Category: Civil Rights

International Women’s Day 2016: Time is Now for Global Gender Equality and to (finally) Close Gender Gap

Today is International Women’s Day. Each year on March 8th, women celebrate the progress we’ve made while continuing to advocate for change regarding gender equality and women’s rights. Around the world, celebrations range from very simple demonstrations of respect, appreciation and love towards women to elaborate events that honor our economic, political and social achievements.

International Women’s Day is believed to have originated on March 8, 1908. On that day, thousands of women marched through the streets in New York City publicly calling for better working conditions, higher pay and the right to vote. The first National Women’s Day was held the following year. In 1910, women from around the world gathered in Denmark for the second International Conference of Working Women, where the idea for International Women’s Day was proposed. As a result, the first international celebration was held one year later in 1911.

This year’s theme is “Pledge for Parity”. The “Pledge for Parity” calls for complete gender equality and the closing of the gender gap in social, economic, political, and other situations. In light of this year’s theme, let’s look at some of the recent statistics regarding gender equality.

  1. According to US Aid around the world:

  • Approximately 62 million girls are not in school.

  • One in three women will experience gender-based violence in her lifetime.

  • In the developing world, one in seven girls is married before her 15th birthday.

  • Although constituting 40 percent of the agriculture labor force, only 3 to 20 percent of women are landowners.

  1. On March 3, 2016, the Economist published its “glass-ceiling index” listing the countries where women have the best chance of equal treatment at work. The Nordic countries of Iceland, Norway, Sweden and Finland were ranked 1-4. Interestingly, in these countries, women are present in the labor force at rates similar to men. For example, in Iceland, women have 44% of the seats on listed-company boards. By way of comparison, the U.S. and Great Britain are ranked 20th and 25th respectively. Japan, Turkey and South Korea were the three lowest-ranked countries of the 30 countries in the list.

  2. In February 2016, a white paper by the Peterson Institute for International Economics presented the results of a global survey of 21,980 firms from 91 countries. The survey found that approximately 60 percent of respondents (13,017 firms) did not contain any recorded female board members. Additionally, over 50 percent of the firms (11,802 firms) did not contain any female executives. Of the remaining half, 57 percent had only one female executive. Only 945 firms, less than 5 percent, had a female chief executive officer. These statistics are alarming in view of the paper’s conclusion that the presence of women in corporate leadership has been shown to improve firm performance. Specifically, the paper noted that the presence of women in corporate leadership was positively correlated with firm characteristics such as size, the absence of discriminatory attitudes toward female executives and the availability of paternity leave.

  3. The results of the survey described in the white paper by the Peterson Institute were not terribly surprising in view of the 2015 Women in the Workplace report published by Lean In and McKinsey & Company. Sadly, the report noted that women remain under-represented at every level in the corporate pipeline and that women continue to face greater barriers to advancement and a steeper path to senior leadership. While the report showed that women leave organizations at most levels at a lower rate than men, it also showed that women advance far more slowly from one level to the next. The report noted that the uneven playing field between men and women has taken a toll on women in leadership. According to the report, senior-level women are markedly less satisfied with their role, opportunities for advancement and career than their male counterparts. Bottom line, according to Sheryl Sandberg, COO of Facebook and Co-Founder of LeanIn.org, at the current rate, it will take more than 100 years for women to reach equality in the workplace. Moreover, Ms. Sandberg said, “If NASA launched a person into space today, she could soar past Mars, travel all the way to Pluto and return to Earth 10 times before women occupy half of C-suite offices.  Yes, we’re that far away.”

  4. According to UN Women:

  • As of August 2015, only 22 percent of all national parliamentarians were women (in contrast to 11.3 percent in 1995).

  • As of August 2015, there were only 11 women serving as Heads of State and 10 as the Head of a Government.

  • There are wide variations in the average percentages of women parliamentarians throughout the world across all chambers (single, lower and upper houses). For example, as of August 2015, the number of women parliamentarians was 41.1 percent in the Nordic countries, 25.5 percent in the Americas, 24.4 percent in Europe (excluding the Nordic countries), 23.0 percent in sub-Saharan Africa, 18.4 percent in Asia, 17.1 percent in the Middle East and North Africa, and 15.7 percent in the Pacific.

