Articles Posted in Sexual Orientation Discrimination

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Senator Mike Lee (R-UT) and other Republican Senators have reintroduced a bill that would protect people and businesses that discriminate against LGBT people and people who have sex outside of marriage.

The text of the reintroduced bill has not yet been released but the earlier version of the bill would prohibit the “Federal government” from discriminating against individuals because they act “in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” Under this earlier version of the bill, the term “Federal government” would include federal courts as well as all other branches of the federal government.

This bill could, for instance, be construed to prevent the U.S. Equal Employment Opportunity Commission (EEOC) from suing a business that fired a woman because she had sex outside of wedlock or that fired a gay employee because he got married. Senator Lee maintains that this bill would not prohibit these types of discrimination lawsuits. But if the new bill contains language similar to the old bill and it becomes law, some courts could very possibly find that the bill immunizes employers from these type of discrimination lawsuits. Employers would argue that the EEOC sued them because they acted in accordance with their religious beliefs that unmarried people should not have sex or that LGBT people should not marry.  Some courts might accept these arguments based on the broad language of this bill.

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The federal First Circuit Court of Appeals has affirmed a jury verdict against the Providence Fire Department (PFD) in a sexual harassment lawsuit filed by a lesbian who formerly served as a lieutenant in PFD. The plaintiff, Lori Franchina, suffered severe sexual harassment and after she reported the harassment to PFD she experienced severe retaliation. Some of the harassment and retaliation included: a man on the first day he met her telling her that he could impregnate her if she wanted because he knew she was a lesbian; this same man later opened the closed door to Franchina’s bedroom in the firehouse, walked in while she was getting undressed, and refused to leave until the third time she asked him to “get the f—k out”; multiple people used sexist epithets to refer to her; another person tampered with her food and made her sick; and, in one disgusting incident, someone flung blood and brain matter from a suicide victim on her. To remedy the damages that Franchina suffered, Franchina was awarded $806,000.

One of the legal hurdles that Franchina had to overcome to win this case was that she had to argue that she experienced discrimination based on her sex, not just her sexual orientation. This is because the First Circuit previously determined, about 20 years ago in a case called Higgins, that the law Franchina sued PFD under, Title VII, does not prohibit sexual orientation discrimination.

The First Circuit judges in this case distinguished the facts of Higgins from the facts of Franchina’s case because Franchina suffered harassment not just because she was gay but, rather, because she was both a woman and a gay person. Thus, the First Circuit found that this case fit into a category of Title VII cases called “sex-plus” cases. A common type of sex-plus case is where a woman with children gets discriminated against not just because she is a woman but, rather, because she is a woman with children. Similarly, Franchina experienced harassment (a form of discrimination) not just because she was a woman but, rather, because she was a woman who was gay.

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The U.S. Second Circuit Court of Appeals, in New York, has decided that the full court—all eleven active judges—will consider whether sexual orientation discrimination is a form of sex discrimination prohibited by the Civil Rights Act. If the full Second Circuit decides that sexual orientation discrimination is a form of sex discrimination, it will have to overrule a prior Second Circuit decision that held the opposite.

Normally, panels of three appellate judges decide cases but those three-judge panels are required to follow precedent. They cannot deviate from the decisions that their court reached in earlier cases. When the full appellate court considers a case, however, it can overrule prior precedents and a decision by the full court to hear a case signals that some judges want to consider overruling past precedent.

Federal appeals courts rarely decide to have the full court consider cases. This type of full-court review, sometimes called “en banc review,” is exceedingly rare in the Second Circuit. Thus, the Second Circuit’s decision to hear this case en banc is noteworthy in itself. The Second Circuit, however, is following the lead of the Seventh Circuit which earlier this year ruled en banc that sexual orientation discrimination is a form of sex discrimination.

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A class action against Walmart that we previously reported about has settled. The case involved Walmart’s refusal to provide health insurance to spouses of gay and lesbian employees. Walmart began providing health insurance to the spouses of gay and lesbian employees in 2014 but continued to maintain that the law did not require it to do so.

Under the terms of the settlement, Walmart will, among other things, set aside $7.5 million to compensate victims of Walmart’s discrimination and it will pay 250% of out-of-pocket expenses that victims incurred if the expenses totaled $60,000 or more. More than a thousand people have been identified who will be eligible for compensation but there could be more. As part of the settlement, Walmart also agreed to continue to treat same-sex and opposite-sex spouses the same when administering benefits.

