U.S. Supreme Court to Decide if Title VII Protects LGBTQ Employees

April 29, 2019

Last week I discussed whether “heterosexuals” were a protected class. Well, the Supreme Court must have read my blog! Last week the Justices agreed to hear appeals in three cases, to decide whether Title VII’s prohibition against “sex discrimination” expressly includes prohibitions against LGBTQ discrimination.

Currently, only 21 states have statutes that protect against both sexual orientation and gender identity discrimination in employment in the public and private sector. For the other 28 states how SCOTUS decides these issues under Title VII has huge legal consequences.

To recap where we are: Title VII does not expressly prohibit discrimination on the basis of LGBTQ status. However, a majority of courts that have looked at this issue (but not all), and the EEOC, conclude that Title VII’s definition of sex includes LGBTQ rights.

Barstock and Zarda stand on opposite sides of this issue—the former holding that Title VII’s definition of “sex” does not, as a matter of law, include “sexual orientation,” and the letter saying otherwise. Harris Funeral Homes reached the same conclusion as Zarda, but on the issue of gender identity (i.e., transgender status and transitioning identity).

It’s too early to say how SCOTUS will rule, but the Justices to watch are Chief Justice John Roberts, the current ideological center of the Court, and Justice Kavanaugh, the Court’s newest Associate Justice.

Chief Justice Roberts wrote a passionate dissent against a constitutional right to same-sex marriage in Obergefell v. Hodges. Will his ideology change when the issue moves from the bedroom and the Constitution to the workplace and a statute? Only time will tell.

Justice Kavanaugh, who never offered a public opinion on this issue, is very much a wildcard because he has never ruled on an LGBTQ rights case and has made very few public statements on LGBTQ issues, so it is hard to determine what his views are. He also may be disinclined to lead in very different directions than Justice Kennedy, who was his mentor, for whom he clerked, who swore him in, and whose seat he is filling.

However, keep in mind, as an employer you could short-circuit all of this legal wrangling simply by not discriminating on the basis of sexual orientation and gender identity. Your employees are your best asset no matter who they are. No employee should suffer at work because of the gender of the person they love, or because of the gender with which they identify. Nothing SCOTUS says about this issue will change the way people feel about another but within the confines of the workplace it is important for every employee to be respected.

Some states, like California, now require employers to conduct sexual orientation training for employees. Again, in my opinion, this is not a bad thing. The more education managers receive, the less litigation a business may encounter. Do the math.

Heterosexuals NOT Protected by Title VII!

April 22, 2019

An interesting scenario where an employee posted an “anti-LGBTQ” rant on her personal Facebook page. The owner of the company she worked for was a lesbian, read the post, and took offense to it. In response, the owner disciplined the employee and later fired the employee for complaining about the disciplinary action.

The issue was, “can the employee sue for retaliation” under Title VII? In other words, does Title VII protect heterosexuals from discrimination in reaction to anti-LGBTQ speech?

In O’Daniel v. Industrial Service Solutions, the 5th Court Circuit of Appeals said “no.”

The case put the heterosexual plaintiff, in the position of arguing that Title VII protects against discrimination on the basis of sexual orientation.

The Court held that under its own precedent, the plaintiff could not move forward on her claim.

The plaintiff claims, in essence, that she was retaliated against because she “opposed” discrimination perpetrated against her on the basis of her heterosexual orientation.… Title VII in plain terms does not cover “sexual orientation.” … Because the law in this circuit is clear, we cannot accept O’Daniel’s … suggestions that this panel either overrule the precedents or assume arguendo that the “trend” has upended them.

Therefore, because the 5th Circuit does not recognize sexual orientation as class Title VII protects, and employee’s complaints about her employer discriminating against her because she is heterosexual could not support a retaliation claim: “Title VII protects an employee only from retaliation for complaining about the types of discrimination it prohibits.”

Two points to make about this opinion.

First, if Title VII equates LGBTQ discrimination to “sex” discrimination (as I believe it does and so does the EEOC), then logic says that it must also protect heterosexuals from discrimination at the hands of the LGBTQ community because of their sexual orientation. Any other result is logically inconsistent.

Secondly, this employee was not fired because she complained about discrimination. She was fired because she exhibited extremely poor judgment through her Facebook rant. As the concurring opinion succinctly and correctly states: “Simply put, Title VII does not grant employees the right to make online rants about gender identity with impunity.” If the employee ranted against interracial marriage, and the company’s African-American owner fired her, would anyone think she has a valid claim? This case is no different. The law protects the employee from discrimination and retaliation, but it does protect the employee’s right to express bigoted views, on her personal Facebook page or otherwise.

This is interesting because there are cases out there that have suggested/held employers cannot take action against employees for social media comments because of 1st Amendment protections.

Department of Labor Proposed Changes!

April 8, 2019

Recently, the Department of Labor announced proposals for significant (and much needed) regulatory updates to the definitions of “regular rate” and “joint employer”.

The DOL proposed an update to the definition of “regular rate” under the Fair Labor Standards Act.

The proposal would permit employers to exclude the following from an employee’s regular rate of pay thereby not having to include the below items in the calculation of overtime:

  • the cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services;
  • payments for unused paid leave, including paid sick leave;
  • reimbursed expenses, even if not incurred “solely” for the employer’s benefit;
  • reimbursed travel expenses that do not exceed the maximum travel reimbursement permitted under the Federal Travel Regulation System regulations and that satisfy other regulatory requirements;
  • discretionary bonuses;
  • Benefit plans, including accident, unemployment (federal, not state), and legal services; and
  • Tuition programs, such as reimbursement programs or repayment of educational debt.

This change, if finalized, would be significant, as it would exclude these items of compensations from non-exempt employees’ overtime pay. According to the DOL, this change is needed to encourage employers to offer more financial perks to their employees, as, under the current rules, employers don’t offer these perks out of a fear that it will lead to increased overtime pay. Keep in mind, an individual state, may still include any of the above. As an example, California employers have to include bonuses in the calculation of overtime.

Secondly, the DOL proposed a new four-factor test to determine whether two entities are joint employers over the same employees. Under this proposed new test, to qualify as a joint employer, the entity would have to “actually exercise the power” to:

  • hire or fire employees;
  • supervise and control employees’ work schedules or conditions of employment;
  • determine employees’ rate and method of payment; and
  • maintain employees’ employment records.

This change, if finalized, would also be significant, as it would limit a potential joint employer’s exposure for wage and hour liabilities of the primary employer. This would be an excellent benefit for employers and would substantially reduce the risk of class action lawsuits.

I will keep you posted!