Individuals have traditionally identified with binary sets of pronouns based on male and female gender expressions (i.e. he/him/his and she/her/hers). Increasingly, many individuals are expressing that they do not identify as either a “man” or “woman.” An estimated 11 percent of individuals who identity as LGBTQ in the United States (i.e., approximately 1.2 million people), identity as nonbinary, according to a recent study. The vast majority (76 percent) are between the ages of 18 and 29, the study found.
It is increasingly common for these individuals to go by gender-neutral, nonbinary pronouns, including they/them/theirs. Many others go by other nonbinary pronouns, such as ze (or zie)/zir/zirs; ne/nir/nirs; xe/xem/xir; and ve/ver/vis, or a growing set of nonbinary pronouns that are resurfacing or newly appearing within the U.S. vernacular. Similarly, honorifics, such as Mr., Miss, Mrs., Ms., Sir, and Madame reflect a binary gender view leading some individuals to go by “Mx.,” “Fren,” or another gender-neutral honorific.
The issue has particular significance for employers since the June 2020 decision by the Supreme Court of the United States in Bostock v. Clayton County, Georgia, which found that discrimination against gay and transgender individuals is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. The high court reasoned that an adverse action against an individual because the individual is gay or transgender is a form of discrimination based on sex “because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” However, the Court left open several questions on how the ruling applies to sex-segregated restrooms, dress codes, grooming standards, and pronouns.
Following the decision, the Equal Employment Opportunity Commission (EEOC) issued new guidance on June 15, 2021, taking the position that “intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment” in violation of Title VII. This suggests there could be potential liability for employers who refuse to use a nonbinary employee’s correct pronouns. Further, while Title VII does not cover every employee in the United States, many state and local laws, such as California’s Fair Employment and Housing Council’s regulations and the New York City Human Rights Law (NYCHRL), provide similar or greater protection from gender identity discrimination.
Best Practices
It is increasingly becoming a commonplace practice for companies to permit employees to include their pronouns in their email signatures or on their social media profiles. This trend might just be the start. In light of the evolving movements in these areas, some employers may be struggling with how to support nonbinary individuals in their workplaces.
Safe Spaces
Some employers will take the stance that it is important to provide safe spaces for employees to identify their pronouns without pressure or the worry of retaliation in order to maintain an inclusive environment. Employers may further want to consider additional training for supervisors and other employees on how to handle everyday interactions regarding pronoun use. For example, employers may want to encourage employees to be comfortable with apologizing and correcting themselves if the wrong pronoun is used. This may be an especially important subject if an employee had started at the company using one set of pronouns and later realizes a different gender identity during the course of employment. A diversity, equity, and inclusion (DEI) committee or diversity liaisons can guide employers in facilitating these conversations.
Privacy Concerns
At the same time, employers are faced with the tension of ensuring respect for each individual’s privacy. In this regard, employers may want to be conscious that individuals generally will not want to be into a situation in which they must choose between using a nonbinary pronoun or facing inappropriate questions about their choice from management or co-workers. It may be necessary to keep pronoun sharing optional and to encourage employees to default to gender-neutral language where possible.
Gender-Neutral Corporate Communications and Record-Keeping
The Biden Administration, in March 2022, announced a series of federal government policy changes to allow U.S. citizens to identify as nonbinary, including allowing U.S. citizens to select an “X” gender marker on their U.S. passport applications. In accordance, the EEOC also announced that it would provide the option to use a nonbinary gender marker in the filing of a charge of discrimination. Several states have further allowed the use of a gender-neutral marker on state identity documents, including drivers’ licenses. Given these developments, employers may also want to consider using gender-neutral language in communications and updating their human resources demographic record-keeping procedures to allow for employees to be identified as nonbinary or with a gender-neutral marker.
Key Takeaways
The Bostock decisions and the proliferation of state and local anti-discrimination laws may require that employers make efforts to allow employees to share and be addressed by nonbinary pronouns. This could be critical in employer recruiting and retention with younger generations entering the workplace that are increasingly comfortable with expressing their nonbinary gender. Also, it is clear that accurate or appropriate pronouns and honorifics will continue to change. Employers may want to remain ready to adjust in this rapidly evolving space in order to provide inclusive environments and keep workplaces free of harassment and discrimination.
Companies seeking to create more inclusive workplaces for nonbinary individuals can find further information and guidance from a number of organizations that provide educational resources and technical assistance.