The lead plaintiff in the case, Jacqueline Cote, said, “I’m pleased that Walmart was willing to resolve this issue for me and other associates who are married to someone of the same sex. It’s a relief to bring this chapter of my life to a close.”

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Earlier this month a federal court in Connecticut determined that a jury could reasonably find that the Hartford School District unlawfully discriminated against a teacher because of her sexual orientation. The teacher (who is the plaintiff in the lawsuit) and her female spouse both worked for the same school. After the principal and an assistant principal learned that the plaintiff and her spouse were in a same-sex relationship, they allegedly engaged in a campaign of harassment against the plaintiff.

Plaintiff alleged, among other acts of harassment, that she was treated with hostility at meetings; she was assigned more than her fair share of children with behavioral problems; she received discipline for trumped up charges; she was berated for reporting that a student had physically assaulted her; she was denied transfers; and when she experienced a medical emergency at work, no one contacted her spouse to inform her. She eventually quit due to medical concerns related to the stress at work.

None of this harassment seems to have been directly linked to the plaintiff’s sexual orientation. For instance, there was no evidence that the principal used homophobic slurs or commented on plaintiff’s sexual orientation. However, the court determined that a jury could find that the harassment was linked to plaintiff’s sexual orientation because of evidence that the same principal treated other gay employees with hostility. Furthermore, the principal and assistant principal claimed that they did not know plaintiff’s sexual orientation and those claims lacked credibility because it was common knowledge in the school that plaintiff and her spouse were a couple. Thus, a jury could infer that the principal and assistant principal lied about not knowing plaintiff’s sexual orientation to cover up their discriminatory bias against plaintiff.

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Many studies have documented wage gaps between men and women as well as between white people and minorities. A new study shows a similar wage gap between bisexual and heterosexual workers. The study found that bisexual men earn 11% to 19% less than heterosexual men and bisexual women earn 7% to 28% less than heterosexual women.

Why does this wage gap exist? That is the key question. Studies have shown that gay men earn less than heterosexual men but lesbians earn more than heterosexual women. Part of the reason for these pay disparities for gay men and women is that gay men are more likely to work in occupations typically filled by women (which pay less) and lesbians are more likely to work in occupations typically filled by men (which pay more). Furthermore, gay men and lesbians are less likely than heterosexual men and women to have children. Due to unfair stereotypes, men are more likely to get a pay increase when they have children and women are more likely to get a pay decrease. These and other factors explain most of the wage gap for gay men and lesbians but they do not explain the wage gap for bisexual men and women.

So, researchers believe that discriminatory bias may be driving the bisexual wage gap more than the gay/lesbian wage gap. Some research shows that bisexuals are viewed as more immature and dishonest and less capable and competent than heterosexual or gay people.  These discriminatory stereotypes about bisexual people could be causing the pay gap.

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There is currently an effort underway to gather support for a ballot initiative that would remove protections for LGBT people from the Maine Human Rights Act (MHRA).  Michael Heath, the former head of the Maine Christian Civic League and who has reportedly compared homosexuality to sorcery, is leading the effort to collect signatures to put this issue on the ballot.

“This would really turn back the clock,” says Matt Moonen, the interim executive director of the group Equality Maine. “It would make it legal again to fire someone from their job or deny them housing or kick them out of a restaurant simply because of who they are.”

Heath’s proposed legislation would amend the MHRA so that it no longer prohibited discrimination based on sexual orientation.  His proposed legislation would also prohibit granting “special rights” (whatever that means) to a person based on their sexual orientation.

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In a new study, a researcher has found that employers tend to discriminate against female applicants who are lesbian, bisexual, or transgender; applicants who the researcher categorized as “queer.” To conduct the study, the researcher created fictitious resumes that were identical in every respect except some indicated that the applicant served in a leadership position in a LGBT student organization. The leadership role in such organizations was meant to imply that the applicant was “queer.” The researcher sent the resumes to employers seeking administrative, clerical, and secretarial positions in Virginia, Tennessee, the District of Columbia, and New York. She found that employers responded more significantly favorably to the fictitious resumes of women who did not serve in leadership positions with LGBT student organizations than the women who did, i.e., that the employers discriminated against the “queer” applicants.