After reviewing and digesting the above statistics, I believe it is very easy to become frustrated (and even angry) with the slow pace at which women are achieving global gender equality. After all, isn’t increasing gender equality about harnessing the talent, creativity, emotional intelligence, courage, compassion and passion that women have to ensure a better world and future for everyone? When viewed that way – eliminating the gender gap isn’t just the right thing to do – it’s the smart and economically sensible thing to do.

Many of us, myself included, tend to look at women in positions of power and influence (such as Sheryl Sandberg, Melinda Gates, etc.) to lead the way in championing the changes needed to achieve global gender equality. However, it simply is not enough. Each one of us needs to take personal responsibility to do what we can push for change and advance gender equality. Quite frankly, at this stage, no effort is too small. So what can you do? Consider volunteering or donating to organizations that are dedicated to helping educate girls or women around the world (such as CARE, Global Fund for Women, Girls Education International and 60 Million Girls).

Build your confidence and eliminate your fear of speaking up or of “leaning in”. Don’t be afraid to take risks and work on promoting yourself. However, at the same time, be supportive and encouraging of other women and help them to build their confidence and promote themselves. As Madeline Albright said at the Celebrating Inspiration luncheon with the WNBA’s All-Decade Team in 2006, “There is a special place in hell for women who don’t help other women.”

Consider becoming an entrepreneur. If entrepreneurship is not for you, then support a female-owned start-ups and local businesses.

Become a mentor. Women need mentors. Women need that supportive advocate who guides and says, “Don’t give up. Stay the course”. A mentor is critical because it is that person you can have a frank conversation with who will listen to your tough questions and give you honest answers.

Encourage your employer to build a workplace of inclusion and respect. Studies have shown that workplaces that openly communicate their values and strategies on equality, human rights and inclusion, are able to attract a wider pool of talent and have greater success in retaining staff. As such, women should not be afraid to encourage human resource initiatives that promote gender quality such as increasing the number of female hires, providing flexible work schedules and options for working at home. We should not be afraid to use the avenues within our institutions to voice our concerns in an attempt to hold senior leadership accountable for failing to actively and aggressively promote gender equality, such as by using employee surveys, team and all-employee meetings, etc.

“A woman with a voice is by definition a strong woman. But the search to find that voice can be remarkably difficult.” – Melinda Gates

Article By Lisa L. Mueller of Michael Best & Friedrich LLP

© MICHAEL BEST & FRIEDRICH LLP

Hillshire Brands Company Pays $4 Million to Settle Race Discrimination Suit

EEOCSealAfrican American Bakery Workers Subjected to Racist Comments and Graffiti in the Worksite, Federal Agency Charged

DALLAS – Hillshire Brands Company (formerly known as the Sara Lee Corporation) will pay $4 million to a group of 74 African-American former employees and provide other significant relief to settle a lawsuit where they were subjected to a racially hostile work environment at a former Sara Lee facility in Paris, Texas, the agency announced today.

EEOC claimed African-American employees were subjected to racist graffiti on the walls of the bathrooms and locker room. The former bakery employees also alleged that during work hours, they were berated with racial slurs by supervisors and other white co-workers, and complaints by the plant workers went unaddressed by management.

Race discrimination in the workplace, including race harassment, violates Title VII of the Civil Rights Act of 1964.  The EEOC filed suit (Case No. 2:15-cv-1347) in U.S. District Court for the Eastern District of Texas, Marshall Division, after first attempting to reach a pre-litigation settlement through its conciliation process.

“The Commission completed an extensive investigation at the Sara Lee plant, which included conducting interviews with the former bakery workers,” said Meaghan L. Shepard, trial attorney for the Dallas District of EEOC. “EEOC determined racial slurs and graffiti continued at the facility in Paris for years, until the doors finally closed in November 2011.”

“EEOC strongly believes it is critically important for companies to set policies and provide effective avenues for complaints to address racial harassment in the workplace,” said EEOC Supervisory Trial Attorney Suzanne Anderson. “African-American workers on the Sara Lee bakery production lines in Paris felt embarrassed and intimidated by the graffiti in the bathroom and the racial slurs on the production floor. Strong corporate policies and quick remedial action protects against this type of workplace discrimination.”

