Friday, August 1, 2014

Executive Order Increases Protections for LGBT Workers

Imagine being called into your boss’s office on a Friday afternoon. She tells you that the company is letting you go. Your boss tells you that your performance and conduct are stellar. Rather, the problem is the type of people you date on your free time.

It may sound unlikely, but the scenario is very real for workers who are LGBT. Just ask Casey Stegall, a gay man in Lubbock, Texas. The children’s home where Mr. Stegall worked terminated his employment, according to a report from the local Fox news station. Mr. Stegall said the employer explained that his “lifestyle was detrimental to the kids’ health.”

Technically, no federal employment statute protects employees because of their sexual orientation or gender identity. But that does not mean LGBT workers are entirely without recourse.

In 1989, the U.S. Supreme Court decided the Price Waterhouse case, holding that employment decisions based on sexual stereotypes violated federal law’s prohibition on gender discrimination. In other words, an employer cannot fire a man because he does not act, dress, or talk like the boss thinks a man should act, dress, or talk.

That decision was buttressed by the Supreme Court case Oncale v. Sundowner, which recognized same-sex sexual harassment, e.g., men harassing men.

These cases laid the foundation for more explicit protections, like the EEOC’s 2012 decision in the case of Mia Macy. That decision explicitly found that the U.S. Department of Justice violated federal law by discriminating against Ms. Macy because of her transgendered status.

This month has seen many special moments for the LGBT community. Laverne Cox became the first transgendered person to receive an Emmy nomination. Supermodel Andreja Pejic disclosed that she is transgendered.  Federal courts have struck repeated blows to state constitutional amendments banning gay marriage.

However, in a month of milestones, among the most important and far reaching are amendments to Executive Orders 11478 and 11246. On July 21, 2014, President Obama signed an Order amending 11478 and 11246 to prohibit certain federal contractors from making employment decisions because of sexual orientation or gender identity.  The federal government can enforce the Order through its purse strings. It expands the federal policy that expressly protects the federal workforce from discrimination based on sexual orientation and gender identity.

The Order applies to contracts with federal agencies, federally-assisted construction contracts, and subcontracts under such contracts. However, to be covered, an employer must have one or more covered contracts that collectively exceed $10,000 during a twelve-month period. If the contract is open-ended, the Order looks to the expected value. The Order also covers contracts with depositories of federal funds or with financial institutions that are issuing and paying agents for U.S. savings bonds and savings notes regardless of the amount of the contract.

Covered employers must add sexual orientation and gender identity to their discrimination policies; include discrimination clauses covering sexual orientation and gender identity in subcontracts with necessary vendors and suppliers; and take affirmative action to ensure that individuals are employed and treated without regard to sexual orientation and gender identity.

Importantly in light of the Hobby Lobby case, the Order contains no new exemptions for religious beliefs.

Though a big step forward, plenty of work remains: The Order applies only to certain federal contractors, and individual employees who are victims of discrimination won’t receive any compensation. The Order is prospective only, meaning existing contracts are not covered. And finally, the Department of Labor has yet to issue implementing regulations. Once new contracts are issued with the new employee protections, victims of discrimination will be able to make complaints to the Department of Labor’s Office of Federal Contract Compliance. The time limit to file a complaint there is currently 180 days.

If you believe that you have suffered employment discrimination, you should contact a qualified employment attorney to help you understand your rights.

Dallas Hammer

No comments: