Tag: sexual orientation

Why ‘Don’t Say Gay’ Bills are Antithetical to an Equitable and Inclusive Education

According to a 2019 GLSEN national survey of LGBTQ+ students, nearly 60% of surveyed students reported they felt unsafe at school because of their sexual orientation and 43% because of their gender expression. Within the same survey, nearly all (98.8%) LGBTQ+ students reported hearing “gay” used in a negative way at school, 95% heard other homophobic remarks, and 87% heard transphobic remarks.

When I was an educator, it was essential to my practice that all my students felt safe. If I were to hear any negative remarks about a student or become aware one of my students felt unsafe due to their identity, it would be my ethical, and moral, obligation to do something to create a safer and more inclusive learning environment; a core part of my role as an educator was to teach empathy and compassion in my students. This could be as simple as having a classroom discussion about the choices of language and how using words such as “gay” with a negative connotation can be hurtful to their classmates. This could also mean sharing my own identity as a queer man so my LGBTQ+ students knew they had someone they could turn to for support, and to normalize queer identities for all my students and their families. Either of these actions would require I discuss the importance of accepting all sexual orientations and gender identities.

In other words, I would have to say “gay.” But in six states — as of now — I would not have been able to do this.

The state of Florida attracted national attention earlier this year with the adoption of H.B. 1557, the “Parental Rights in Education” bill, more commonly known as the “Don’t Say Gay” bill. The bill, which has since been signed into law, dictates classroom instruction by “school staff” on “sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students.” Five other states, according to the Movement Advancement Project, have similar laws enacted and several more have bills pending in their state legislatures. Some proponents of these bills argue the legislation is necessary to ensure parents have greater say when, if, and how LGBTQ+ issues are discussed with their children.

Yet these laws are designed to ensure only some parents have greater say, as the parents of LGBTQ+ children are certainly not reflected in these efforts.

At a time when youth mental health is reaching a crisis, state legislatures are advancing bills that would perpetuate, and arguably exacerbate, harmful school-based experiences for LGBTQ+ youth and worsen their well-being. A 2022 survey by the Trevor Project found 45% of LGBTQ+ youth seriously considered attempting suicide in the past year, and over half of transgender and nonbinary youth considered suicide. The 2019 GLSEN survey also found LGBTQ+ students who experienced forms of victimization based on their sexual orientation or gender identity (e.g., being bullied, hearing homophobic or transphobic remarks, etc.) had lower levels of self-esteem, higher levels of depression, and were less likely to say they belonged in school.

Some may argue “Don’t Say Gay” bills would not preclude educators from addressing instances of homophobia or transphobia in their classrooms and try to suggest that prohibitions on such actions are not the intent of the bills. However, regardless of intent, these bills often have the insidious impact to “chill” educators’ actions out of fear they may run afoul of the law and open themselves to reprimands, including being terminated.

All students deserve to have a safe, supportive, and affirming learning environment. All educators should be empowered to protect their students, and not feel afraid to step in when they notice a student being bullied because of their identity. And every parent should have the resources to be a partner in their child’s education. Unfortunately, state laws such as the “Don’t Say Gay” bills will only stand in way of these notions from becoming realities.

It is impossible to support all students when LGBTQ+ children continue to be targeted merely because of their identities.

Article By Sean A. Worley of Nelson Mullins

For more legislative legal news, click here to visit the National Law Review.

Copyright ©2022 Nelson Mullins Riley & Scarborough LLP

SCOTUS Case Watch 2019-2020: Welcome to the New Term

The Supreme Court of the United States kicked off its 2019-2010 term on October 7, 2019, with several noteworthy cases on its docket. This term, some of the issues before the Court will likely have great historical significance for the LGBTQ community. Among these controversies are whether the prohibition against discrimination because of sex under Title VII of the Civil Rights Act of 1964 encompasses discrimination because of sexual orientation. In addition, the Court is slated to consider Title VII’s protections of transgender individuals, if any. Here’s a rundown of the employment law related cases that Supreme Court watchers can expect this term.

Title VII and Sexual Orientation

In Bostock v. Clayton County, Georgia, No. 17-1618 and Altitude Express Inc. v. Zarda, No. 17-1623 the Court will consider whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII. Oral argument for these consolidated cases is scheduled for October 8, 2019.

Transgender Employees

In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107, the Court agreed to decide whether Title VII prohibits discrimination against transgender individuals based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins. Oral argument for this case is scheduled for October 8, 2019.

