Articles Posted in Sexual Orientation Discrimination

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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by Walmart as a matter of grace that can be eliminated at Walmart’s discretion are not secure and could potentially be withdrawn just when large health care costs are incurred,” the complaint states.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.

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Exxon Mobil, the giant oil and gas corporation based in Texas, announced today that it has decided to change its equal employment opportunity (EEO) policies so that they now prohibit discrimination against lesbian, gay, bisexual, and transgender (LGBT) individuals.  Exxon Mobil has been under pressure for years to amend its EEO policies to add protections for LGBT individuals.  Despite this pressure, it consistently refused to change its EEO policies.  The federal government, though, has now begun to implement an executive order that prohibits federal contractors from discriminating against LGBT individuals.  Exxon Mobil is a federal contractor that receives millions of dollars from the federal government.

This past summer, Exxon Mobil claimed that its “zero tolerance” policies ensured protection for LGBT individuals even though those policies did not explicitly say that they prohibited sexual orientation or gender identity discrimination. The Human Rights Campaign (HRC), an organization that advocates for the rights of LGBT individuals, called Exxon Mobil’s claim “a lie.”  This past summer, Fred Sainz, HRC’s VP for Communications, said that, “Exxon Mobil’s Equal Employment and Opportunity Policy has clearly and consistently omitted enumerated LGBT non-discrimination protections for its personnel. Though their statement sounds like it’s taking a very progressive stand, it is in fact a master class in doublespeak—crafted, no doubt, by a team of well-paid lawyers. Until a nondiscrimination policy is enumerated, it isn’t worth the paper it’s printed on.”

HRC sees this recent change to Exxon Mobil’s EEO policy as a positive development but has not given Exxon Mobil much credit for making the change.  “This wasn’t prompted by a change of principles or corporate values, it represents Exxon’s response to President Obama’s July 2014 executive order that prohibits federal contractors from discriminating against LGBT people,” said Deena Fidas, HRC’s Workplace Equality Program Director.  “Exxon had to include these explicit workplace protections or risk losing its federal contracts,” said Fidas.

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Last month, Colin Collette filed a discrimination complaint which alleged that Holy Family Parish Church, in Inverness, Illinois, fired him from his job as choir director because of his sexual orientation.  Collette claims that shortly after he expressed his intention to marry a man, which is legal in Illinois, the church fired him because his marriage would be “non-sacramental.”

The events leading to his termination apparently began when Mr. Collette posted on Facebook that he planned to marry his longtime lover because same-sex marriage had become legal in Illinois.  According to Mr. Collette, shortly after he posted this information on Facebook, Cardinal Francis George allegedly instructed parish leaders to “deal with this.” And Mr. Collette claims that they did that by firing him.

“It saddens me to have this integral part of my life taken away because I have chosen to enter into a marriage, as is my right under Illinois law,” Mr. Collette said.

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Last week, the City of Houston, Texas, passed an ordinance that prohibits employers from discriminating on the basis of sexual orientation and gender identity.  Houston is the fourth largest city in the nation, with a population much larger than the entire state of Maine.  Under Texas state law and federal law, sexual orientation and gender identity are not protected characteristics.  Thus, for LGBT people who work in Houston, this new law provides important protections that they did not previously have.

The Houston City Council voted 11-6 in favor of the law.  Opponents and proponents of the law were very vocal in advocating their positions.  The City Secretary could not recall a longer list of speakers who wanted to testify before the Council in her six decades serving as Secretary.  Many opponents of the ordinance invoked their religious beliefs and they vowed to gather enough signatures to place a referendum on the ballot before next election in order to repeal the ordinance.

Houston’s mayor, Annise Parker, is openly gay and she has an openly gay son.  “This is not the most important thing I have done or will do as mayor, but it is the most personally satisfying and most personally meaningful thing I will do as mayor – not just for myself, but for my children and for all the other mothers’ children out there who have an opportunity to have redress if they are discriminated against here in the city of Houston,” Mayor Parker said.

