commission

EEOC affirms position that ‘partner’ may be an ‘employee.’

The U.S. Equal Employment Opportunity Commission (EEOC) has been busy lately challenging the mandatory partner retirement policies and other practices of large accounting firms.

In two “informal discussion letters” posted by the EEOC this summer, EEOC Legal Counsel Peggy R. Mastroianni states that, “It is well established that in some instances individuals who have the job title of ‘partner’ may qualify as employees for purposes of the [equal employment opportunity] laws, including the [Age Discrimination in Employment Act].”

Mastroianni cites the Supreme Court’s 2003 decision in Clackamas Gastroenterology Assocs., P.C. v. Wells, as affirming the EEOC’s position that a fact-specific analysis of relevant factors is necessary on the question: “There is no legal presumption that an individual who holds the title of ‘partner’ is never an employee. This determination depends on the actual working relationship between the individual and the partnership. The relevant question is whether the individual acts independently and participates in managing the organization (not an employee), or whether the individual is subject to the organization’s control (an employee).”

While these letters do not stake out a new position for the EEOC, they remind us that firms with working “partners” or “shareholders” should always examine the partner-employee issue closely before implementing rules — such as mandatory retirement — that would be unlawful if imposed upon employees.

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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