The legal industry continues to respond to larger forces in society, and along with our usual focus on law firm moves, hires, and accolades, we take a look at the specific ways law firms are pledging to combat racism and fight for social justice in their communities and across the country.
Law Firm Moves, Hires and Recognitions
Down in Texas, Erin England joined Katten’s Dallas office as a partner in the firm’s commercial finance practice. England represents alternative lending institutions and banks in negotiating and structuring domestic and international commercial transactions. She also has experience in the real estate finance industry, representing lenders and borrowers in real estate and construction loans involving retail space and industrial properties.
“In the last two years, we’ve added leading attorneys like Erin in key growth areas such as commercial finance,” said Mark S. Solomon, managing partner of Katten’s Dallas office. “As an active member of several organizations committed to the hiring, retention, and promotion of diverse lawyers, Erin also shares in Katten’s deep commitment to diversity and inclusion, which is a fundamental part of the culture in our Dallas office.”
Michael Gaston-Bell of Katten
Also joining the Katten Dallas is Michael Gaston-Bell, who is the first labor and employment attorney in the firm’s Dallas office. His previous experience includes representing clients on Title VII, Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA) and the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA) workplace matters in state and federal court, and working with corporate leadership on complex and often crisis level employment issues, including internal investigations, unfair competition and major transactions in health care, entertainment, banking, military contracting and retail industries.
“Michael is a talented attorney who will offer our clients in Dallas and across the country exceptional employment litigation counsel,” said David Crichlow, national chair of Katten’s Commercial Litigation group. “He has the skills to succeed and a track record for being a true advocate of his clients who often face tough, complicated issues.”
Katten opened the firm’s Dallas office with seven partners in 2018 and has grown to over 40 attorneys in the past two years.
George Howard joined the Restructuring & Reorganization practice of Vinson & Elkins (V&E) in their New York City office as a partner. Howard represents distressed debt investors, asset purchasers, companies, banks and secured lenders in out of court restructurings, chapter 11 reorganizations, distressed M&A, cross-border insolvency proceedings, and secured financing transactions.
“We are focused on growing the firm’s restructuring team particularly to meet increasing client demand for company and debtor side representations,” said V&E managing partner Scott Wulfe. “George is a great addition to the team not only because of his significant debtor experience, which perfectly complements our existing strengths but also because he is a natural team player and a great cultural fit for V&E.”
Matt Jones Ropes & Gray
Ropes & Gray’s Chicago office added Matthew (Matt) R. Jones to the firm’s employment, executive compensation, and benefits practice group. Jones advises private equity firms and their portfolio companies on executive compensation in relation to complex commercial transactions. Jones also advises clients on Securities and Exchange Commission executive compensation arrangement reporting obligations.
“We are very excited that Matt has joined the firm,” said global private equity practice co-chair Neill Jakobe. “Chicago is a priority market for our clients and our firm, and it is critical that we continue to attract the top talent in this market. Matt is an exceptional fit from a strategic and cultural perspective and he will further enhance the value we deliver to our clients locally, and globally.”
Christopher Passodelis Jr., James M. Sander, Brandon T. Uram and Megan L. Tymoczko-Korch joined Steptoe & Johnson PLLC, working remotely from the firm’s Southpointe office in Canonsburg, Pa., with plans to move to the downtown Pittsburgh office this fall. All four attorneys practice in the firm’s Business Department, handling business transactions and corporate services and tax. Uram focuses his practice on transactions and business litigation.
“Chris, Jim, and Megan bring an entrepreneurial spirit and many decades of diverse experience representing businesses large and small to our firm. Brandon is a creative and fierce advocate for clients who are faced with litigation,” said CEO Susan S. Brewer. “As Steptoe & Johnson grows its presence in western Pennsylvania, they will play a key role in helping us meet our clients’ needs.”
Immigration attorney Sarah Hawk joined Barnes & Thornburg (B&T) as a partner, along with Of Counsel Terra Martin and Paralegal Elizabeth Wei. She has 20 years of corporate immigration experience representing universities, corporations, and individuals, and leads the firm’s Southeastern immigration practice.
“In this critical time, we couldn’t ask for a better resource for our clients than Sarah,” said B&T’s labor and employment department leader Kenneth Yerkes. “COVID-19 has complicated many employees’ immigration statuses, whether it stems from remote work, reductions in force, border closings or shortened internship programs.”