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Matthew Barrett, a gay man from Dorchester, Massachusetts, has filed a complaint against Fontbonne Academy because he claims the Catholic school rescinded an offer to hire him as its food services director on the basis of his sexual orientation. He said that when the school learned he had a husband, the head of the school told him that the school would not hire him because he was married to a man.

In Massachusetts, like Maine, employers may not discriminate against applicants on the basis of their sexual orientation. Importantly, for religious institutions, the U.S. Supreme Court has held that the First Amendment requires a “ministerial exception” to all employment discrimination laws, including laws that prohibit sexual orientation discrimination. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court held that employment discrimination laws could not apply to a religious institution’s decision on whom to employ as a “minister.” The court refused to set forth a test for determining whether a position qualifies as a “ministerial” position but it did hold that the teaching position at issue in that case was ministerial and, thus, the teacher could not bring a discrimination lawsuit against Hosanna-Tabor.

The attorneys who represent Mr. Barrett argue that the food services director position he sought, unlike the teaching position at issue in Hosanna-Tabor, was not ministerial. “Religiously affiliated entities do not have a free pass to do as they please in how they treat employees, particularly when it comes to our important laws against discrimination,” said Bennett Klein, a senior attorney with Gay & Lesbian Advocates & Defenders (GLAD). “Our laws carefully balance the important values of religious liberty and non-discrimination. When Fontbonne Academy fired Matt from a job that has nothing to do with religion, they came down on the wrong side of the law.”

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Yesterday, the U.S. Senate passed the Employment Non-Discrimination Act (ENDA) on a vote of 64-32. The bill would make it illegal for employers to discriminate against employees and applicants because of their sexual orientation or gender identity. While the Maine Human Rights Act already prohibits discrimination against GLBT individuals, such discrimination is legal under federal law and in 29 states. Both of Maine’s senators voted in favor of ENDA.

“All Americans deserve a fair opportunity to pursue the American dream. Over the years, we have rightly taken a stand against workplace discrimination based on race, sex, national origin, religion, age, and disability. It is past time we ensure that all employees are judged on their talents, abilities, their hard work, and capabilities by closing an important gap in federal law as it relates to sexual orientation,” said U.S. Senator Susan Collins (R-ME). “I am pleased to be a long-time supporter and original cosponsor of ENDA. This bill deserves support as a matter of fairness and as a matter of civil rights. It is a commonsense solution, consistent with existing federal civil rights laws, and it will not place an undue burden on American employers. Moreover, it is simply the right thing to do.”

“The Employment Non-Discrimination Act is the next step in this country’s long movement toward ensuring basic civil rights protections for all of its citizens,” said U.S. Senator Angus King (I-ME). “For far too long, LGBT individuals across the country have experienced harassment or lost their jobs simply because of who they are. ENDA will bring an end to these discriminatory practices by extending basic employment protections to millions of American employees, ensuring that individuals will be judged on the basis of their talent, skills, and experience, rather than sexual orientation or gender identity. Today’s vote marks a step forward for human rights and a step forward for America.”

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Yesterday, the Senate Health, Education, Labor and Pensions Committee (HELP Committee) voted to approve the Employment Non-Discrimination Act (ENDA). ENDA would make employment discrimination on the basis of sexual orientation and gender identity illegal. ENDA passed with bi-partisan support. All of the Democrats on the HELP Committee voted for it and three Republicans also voted for it. Senate Majority Leader Harry Reid (D-NV) said he expects to bring ENDA up for a vote on the Senate floor later this year. It is unclear at this point whether John Boehner (R-OH), who is Speaker of the House of Representatives, would bring ENDA up for a vote in the House of Representatives.

“It’s mostly because of people coming out to their families, reporters and churches,” said Mara Keisling, Executive Director of the National Center for Transgender Equality, about the progress on ENDA. “Everybody knows a gay person now, and more and more people know a trans person. It’s an issue that 20 years from now, opponents are going to be ashamed to have opposed.”

Maine’s entire congressional delegation (Sen. Collins, Sen. King, Rep. Michaud, and Rep. Pingree) supports ENDA. While Maine already has a law that prohibits employment discrimination on the basis of sexual orientation and gender identity, the majority of states do not.

