EEOC rules federal law prohibits discrimination based on a sexual orientation

US-EEOC-Seal_380w_crop380wThe Equal Employment Opportunity Commission ruled this week existing civil rights laws protect discrimination based on sexual orientation.

In the 3-2 decision, commissioners ruled the sex discrimination provisions of Title VII of the 1964 Civil Rights Act protect employees from discrimination because of their sexual orientation.

The independent federal commission is one of the nation’s enforcers and interpreters of federal nondiscrimination laws.

“This landmark opinion from the EEOC confirms what we have long argued in our cases: discriminating against gay, lesbian and bisexual employees violates federal law. This ruling is likely to have enormous positive effects because EEOC interpretations of Title VII are highly persuasive to the courts — they tend to be predictive,” said Greg Nevins, Counsel and Employment Fairness Strategist for Lambda Legal in a statement.

The decision should serve as precedent for future court decisions, he said.

“Given the clarity and logic of this opinion, most courts are likely to stop simply referring to old, illogical rulings about Title VII coverage. A few may disagree, but most probably will be guided by the Commission’s straightforward approach.”

In 2012, the EEOC ruled discrimination against a transgender individual is also protected under Title VII in the case Macy v. Department of Justice.

“Freedom to Work applauds this historic decision by the EEOC, and we encourage gay men, lesbians, and bisexuals who face harassment or discrimination on the job to consult an attorney and file Title VII claims with the EEOC and eventually the federal courts,” Tico Almeida, the group’s president said in a statement.

He urged LGBT activists to take further claims of nondiscrimination to the federal courts “to win workplace protections in all fifty states.”

Currently 31 states, including Texas, lack employment and housing protections based on sexual orientation and gender identity, according to a new report from the Human Rights Campaign.

Rea Carey, National LGBTQ Task Force Executive Director agreed with Almeida.

“This is another historic victory for LGBTQ people and their families. We need to further attack the scourge of discrimination in a comprehensive manner — and while LGBTQ people may file employment discrimination cases with the EEOC, we still need more. We must push for legislation that provides clear and strong protections for all LGBTQ people in every area of life — from housing to health care,” she said in a statement.

—  James Russell

More than 100 attend Senior Summit to discuss issues facing aging LGBTs

Senior Summit

The first Senior Summit for Aging LGBT was held on Saturday at Senior Source on Harry Hines Boulevard. More than 100 people attended.

Population estimates from the Census Bureau show there are about 371,000 LGBT people 45 years and older in Texas and 60,000 in Dallas County. Organizers of the summit called those figures an upcoming crisis in the LGBT community.

“We’ve been focused for 35 years on HIV/AIDS,” said organizer Cannon Flowers. “We’ve ignored trans people, elders and youth.”

Among the biggest fears addressed was gays and lesbians having to go back into the closet to live safely in assisted living or nursing facilities. As the baby boomer generation ages, more people who were never in the closet and don’t know how to live in the closet or who fought for equality refuse to live miserably pretending to be someone they’re not.

Several approaches were offered.

Rob Emery discussed plans for an Oak Lawn area assisted living facility. He said management is not a problem. Nor is financing. The biggest obstacle at this point is securing the right property. Two are currently being negotiated.

Sharyn Fein is CEO of Ed-U-Care and its Bridge Building Network supports marginalized groups like the LGBT community by encouraging healthy living choices through education, cultural sensitivity training, exploration and self- awareness. She talked about working with existing nonprofits to provide services of interest to LGBT elders.

Lambda Legal Community Educator Omar Narvaez spoke about case work his organization is doing for LGBT elders. Social Security is one of the federal programs that still doesn’t offer equal benefits to gay and straight couples.

Other speakers included Bart Poche who spoke about research going on at University of North Texas on LGBT elders and the Rev. Steve Sprinkle gave the morning’s keynote address.

A second summit dealing more specifically with some of the issues addressed in smaller breakout sessions is being planned.

—  David Taffet

Lambda Legal to file federal discrimination suit against officials of the Employee Retirement System of Texas

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Ken Upton, Lambda Legal senior staff attorney

The Employee Retirement System of Texas discriminates against its LGBT employees by not offering equal pension benefits to same-sex couples.

