Trump Appointee Gorsuch Plays Coy In LGBTQ Employment Rights Case

From today’s NPR News Online:

The retirement of Supreme Court Justice Anthony Kennedy loomed large over arguments at the court Tuesday in a set of cases testing whether employers are free to fire gay and transgender employees. Kennedy, a Reagan appointee, was the author of every major gay rights decision for more than two decades. His absence, and the presence of two new Trump appointees, could very well determine how these cases are decided, who wins, and who loses.

Justice Brett Kavanaugh, who replaced Kennedy, asked only one question during two hours of argument Tuesday. Instead, it was Justice Neil Gorsuch, the other Trump appointee, who was the focal point.

Gorsuch, an adamant advocate for reading the text of a statute literally, admitted to a bit of a conundrum. Addressing ACLU lawyer David Cole, he said, “Assume for the moment … I’m with you on the textual evidence,” but “it’s close … very close.” The words of Title VII of the 1964 Civil Rights Act bar employment discrimination “because of sex,” or “based on sex.”

Gorsuch seemed to be agreeing that language would appear to cover gay and transgender employees. But, he then asked whether a justice should “take into consideration the massive social upheaval that would” ensue from such a decision. Wouldn’t it be better to let Congress do it?

Cole replied that federal courts have been finding it illegal to discriminate against transgender employees for 20 years, and “there’s been no upheaval.” Dress codes and sex-segregated restrooms “have not fallen,” he observed, adding there has been no tumult.

Read the complete article here.

Can Someone Be Fired for Being Gay? The Supreme Court Will Decide

From today’s New York Times:

The Supreme Court has delivered a remarkable series of victories to the gay rights movement over the last two decades, culminating in a ruling that established a constitutional right to same-sex marriage. But in more than half the states, someone can still be fired for being gay.

Early in its new term, on Oct. 8, the court will consider whether an existing federal law, Title VII of the Civil Rights Act of 1964, guarantees nationwide protection from workplace discrimination to gay and transgender people, even in states that offer no protections right now.

It will be the court’s first case on L.G.B.T. rights since the retirement last year of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay rights decisions. And without Justice Kennedy, who joined four liberals in the 5-to-4 ruling in the marriage case, the workers who sued their employers in the three cases before the court may face an uphill fight.

“Now that we don’t have Kennedy on the court, it would be a stretch to find a fifth vote in favor of any of these claims that are coming to the court,” said Katherine Franke, a law professor at Columbia and the author of “Wedlocked: The Perils of Marriage Equality.”

Read the complete article here.

We Talked to the Lawyer Fighting for the Right to Be Trans at Work

From today’s Vice Media:

At this point, many Americans are familiar with what happened to Aimee Stephens: For years, she was a valued employee at a funeral home. Then, in 2013, she came out as trans and began presenting as a woman for the first time. That’s when she was fired.

Stephens decided to sue her former employer, Michigan’s R.G. and G.R. Harris Funeral Homes, for discrimination. In October, the U.S. Supreme Court will hear her case—creating the first opportunity for the justices to directly consider the rights of transgender people.

Those rights have only recently become a mainstream political issue, so many people are unaware that there are now decades of U.S. case law underpinning most of the policies that politicians are currently debating. When SCOTUS hears Stephens’ case in October, all of those lower-court decisions affirming the right of trans people to be included in sex-based nondiscrimination law will be under threat.

At the heart of the fight is a 1989 SCOTUS precedent, Price Waterhouse v. Hopkins, a caseinvolving a butch woman who was denied promotions when she failed to conform to feminine beauty and personality stereotypes. Ultimately, the court ruled that employment decisions cannot be based on sex stereotypes. It’s been a key ruling not only for cisgender women throughout the U.S., but also for those of us in the trans community.

After successfully arguing Stephens’ case in front of the U.S. Court of Appeals for the Sixth Circuit, John Knight of the ACLU LGBT & HIV Project will present her argument to the highest court in the nation this fall. Over the years, he has been central to arguing key trans-related cases all over the midwest.

We asked Knight why this case is so important for not only transgender people, but everyone, and what to look out for this October.

Read the complete interview here.

Groups slam new Trump rule allowing federal contractors to bar LGBT workers

From today’s CBS News Online:

In its latest rollback of key safeguards for LGBTQ civil rights, the Trump administration intends to remove nondiscrimination protections for LGBTQ people by adding religious exemptions to an Obama-era 2014 executive order that prohibited discrimination in hiring on the basis of both sexual orientation and gender identity. Advocacy groups have decried the new rule as just the latest attack on the LGBTQ community, slamming it as “taxpayer-funded discrimination in the name of religion.”

The proposal, which goes public on Thursday at the direction of the U.S. Department of Labor, comes as a stark reversal in administration policy after President Trump vowed to maintain the Obama executive order during his first month in office. 

“President Donald J. Trump is determined to protect the rights of all Americans, including the LGBTQ community. President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election,” the White House said at the time. 