The two-year consent decree settling the case provides for an injunction where Hillshire Brands will implement various preventative approaches regarding discrimination or harassment against any employee on the basis of race and will periodically report incidents or investigations to EEOC. Hillshire Brands also agreed to engage in remedial measures such as anti-discrimination training and implementation of procedures to prevent and promptly address graffiti issues.

Belinda McCallister, acting director of EEOC’s Dallas District Office, said, “We are pleased with the approach taken by the employer to acknowledge the hostile environment that once existed and for taking positive steps toward ensuring a healthy workplace in the future.”

EEOC enforces federal laws prohibiting employment discrimination. Further information about EEOC is available on its web site at www.eeoc.gov.

See original news release here: http://www1.eeoc.gov/eeoc/newsroom/release/12-22-15.cfm

© Copyright U.S. Equal Employment Opportunity Commission

Illinois: Transgender Locker Room Policy Eludes School District Facing Government Sanctions Under Title IX

An Illinois school district has violated anti-discrimination laws by not allowing a transgender student who identifies as female and is on her high school’s girls’ sports team to change and shower in the girls’ locker room, the United States Department of Education Office of Civil Rights (“OCR”) has held.

The OCR released its findings on November 2, 2015, after completing an extensive investigation of a complaint for unlawful discrimination under Title IX of the Education Amendments of 1972 filed by a transgender female high school student against the Township High School District 211 in Palatine, Illinois. Title IX prohibits discrimination on the basis of sex in any federally funded education program or activity. An entity in violation of Title IX may lose some or all of its Title IX funding.

Schools districts, colleges, and private employers are increasingly at risk of transgender discrimination charges or complaints under laws enforced by the OCR, the Equal Employment Opportunity Commission, the Department of Labor, the Department of Justice, and the Occupational Safety and Health Administration as these agencies develop their policies on transgender issues.

The EEOC, the DOL, and the DOJ have interpreted Title VII of the Civil Right Act’s prohibitions on sex discrimination to bar employment discrimination based on gender identity.

On the employment front, in the seven months between October 2014 and April 2015, EEOC received 505 charges based on sexual orientation discrimination and 112 charges based on gender identity. Moreover, the EEOC’s Strategic Enforcement Plan for 2012-2016 includes the investigation and enforcement of LGBT (lesbian, gay, bisexual, and transgender) sex stereotyping claims .

Further, effective April 2015, the DOL’s Office of Federal Contract Compliance Programs requires federal contractors subject to Executive Law 11246 to allow transgender employees to use the restroom and other facilities consistent with their gender identity (See article DOL Releases Regulations Extending Protections to Lesbian, Gay, Bisexual, and Transgender Employees, Applicants).

Finally, the OSHA guidelines require all employers under its jurisdiction to provide a “safe and healthy working environment for all employees” and transgender employees “should have access to restrooms that correspond to their gender identity.”

OSHA recommends that companies should implement written policies to ensure that all employees have “prompt access to appropriate sanitary facilities.” The agency’s best practices guide also recommends providing options from which a transgender employee may choose. These can include single-occupancy gender-neutral facilities and the use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls (See article Restroom Access Should Be Consistent with Employee’s Gender Identity, OSHA Says).

Background

The Township High School District 211 denied a transgender female student access to three separate girls’ locker rooms (“LR”) (including the Physical Education (“PE”) LR, the PE Swim LR, and the Athletics LR). The Student alleged the District discriminated against her based on sex by denying her access to the girls’ locker rooms because of her gender identity and gender non-conformity.

OCR Decision

The OCR found the District violated Title IX for excluding the Student from participation in and denying her the benefits of its education program, providing services to her in a different manner, subjecting her to different rules of behavior, and subjecting her to different treatment on the basis of sex.

“The evidence shows that as a result of the District’s denial of access to the girls LRs, Student A has not only received an unequal opportunity to benefit from the District’s educational program, but also has experienced an ongoing sense of isolation and ostracism throughout her high school enrollment.”

Other than access to the female locker rooms, the OCR found the District treated the Student consistently with her gender identity, including identifying her by her female name and with female pronouns, providing her with full access to girls’ restrooms and allowing her to participate in girls’ sports.

