Employee Rights Short Takes: Sex Discrimination, Retaliation And More

Here are three Short Takes about discrimination cases that made the news this month:

Jury Awards Over 1M In Sexual Orientation Discrimination Case

A Maine jury awarded over one million dollars to a man who claimed discrimination based on sexual orientation. According to the Portland Press Herald, it’s the largest award of its kind to date in Maine. The plaintiff, Guy Loranger, contended that he was repeatedly denied promotions by his  former employer, Express Jet  Airlines, because he was gay. Jurors awarded Loranger $500,000 for emotional distress, $500, 000 for punitive damages, and $47,000 in lost wages – though his attorney speculated that the overall award would be capped by the judge at $547,000 plus attorney’s fees and costs.

Maine is one of about half of the states in the U.S. which prohibits employment discrimination based on sexual orientation.

D.C. Police Officers Win Retaliation Case

Five police officers in Washington, D.C. won a lawsuit in which they alleged they were retaliated against after filing racial discrimination complaints. The officers claimed that four days after they submitted an anonymous race discrimination complaint, the unit’s employees were told they would have to reapply for their jobs. Over the next two months, the five wrote and filed formal complaints with the D.C. Office of Human Rights and the federal government. Later, each was assigned to a less desirable post. After an eleven day trial, the jury ruled in favor of all five officers and awarded $900,000 damages plus legal fees.

Title VII of the Civil Rights Act of 1964 prohibits retaliation against an employee who complains about discrimination.

Transgender Employee Wins Equal Protection Sex Discrimination Case

It’s almost unheard of for a plaintiff to win a case on summary judgment but that’s what happened in Glenn v. Brumby decided by the U.S. District Court for the Northern District of Georgia earlier this month. In its opinion, the court ruled in favor of a transgender employee whose constitutional rights were violated when she was fired after advising her employer -- the Georgia General Assembly -- of her plans to have a sex change. The plaintiff’s supervisor decided to terminate her after concluding that her transition from male to female would be too disruptive of the workplace.

The plaintiff brought suit under 42 U.S.C. s.1983 claiming a violation of the equal protection clause. The court held that she proved sex stereotyping under the U.S. Supreme Court’s Price Waterhouse decision, and that the defendant failed to come forward with proof that it terminated Glenn for a legitimate, nondiscriminatory reason. It said:

The record demonstrates that the plaintiff’s desire to come to work dressed as a woman did not comport with how [the supervisor] believed a biological male should act and that served as a basis for her termination. The record also indicated that [her supervisor] was concerned about negative reactions from others …Neither is an ‘exceedingly persuasive justification,’ and neither explanation is sufficient to survive intermediate scrutiny review.

Section 1983 was enacted as part of the Civil Rights Act of 1871. Its primary purpose was to provide a civil remedy against the abuses that were being committed in southern states, particularly by the Ku Klux Klan, in the wake of the Civil War. The law is intended to provide a civil remedy for certain violations of federal law by government officials and is often used to prove violations of the Equal Protections Clause of the Constitution.

Men Win Sex Discrimination Appeal In Ninth Circuit

Male officers can’t be excluded from applying for supervisory positions at a women’s prison according to the Ninth Circuit Court of Appeals in the recent opinion of Breiner v. Nevada Department of Corrections. The Nevada Department of Corrections adopted a policy of hiring only female correctional lieutenants at a women’s prison after an investigation revealed instances of sexual abuse by male guards.

Four male guards sued contending that the policy violated Title VII of the Civil Rights Act of 1964. The state argued that the policy fell within the bona fide occupational qualification exception in Title VII which permits gender based assignment if gender is a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. § 2000e-2(e).

The court ruled in favor of the guards and concluded that:

[The state had] not met its burden of showing a ‘basis in fact’ for concluding that all male correctional lieutenants would tolerate sexual abuse by their subordinates; that all men in the correctional lieutenant role would themselves sexually abuse inmates; or that women by virtue of their gender, can better understand the behavior of female inmates.

Title VII prohibits discrimination based on sex. Usually Title VII cases involve women claiming discrimination because of their gender. Cases where men prevail in sex discrimination cases are unusual and worth noting.

 images:  www.commondreams.org   www.wmich.edu/aviation www.google.com/imgres

Public Supports Gay Rights and Congress Should Too

In his address at the Democratic convention, Barack Obama said:

Surely we can agree that our gay and lesbian brothers and sisters deserve to visit the person they love in the hospital and to live lives free of discrimination.

Do most Americans agree?  Recent studies show that the answer appears to be yes.Surveys show that 72% of Americans support laws which prohibit employment discrimination on the basis of sexual orientation. Recent data reported by The Salt Lake Tribune indicates that even in Utah, one of the most conservative states in the country, a majority supports expanded legal protections for gay and trans gender coupes and individuals.  A poll commissioned by the Tribune of 500 registered voters found that :

56 percent of respondents favor legal protections for same-sex couples such as hospital visitation and inheritance rights and employment protections

The Equality Utah poll of 600 Utahns, also reported in the Tribune at the end of January,  found:

  • 62% supported making it illegal to fire workers because of sexual orientation
  • 56.5 supported making it illegal to deny housing because of sexual orientation
  • 63% favored providing gay and lesbian couples with hospital visitation, health insurance, and inheritance rights

Unfortunately, even though anti-discrimination laws have broad support, only 20 states have such laws in effect. That leaves most gay individuals vulnerable to lawful discrimination.  In other words, just to be clear, this means that an individual can be fired because an employer finds out he is gay and chooses to fire him for that reason.  It also means than an employer can lawfully maintain a policy of not hiring gays or lesbians.

It’s about time that the Congress get in line with the majority view of this country and pass legislation prohibiting discrimination against the gay, lesbian, and transgender community who are certainly entitled to equal opportunity just like other Americans. The Employment Non-Discrimination Act should be passed.

Image: http://www.abc.net.au/reslib/200703/r129060_424471.jpg