David F. Johnson of Winstead was named to the Board of Directors for the Texas Board of Legal Specialization (TBLS). Established in 1974, the TBLS is a certifies lawyers and paralegals in their specific area of law, bestowing certification upon demonstration of expertise, after passing a rigorous exam and demonstration of completion of CLE continuing education credits. Out of 110,000 attorneys licensed to practice in Texas, only 7400 are board-certified. Johnson, who writes extensively on Fiduciary law in Texas, is also Board Certified in Civil Appellate Law, Civil Trial Law, and Personal Injury Trial Law. He will serve a three-year term on the TLBS beginning July of 2020.
Law Firm Contributions to Social Justice
Law firms have responded in a variety of ways to the recent protests, civil upheaval, and calls for change surrounding the murder of unarmed minorities at the hands of police. Many law firms announced Juneteenth observances, and encouraged their employees to use the day as a chance to reflect on how to best encourage tolerance and justice in their lives and through their legal work.
Below is a sampling of some initiatives, pro-bono efforts, and other steps towards positive change announced by law firms.
One thousand attorney law firm BakerHostetler announced the firm’s intention to develop firm-wide plans to become a more “inclusive, diverse and successful place to work and thrive.” The firm announced plans to partner with civil and human rights organizations to develop an environment welcoming of honest conversations about race and discrimination, as well as resources to educate firm-wide to effect change. As an initial step, the BakerHostetler Foundation is donating $100,000 to the Equal Justice Initiative, a non-profit dedicated to justice, ending mass incarceration and police reform. Along with the donation, BakerHostetler acknowledges “like many other law firms, we have work to do to increase diversity among our attorneys and leadership, and we will not stop working to address these issues.”
A global law firm focused on technology and innovation, Orrick has also announced plans to advocate for racial equality and diversity in the legal industry. Along with increased resources devoted to the firm-wide pro-bono program, Orrick Cares, Orrick has also announced the Orrick Racial Justice Fellowship Program. This program will allow at least five attorneys within the firm to devote a year each to focus on social justice and civil rights issues.
Additionally, two associates with Orrick, Tatyanna Senel and Yasmina Souri rallied almost 1,000 attorneys to provide pro-bono representation to protesters in Los Angeles. Senel and Souri helped formalize a working relationship between Orrick and the National Lawyers Guild, an established bar association with a mission of using the power of the law for the people, by bringing together lawyers, law students, legal workers and jailhouse lawyers to work together on a wide spectrum of issues, and create change on the local, regional, national and international levels. The National Lawyers Guild (NLG) is one of the most progressive bar associations in the country, as well as one of the oldest, and the first to be racially integrated. Additionally, Senel and Souri activated their own networks to rally friends and colleagues to the cause. Senel says, “We’re [Senel and Souri] both passionate about the message, and we felt like there was something we could do with our law degrees.”
According to the LA Times, almost 3,000 protesters were arrested in Southern California during the upheaval surrounding George Floyd’s death. Through this partnership, NLG is able to deploy almost 1,000 attorneys with varying levels of expertise to provide legal defense to protesters arrested. Criminal Defense attorneys will handle the more complex matters, while attorneys with limited or no experience in criminal law will handle lower-level issues, like curfew violations. Additionally, the volunteers will provide training on how to act as a legal observer.
Wiggin and Dana LLP, in response to racial inequalities brought to the forefront by recent events, has announced the Wiggin Opportunity Initiative, a pledge to provide $10 million in pro-bono legal services to minority-owned businesses over the next decade. Managing Partner, Paul Hughes, said, “While born of current events and frustrations, the firm wants to do something that will outlast the spotlight of this particular moment and support long-term improvement in opportunity and equality in our communities. By leveraging the particular skillset of our sophisticated lawyers in a sizeable, sustained and focused effort over time, we hope to make real change in a way that we could not achieve by more modest, incremental efforts.”
The next step in the initiative is to identify, through collaboration with community partners businesses that could benefit from the initiative. The legal services will be available across a variety of practice groups in order to meet a variety of needs in the business community. With a ten-year commitment, the firm is hoping to develop long-term relationships with the minority businesses to form partnerships to amplify the success of the businesses, to best impart lasting change on the landscape.