Alternatives Not Acceptable

The District argued it offered the Student alternative changing options, such as permitting her to change with several female friends in an alternative restroom closer to the PE gym and offering her another restroom near the Swim LR.

The OCR found that the alternatives “continued or would continue to exclude [the Student] from the girls’ locker rooms and set her apart from her female classmates and teammates,” particularly as some of the proposed alternative facilities were not comparable to those provided for other girls.

For example, unlike the other female students who used the PE class swim unit, the Student had access only to a rinse shower and was not able to dry her hair because there was no electrical outlet. Furthermore, by not having access to the PE locker room, she was subjected to stigma and different treatment, OCR said, because she occasionally had been late to class or missed class announcements that were made in the girls’ locker room.

Finally, as a result of being denied access to the girls Athletics LR, the Student felt excluded from the team because she missed the informal huddle in the LR before matches, locker room “girl talk,” and the female bonding in the LR. According, the OCR concluded the District denied the Student’s Title IX rights.

Privacy Concerns Unavailing

While acknowledging that it denied the Student access to the female locker rooms, the District argued that it had to balance the Student’s rights and interests with two distinct privacy concerns of other female students:

  • the need to protect female students from “being observed in a state of undress by a biologically male individual,” and

  • the “inappropriateness of allowing young female students to view a biologically naked male in the locker room in a state of undress.”

The OCR found both of these arguments unpersuasive as the District had installed five showers with privacy curtains and five restroom stalls in the girls PE LR, but had not provided private changing areas in the other two LRs.

“The District’s installation and maintenance of privacy curtains in one locker room go a long distance toward achieving such a nondiscriminatory alternative because providing sufficient privacy curtain access to accommodate any students who wish to be assured of privacy while changing would allow for protection of all students’ rights in this context. Those female students wishing to protect their own private bodies from exposure to being observed in a state of undress by other girls in the locker rooms, including transgender girls, could change behind a privacy curtain.”

Given the Student’s willingness to change privately, the OCR said, the District could have provided equal access to all three LRs if it installed additional privacy curtains for any student that wanted privacy.

Takeaways

Federal government agencies are increasingly examining the purported protections afforded to transgender students and employees, in both the public and private sectors. How to handle transgender issues is still a work-in-progress for the agencies and the entities they regulate. In this case, despite the District’s accommodations and options to provide equal treatment to the Student in all respects other than access to the Locker Room, the OCR nevertheless held its efforts were insufficient. Moreover, states also have laws protecting LGBT individuals (See article Utah Governor Signs Landmark LGBT and Religious Expression Anti-Discrimination Bill).

The following steps can help lower the risk of being under government scrutiny:

  1. closely review and revise EEO (equal employment opportunity), harassment, and transgender policies;

  2. ensure proper sensitivity training of administrators, faculty, and students to foster diverse and inclusive primary, secondary school, and campus environments to avoid stigmatizing transgender students; and

  3. ensure that accommodations for transgender students and employees provide equal access in all respects, as well as balance privacy concerns.

Because of the complexities involved in this area, school districts, colleges, and private sector employers would be well-served to regularly review their policies and practices with counsel to ensure they address specific organizational needs effectively and comply with applicable law.

Article By Michelle E. Phillips, Bethany Swaton Wagner & Gregg E. Clifton of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

Arkansas Cities and Counties Provide Local LGBT Nondiscrimination Protections

A new civil rights law affording nondiscrimination protections for most lesbian, gay, bisexual, and transgender residents of Fayetteville, Arkansas, will go into effect on November 7, 2015.

Passed by the City Council and ratified by a popular vote in a Special Election held on September 8, 2015, the Uniform Civil Rights Protection ordinance (Ordinance 5781) prohibits discrimination in employment, housing, and public accommodations, based upon sexual orientation or gender identity. Declaring that “[t]he right of an otherwise qualified person to be free from discrimination because of sexual orientation and gender identity is the same right of every citizen to be free from discrimination because of race, religion, national origin, gender and disability as recognized and protected by the Arkansas Civil Rights Act of 1993,” the Ordinance also protects anyone who opposes any act prohibited by the Ordinance or who participates in such an investigation.