Lambda Legal will announce today (Friday, June 19) that it is filing suit against the state retirement plan in federal court on behalf of Texas state employees and retirees. Ken Upton, senior staff attorney for Lambda Legal who works in the Dallas office, will announce the case at the U.S. District Court for the Western District of Texas, 501 W. Fifth St., Austin.

Pensions are federally regulated and subject to federal regulations. The federal government recognizes marriages performed in marriage equality states even if the state of residence is not a marriage equality state.

—  David Taffet

BREAKING: Amendment to Indiana RFRA would include gender identity and sexual orientation

IndianaRepublican legislators in Indiana have proposed changes to the state’s controversial new Religious Freedom Restoration Act that would bar discrimination based on gender identity and sexual orientation, the Associated Press reports.

The amendment would also bar discrimination by private businesses based on race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity or United States military service.

The changes come amidst increasing vocal opposition to the state’s new law, signed by Republican Gov. Mike Pence.

But not all groups are happy.

Eric Miller, CEO of Advance America, a group that backs the current bill, denounced the move in a statement.

“The Indiana General Assembly should not destroy in less than 36 hours the Religious Freedom Restoration Act that took over 65 days to go through the legislative process earlier this year,” Miller stated. “The proposed change to Indiana’s Religious Freedom Restoration Act is not a ‘fix’ but a hammer to destroy religious freedom for Hoosiers around the state – and it was all done behind closed doors!”

Miller added if the amendment passed, it would discriminate against “Christian bakers, florists and photographers [who] would no longer have the benefit of Indiana law to help protect them from being forced by the government to participate in a homosexual wedding.”

Others opposed it for different reasons.

“This bill reduces the threat but is far less than this situation requires. It recognizes there are problems, but does not fix it as LGBT Hoosiers and others urgently need. Now that there’s broad public understanding that gay and transgender people in much of Indiana are terribly vulnerable to arbitrary discrimination by businesses, refusal of housing, and being fired just for being who they are — and even Gov. Pence has agreed that that is wrong — that unacceptable situation requires a full solution,” said Jennifer C. Pizer, national director of Lambda Legal’s Law and Policy Project, in a statement.

Pizer was joined by the Human Rights Campaign and more than 70 CEOs of technology companies in calling for changing, or outright scrapping, the bill.

“Though this legislation is certainly a step back from the cliff, this fight is not over until every person in Indiana is fully equal under the law. At the federal level and in all 50 states, the time has come in this country for comprehensive legal non-discrimination protections for LGBT people that cannot be undermined,” HRC President Chad Griffin said in a statement.

“If anything can be learned from the battle for fairness and equality in Indiana, Arkansas, and other states, it’s that LGBT people deserve to be protected from unjust discrimination,” said Max Levchin, CEO of Affirm, and the organizer of the joint statement with other CEOs. “We are proud to stand on the side of liberty and justice and call on all legislatures to add sexual orientation and gender identity as protected classes in non-discrimination protections. This will ensure that no one faces discrimination while everyone preserves their right to live out their faith.”

—  James Russell

Arkansas bans anti-discrimination laws; is Texas next?

Huffines.Hutchinson

Arkansas Gov. Asa Hutchinson, right, allowed legislation prohibiting cities and counties from enacting anti-discrimination laws protecting LGBT people to pass into law without his signature. Texas Sen. Don Huffines, R-Dallas, left, has introduced a similar bill in the Texas Legislature.

Arkansas Gov. Asa Hutchinson on Monday allowed legislation prohibiting cities and counties in his state from passing statutes and ordinances protecting LGBT people from discrimination to become law without his signature. The law, SB 202, goes into effect 90 days after the legislative session ends this summer.

Hutchinson said earlier this month that he had “reservations” about the legislation, but not enough to actually veto it. He chose instead to demonstrate those reservations by letting the bill become law without his signature. He did so despite what The Washington Post called mounting pressure from civil rights advocates nationwide.

A press release issued by a coalition of groups including the National Center for Lesbian Rights, Lambda Legal and the ACLU declared, “There is nothing but discriminatory intent here. And no valid public interest can possibly be served by allowing private businesses to discriminate based on sexual orientation, gender identity or other characteristics that might be covered by local ordinances.” Even Cher skewered Hutchinson in a Tweet, accusing him of “hanging [the] LGBT community out the dry.”