WilmerHale is a full-service, international law firm with 1,000 attorneys is focusing their racial equality efforts on police reform. WilmerHale announced their intention to donate at least a quarter of a million dollars to organizations working on police reform efforts, and select two fellows to work with civil rights groups addressing issues related to systemic racism, criminal justice and holding police accountable.
Focusing on WilmerHale’s proven track record in Police Department Counseling, the firm has established a pro bono client initiative focusing on police reform and social inequities affecting minorities, focusing on police accountability—using WilmerHale’s long-standing expertise in advising police departments in Baltimore and Chicago under Department of Justice (DOJ) investigation to assess practices and bolster public safety by helping departments adopt best practices. WilmerHale indicates these steps are just the beginning, saying: “These are our initial steps in our efforts to ensure meaningful change. We plan to build on and expand this work.”
Many law firms have announced their intention to contribute financially as well as look internally and find ways to make their own workplaces more inclusive, by formalizing initiatives to increase diverse attorney representation across the industry. In fact, to further this goal, over 125 law firms have joined the Law Firm Antitracism Alliance, with the purpose of:
. . . leveraging the resources of the private bar in partnership with legal services organizations to amplify the voices of communities and individuals oppressed by racism, to better use the law as a vehicle for change that benefits communities of color and to promote racial equity in the law.
Through coordination of Pro-bono efforts, law firms will partner with legal services organizations to “identify and dismantle structural or systemic racism in the law.”
Akin Gump, wrote an amicus curiae brief on behalf of the respondents, in conjunction with the American Historical Association, the Organization for American Historians and the Fred T. Korematsu Center for law and Equality, along with over 40 individual historians, supporting the legal challenge to the Trump Administration’s decision to rescind the DACA program. The brief looks at the historical context of decisions such as these, with a focus on the coded language and implicit bias used by the government to support policies. The brief indicates, in part:
. . . [A]mici seek to ensure that this Court understands the ways in which racially coded language has been used by government actors, both past and present, to mask illicit discriminatory motives—particularly in the immigration context, including the rescission of DACA.
Pratik Shah, co-head of Akin Gump’s Supreme Court and appellate practice, pointed out that many DACA recipients have only ever known the United States as their home, and all who earn DACA protection had done so by furthering their education or serving in the military. He says, “The Court’s decision that the administration cannot arbitrarily upend the lives of hundreds of thousands who arrived in our country as children . . . is a victory for both the rule of law and common decency.”
Yesterday, in a much-anticipated opinion, the United States Supreme Court held that federal anti-discrimination laws protect LGBTQ employees in the workplace. This ruling provides much needed clarity for employers and resolves a court split in which some federal courts recognized that federal law prohibited LGBTQ discrimination, while others (including those covering Florida, Georgia, and Alabama) stated that LGBTQ discrimination was not unlawful.
This landmark ruling, in Bostock v. Clayton County, Georgia, arises out of three different appeals. In two of the cases, the employees were fired despite having long and successful careers after their employers learned that they were homosexual. In the third case, an employee who initially presented herself as a male announced several years later that she planned to transition to “living and working full-time as a woman.” The employer terminated her immediately.
The law at issue – Title VII of the Civil Rights Act of 1964 (“Title VII”) – prohibits discrimination in employment on the basis of race, color, religion, sex and national origin. However, the law makes no mention of sexual orientation.
Nevertheless, in a 6-3 decision, the Supreme Court held that all three terminations were illegal. In doing so, the Court noted that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Although several states and municipalities have passed laws and rules prohibiting all or at least some forms of LGBTQ discrimination, this ruling clarifies that both sexual orientation discrimination and gender identity/transgender discrimination are prohibited by federal law throughout the United States.
The federal agency responsible for enforcing Title VII provides the following examples of LGBTQ-related conduct that it considers to be unlawful:
Refusing to hire an applicant because she is a transgender woman.
Firing an employee because he is planning or has made a gender transition.
Denying an employee equal access to a common restroom corresponding to the employee’s gender identity.
Harassing a woman because she does not dress or talk in a feminine manner.
Harassing a man because he dresses in an effeminate manner or enjoys hobbies that are traditionally associated with women.
Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.
Denying an employee a promotion because he is gay or straight.
Paying a lower salary to an employee because of sexual orientation.
Denying spousal health insurance benefits to a female employee because her legal spouse is a woman, while providing spousal health insurance to a male employee whose legal spouse is a woman.
