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New Developments Strengthen Protections For Gay Employees

Ann Wittenauer

Only 18 states currently have state statutes that protect employees against both sexual orientation and gender identity discrimination in both public and private sector employment.  Additionally, Title VII of the Civil Rights Act of 1964 which prohibits several forms of discrimination, does not include a person’s sexual orientation in its protected categories.

On July 21, 2014, however, President Barack Obama signed an executive order making it illegal for federal contractors and subcontractors to discriminate against employees on the basis of sexual orientation or gender identity, and a recent decision by a federal district court judge may have extended protections for gay employees in the private sector.

In March 2014, District Court Judge Colleen Kollar-Kotelly found that a lawsuit by a gay man against the Library of Congress could proceed through the discovery process.  According to the plaintiff in that case, when his conservative Catholic supervisor discovered that the plaintiff was gay, his supervisor began to assign work to the plaintiff which was beyond his experience and which was too much for a solitary employee to complete.  The supervisor also allegedly began lecturing the plaintiff that he “would be going to Hell” because of his homosexuality.  According to Judge Kollar-Kotelly, the plaintiff alleged that he is “a homosexual male whose sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles,” that his “status as a homosexual male did not conform to the Defendant’s gender stereotypes associated with men” and that “his orientation as homosexual had removed him from [his supervisor’s] preconceived definition of male.” Judge Kollar-Kotelly ruled that these allegations stated a claim for relief and that the plaintiff’s lawsuit could proceed.

The United States Supreme Court and other federal appellate and district courts had previously found that terminations or other adverse employment actions based on an employee’s failure to fit sex role stereotypes about how men and women should act or dress are a form of sex discrimination prohibited by Title VII.  Judge Kollar-Kotelly’s decision appears to extend protection for employees who are terminated simply for being gay.

 

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DINE AND DASH IS NO JOKE TO SERVERS

Ann Wittenauer

A server from New York shed a spotlight on the effect that the practice of “dining and dashing” has on a server’s pay.  Suzanne Parratt used social media to report that she was terminated because she refused to cover the tab of diners who left without paying.  According to an article in Slate Magazine by Luke O’Neil, the practice of making servers pay tabs when diners do not is common in the industry.  Moreover, federal law offers servers only limited protection, and in many states, restaurants may legally dock wages from servers for unpaid tabs.  Thus, dining and dashing is not a harmless practical joke on a restaurant, it hurts hard-working individuals.  To learn more, read the article.
 

 

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Time to Double Down Against the Double Standard

Ann Wittenauer

A lawsuit by a former employee of a Christian college in California reminds us of the continued need for laws protecting women from sex discrimination. A Christian college in San Diego terminated Teri James upon its discovery of her pregnancy. James, who is unmarried, had signed a pledge requiring employees to abstain from extra-marital sex. James claims, however, that after she lost her job, the school offered a position to her now-husband, even though it was aware that he also had engaged in extra-marital sex.

A court in Cincinnati, Ohio recently considered a similar case involving a termination for an extra-marital pregnancy resulting from artificial insemination, Dias v. Archdiocese of Cincinnati. In that case, when Dias, the computer technology coordinator at two of the Archdiocese’s schools told her principal that she was pregnant, the principal told Dias that she would probably lose her job because she was pregnant and unmarried.

Judge Arthur Spiegel noted that a school’s policy against its teachers engaging in sex outside of marriage might be “valid and non-pretextual [i.e., not a cover up for discrimination]” if it applied equally to men and women. Judge Spiegel recently decided that a jury should be allowed to determine whether the Archdiocese had applied its policies in a gender-neutral manner. Teri James should have the same opportunity to present her case to a jury in California.

To read more about James’ case, click here.

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