But the new rule appears to let government contractors terminate workers who are LGBTQ, based on the employers’ personal religious views. Under the Labor Department guidelines, any organization — be it a church, school or major corporation — could prove it serves a religious purpose by claiming it is “guided by faith,” according to the 46-page long draft of the rule. 

“The contractor must be organized for a religious purpose, meaning that it was conceived with a self-identified religious purpose. This need not be the contractor’s only purpose,” the document reads. 

The move is the latest in a string of policy reversals that impede on the rights of the LGBTQ community. Most recently, the Trump administration changed regulationsunder the Affordable Care Act to allow health care providers to refuse treatment to LGBTQ people on the basis of their religious beliefs. It’s also consistent with the administration’s controversial push over the past two years to include more federal protections in the name of “religious freedom.”

Read the complete article here.

Why Gay Rights Is a Republican Value

From today’s New York Times:

Conservatives support freedom, which is why they should oppose job discrimination against LGBTQ Americans.

This week, more than 2,000 signatories — members of Congress, women’s rights groups, businesses — submitted nearly 50 friend-of-the-court briefs to the Supreme Court in three pending cases involving L.G.B.T.Q. rights.

The cases, which the court is likely to take up next session, consider whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, prohibits discrimination against L.G.B.T.Q. people. The signers reflect what a broad cross section of Americans overwhelmingly believe: Such discrimination is wrong.

Polls consistently show a high percentage of Americans think that firing people or denying them jobs or promotions because they are L.G.B.T.Q. is wrong and that it should be prohibited under our nation’s civil rights laws. A full 92 percent said so in an April poll by Quinnipiac University. That’s in part because basic protections against job discrimination are fundamental to core American values of fairness.

This isn’t a new idea, or a partisan one. Abraham Lincoln wished for all workers to have an equal chance to acquire property and to gain wealth. “When one starts poor, as most do in the race of life,” he said, “free society is such that he knows he can better his condition.”

Read the complete article here.

New Evidence of Age Bias in Hiring, and a Push to Fight It

From today’s New York Times:

Across the United States, mammoth corporations and family businesses share a complaint: a shortage of workers. As the unemployment rate has tunneled its way to a half-century low, employers insist they must scramble to lure applicants.

The shadow of age bias in hiring, though, is long. Tens of thousands of workers say that even with the right qualifications for a job, they are repeatedly turned away because they are over 50, or even 40, and considered too old.

The problem is getting more scrutiny after revelations that hundreds of employers shut out middle-aged and older Americans in their recruiting on Facebook, LinkedIn and other platforms. Those disclosures are supercharging a wave of litigation.

But as cases make their way to court, the legal road for proving age discrimination, always difficult, has only roughened. Recent decisions by federal appeals courts in Chicago and Atlanta have limited the reach of anti-discrimination protections and made it even harder for job applicants to win.

It is complicating an already challenging juncture of life. Workers over 50 — about 54 million Americans — are now facing much more precarious financial circumstances, a legacy of the recession.

More than half of workers over 50 lose longtime jobs before they are ready to retire, according to a recent analysis by the Urban Institute and ProPublica. Of those, nine out of 10 never recover their previous earning power. Some are able to find only piecemeal or gig work.

“If you lose your job at an older age, it’s really hard to get a new one,” said Richard Johnson, an Urban Institute economist who worked on the analysis.

Read the complete article here.

SCOTUS To Hear Cases On Title VII Protections For LGBTQ Employees

From today’s NPR News Online:

The Supreme Court has accepted three cases that ask whether federal anti-discrimination laws should apply to sexual orientation and gender identity in the workplace, putting the court on track to consider high-profile LGBTQ issues after its next term begins this fall.

Two of the cases — Bostock v. Clayton County, Georgia, and Altitude Express, Inc. v. Zarda — were consolidated because both include claims that employers discriminated on the basis of sexual orientation. A third — R.G. & G.R. Harris Funeral Homes v. EEOC — involves the question of whether existing discrimination laws apply to transgender workers.

The Supreme Court granted petitions for writs of certiorari for the three cases Monday morning, adding them to their workload for the term that will start in October — meaning any decisions and opinions will emerge in the runup to the national election in 2020.

But the court also set limits as it accepted the cases. As the court’s order list states, the scope of the court’s review of the Harris Funeral Homes case is limited to only question “whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping” under the 1989 decision in the Price Waterhouse v. Hopkins case.

The Supreme Court’s order refers to Title VII, the part of the Civil Rights Act of 1964 that prohibits employers from discriminating on the basis of race, color, religion, sex and national origin. In recent years, lower federal courts have disagreed on whether the same protections should apply to people based on their sexual orientation and gender identity. That divide can be seen in the trio of cases now up for review.

“In two of the cases, lower courts sided with the plaintiffs,” NPR’s Leila Fadel reports for our Newscast unit, “one in Michigan where a transgender woman was fired from her job at a funeral home based on her gender identity; another, out of New York where a skydiving instructor was allegedly fired because he’s gay. But in a third case in Georgia, a gay man who was fired from his job as a child welfare services coordinator lost.”