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The gay rights advocacy group Freedom to Work recently filed a lawsuit in Illinois against Exxon Mobil for discrimination against a gay applicant. Freedom to Work filed the lawsuit after it conducted a test to determine whether Exxon would discriminate against a gay applicant. In connection with this test, Freedom to Work sent test resumes to Exxon in response to a job posting for an administrative position. The two test resumes were designed so that Freedom to Work could gauge whether Exxon would treat a lesbian applicant differently than a straight applicant.

The test resume of the lesbian applicant implicitly indicated that she was a lesbian because it described her significant involvement in a LGBT rights organization. A comparison between the lesbian applicant’s resume and the straight applicant’s resume showed that the lesbian applicant was clearly better qualified for the position than the straight applicant. Despite this disparity in qualifications, Exxon actively pursued the straight applicant to invite her for an interview but, even when the straight applicant failed to respond to repeated contacts from Exxon, it never invited the better-qualified lesbian applicant for an interview.

Freedom to Work engaged in this testing and filed its lawsuit after Exxon again refused to adopt prohibitions against sexual orientation discrimination in its official equal employment opportunity statement. “Exxon Mobil says it doesn’t discriminate. If so, all they have to do is adopt the same nondiscrimination policy that other companies have and we’ll settle the case,” said president of Freedom to Work, Tico Almeida. “I hope they don’t decide to waste shareholder money by fighting it.”

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Last month, a federal court in Ohio held that a jury could reasonably find that Ohio Bell Telephone Co. discriminated against a former employee on the basis of his sex because he did not conform to traditional gender norms. The former employee, Jason Koren, was a gay man who got married in Massachusetts and changed his last name to Koren, which was the last name of his husband. After he got married, one of his managers said that she would not recognize Koren’s marriage or the change of his name. She intentionally refused to refer to him by his new name and treated him with hostility. Ohio Bell eventually fired Koren when he missed work due to the death of his father. The court held that there was evidence that Ohio Bell fired Koren because he did not conform to traditional gender norms since he changed his name to the name of his husband.

The U.S. District Court for the District of Northern Ohio, in Cleveland, held that an employer who discriminates against an employee because he does not conform to traditional gender norms engages in sex discrimination under Title VII of the Civil Rights Act. This is not a new theory of discrimination; it was established by the U.S. Supreme Court more than two decades ago. The court reasoned that women, not men, traditionally take their spouse’s last name. Since Koren, a man, took his husband’s last name, he had failed to conform to this traditional gender norm and, thus, Ohio Bell engaged in sex discrimination when it discriminated against him for taking his husband’s name.

This type of legal reasoning is necessary in Ohio because there is no federal law and no law in Ohio that prohibits discrimination against employees because of their sexual orientation. Maine, on the other hand, prohibits discrimination based on sexual orientation. If you believe that your employer has discriminated against you on the basis of your sexual orientation, you should contact an experienced employment lawyer to learn more about your rights.

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Today, a bi-partisan group of U.S. Senators, which includes Susan Collins, called for Senate hearings regarding the Employment Non-Discrimination Act (ENDA), which would make it unlawful under federal law for employers to discriminate against employees on the basis of their sexual orientation or gender identity. The text of the Senators’ letter to the Senate health and labor committee stated, in part:

“ENDA would prohibit most workplaces in the United States, with exemptions for religious institutions, private membership clubs and certain small businesses, from discriminating against potential and existing employees on the basis of their sexual orientation or gender identity. As strong supporters of this legislation, we urge you to schedule a time for Committee members to consider this proposed legislation.”

“ENDA embodies the American ideal of fairness: employees should be judged on their skills and abilities in the workplace, and not on their sexual orientation or gender identity. While some states prohibit public and private employment discrimination on the basis of sexual orientation and gender identity, recent studies have found evidence of continued widespread employment discrimination against LGBT people. Sadly, it is still legal for businesses in many states to fire someone based on their sexual orientation or gender identity.”

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