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LGBTQ Rights Under a New Administration – What’s Next?

Posted by Giovanna A. D'Orazio | Dec 14, 2016 | 0 Comments

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On December 14, 2016, Giovanna had the pleasure of participating in a forum about post-election issues affecting the LGBTQ community at the Hudson Valley LGBTQ Community Center, with a focus on rights in the workplace and places of public accommodation.   This is an expanded version of our outline.

*This does not constitute legal advice nor does it create an attorney-client relationship between the reader and our firm.  Representation only takes place after a detailed investigation of your particular claim and entry into a formal retainer agreement.*   

FEDERAL AND STATE PROTECTIONS FOR LGBTQ COMMUNITY

NEW YORK (Employment)

  • Sexual orientation protections under New York State Human Rights Law (“NYHRL”)
    • The NYHRL applies to private employers with four or more employees, municipalities, state agencies
    • Sexual orientation (and perceived sexual orientation) are protected classes under the NYHRL. Notably, sexual orientation is not a protected class under federal Title VII.
  • By executive order, Governor 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 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.
    • The Legislature should be encouraged to make these changes to the Human Rights Law statute itself which is in the NY Executive Law.
  • Options if you have been discriminated or retaliated against: you may file a charge with the Division of Human Rights; you may also sue without filing an administrative charge (the statute of limitations is three [3] years but the courts are in disagreement if a shorter limitations period applies to municipalities). An experienced employment attorney should be contacted as soon as possible if you believe your employer has violated the NYHRL to determine an appropriate course of action and to be sure that no deadlines are missed.

FEDERAL (Employment)

  • Federal Protections under Title VII of the Civil Rights Act of 1964
    • Title VII applies to private employers with 15 or more employees; state and federal government employees
    • Sexual orientation and gender identity are not explicitly listed out in Title VII as protected classes
    • The EEOC has 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).
    • Last year the EEOC sued its first sexual orientation discrimination cases (private citizens have done this before but this is the first time EEOC sued its own cases) and, last month, a federal court in PA agreed with the EEOC that sexual orientation falls under Title VII sex discrimination.
    • Cases are split around the country on this issue. The Seventh Circuit (encompassing Chicago) recently held that sexual orientation is NOT covered under Title VII unless it's under the gender stereotyping theory. The Second Circuit (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 October but there is no decision yet.
    • Options if you have been discriminated against: Title VII requires filing an administrative charge with the EEOC within 300 days of the adverse employment action. You cannot go straight to court. There are different procedures for federal employees. Visit eeoc.gov for more information.
    • Issues that May be Affected by the Election:
      • President Obama's June 2014 executive order: federal contractors cannot discriminate on the basis of sexual orientation or gender identity
      • DOL/OSHA guidance with respect to transgender individuals having access to restrooms most consistent with their gender identity
      • Equality Act of 2015: Introduced in the House in June 2015; no action yet; would amend Title VII to include sexual orientation and gender identity protections
      • The make up of the EEOC: commissioners are presidentially appointed; the term of the commissioner who focuses on sexual orientation issues is up in 2018; the Chair's term is up in July 2017
      • Supreme Court make up: the Title VII issue may go to the Supreme Court if there is a split in the Circuits (i.e., if the Second Circuit decides differently than the Seventh).
      • Federal court judges (appointed by the President and confirmed by Congress) – there are currently 13 Court of Appeals vacancies; 84 District Court vacancies

PLACES OF PUBLIC ACCOMODATION

  • Access to services at places of public accommodation
    • Federal Law does not protect sex or sexual orientation in places of public accommodation (protections are limited to race, color, national origin and religion)
    • The NYHRL does protect sexual orientation and gender identity in places of public accommodation. These include publicly and privately owned businesses typically open to the public, like hotels, restaurants, theaters, retail stores, etc.
    • Courts will do a fact-specific analysis as to whether a business is a place of public accommodation. Recently, the Third Department in New York (the intermediate level appeals court that covers Albany) found that Liberty Ridge Farm is a place of public accommodation that could not refuse to host a same sex wedding ceremony if it hosted weddings for heterosexual couples. It rejected First Amendment speech and religion challenges raised by Liberty Ridge Farm.

If you are a member of the LGBTQ community, and you have been targeted or subjected to discrimination give us a call.  We are more than happy to help.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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