But before all you Texans start looking down your noses at those ridiculous rednecks in Arkansas, be warned: The same kind of bill has been in the Texas Legislature this session. Sen. Don Huffines, R-Dallas.

According to Equality Texas, “SB 343 would restrict the ability of local elected officials to pass or enforce ordinances, rules or regulations that are not identical to state protections, restricting local governments to only protecting the attributes covered under state law: race, color, religion, sex, familial status, or national origin.”

That means that ordinances in Fort Worth and Dallas and Houston and even in Plano that protect LGBT people from discrimination would be, in effect, rendered useless. Of course, it also means that ordinances in Houston, San Antonio and, again, Plano that protect U.S. military veterans from discrimination in housing, employment and public accommodations would also be effectively overturned. But hey, the vets have already sacrificed for their country one time; surely they’ll be willing to sacrifice their right not to be discriminated against to make sure all us evil LGBTs don’t get any protections. I mean, we are a huge threat to the American way of life, after all.

As I said, Huffines’ bill, if it becomes law, would nullify the amendment adding LGBT protections to the Dallas city charter, an amendment approved last November by 76 percent of Dallas voters. I guess overturning measures overwhelmingly approved by voters — you know, like the amendment to the Texas Constitution banning legal recognition of same-sex marriage, approved by 76 percent of Texas voters in 2005 — is ok as long as you are only overturning things that Republicans don’t like.

—  Tammye Nash

Ask Lambda Legal: Discrimination As Religion

By Jennifer Pizer, national director

Lambda Legal’s Law and Policy Project

 

Q: I was reading about a bakery that didn’t want to make a wedding cake for a gay couple because it goes against the baker’s religion. Can’t the couple just go somewhere else?

Pizer.Jennifer

Jennifer Pizer

A: Private businesses, such as bakeries and grocery stores that offer goods to the public, are usually bound by public accommodation laws. These laws say that a business that is open to the public must be open to everyone, regardless of whether the business owner or employees approve of who each customer is.

This is an important protection against discrimination because the law treats bakeries, groceries and other stores — businesses operating to make profits — differently from churches and other organizations that exist for religious purposes. If a bakery, store or restaurant were allowed to turn away gay people, it would open the floodgates to all kinds of discrimination against many different groups in all kinds of business settings, not just gay people.

For example, medical clinics often are private businesses. What if a for-profit clinic decided for religious reasons not to care for a pregnant woman because she isn’t married? Or, if a landlord believes that men should be the head of the household and refuses to rent to single mothers?

Freedom of religion is already firmly protected by the state and federal constitutions. But that freedom does not give any of us the right to discriminate against others when operating a business.

And yet, that is exactly what many lawmakers across the country are attempting to allow. Last year saw numerous bills in state legislatures aiming to expand religious rights to ignore laws. Fortunately, in Arizona, Idaho, Kansas, South Dakota and Tennessee those efforts were dropped or stopped. However, the movement pushing these bills continues.

Indiana is currently considering this type of legislation, and it illustrates why we’re worried. The intention to facilitate discrimination against gay and transgender people is all too clear. But the bill also threatens to encourage a broad range of other harms because, in other states with this kind of law, individuals have argued that non-discrimination laws, child abuse laws and domestic violence laws don’t apply to them if they have a religious objection.

As Arizona lawmakers realized after hastily approving their similar bill last year, vastly expanding religious rights in business settings would interfere with employers’ ability to manage employees who misbehave in the name of religion while badly tarnishing the state’s reputation. Thankfully, then-Gov. Jan Brewer vetoed that bill.

But now, in Indiana and other states, “discrimination as religion” bills again are trying to provide a “freedom to discriminate,” using freedom of religion as a misleading excuse. And we must remain vigilant to ensure that these harmful bills do not become law.

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If you have questions or feel that you have been discriminated against based on your sexual orientation, gender identity or HIV status, please contact our Legal Help Desk.