Designed to overcome objections to a similar measure that was repealed in 2014, Ordinance 5781 exempts from its coverage any employer with fewer than nine employees, as well as any church, religious school or day school, and any other religious organization. It also includes an enforcement scheme that is conciliatory, rather than punitive, with civil fines imposed for violations.

Civil Rights Commission

Enforcement will be handled by a newly formed, seven-member Civil Rights Commission appointed by the City Council and comprised of representatives of the business community, owners or managers of rental property, and citizens at large (at least one of whom identifies as LGBT), as well as at least one person with experience in human resources or employment law.

Anyone claiming a violation of the ordinance must present that claim in writing to the Fayetteville City Attorney within 90 days of the alleged violation. The City Attorney must then forward the complaint to the Commission.

Resolution of any complaint will begin with informal and confidential mediation between the parties. If such attempts are unsuccessful, the claim will ultimately go to an evidentiary hearing before the Commission. Anyone found to have violated the Ordinance will be fined up to $100 for the first offense, with subsequent violations carrying the City’s general penalty of fines up to $500 and up to 30 days in jail if fines are not paid. However, there is no criminal classification or penalty associated with the Ordinance or its violation.

Opposition

The Fayetteville Chamber of Commerce, though a leading opponent of the measure repealed in 2014, is in full support of this one. The story may not end there, however.

Opponents of the law filed suit in August 2015, seeking to stop the Special Election and arguing that the measure infringes upon individuals’ and business owners’ freedom of religion, that sexual predators might use the law to prey upon women and children in public restrooms, and that the ballot had a misleading title that did not include any details about LGBT protections, among other things. Injunctive relief was denied, but the lawsuit is pending in Washington County Circuit Court. Further, Arkansas Attorney General Leslie Rutledge released an opinion on September 1, 2015, stating that Ordinance 5781, as well as any similar measure passed by other municipalities, conflicts with Arkansas state law, and therefore, should not survive legal challenge. She relies upon the state’s recently enacted Intrastate Commerce Improvement Act, which bans cities and counties from enacting or enforcing “an ordinance, resolution, rule or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.”

On the other hand, Fayetteville City Attorney Kit Williams has stated that he will defend the Ordinance. He said the Ordinance incorporates several existing state laws, including the Arkansas Anti-Bullying Act and the Fair Housing Act, which, by their very terms, provide LGBT protections. “The protected classifications are certainly there in state law, and, therefore, this is not a new protected classification,” said Williams. He also has questioned whether the Intrastate Commerce Improvement Act is constitutional under the equal protection clause of the U.S. Constitution’s 14th Amendment.

The new Ordinance is a part of a growing national trend to prevent employers, at the local level, from firing or declining to hire any person because of his or her sexual orientation or gender identity. Similar measures have been enacted by Pulaski County and five other cities in Arkansas: Little Rock, North Little Rock, Hot Springs, Eureka Springs, and Conway.

Article By James R. Mulroy, II & Jennifer C. Kellett of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

The Equality Act: Legislation Introduced in Congress to Prohibit LGBT Discrimination

On July 23, 2015, Democratic Representatives David Cicilline (Rhode Island) and Jeff Merkley (Oregon) introduced in Congress legislation that would create the “Equality Act” (the Act). The Act represents an attempt to create a uniform federal standard that protects all lesbian, gay, bisexual and transgender (LGBT) Americans from discrimination in seven areas of civil rights law: employment, credit; education; federal funding; housing; jury service; and public accommodations.

LGBT, civil liberties, equality act, protection against discrimination, lesbian gay bisexual transgender

In the employment context, the Act would add sexual orientation and gender identification as protected characteristics under Title VII of the Civil Rights Act of 1964, which currently only protects against employment discrimination based on race, color, religion, sex and national origin. The introduction of the Act comes on the heels of the United States Equal Employment Opportunity Commission (EEOC) published guidance stating that Title VII protects against discrimination based on sexual orientation and transgender status. Importantly, the Act would leave existing religious exemptions intact.

Given the current political makeup of Congress, it is unlikely that the Act will become law. In any event, stay tuned for additional developments regarding the Equality Act.

ARTICLE BY Rufino Gaytán & Deborah Rehorst of Godfrey & Kahn S.C.