Age Discrimination

In Babb v. Wilkie, No. 18-882 the Court will consider a provision in the Age Discrimination in Employment Act of 1967 regarding federal-sector coverage. The provision at issue requires employers taking personnel actions affecting agency employees aged 40 years or older to free from “discrimination based on age.” The issue is whether the federal-sector provision requires a plaintiff to prove that age was a but-for cause of a challenged personnel action. A date has not yet been set for oral arguments in this case.

Employee Benefits

In Intel Corp. Investment Policy Committee v. Sulyma, No. 18-1116 the Supreme Court agreed to settle an issue concerning the statute of limitation in Section 413(2) of the Employee Retirement Income Security Act. The three-year limitations period runs from “the earliest date on which the plaintiff had actual knowledge of the breach or violation.” The question for the Court is whether this limitations period bars suit when the defendants in a case had disclosed all relevant information to the plaintiff more than three years before the plaintiff filed a complaint, but the plaintiff chose not to read or could not recall having read the information. Oral arguments, in this case, are scheduled for December 4, 2019.

We will report in further details on these cases once the Supreme Court issues its rulings.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

The Changing Landscape of Sexual Orientation Discrimination Law

From the time Congress passed the Civil Rights Act of 1964 until earlier this year, federal courts have consistently held that the Act’s protections against employment discrimination did not apply to discrimination on the basis of sexual orientation. However, in March, the Seventh Circuit Court of Appeals (which covers Wisconsin, Illinois, and Indiana) became the first court to rule the other way, holding that Title VII of the Civil Rights Act’s prohibition against discrimination on the basis of sex includes discrimination based on sexual orientation. What has occurred in federal courts in the wake of that decision, however, has only muddied the waters.

Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin. Prior to the Seventh Circuit’s notable decision, courts had only permitted gay employees to make claims of sex discrimination if the employee could show the discrimination occurred because the employee did not conform to gender stereotypes, not simply because of the employee’s sexual orientation. The Seventh Circuit found that the gender stereotype argument is unnecessary, stating “it is . . . impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”

The question is far from settled. In April, in a case involving a gay skydiving instructor who claims he was fired because of his sexual orientation, a three-judge panel of the Second Circuit ruled that it could not follow the Seventh Circuit’s decision. It held that a three-judge panel could not overturn precedential decisions regarding Title VII’s application to sexual orientation discrimination. Such a ruling would require a review by the entire panel of judges. The Second Circuit has granted such a review (an en bancreview), indicating that perhaps the full panel of judges may be willing to follow the lead of the Seventh Circuit.

The picture becomes fuzzier still because of conflicting input from two government agencies. In preparation for its en banc review, the Second Circuit invited the EEOC to offer an opinion on the matter. The EEOC restated a stance it has held since 2012, saying sexual orientation discrimination is inextricably linked to gender and gender stereotypes and should fall under the protection of Title VII. However, on July 26, 2017, the Department of Justice filed a brief taking the opposite position. The DOJ argued Congress did not intend Title VII to apply to sexual orientation, and that expansion of the protection should be left to Congress, not implemented by the courts. The DOJ also says that the court owes no deference to the EEOC.

Because the federal circuits are now split on the issue, the question may eventually be decided by the United States Supreme Court. The Court has already been asked to review a case in which a former security guard at a Georgia hospital claims she was forced to quit because she was gay. The Court has not yet said whether it will hear the case. Ultimately, as the DOJ suggests, Congress could pass legislation to decide the issue one way or the other.

The takeaway from this flurry of activity is that this is an area of law that is very much in flux. For decades, the position of federal courts in regards to sexual orientation discrimination under Title VII was clear. Now, the landscape has shifted, and the ground is still settling. Employers should be aware that changes are happening quickly in this area and proceed cautiously when a situation potentially involving a sexual orientation discrimination claim arises.

This post was written by Mark G Jeffries of  Steptoe & Johnson PLLC.
Much more legal analysis at the National Law Review.

The New OFCCP Sexual Orientation And Gender Identity Protections Are Now In Effect

Proskauer Rose LLP, Law Firm

Executive Order (“EO”) 11246, as amended by EO 13762, officially went into effect, representing the first time in the federal sector that sexual orientation and gender identity have been expressly protected. On July 21, 2014, President Obama issued EO 13762, which amended EO 11246 to prohibit federal contractors from discriminating against employees on the basis of sexual orientation or gender identity. These additional protections are being incorporated into the Federal Acquisition Regulations (“FAR”), which will become effective tomorrow, April 10, 2015.

