sexual orientation discrimination

The New York City Commission on Human Rights (the “Commission”) has adopted new rules (“Rules”) which establish broad protections for transgender, non-binary, and gender non-conforming individuals. The Rules, which define various terms related to gender identity and expression, re-enforce recent statutory changes to the definition of the term “gender,” and clarify the scope of protections afforded gender identity status under the New York City Human Rights Law. New York State also just added gender identity and expression as protected classifications under the state Human Rights Law, following the adoption of the Gender Expression Non-Discrimination Act.

The Rules incorporate key pieces of community feedback following a public hearing on the proposed rules. Most notably, the Rules have been updated to explicitly include non-binary identities. Under the Rules, “non-binary” is defined as “a term used to describe a person whose gender identity is not exclusively male or female. For example, some people have a gender identity that blends elements of being a man or a woman or a gender identity that is neither male nor female.” Furthermore, non-binary individuals are now also included in the Rules’ examples section, which illustrates possible violations of the prohibition on discrimination based on gender. For instance, deliberately using the pronoun “he” for a non-binary person who is perceived as male but has indicated that they identify as non-binary and use the pronouns “they,” “them,” and “theirs” is identified as an example of misusing individual’s chosen name, pronoun, or title, along with deliberately calling a transgender woman “Mr.” after she has made clear that she uses female titles.

The Commission has also added a list of terms typically associated with gender expression, such as “androgynous,” “butch,” “feminine,” “femme,” “gender non-conforming,” and “masculine,” to the existing definition of gender expression. Terms associated with gender identity, such as “agender,” “bigender,” “woman,” “gender diverse,” “gender fluid,” “gender queer,” “man,” “man of trans experience,” “pangender,” and “woman of trans experience” have similarly been added to the definition of gender identity.

While the Rules have added some important language, the key takeaways remain the same. As the proposed rules initially laid out, deliberate misuse of an individual’s chosen name, pronoun, or title, refusing to allow individuals to use single-sex facilities or participate in single-sex programs consistent with their gender identity, imposing different dress or grooming standards based on gender, and refusing a request for accommodation on the basis of gender will all be considered violations under the Rules. Additionally, covered entities must provide equal employee benefits, regardless of gender, such as ensuring that the health plans they offer provide gender-affirming care.

The Rules will go into effect March 9, 2019.

On June 4, the Supreme Court voted 7-2 in favor of a Christian Colorado baker and owner of Masterpiece Cakeshop, who had refused to create a custom wedding cake for a gay couple due to his religious objections to gay marriage.

Although the case previously had been litigated on free speech grounds, the Court’s opinion largely avoids this constitutional question, and does not address whether Title VII prohibits discrimination based on sexual orientation. Instead, the decision focuses on the Colorado Civil Rights Commission’s decision finding against Masterpiece Cakeshop and, more specifically, what Justice Kennedy described as the Commission’s “impermissible hostility” as to the baker’s religious beliefs.

In the underlying administrative proceeding that preceded the Masterpiece Cakeshop lawsuit, the Commission found that Masterpiece Cakeshop engaged in religious bias in violation of the First Amendment’s free exercise clause. In its impassioned decision, one of the Commission members rejected the breadth of the free exercise clause as a justification for Masterpiece Cakeshop’s actions, noting that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust.” In dissent, Justice Ginsburg, joined by Justice Sotomayor, wrote that such comments in the Commission’s decision should not be “taken to overcome” Masterpiece Cakeshop’s conduct, given the “several layers of independent decision-making” throughout the various hearings leading up to the Supreme Court decision. Justice Ginsberg added that unlike other cases addressing freedom of religion (for example, where religious customers have requested anti-gay messages from secular bakers), here, the circumstances were fundamentally different because Masterpiece Cakeshop regularly made the kind of cake the couple requested and refused to sell it to them simply because of their sexual orientation.

The Court’s decision is narrowly tailored, however, and leaves open the broader constitutional issues of sexual orientation discrimination and free exercise of religion. In addition, the ruling’s effect on employers may be limited due to the extremely fact-specific nature of the decision. In fact, while the scope of Title VII, has recently been expanded by Circuit Courts to include LGBT workers, has not been considered by the Supreme Court and therefore all lower court precedents still apply. For example, the U.S. Supreme Court has refused to take any action in a pending case involving a Washington florist who refused to provide arrangements for a same-sex wedding, which presented similar constitutional issues as Masterpiece Cakeshop. Stay tuned for any further updates addressing these important issues.

So far, 2018 has brought an increasing number of labor and employment rules and regulations. To help you stay up to date, we are pleased to introduce the Employment, Labor & Workforce Management Webinar Series.

Epstein Becker Green’s Hospitality service team took a deeper dive into our recently released Take 5 during the first webinar. Topics discussed include:

  • Additional measures to protect lesbian, gay, bisexual, and transgender employees in the hospitality workplace
  • Compliance training in the hospitality workplace
  • Transactional due diligence, including labor relations issues
  • The risk of self-reporting overtime and minimum wage violations under the Payroll Audit Independent Determination (PAID) program

Watch a recording of the webinar video here and download the webinar presentation slides.

Featured on Employment Law This Week: Second Circuit: Title VII Covers Sexual Orientation Discrimination.

“Legal doctrine evolves.” Those words from the Second Circuit spoke volumes as the court ruled that Title VII of the Civil Rights Act prohibits sexual orientation discrimination, overturning their own long-standing precedent. The court ruled in favor of a skydiving instructor who claimed he was fired for telling a client he was gay.

The majority opinion began by looking at whether sex is a motivating factor in the alleged unlawful practice. And, in this case, looking at sexual orientation discrimination, the court concluded that sex is a factor and inextricably linked to sexual orientation, and therefore sexual orientation acts as a proxy for sex. The Second Circuit now joins the Seventh Circuit in finding that Title VII does protect against sexual orientation discrimination, and deepens a circuit split with the Eleventh Circuit, which went the other way last year.

Watch the segment below and read our recent post.

Our colleague Linda B. Celauro, Senior Counsel at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the hospitality industry: “Seventh Circuit Panel Finds That Title VII Does Not Cover Sexual Orientation Bias.

Following is an excerpt:

Bound by precedent, on July 28, 2016, a panel of the U.S. Court of Appeals for the Seventh Circuit held that sexual orientation discrimination is not sex discrimination under Title VII of the Civil Rights Act of 1964. The panel thereby affirmed the decision of the U.S. District Court for the Northern District of Indiana dismissing the claim of Kimberly Hively, a part-time adjunct professor at Ivy Tech Community College, that she was denied the opportunity for full-time employment on the basis of her sexual orientation.

The importance of the Seventh Circuit panel’s opinion is not in its precise holding but both (i) the in-depth discussion of Seventh Circuit precedence binding it, the decisions of all of the U.S. Courts of Appeals (except the Eleventh Circuit) that have held similarly, and Congress’s repeated rejection of legislation that would have extended Title VII’s protections to sexual orientation, and (ii) the multifaceted bases for its entreaties to the U.S. Supreme Court and the Congress to extend Title VII’s prohibition against sex discrimination to sexual orientation discrimination.

The Seventh Circuit panel highlighted the following reasons as to why the Supreme Court or Congress must consider extending Title VII’s protections to sexual orientation …

Read the full post here.