New York Lawyers Fighting for Victims of Sexual Orientation Discrimination.
With the U.S. Supreme Court ruling in favor of same sex marriage, it seemed that we had turned a corner on LGBTQ rights. But there is still work to be done and, in the last year, we have seen roll backs on LGBTQ rights in the workplace and in schools.
Title VII of the Civil Rights Act of 1964 is the federal statute protecting employees from workplace discrimination. Title VII does not currently list “sexual orientation” as a protected class and it should be amended to eliminate any confusion.
The EEOC and the Courts are Working to Protect Employees
In 2016, the United States Equal Employment Opportunity Commission (“EEOC)” 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. 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.
Unfortunately, the current Justice Department – led by Attorney General Jeff Sessions – does not agree that sexual orientation is covered by Title VII, and it has taken this position in pending lawsuits on the issue. However, that position was recently rejected by the highest federal appeals court in New York: the Second Circuit.
Victory in the Courts – headed to the Supreme Court?
In 2017 and 2018, two federal Circuit Courts of Appeals held that Title VII does protect employees from sexual orientation discrimination. First, in April 2017 in Hively v. Ivy Tech Community College, the Seventh Circuit became the first federal Court of Appeals to hold that sexual orientation discrimination is included within Title VII's prohibition of discrimination on the basis of sex. Read more about the case here. Then, in February 2018, the Second Circuit (encompassing New York) agreed. Read more about the case (Zarda v. Altitude Express) here. In reaching this decision, the Second Circuit rejected an unsolicited brief from the Justice Department arguing to the contrary. (The Justice Department's position was also contrary to the EEOC's position in an unusual scenario where two federal entities were arguing opposite sides).
The Eleventh Circuit Court of Appeals has reached a different conclusion, relying on old case law, and the United States Supreme Court denied certiorari with respect to its decision. (The Second Circuit overruled its prior case law to reach its February 2018 decision). So, at this point, there is what's called a split in the Circuits suggesting that, at some point, this issue will eventually be decided by the Supreme Court. Better yet, Congress would amend Title VII to explicitly list sexual orientation as a protected class.
New York Law Protects Sexual Orientation
Unlike Title VII, the New York Human Rights Law does list sexual orientation (both actual and perceived) as a protected class. The NYHRL applies to employers with four or more employees, so more employees receive protection from state law than federal since Title VII requires an employer to have 15 or more employees to be covered.
Q: What kinds of claims are available to employees who have been treated badly because of their sexual orientation?
Individuals who are protected by employment statutes can have claims for both discrimination – which includes harassment and hostile work environment – and retaliation for making complaints of discrimination or harassment. Discrimination would include not only a termination but other adverse employment actions like a demotion or a failure to promote. Often employees who are being harassed consider quitting their jobs and expect to sue their employees for a forced resignation or constructive discharge. We suggest speaking to an attorney before doing that because it is difficult to prove this type of claim. Depending on the circumstances, it may make more sense to complain and allow a situation to play out before quitting.
Q: What can I do if I was discriminated or retaliated against?
In order to protect any federal claims, an employee is required to file a charge with the EEOC. New York law does not require this type of administrative claim before a lawsuit but, since employees often have both federal and state claims, it often makes sense to file an EEOC charge and then include state law claims in a later federal lawsuit. The EEOC has at least 180 days to investigate your claim. At the end of 180 days, if no decision has been issued, an employee can request a Notice of Right to Sue which will allow him or her to file a lawsuit. Otherwise the EEOC will either dismiss your claim or, if it finds in your favor, issue a probable cause determination. If it dismisses your claim, it will issue a Right to Sue and you can proceed to federal court. If it finds in your favor, it may elect to pursue your case or you can request the Right to Sue and pursue it on your own. During this process there are also opportunities to settle your case.
Q: If I'm only protected by New York law, what can I do if I was subjected to discrimination based upon my sexual orientation?
If your employer does not have sufficient employees to be covered by Title VII, you can file a complaint with the NYS Division of Human Rights or head directly to state court to sue your claims. (The NYHRL does not have an administrative requirement like Title VII, which requires a filing with the EEOC as a prerequisite to a lawsuit). You should speak with an attorney before deciding between a Division of Human Rights complaint and a lawsuit since that 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; and lost benefits (including retirement benefits). The Human Rights law does not provide for recovery of attorney's fees or punitive damages.
Title VII allows for these types of damages as well, and also provides for attorneys' fees (against all employers) and punitive damages (against private employers). Because of the availability of attorneys' fees and punitive damages, if an employee has federal claims, they should protect them by filing a charge with the EEOC.
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.
While, unlike the NYHRL, Title VII does not include an explicit protection for transgender individuals, it has been interpreted as protecting transgender workers under its sex discrimination provision.
At D'Orazio Peterson we believe that employees should be free from discrimination in the workplace and fairly judged on their performance, and not on their protected status. 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.