Copyright © 2015 Godfrey & Kahn S.C.

U.S. Equal Employment Opportunity Commission Rules That Sexual Orientation Discrimination Violates Title VII Of The 1964 Civil Rights Act

In a potentially groundbreaking decision that increases legal protections throughout the U.S. for lesbian, gay and bisexual employees, the Equal Employment Opportunity Commission (EEOC) ruled on June 15, 2015, that existing civil rights law bars sexual orientation-based employment discrimination.  The EEOC addressed the question of whether the ban on sex discrimination in Title VII of The Civil Rights Act of 1964 (“The Civil Rights Act”) bars anti-LGB discrimination in a charge brought by a Florida employee.

EEOC Employment discrimination LGB discrimination sexual orientation

The ruling was issued without objection from any members of the five-person commission, and while it technically only applies directly to federal employees’ claims, the EEOC also applies such rulings across the nation when it investigates claims of discrimination in private employment.  Although only the Supreme Court can issue a final, definitive ruling on the interpretation of The Civil Rights Act, EEOC decisions are given significant deference by federal courts.

Although the EEOC had been moving in this general direction with cases and field guidance addressing specific types of discrimination faced by gay people, the July 15 decision unequivocally states that sexual orientation is inherently an unlawful “sex-based consideration,” reasoning that sexual orientation discrimination “necessarily entails treating an employee less favorably because of the employee’s sex” and constitutes “associational discrimination on the basis of sex.”  In making this ruling, the EEOC joins approximately 22 states that provide sexual orientation discrimination protections in employment.

Given that this EEOC decision is entitled to deference by federal courts, employers across the U.S. should anticipate that practices that could be construed as discriminatory on the basis of a worker’s sexual orientation will be challenged in federal court and subject the employer to potential liability.

For EEOC guidance on this issue, click the following link: http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm

ARTICLE BY Gary M. Gansle of Squire Patton Boggs (US) LLP

© Copyright 2015 Squire Patton Boggs (US) LLP

EEOC Sues Wal-Mart for Disability Discrimination And Harassment: Agency Says Retailer Denied Accommodations to Disabled Cancer Survivor

Agency Says Retailer Denied Accommodations to and Harassed a Disabled Cancer Survivor

CHICAGO – Wal-Mart Stores, Inc. violated federal law by failing to provide reasonable accommodations to an employee at its Hodgkins, Ill., store who was disabled by bone cancer and failing to stop harassment of the employee, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed yesterday.

According to Julianne Bowman, the EEOC’s district director in Chicago, who managed EEOC’s pre-suit administrative investigation, the Walmart store initially agreed to comply with employee Nancy Stack’s request that the company provide a chair in her work area in the fitting room and limit her scheduled work hours because treatment for bone cancer in her leg limited her ability to walk and stand. After complying with her scheduling accommodation for many months, the store revoked it for no reason. And the store did not ensure that a chair was in Stack’s work area, at one point telling her that she had to haul a chair from the furniture department every day, which was of course hard for her to do given her disability. Finally, the store transferred Stack from the fitting room to a greeter position, which did not comply with her restrictions on standing.

To add insult to injury, Bowman added, a co-worker harassed Stack by calling her names like “cripple” and “chemo brain,” imitated her limp, and removed or hid the chair the employee needed in her work area. Stack complained repeatedly, but the store took no action to stop the co-worker’s harassment.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability, which can include denying reasonable accommodations to disabled employees and subjecting disabled employees to a hostile work environment.

The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. The case, EEOC v. Wal-Mart Stores, Inc., Civil Action No. 15-5796, was filed in U.S. District Court for the Northern District of Illinois, Eastern Division, and was assigned to U.S. District Judge Sharon Coleman. The government’s litigation effort will be led by Trial Attorney Ann Henry and supervised by EEOC Supervisory Trial Attorney Diane Smason.

“It’s hard to believe a retailer the size of Wal-Mart could not manage to consistently provide such a simple accommodation as a chair,” said John Hendrickson, the regional attorney for EEOC’s Chicago District Office. “Telling a disabled employee that she needs to drag a chair across the store every day is no accommodation at all. Employers have to provide reasonable accommodations unless doing so would be an undue hardship. EEOC is aware of no hardship that required Wal-Mart to suddenly change Stack’s schedule, deny her the use of a chair, and transfer her out of the fitting room where she had performed her job well for years.”