Harassing an employee because of his/her sexual orientation (e.g., derogatory terms, sexually oriented comments, or disparaging remarks for associating with a person of the same or opposite sex).
Discriminating against or harassing an employee because of his/her sexual orientation or gender identity, in combination with another unlawful reason, for example, on the basis of transgender status and race, or sexual orientation and disability.
The penalties for non-compliance can be significant, including potential for significant emotional distress and other compensatory damages, punitive damages, and attorney’s fees.
This ruling is particularly significant to employers in jurisdictions like Florida that did not recognize that LGBTQ discrimination was unlawful under federal law. In light of this decision, employers should immediately take the following proactive steps to prevent and prohibit LGBTQ discrimination in the workplace:
Review your handbooks and anti-discrimination policies to ensure that sexual orientation and other LGBTQ-related status are included in your list of legally protected categories.
Consider adopting policies and procedures protecting the rights of transgender employees. For example, a transgender woman must be allowed to use a common female restroom or locker room facility, and dress code policies should permit employees to follow the dress code matching their gender identity.
Update your discrimination and harassment training modules to ensure that LGBTQ-related discrimination and harassment is addressed. Such training should include specific examples of what types of conduct could constitute unlawful discrimination. Managers and human resources personnel in particular need to be made aware that LGBTQ discrimination is unlawful and will not be tolerated.
In addition, employers will need to closely follow EEOC guidance and case law that follows this ruling. For example, as Justice Alito mentioned in his dissenting opinion, it is unclear what impact this ruling will have on employees who want their employers to pay for sex reassignment surgery and treatment.
In this episode of the Third Thursdays podcast, Ruthie Goodboe examines how religious discrimination and accommodation intersect with traditional labor law. She will cover religious accommodation under Title VII of the Civil Rights Act of 1964, best practices for handling requests for religious accommodation when an employee is governed by a collective bargaining agreement, and how Section 7 of the National Labor Relations Act comes into play with religious accommodation.
HR Professionals will soon know the answer to this question.
The United States Supreme Court is preparing to settle a contentious debate on employee protections under federal employment discrimination laws. On October 7th, the Court returned from its summer break to start the new term. The Court did not have to wait long before it tackled a complex case because on October 8th, the Court heard two major oral arguments with potentially far-reaching implications for both employers and employees. Both cases focus on the prohibitions in employment discrimination under Title VII of the 1964 Civil Rights Act (“Title VII”). Under Title VII, Congress made it illegal for employers to discriminate against employees on the basis of “race, color, religion, sex, and national origin.” The question that the Court will address is whether employment discrimination based on sexual orientation or gender identity is prohibited employment discrimination “because of sex.”
The first case the Court heard was a consolidated matter involving cases from the Second Circuit Court of Appeals (Altitude Express Inc. v. Zarda) and the Eleventh Circuit Court of Appeals (Bostock v. Clayton County, Georgia), both of which involve men who claim they were fired from their jobs because of their sexual orientation.
Second Circuit: “Sex” is Necessarily a Factor in Sexual Orientation
The plaintiff in Zarda, Donald Zarda, was a skydiving instructor, who died in 2014. Prior to his death, a female client complained that Zarda inappropriately touched her during a jump. At some point, Zarda communicated to the client that he was a homosexual and “had an ex-husband,” a practice that Zarda stated he often did with female clients to put them at ease. Altitude Express terminated Zarda in connection with the complaint; however, Zarda insisted he was fired solely because of his reference to his sexual orientation.
A federal district court granted summary judgment against Zarda, reasoning that his claim was not cognizable under Title VII. However, the Second Circuit reversed, with a majority of the court believing that sexual orientation discrimination is motivated by sex and, therefore, a “subset of sex discrimination.” Thus, the Second Circuit concluded that federal law prohibits the firing of an employee on the basis of sexual orientation. Notably, the court reached this conclusion by taking a broad interpretation of the meaning of the text “because of sex.” Specifically, the court reasoned that Title VII must protect sexual orientation “because sex is necessarily a factor in sexual orientation.”