—  Tammye Nash

Same-sex couples ask Granade to make probate judge issue licenses; Lambda Legal urges probate judges to ignore Moore

Alabama Chief Justice Roy Moore

Alabama Chief Justice Roy Moore

 

So, I have already told you about Alabama state Supreme Court Chief Justice Roy Moore’s temper tantrum over marriage equality and how he is just gonna hold his breath til he turns blue or the big bad gay people go away.

But the same-sex couples in Alabama who want state officials to abide by the U.S. Supreme Court’s 7-2 decision not to extend a stay on a lower court ruling overturning the state’s marriage equality ban aren’t going away and giving up.

In fact, the National Center for Lesbian Rights reported today (Tuesday, Feb. 10), that four same-sex couples in Mobile asked District Judge Ginny Granade — the judge who issued TWO rulings last month overturning the Alabama marriage ban — to instruct Mobile County Probate Judge Don Davis to issue them marriage licenses.

Davis has stopped issuing marriage licenses entirely rather than issue licenses to same-sex couples. Mobile County is one of 47 of the state’s 67 counties where the probate judges are following Moore’s orders and not issuing licenses to same-sex couples.

In their request to Judge Granade, the couples explained that each of them appeared at the Davis’s Mobile offices and were denied marriage licenses, and they say they are suffering serious harm each day that they continue to be excluded from marriage.

The Alabama couples — represented by NCLR, Birmingham attorney Heather Fann and the ACLU of Alabama —  include James Strawser and John Humphrey, who previously obtained a ruling from Judge Granade declaring that Alabama’s exclusion of same-sex couples from marriage is unconstitutional.

The other three couples are Meredith Miller and Anna Lisa Carmichael, Robert Povilat and Milton Persinger, and Kristy Simmons and Marshay Safford.

NCLR Legal Director Shannon P. Minter said, “We are hopeful that a ruling on this motion will provide clarity regarding the obligations of probate judges across the state and correct the misunderstanding generated by Alabama Chief Justice Roy Moore, who has erroneously instructed those judges not to comply with the requirements of the federal Constitution. We are confident that all Alabamians, regardless of where in the state they live, will soon enjoy the freedom to marry.”

Moore claims he is the one with the authority to tell probate judges who they can and can’t give marriage licenses to, and since he was not named as a defendant in either of the two cases Granade ruled in, then the ruling doesn’t apply to him. And he has issued an administrative order telling probate judges not to issues the licenses.

Lambda Legal urges probate judges to ignore Moore

Obviously not everyone agrees with Moore that he is The Man in Charge. In fact, Lambda Legal today sent a letter to the president of the Alabama Probate Judges Association and the probate judges in those 47 counties not issuing marriage licenses to same-sex couples, urging them to pay no attention to that bigot behind the curtain.

The letter included a lot of legal talk citing Alabama case law backing up Lambda Legal’s point that “Chief Justice Moore does not have the authority to issue the administrative order” telling the probate judges not to issue marriage licenses to same-sex couples.

Greg Nivens, counsel a Lambda Legal, said, “The law is clear — all Chief Justice Moore has done is create chaos and his order is clearly out of bounds.”

Read the full letter here.

 

—  Tammye Nash

Quasney loses battle to cancer

Nikki Quasney, pictured here with her wife, Sandler, died last Thursday, Feb. 5.

Nikki Quasney, left, pictured here with her wife, Amy Sandler, died last Thursday, Feb. 5. The two were plaintiffs in the lawsuit that successfully challenged Indiana’s marriage equality ban.

Niki Quasney, one of the plaintiffs in the marriage equality lawsuit in Indiana, died Thursday, Feb. 5, after battling ovarian cancer for more than five years. She was 38 years old.

In a press release issued Sunday, Feb. 8, a spokesperson for Lambda Legal said that Quasney died with her wife, Amy Sandler, her mother and five siblings at her side. Lambda Legal represented Quasney and Sandler in their successful challenge to Indiana’s marriage equality ban.

Lambda Legal Staff Attorney Paul Castillo said in the press release: “Niki and Amy and their daughters became Indiana’s first family when they bravely joined Lambda Legal’s marriage case, which meant openly sharing very personal and painful parts of their journey together as Niki battled cancer.  They brought this case and fought so hard because they loved each other and wanted their daughters to be treated with respect, just like any other family in Indiana.