EEOC Trial Attorney Ann Henry commented, “No employee should have to go to work and face mocking and name calling because she had cancer. Employers who know about such vile harassment in their workplace have an obligation to stop it. Wal-Mart did not do that here, and the EEOC will seek to hold the company liable for that violation.

In July 2014, the EEOC filed a lawsuit against Wal-Mart alleging that it violated the ADA by firing an intellectually disabled employee at a Rockford Walmart store after it rescinded his workplace accommodation.

The EEOC’s Chicago District Office is responsible for processing discrimination charges, administrative enforcement and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at www.eeoc.gov.

This press release originally appeared in the EEOC Newsroom. 

ARTICLE BY U.S. Equal Employment Opportunity Commission
© Copyright U.S. Equal Employment Opportunity Commission

Uncertainty Follows Judicial Decision Enjoining DOL’s Same Sex Spouse Rule Change

Dinsmore Shohl LLP

Following Indiana Governor Mike Pence’s decision to sign the Religious Freedom Restoration Act (RFRA), a decision by Texas District Court Judge Reed O’Connor adds to the controversy and conversation surrounding the lesbian, gay, bisexual, transgender (LGBT) rights movement.

Opponents to the Indiana law say it will allow businesses to deny services to customers based on customers’ sexual orientation or gender identity and justify this denial based on religious beliefs. A day after Governor Pence signed Indiana’s RFRA into law, on March 27, 2015, the Arkansas legislature voted to enact its own religious freedom legislation known as the “Conscience Protection Act”, and the bill is currently before Governor Asa Hutchinson.

While the Arkansas Governor is set to consider religious freedoms and LGBT discrimination, Arkansas’s Attorney General has been battling the Department of Labor (DOL) in another issue impacting LGBT employees. On March 26, 2015, in Texas v. United States, N.D. Texas No. 7:15-cv-00056-O, Judge O’Connor granted an injunction to Texas, Arkansas, Louisiana, and Nebraska to temporarily halt the DOL’s Final Rule revising the definition of “spouse” under the Family and Medical Leave Act (FMLA).

The DOL’s Final Rule took effect on March 27, 2015 and changed the definition of “spouse” to include individuals in same-sex marriages if the marriage was valid in the place it was entered into regardless of where they live. The Final Rule reads as follows:

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

(1) Was entered into in a State that recognizes such marriages; or

(2) If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

29 C.F.R. § 825.102. This change enables eligible employees in legal same-sex marriages to take FMLA leave to care for a spouse with a serious medical condition. The Final Rule no longer looks to the laws of the state in which the employee resides but rather relies on the laws of the jurisdiction where the marriage was entered into–i.e. the place of celebration.

Texas law, similar to Ohio, does not recognize same sex marriage. Texas, joined by Arkansas, Nebraska, and Louisiana, argued that the DOL exceeded its jurisdiction by requiring them to violate the Full Faith and Credit Statute and/or state law prohibiting recognition of same-sex marriages from other jurisdictions. Texas argued that the Final Rule would require it to violate state law which prohibits it from giving any legal benefits asserted on the basis of a same-sex marriage. Judge O’Connor also relied on Section 2 of the Defense of Marriage Act (DOMA) to hold that Congress intended to preserve a state’s ability to define marriage differently than another state or jurisdiction. Finding that the Final Rule would require Texas agencies to recognize out-of-state same-sex marriages in violation of state law, Judge O’Connor temporarily halted the application of the Final Rule pending a full determination of this matter on the merits.

In these four states, Judge O’Connor’s decision prevents employees in same-sex marriages from receiving the benefits afforded heterosexual married couples until the issue is resolved through legal channels. However, employers are not prohibited from granting family leave benefits to qualifying employees to care for a loved one. Despite the decision—only applicable in four states—the Final Rule is currently in effect. For this reason, employers should proceed in accordance with the DOL’s regulation and fulfill its obligations to its LGBT employees by revising their family and medical leave policies and providing FMLA benefits to employees in legal same-sex marriages.