Eleventh Circuit: Discharge for Homosexuality Not Prohibited by Title VII
The Eleventh Circuit reached the opposite conclusion in Bostock v. Clayton County, Georgia. The plaintiff in Bostock, Gerald Bostock, was a Child Welfare Services Coordinator in Clayton County for over ten years. Although Bostock had received good performance reviews for his work, an internal audit was conducted on his program’s funds. Bostock, who is gay, claimed the audit was a “pretext for discrimination against him because of his sexual orientation.” During an advisory meeting, where Bostock’s supervisor was present, at least one person criticized Bostock’s sexual orientation and his participation in a gay softball league.
After his complaint was dismissed at the district court level, Bostock appealed to the Eleventh Circuit. Referring back to a 1979 decision, the Eleventh Circuit reasoned that it had already held that “[d]ischarge for homosexuality is not prohibited by Title VII.” While hinting that this earlier ruling may have been wrong, the court held that it had no choice but to follow precedent and affirm the dismissal of Bostock’s claim.
Sixth Circuit: Discrimination on the Basis of Transgender and Transitioning Status is Necessarily Discrimination on the Basis of Sex
The second case, Harris Funeral Homesv. EEOC, presents a similar question to Zarda and Bostock. That is, whether employees can be fired based on their status as transgender.
The case involves Aimee Stephens, who was a funeral director and embalmer for R.G. & G.R. Harris Funeral Homes. While working in this position for six years, Stephens dressed and presented herself as a man without issue. However, once Stephens communicated that she wanted to live and work as a woman before having sex-reassignment surgery, she was terminated. The owner of the funeral home, a devout Christian, admitted that Stephens was fired because she “was no longer going to represent himself as a man. He wanted to dress as a woman.” The owner believed this change would violate “God’s commands.”
After Stephens filed a discrimination charge, the Equal Employment Opportunity Commission (“EEOC”) pursued a complaint on her behalf against the funeral home. In ruling in favor of the employer, the district court reasoned that transgender status is not a protected trait under Title VII and that the Religious Freedom Restoration Act (“RFRA”) precludes the EEOC from enforcing Title VII in this instance as doing so would substantially burden the employer’s religious exercise. The Sixth Circuit reversed, holding that “discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.” The court further ruled that the RFRA did not apply to protect the funeral home’s actions because the funeral home was not a “religious institution,” and Stephens was not a “ministerial employee” excluded from Title VII’s protections.
Stakeholders: States, Federal Government, Employers, and Employees
The Supreme Court’s ruling in these cases, which is expected in the spring or summer of 2020, has the potential to be monumental because of the many stakeholders involved. Currently, 21 states and the District of Columbia have barred sexual orientation and gender identity discrimination by statute or regulation, as have a number of counties and municipalities. While a few other states provide protection from this type of discrimination either by agency interpretation or court ruling, the remaining states in the country offer no protection under their state laws. This means that LGBTQ individuals who live in states such as Alabama, Florida, Georgia, Indiana, and even North Carolina (at least with respect to private employers) may have no remedy to this type of employment discrimination outside of Title VII.
Additionally, states who have passed laws in this area may face challenges in enforcing those laws if the Supreme Court decides that Title VII does not protect gay and transgender status. Many of these states lean on the EEOC’s authority to investigate claims of discrimination against companies that operate in multiple jurisdictions, and the EEOC has been successful in partnering with states to investigate discrimination claims and enforce such actions. However, states would lose EEOC assistance should the Court decide that Title VII’s scope does not extend to sexual orientation or gender identification.
Although the EEOC traditionally has been on the side of expanding Title VII protections, the federal government in the most recent litigation has aligned itself with the employers. In particular, United States Solicitor General Noel Francisco argued that Title VII’s prohibition on discrimination “because of sex” does not apply to sexual orientation or gender identity. Accepting this interpretation, Title VII is limited to barring employers from treating women different from men in the same or similar position, and vice-versa.
Equally important to the states’ and federal government’s interest is the interest of employers. Companies have lined up on both sides of the debate with over 36 briefs filed in support of Bostock and Zarda, and over 24 briefs filed in support of Clayton County and Altitude Express. For example, one brief filed in support of Bostock and Zarda includes 206 companies representing businesses such as Apple, Google, Facebook, Walt Disney, Coca-Cola, and Uber. These businesses argued that interpreting Title VII to “exclude sexual orientation or gender identity from protections against sex discrimination would have wide-ranging, negative consequences for businesses, their employees, and the U.S. economy.” In contrast, the C12 group that represents “the largest network of Christian CEOs, business owners, and executives in the United States” filed a separate brief in support of the employers arguing that interpreting “because of sex” in Title VII to include sexual orientation and gender identity ignores the natural meaning of the law, “thereby bypassing the political process, shutting down debate, preventing any accommodation of divergent views, and precluding any compromise.”