“They also fought for all same-sex couples and their children in Indiana. They never wanted to be alone in recognition of their family. They knew that by coming forward they could help accelerate equality for all same-sex couples in Indiana by demonstrating the urgency of their need for equal dignity.”

Castillo also noted: “To date, this marriage case was the fastest, from filing to victory, through a federal circuit court. The courts were touched by Niki’s and Amy’s story, and accelerated not just Indiana’s marriage cases, but Wisconsin’s as well. The opinion from the Seventh Circuit Court of Appeals was one of the most scathing attacks on marriage bans from a court. Niki and Amy’s bravery made history.

“Niki told the court: ‘If my life is cut short because of ovarian cancer, I want our children to know that their parents were treated like other married couples in their home state, and to be proud of this. I want to know what it feels like to be a legally recognized family in our community, together with Amy and our daughters.’

“Niki spent the last year of her life on earth very publicly fighting for her family and doing everything she could to make sure that her wife and daughters were protected. Although our hearts are heavy, we celebrate Niki’s life and take comfort in knowing that Niki and her family were able to know — through their own efforts — what equality feels like. We thank Niki and Amy for their courage to stand up for their family and lead the fight for marriage in Indiana. We all owe them an enormous debt of gratitude.”

—  Tammye Nash

Ask Lambda Legal: Prison Rape Elimination Act

By Jael Humphrey

Staff Attorney for Lambda Legal

 

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Jael Humphrey, staff attorney with Lambda Legal

Q: My friend was recently incarcerated in prison in Florida and I’m worried about her safety because she’s transgender. Are there laws that can protect her?

A: Unfortunately, the situation your friend is in is all too common — prisons incarcerate a transgender woman in a male, rather than a female, facility where she is at constant risk of sexual abuse and other violence. When someone is incarcerated, their health and safety becomes the responsibility of the state. But not all prisons protect the people in their custody, tolerating a culture where staff threaten, beat or sexually assault some people in custody or permit other incarcerated people to do so, just because they are transgender.

If your friend is threatened or abused, it is important that she file as soon as possible an “administrative grievance,” or complaint, that puts the facility on notice that she believes her rights have been violated. Under the Prison Litigation Reform Act, a federal law passed in 1996, people in custody who wish to file a lawsuit in federal court must first exhaust all administrative remedies available to them, sometimes within very short deadlines.

This step is crucial, because correctional facilities use the failure to exhaust administrative remedies as a reason to ask courts to throw out cases filed by people in their custody.

If she first exhausts, she may be able to sue in federal court. In October of last year, Lambda Legal filed a federal lawsuit on behalf of Passion Star, a transgender woman currently in the custody of the Texas Department of Criminal Justice, arguing that TDCJ officials are deliberately indifferent to her safety.  Passion is in constant danger of sexual assault, but TDCJ officials have ignored or made her problems worse, even though she has filed dozens of grievances, complaints and requests to be placed in safekeeping.

The Prison Rape Elimination Act, a federal law to eliminate sexual abuse of people in custody, has provisions to protect incarcerated transgender people, if it is implemented fully. Among other things, the PREA standards instruct prison officials to screen and separate particularly vulnerable people — such as transgender women in male facilities — from likely aggressors and make individualized housing decisions prioritizing gender identity and safety, not merely genital characteristics.

While most states are working to implement PREA, some states — like Texas, Florida and Indiana, instead decided to pass up funding earmarked for the prevention of sexual assault. Perhaps not coincidentally, Texas is home to five of the 10 prisons with the highest rates of reported rapes in the country.

Sign our petition urging Texas to fully implement and abide by the Prison Rape Elimination Act. See more at here.

For more information about transgender prisoners in crisis, see here.

If you have questions, or feel you have been discriminated against because of your gender identity, sexual orientation, or HIV status, contact Lambda Legal’s Help Desk at 1-866-542-8336, or see here.

 

—  Tammye Nash

Louisiana case wraps up, Mississippi being heard

Robicheaux

Louisiana plaintiffs Jon Robicheaux and Derek Pinton

The plaintiffs in the Louisiana case that was heard at 9 a.m. by the 5th Circuit Court of Appeals. The Mississippi case is currently being heard.

Erin Moore reports from New Orleans that the cases are running late.

—  David Taffet