ARTICLE BY

Anjali Chavan
Sadhna G. True
Dinsmore & Shohl LLP

Utah Passes Law Prohibiting LGBT Employment Discrimination

Squire Patton Boggs (US) LLP law firm

On March 12, Utah Governor Herbert signed into law S.B. 296, which amends the Utah Antidiscrimination Act to prohibit discrimination in employment by Utah employers on the basis of sexual orientation and gender identity. Notably, and perhaps not surprisingly given that 60% of Utah residents identify as Mormons, although the law had the support of the Church of Jesus Christ of Latter-Day Saints, it exempts from coverage religious institutions, organizations, and affiliates (as well as the Boy Scouts of America) from its definition of employer.

It also allows for employee expression of religious or moral beliefs in the workplace – which would appear to include opposition to LGBT issues or lifestyles – as long as such expression is “reasonable, non-disruptive and non-harassing.” In passing this law, Utah becomes the 18th state (including the District of Columbia) to adopt LGBT anti-discrimination legislation. (LGBT discrimination is also prohibited against federal employees pursuant to Executive Order 13672, signed by President Obama in June 2014.)

ARTICLE BY

Daniel B. Pasternak
Squire Patton Boggs (US) LLP

Oregon’s Same-Sex Marriage Ban Unconstitutional, Judge Rules

Jackson Lewis Law firm

 

Oregon’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantee of equal protection, newly appointed U.S. District Court Judge Michael McShane has held in a case filed on behalf of four couples in Multnomah County. Geiger v. Kitzhaber, No. 6:13-cv-01834-MC (May 19, 2014).

Judge McShane explained the measure discriminates against same-sex couples. “The state’s marriage laws unjustifiably treat same-gender couples differently than opposite-gender couples. The laws assess a couple’s fitness for civil marriage based on their sexual orientation: opposite-gender couples pass; same-gender couples do not. No legitimate state purpose justifies the preclusion of gay and lesbian couples from civil marriage.”

A state Constitutional amendment, enacted pursuant to a 2004 ballot initiative organized and sponsored by the Defense of Marriage Coalition, had prohibited same-sex marriage, stating that only “marriage between one man and one woman shall be valid or legally recognized as a marriage.” This initiative and the subsequent Constitutional amendment were in response to the Multnomah County commissioner’s decision to issue marriage licenses to same-sex couples. During the Geiger litigation, Oregon’s Attorney General stated she found it impossible to legally defend the ban because “per- forming same-sex marriages in Oregon would have no adverse effect on existing marriages, and that sexual orientation does not determine an individual’s capacity to establish a loving and enduring relation- ship.” With Geiger, and the U.S. Supreme Court’s 2013 decision in United States v. Windsor invalidating the federal Defense of Marriage Act, same-sex marriage is valid under Oregon state and federal law.

Further, although Oregon enacted a domestic partnership law in 2008, the Family Fairness Act, granting domestic partners similar rights and privileges to those enjoyed by married spouses, the Legislature acknowledged domestic partnerships did not reach the magnitude of rights inherent in the definition of marriage. For example, same-sex couples in Oregon were not entitled to the rights or benefits under the federal Family and Medical Leave Act because Department of Labor guidance recognizes same-sex marriage only if valid under the employee’s state of residence. The DOL, however, has proposed a rule expanding the term “spouse” and, if implemented, will recognize same-sex marriages when recognized in the couple’s state of residence or if performed in a state recognizing same-sex marriage. According to the Secretary of Labor, “The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver. Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.” No changes have been proposed, however, for purposes of the Employment Retirement Income and Security Act (“ERISA”), the federal law governing employee benefit plans. The DOL counsels employers that, for purposes of ERISA, same-sex marriage should be recognized if valid in the state it is performed.

While Geiger will simplify the legal landscape, employers should review policies, procedures, and benefit plans closely to ensure that same-sex spouses are treated equally in all respects. In addition, Oregon law further prevents employment discrimination based on sexual orientation and family status. Requiring same-sex couples to “prove their status” or take other similar measures that are not required of opposite-sex couples may increase the risk of potential litigation under these laws.

Mei Fung So contributed to this article. 

ARTICLE BY

Scott Oborne
Bryan P. O’Connor
Roger S. Kaplan
 
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Jackson Lewis P.C.