In that third case, the Court of Appeals for the 11th Circuit turned away an appeal from Gerald Lynn Bostock last summer. Even before Bostock’s appeal request was declined by the full panel, his attorneys already had asked the Supreme Court to weigh in.

Read the complete article here.

He said he refused his company’s Bible study. After being let go, he’s suing.

From today’s Washington Post:

A 34-year-old painter is suing Dahled Up Construction, a company based south of Portland, Ore., for allegedly firing him after he refused to join a Christian Bible group for employees. Ryan Coleman is seeking $800,000 from the company after its owner allegedly said participation in the Bible group was required if he wanted to keep his job.

Coleman told The Washington Post that when he explained to the company’s owner, Joel Dahl, that he had different beliefs, Dahl said: “If you want to keep your job, everybody needs to attend. If not, I’m going to be forced to replace you.”

Coleman said he initially took part in the weekly, hour-long Bible classes for six months, fearing he wouldn’t be able to find another job.

Dahl’s attorney, Kent Hickam, described Dahl as a “second-chance employer.” Dahl told the Oregonian that he once served prison time for attempted second-degree assault and struggled with drugs and alcohol. He said he started Dahled Up Construction in 2016 after years of staying sober with the hope of hiring other convicted felons or those who have battled addiction.

Read the complete article here.

Opinion: The ‘Manly’ Jobs Problem

From today’s New York Times:

Insults, groping — even assault. That kind of sexual harassment came along with being one of the very few women on a construction site, in a mine, or in a shipyard. Those professions remain male-dominated and the harassment can seem, for countless women, to be intractable.

But what if the problem isn’t simply how their male co-workers behave? What if the problem is the very way society has come to see the jobs themselves? Some jobs are “male” — not just men’s work, but also a core definition of masculinity itself. Threatening that status quo is not just uppity — it can be dangerous.

This dynamic plays out in workplaces of all classes and crosses partisan political lines. But it is particularly stark in the blue-collar jobs that once scored a kind of manly trifecta: They paid a breadwinner’s wage, embodied strength and formed the backbone of the American economy.

As Christine Williams, a professor of sociology at the University of Texas at Austin, pungently put it, women in so-called men’s jobs are labeled either “sluts or dykes,” each abused in their own ways. Although statistics are spotty, some studies have concluded that sexual harassment is more regular and severe in traditionally male occupations. And a Times Upshot analysis of blue-collar occupations showed that women’s presence in these jobs stayed static or shrank between 2000 and 2016.

Women are so scarce in these trades that some men refuse to see them as women. The only woman in a repair crew at wind-farm sites charged in a lawsuit that her co-workers called her by male nicknames, from common to obscene, because they thought only a man could handle the job. Men suggested she must have a penis or be a lesbian.

Read the complete article here.

Actresses—and Millions More Workers—Have No Federal Sexual Harassment Protections

From today’s Nation by Bryce Covert:

After the New York Times dropped its bombshell investigation into decades of sexual harassment perpetrated by film producer Harvey Weinstein, and the New Yorker followed up with allegations of not just harassment but sexual assault, dozens of women in Hollywood have come forward with stories about his harassment and abuse. But until these articles were published, Weinstein faced few repercussions for his behavior.

There are a number of reasons why most of these women may have decided against reporting what happened to them. Many actresses talked about their fear that Weinstein would exact retribution by blacklisting them in the industry—something some victims said they experienced simply for rebuffing his advances. They likely worried no one would believe them or take them seriously. One of the few women who did report his behavior to the authorities, Italian model Ambra Battilana Gutierrez, even wore a wiretap and caught Weinstein apparently admitting to assaulting her, only to watch Manhattan District Attorney Cyrus Vance Jr. drop her case over what he said was lack of evidence supporting a criminal charge.

But there’s another reason why actresses harassed by Weinstein may have been discouraged from reporting sexual harassment. Any who were working on a Weinstein film were almost certainly classified as independent contractors, not regular employees. And that means that the anti-discrimination and sexual harassment protections of federal law didn’t apply to them.

It’s a problem not just in Hollywood, but throughout the economy, in industries as diverse as real estate, trucking, technology, and home health care. And the problem is growing. As more companies classify their workers as independent contractors or push workers into nontraditional employment arrangements, an increasing number of people are at risk of having virtually no recourse for on-the-job harassment.

Workplace discrimination and harassment based on sex are prohibited under Title VII of the Civil Rights Act, which outlaws “employment practice[s] [that] discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” If an employee feels she is being harassed at work, she can file a complaint with the Equal Employment Opportunity Commission, the first step in taking legal action. But the catch is she has to be an employee for Title VII protections to apply. Independent contractors, temp workers, and those employed by contracting companies are not covered under the law. “Title VII has to be related to employment,” explained Catherine Ruckelshaus, program director at the National Employment Law Project. Anyone who’s not a traditional employee can’t easily bring claims under it. “The more attenuated you get from an employment relationship, the harder it is under Title VII.”

Read the entire article here.