In order to educate the public on these new protections, the Office of Federal Contractor Compliance Programs (“OFCCP”) is conducting a series of webinars regarding the new sexual orientation and gender identity protections. Thus far, the webinars have focused on the obligations of federal contractors and the procedures available to claimants for filing a complaint under the new protections. We have summarized below key points from the webinar:

To Whom Does This Apply?

These new protections apply to any federal contractor, subcontractor, or government funded construction contractor that enters into or renews a federal contract or contracts valued at $10,000 or more per year. These new protections only apply to contracts entered into or renewed on or after April 8, 2015. These protections do not apply to organizations receiving grants from the federal government.

Administrative Changes Required By Employers

Under the new protections, employers must update the EEO language on their job advertisements, their EEO policies, and their “EEO is the Law” poster. The poster need not be updated until the OFCCP releases a supplement. The OFCCP has not yet announced when this supplement will be released.

With respect to the EEO language, the OFCCP has said that employers can simply say “Equal Employment Opportunity” on their job postings. However, if the employer chooses to list out the protected groups, it must list “sexual orientation” and “gender identity.” The OFCCP does not endorse the use of the acronym “LGBT,” as this is not representative of the entire protected class.

Dual Filing With The EEOC

The OFCCP clarified that any complaints alleging sexual orientation or gender identity discrimination are considered “dual-filed” with the EEOC. This means that the OFCCP will stand in the shoes of the EEOC when investigating the Title VII component of the complaint. While Title VII does not overtly protect against gender identity and sexual orientation discrimination, the EEOC has taken the position that these classifications are protected under Title VII and will pursue cases on behalf of these individuals.

As a consequence of the dual-filing process, if the OFCCP does not find cause or does not dispose of a case within 180 days, an employee can request a Notice of Right to Sue from the OFCCP to bring a private cause of action against the employer. This is significant as EO 11246 does not provide for a private cause of action. The OFCCP clarified, however, that it does not intend to pursue the compensatory and punitive damages available under Title VII (which are not available under the EO).

Religious Affiliated Contractors

In one of the webinars, the OFCCP clarified that all federal contractors, including religiously affiliated federal contractors, are required to comply with the new protections. This means that even those contractors who have been granted certain religious exemptions under EO 11246 may not discriminate based upon sexual orientation or gender identity.

Restroom Access Policies

The OFCCP clarified how employers must approach restroom access under the new protections. OFCCP explained that employers must allow employees to use restrooms based upon their gender identity. This means that if an employee was identified as a male at birth, but identifies as a female, the employer must permit that employee to use the female restroom if the employee desires to do so.

Benefits

The new protections provide that the same benefits must be provided to same-sex spouses as non-same-sex spouses. However, employers are not required to provide the same benefits to couples in civil unions or domestic partnerships as long as the denial of benefits is not based on discrimination. Consequently, if a contractor provides heterosexual domestic partners with benefits, it must provide homosexual domestic partners with the same benefits.

ARTICLE BY

Connie N Bertram
Alex C Weinstein
Proskauer Rose LLP

Executive Order Extends Workplace Anti-Discrimination Protections to LGBT Workers of Federal Contractors

Jackson Lewis Law firm

Though it took longer than expected, President Barack Obama has signed an Executive Order extending protections against workplace discrimination to members of the lesbian, gay, bisexual, and transgender (“LGBT”) community. Signed July 21, 2014, the Executive Order prohibits discrimination by federal contractors on the basis of sexual orientation or gender identity, adding to the list of protected categories. It does not contain any exemptions for religiously affiliated federal contractors, as some had hoped. Religiously affiliated federal contractors still may favor individuals of a particular religion when making employment decisions.

The President directed the Secretary of Labor to prepare regulations within 90 days (by October 19, 2014) implementing the new requirements as they relate to federal contractors under Executive Order 11246, which requires covered government contractors and subcontractors to undertake affirmative action to ensure that equal employment opportunity is afforded in all aspects of their employment processes. Executive Order 11246 is enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).

The Executive Order will apply to federal contracts entered into on or after the effective date of the forthcoming regulations. OFCCP likely will be charged with enforcement authority.

We recommend that employers who will be impacted by this Executive Order review their equal employment opportunity and harassment policies for compliance with the Executive Order. For example, employers who are government contractors should add both sexual orientation and gender identity as protected categories under these policies and ensure that mechanisms are put in place to ensure that discrimination is not tolerated against LGBT employees.

We will provide additional information and insights into the proposed regulations when they are available.

Article By:

Eric J. Felsberg
Michelle E. Phillips
Of:
Jackson Lewis P.C.