50 for 50: Five Decades of the Most Important Discrimination Law Developments

Number 20:  Bipartisan Gridlock Prevents Sexual Orientation From Becoming A Protected Class 

The Employment Non-Discrimination Act (ENDA), if passed, would become the first federal legislation that prohibits employers from discriminating against individuals based on their actual or perceived sexual orientation and/or gender identity.  Several states, including California, have already passed similar legislation.  The California legislature amended the Fair Employment Housing Act in 2000 to include sexual orientation as a protected class, and again in 2004 include gender (and gender identity) as a lawful basis for employment discrimination claims. On the federal level, however, Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based only on race, color, religion, sex and national origin, falls short of extending these protections to transgender individuals.  Due to the bipartisan gridlock, ENDA has failed to afford these protections as well.

While 21 states have passed non-discrimination laws that cover sexual orientation and/or gender identity, similar efforts by the federal government have been unsuccessful for nearly two decades, and history appears to be repeating itself.  ENDA passed easily through the Senate last November, but the bill has since been languishing in the House.

Both the Senate and House have their own versions of ENDA.  They at least agree that the bill should (a) be limited to claims of disparate treatment, (b) exempt the military and religious organizations from the legislation, and (c) prohibit the Equal Employment Opportunity Commission (EEOC) from compelling employers to collect statistics on sexual orientation or gender identity.  However, this may be the only agreement Congress has on ENDA.

But regardless of whether ENDA becomes legislation, employers should take note of the federal trend in favor of protecting sexual orientation and gender identity in the workplace.  Specifically, the Equal Employment Opportunity Commission (EEOC) recently has been expanding VII to include sexual orientation and gender identity as protected classes.  On April 20, 2012, the Commission in See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), held that transgender individuals may state a claim for sex discrimination under Title VII.  More recently, on August 13, 2013, the EEOC Office of Federal Operations (OFO) in Couch v. Department of Energy, EEOC Appeal No. 0120131136, found that “Title VII’s prohibition on the basis of sex includes discrimination on the basis of ‘gender’ . . . [and] fail[ure] to conform to gender-based expectations.”

- Ferry Lopez

50 for 50: Five Decades of the Most Important Discrimination Law Developments

Number 19:  HIV/AIDS Is a Protected Disability Under The ADA

The social, economic and public health effects of the AIDS epidemic in the 1980s propelled public health and community-based organizations to join forces and advocate for the passage of a federal anti-discrimination law.  Indeed, the legislative history of the Americans with Disabilities Act (“ADA”) makes clear that prohibiting discrimination against persons living with HIV/AIDS was one of its objectives.     Continue reading

50 for 50: Five Decades of the Most Important Discrimination Law Developments

Number 18: When Is An Employer Liable For Harassment By Its Employees?

Although Title VII was passed in 1964, it wasn’t until 1998 that the United States Supreme Court handed down two significant decisions in the companion cases of Faragher v. Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), that finally clarified certain issues of liability for employers.  Indeed, the Court noted in the Faragher decision that “[w]hile indicating the substantive contours of the hostile environments forbidden by Title VII, our cases have established few definite rules for determining when an employer will be liable for a discriminatory environment that is otherwise actionably abusive.”  Continue reading

50 for 50: Five Decades of the Most Important Discrimination Law Developments

Number 16: Employers Fight Against Title VII Lawsuits With Summary Judgment

Summary judgment motions have long been in the toolkit for employers to combat weak and frivolous Title VII claims brought by their former (and sometimes, current) employees.  But that was not always the case, and recent developments in the case law may change that.  Prior to 1986, perceived judicial hostility toward summary judgment motions and the onerous burdens of proof imposed on a moving party discouraged the use of summary judgment procedure.  In what appears to be in connection with increasingly crowded dockets and rising litigation costs, the Supreme Court decided three cases in 1986 – Matsushita Electric Industrial Co. v. Zenith Radio Corp., Anderson v. Liberty Lobby, and Celotex v. Catrett—that changed the manner in which courts approach summary judgment, paving the way for defendants to obtain summary judgment in federal court.  Shortly thereafter, Congress enacted the Civil Rights Act of 1991, which provided for jury trials for employment discrimination cases and incentivized employers and courts alike to resolve more employment cases before trials.  Continue reading

50 for 50: Five Decades of the Most Important Discrimination Law Developments

Number 15: Affirmative Action For Federal Contractors And Subcontractors

Within months of signing Title VII into law, President Lyndon B. Johnson signed Executive Order 11246 on September 24, 1965, establishing requirements for ensuring non-discriminatory practices on four grounds (race, color, religion and national origin) and requiring federal contractors to take affirmative action to promote equal opportunity in hiring and employment.  Continue reading

50 for 50: Five Decades of the Most Important Discrimination Law Developments

Number 14:  Discrimination Laws Apply To State And Local Government Employees

Title VII, as enacted in 1964, had a rather large coverage gap: millions of American workers employed by State and local governments were not covered.   Why?  The principal reason was State sovereignty, and the notion that subjecting state and local government employment to this type of federal scrutiny would violate the Constitution’s dual sovereignty requirements between the States and Federal Government. Continue reading

50 for 50: Five Decades of the Most Important Discrimination Law Developments

Number 12: The FMLA Becomes Law In 1993

Just over twenty years ago, employees who needed to take time off work for an extended period to tend to their own or family members’ health had no national law guaranteeing they could take a leave of absence with the comfort of knowing that their job would still be there when they were able to return to work.  Before the Family and Medical Leave Act became law in 1993, if an employer declined to allow the employee to take medical leave, employees were forced to choose between keeping their job and caring for themselves or their family.  Working moms who worked for a company that did not provide significant maternity leave felt that they did not have adequate time to care for and bond with their new baby.  Paternity leave was practically unheard of. Continue reading

50 for 50: Five Decades of the Most Important Discrimination Law Developments

Number 11: Workplace Investigations and the Good Faith Standard

Allegations of employee misconduct – particularly as they relate to claims of discrimination and harassment – have been raised in the workplace ever since the Civil Rights Act was passed.  But human resource executives were not originally trained to be workplace investigators.  They already had a panoply of legal requirements to maintain.  With the Civil Rights Act came the new challenge of figuring out an effective way to objectively investigate these claims while at the same time minimizing the risk of possible litigation.  Continue reading