Makeup of the Court: The Deciding Vote
Prior to his retirement, Justice Anthony Kennedy was the deciding vote in several gay rights cases. However, Justice Kennedy is no longer on the bench, and these cases present the first opportunity for the public to see how his successor, Justice Brett Kavanaugh, will vote on these issues. Also, Justice Neil Gorsuch, successor to Justice Antonin Scalia, may play a key role in deciding these issues. Similar to Scalia, it is believed that Justice Gorsuch is more inclined to rule that courts should naturally interpret statutes as they were meant when enacted. Should Justice Gorsuch hold firm to this view, then there is some thought that he may conclude sexual orientation and gender identity were not meant to be included as discrimination “because of sex” under Title VII. The perspectives of these new Justices are likely to dictate the Court’s ultimate decision – a decision which may directly impact the employment landscape for years to come.
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.
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.
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.
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.
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.”
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
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.
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.
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.
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.
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.
Samantha Elauf, a practicing Muslim, applied for employment with Abercrombie. She came to the interview wearing a headscarf. The assistant store manager rated Elauf as qualified for the position, but expressed concern to her superiors that Elauf’s headscarf would violate Abercrombie’s Look Policy, which prohibits the wearing of “caps.” The term “caps” is not defined in the policy. The assistant manager also informed her superiors that she believed Elauf’s headscarf was worn pursuant to her religion. The district manager directed that Elauf be denied employment, because the headscarf would violate the Look Policy, just as any other headgear would, whether worn for religious reasons or not.
The EEOC filed suit against Abercrombie. The district court entered judgment in favor of Elauf, and a trial on damages resulted in a $20,000 award to Elauf. Abercrombie appealed to the Tenth Circuit, which reversed the district court and entered summary judgment in favor of Abercrombie. Elauf appealed to the U.S. Supreme Court.
Title VII makes it unlawful for an employer to deny employment to an applicant because the employer desires to avoid extending reasonable accommodation based on the applicant’s religious beliefs. In this case, Abercrombie argued that this prohibition applies only when the applicant requests a religious accommodation or otherwise notifies the employer of the need for an accommodation. In this case, Elauf did not at any time make a request for reasonable accommodation, and therefore, argued Abercrombie, she cannot prove that Abercrombie had knowledge of the need for accommodation, which should be a prerequisite to proving religious discrimination.
The Supreme Court disagreed. The Court held that an applicant or employee need not necessarily show that the employer had actual knowledge of the need for an accommodation, only that the need for an accommodation was a “motivating factor” in the employment decision. The Court drew a distinction between the statutory language of the Americans with Disabilities Act’s accommodation provisions, which discusses an employer’s obligations with respect to “known physical or mental limitations” (emphasis added), and with the language of Title VII’s religious accommodation provision, which is silent on the knowledge requirement. According to the Court, the rule for a failure to accommodate claim under Title VII’s religious discrimination provision is “straightforward”: an employer may not consider an applicant’s religious practice, confirmed or otherwise, as a factor in employment decisions. The Court’s opinion offers an example of an employer who assumes that an orthodox Jew who applies for employment will need Saturdays off for the Sabbath. If the employer acts on this assumption and denies the applicant employment because of it, Title VII would be violated, regardless of whether the applicant ever make a request for Saturdays off or otherwise stated a request for accommodation.
While the Court noted that an employee’s request for religious accommodation may make it easier to prove it was a motivating factor in the employer’s decision, it is not a necessary component to the claim. Thus, the Supreme Court reversed the Tenth Circuit’s decision awarding summary judgment to Abercrombie, despite the fact that Elauf never made a request for an accommodation.
Speculation About Accommodation May Be Enough
This decision has potentially far reaching effects. The Supreme Court has made clear that an individual need not use specific words or terminology relating to the need for religious accommodation, or even make a request at all, in order for liability for failure to accommodate to arise. Whether the need for accommodation is actually known, or merely speculated, assumed, or otherwise factored into an adverse employment decision, liability can arise — even if the need has not been expressed or substantiated at the time of the employment decision.
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