The researcher’s decision to test hiring for administrative, clerical, and secretarial positions is interesting. Employers looking to fill these positions typically do not discriminate against female applicants because women have traditionally held these positions at greater rates than men. So, sex discrimination was less likely to play a role in the employers’ decisionmaking. Furthermore, stereotypical views of lesbians and bisexual women often include the belief that they are more “masculine” than straight women. Thus, the fictitious “queer” applicants might have been favored over non-queer applicants if the researcher had used a field of work more traditionally dominated by men in her study, such as construction.

This study is another piece of evidence which shows that if you are a “queer” woman, you are more likely to face discrimination when you apply for jobs typically held by women. If you believe that you have been discriminated against because of your sexual orientation or gender identity, that is illegal and you should contact an experienced employment lawyer, like the lawyers at the Maine Employee Rights Group, to learn more about your rights.

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A Massachusetts state court has held that a Catholic school violated the state’s law against sexual orientation discrimination when it fired its food services director because he was a gay man with a same-sex spouse. We previously reported on this case when it was filed. The Catholic school, Fontbonne Academy, fired Matthew Barrett when it learned that he was a gay man with a male spouse. Like Maine, Massachusetts has an employment discrimination law that expressly prohibits sexual orientation discrimination. Fontbonne, however, argued, among other things, that the First Amendment entitled it to discriminate against Mr. Barrett for religious reasons.

The court rejected Fontbonne’s arguments for a variety of reasons. As we previously reported, under the First Amendment, religious institutions can deny employment to people who would serve as “ministers” in the institution. The court found that a food services director at Fontbonne did not qualify as a minister. The duties of a food services director at Fontbonne does not include being an administrator or teacher of religious matters. The court also held that Barrett’s status as a gay man would not significantly burden Fontbonne’s ability to provide an education to students “rooted in gospel values and the teachings of the Catholic Church.” Barrett was not fired for advocating for same-sex marriage and his job would not have put him in a position to teach students about “gospel values” and the “teachings of the Catholic Church.”

Gay & Lesbian Advocates & Defenders (GLAD) filed this lawsuit against Fontbonne Academy on behalf of Mr. Barrett. “Religiously-affiliated organizations do not get a free pass to discriminate against gay and lesbian people,” said Bennett Klein, GLAD Senior Attorney. “When Fontbonne fired Matt from a job that has nothing to do with religion, and simply because he is married, they came down on the wrong side of the law.”

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A Walmart employee who has worked for Walmart in Maine and Massachusetts filed a class action lawsuit earlier this month against Walmart because the company did not provide her wife with health insurance coverage. The employee, Jackie Cote, has worked for Walmart since 1999 and she has been married to her wife Dee since 2004. Up until January 1, 2014 Walmart refused to provide Dee with health insurance benefits even though it provided health insurance benefits to spouses of employees who were married to someone of the opposite sex.

The complaint filed in court to initiate the lawsuit explains why it is important to get a ruling from the court on the illegality of Walmart’s past practice of denying health insurance coverage to same-sex spouses. The complaint explains that, while Walmart has recently extended health insurance coverage to same-sex spouses, the company disavows any legal obligation to continue providing health insurance coverage to same-sex spouses. “Benefits provided by Walmart as a matter of grace that can be eliminated at Walmart’s discretion are not secure and could potentially be withdrawn just when large health care costs are incurred,” the complaint states.

Ms. Cote is represented by Gay & Lesbian Advocates & Defenders (GLAD) as well as the Washington Lawyers’ Committee for Civil Rights and Urban Affairs (Lawyers’ Committee). The attorneys at GLAD and the Lawyers’ Committee have advanced a few different legal arguments to support their claim that Walmart’s policy of excluding same-sex spouses from its health insurance coverage discriminates on the basis of sex. One of the more interesting arguments is as follows: “Walmart refused to provide spousal health insurance benefits for Jackie’s spouse because Jackie is a woman married to another woman, even though Walmart would have provided such coverage if Jackie were a man married to a woman.” In other words, the plaintiffs are arguing that Walmart engaged in sex discrimination when it excluded Jackie’s spouse from its health insurance coverage because if Jackie had been a man, Walmart would not have excluded her spouse from coverage.