With the U.S. Supreme Court ruling in favor of gay marriage, many would think that equal rights would be extended to gay and lesbian men and women in most other areas of life. This would be wrong.
As it stands the laws protecting gay men and women from being free from discrimination in the workplace and housing, among other things, have continued to lag behind. The Civil Rights Act of 1964, for example, has not yet been amended to include gay men and women as a protected class.
The Civil Rights Act does not currently adequately protect sexual orientation
But, There Is Hope
In 2016 the United States Equal Employment Opportunity Commission (“EEOC)” (link) did its part to change the Federal practice in a case involving an employee who was fired for being gay. A majority panel for the agency – which considers claims of workplace harassment and discrimination under Federal law – held that Title VII of the Civil Rights Act did provide protection to individuals based upon their sexual orientation. In making this decision the panel held that sexual orientation discrimination is the same as sex discrimination under Title VII of the Civil Rights Act. The decision may be found in full here.
The EEOC interpreted the sex discrimination provision of Title VII to apply to sexual orientation and gender identity. Some courts have also protected employees discriminated against for their sexual orientation or gender identity under the sex discrimination protections on a “gender stereotyping” theory – i.e., you are being treated differently because you do not conform to typical gender stereotypes (feminine women, masculine men).
Shortly after announcing its decision, the EEOC announced that it had settled the first of its sexual orientation discrimination cases, another win for the gay community. The case, against IFCO Systems, involved a lesbian employee who was harassed by her supervisor and then fired after complaining. In the settlement with the EEOC, the company agreed to pay the employee $182,200, make a $20,000 donation to the Human Rights Campaign's equal employment program, and strengthen its workplace discrimination policies.
You can also read more about the settlement here.
This decision and subsequent settlement were a significant step for gay rights activists towards gaining equality in the workplace. What the EEOC has said is that gay men and women should now be able to bring claims for workplace discrimination, just as someone else would be able to do on the basis of race, gender, etc. Before this ruling gay men and women would have to bring claims based on complicated theories of discrimination, and these claims were often subject to dismissal.
A Victory of sorts – but the work continues
The ruling by the EEOC certainly did not hurt the movement for gay rights in the workplace, however it did not by any means make these claims easy. While the EEOC has the ability to issue agency decisions, these decisions are not binding on the Federal Courts, who are only obligated to follow the law as written – in this case the Civil Rights Act of 1964. Federal courts often take EEOC decisions seriously, and frequently side with the agency, however until the issue is addressed by a major Federal Court or Congress, the reality is that the EEOC's guidance may be applied unequally throughout the country.
In fact, we have already observed that cases are split around the country on this issue. In 2016 the Seventh Circuit Court of Appeals (encompassing Chicago) held that sexual orientation is NOT covered under Title VII unless it's under the gender stereotyping theory. The Second Circuit Court of Appeals (encompassing New York) has also said no in the past, but there is a case currently pending asking the Court to overturn its prior precedent. This case (Christiansen v. Omnicom Group) was argued in January 2017, but there is no decision yet. It is very likely that this or another case will arrive at the United States Supreme Court in short order.
Note: At D'Orazio Peterson we believe strongly in equal rights. If we feel that you have been wronged, and that there is sufficient proof, we are willing to pursue claims with the EEOC.
New York Providers Greater Protection
Contrary to federal law, the New York Human Rights Law does consider sexual orientation to be a protected class, and therefore entitled to the same protections as other protected classes under New York State law.
This means that if you are a New York State employee, who works for a company with 4 or more employees, you are protected from discrimination in hiring, firing and generally being able to perform you job without harassment.
FAQ's about sexual orientation discrimination
Q: But if I'm only protected by New York law, what can I do if I was subjected to discrimination based upon my sexual orientation?
The fact that there are currently no protections under federal law will not prevent you from pursuing a claim in New York State Court. It simply means that this would be your primary outlet (leaving aside the possibility of pursuing a claim with the EEOC). You would have the option under New York law of filing a complaint with the NYS Division of Human Rights (link), or going directly to state court to pursue your claims. You should speak with an attorney before making a decision, as the choice has consequences.
Q: What types of damages can I recover?
The New York Human Rights Law allows victims of sexual orientation discrimination to recover damages in several categories. These include: lost back pay (the period of time that you have been out of work); front pay (pay for a period of time that you may be expected to remain out of work); damages for emotional distress (link); lost benefits (including retirement benefits)(link) and, in rare circumstances, punitive damages. The Human Rights law does not provide for recovery of attorney's fees.
As we noted above, despite the EEOC's recent efforts, Federal Law does not formally protect against sexual orientation discrimination as it currently stands. The EEOC has started to pursue claims under Title VII (link), which allows for similar damages as the NYS Human Rights law and including attorney's fees to a successful plaintiff.
Q: Are transgender rights protected?
In 2016, by executive order, New York Governor Andrew Cuomo directed the Division of Human Rights to promulgate regulations to protect transgender individuals.
The new regulation states that gender identity and transgender status are included within the definition of “sex” under the New York Human Rights Law (“NYHRL”). So, any time the NYHRL refers to sex discrimination or sexual harassment, that will also include discrimination and harassment against transgender individuals.
The regulation also adds gender dysphoria to the definition of disability discrimination and similarly extends those protections, including the provision of reasonable accommodations.
Federal law does not currently protect transgender rights against discrimination in the workplace, but we continue to watch cases moving through the Federal court system.
At D'Orazio Peterson we believe that in the workplace employees should be judged by their performance, nothing else. We will continue to fight for the rights of employees, and if you believe that you have been subjected to discrimination based on sexual orientation please give us a call at 518-308-8339. We are always happy to help.