When is it sexual orientation discrimination?
A male employee now says he’s a woman — what do we do?
I have an employee that started cross-dressing. He wishes to use the women’s bathroom. He has provided a statement form his doctor that he is suffering from gender dysphoria. Are we obligated to allow him to use the women’s rest room?
Rita Risser responds:
If your state’s law protects people based on sexual orientation, then you must accommodate. You do not have to accommodate under the Americans with Disabilities Act.
I know how hard this situation may be for you and the co-workers of this individual, because a member of my family is transexual. From all the medical literature I’ve read, this is a condition that has been known to humans since the beginning of time. In many cultures, including the Native American, transexuals were honored as having two spirits. My personal feeling is that you should do all you can to educate yourself and the workers about this condition, and treat this person respectfully as the woman she sees herself to be.
Just Management
Supreme Court Gives Gays Equal Rights, Not Special Rights
In May, the U. S. Supreme Court ruled in favor of gay rights. What will be the impact of this case on employers? On its face, the case has nothing to do with employee rights. However, the language used by the Court was so sweeping, it is sure to be quoted in employment decisions of the future.
It is useful to understand the context in which the law arose. In the English common law tradition, inns were prohibited from refusing service to anyone without good reason. But the courts had a tradition of upholding many “good reasons” that today are repugnant.
For example, professional associations of white men argued they had legitimate reasons for discriminating against women and minorities, and under the common law, this was accepted.
In response, many states and cities passed laws to give historically unprotected groups the same rights everyone else has by common law. Not only do many of these laws protect women and minorities, but also people discriminated against on the basis of age, pregnancy, parenthood, custody of a minor child, political affiliation, and sexual orientation.
In the case decided by the Supreme Court, the proponents of Colorado’s law argued that it only prevented homosexuals from receiving “special rights.”
The Court disagreed. “To the contrary, … these are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.”
“Laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. … A bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
The Court concluded that Colorado’s law “classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do.”
What You Should Do: Employees are fired, denied promotions or not hired because they are gay, lesbian or bisexual. Those decisions are “born of animosity” against their sexual orientation. Those employees are “unequal to everyone else” as a result. Although their jobrights are still not certain, the Supreme Court has stated a Constitutional principle which should guide your actions.
Gay Attorneys Win for Invasion of Privacy
Two gay attorneys in separate cases, one in Ohio, the other in Colorado, recently won claims for invasion of privacy.
In the Ohio case, the attorney changed his employee benefit forms to list his male partner as his beneficiary. In the Colorado matter, the attorney told his firm he was gay and that his companion was in the hospital for AIDS. In both cases, the men were fired one week later. The attorneys in both cases also alleged that their firms told other employees they were gay.
The Ohio Court of Appeals allowed the attorney to go forward with his claim for invasion of privacy. The Colorado Court of Appeals upheld a jury verdict for invasion of privacy.
There are several types of invasion of privacy, and in these cases, two of those types were found. First, it is an invasion of privacy to use someone’s private life against them at work. Second, it is invasion of privacy to give “unreasonable publicity” to private facts.
In Stay Out of Court! The Manager’s Guide to Preventing Employee Lawsuits, Rita Risser predicted the privacy laws would be used successfully by gay, lesbian and bisexual employees to achieve protections that currently are not available under the laws of 43 states. These cases, we believe, are the beginning of a trend that will continue and receive strength as more and more courts follow suit.
GREENWOOD v. TAFT, STETTINIUS & HOLLISTER, 64 USLW 2224, 10 IER Cases 1744, 1995 WL 540221 (Ohio App., 1995); BORQUEZ v. OZER (Colo. App. 1995) 69 FEP 1415, 11 IER 496.
Husband Violated Employee Agreement by Supporting Wife’s Business
Mr. and Mrs. Rash were employed in 1994 by a Virginia insurance company. Mrs. Rash left the company and started her own competing firm. Mr. Rash was not involved, but he did support his wife in the following ways:
- he allowed her to use his credit card to make purchases for her business. The business paid him back later.
- he allowed her to use his car for business purposes.
- he allowed her to use some jointly-owned mutual funds as collateral for a business loan.
- he allowed her to run her business out of their jointly-owned home.
- he gave her $8,000 for initial expenses.
Based on this, the Virginia Supreme Court ruled in March that Mr. Rash violated his employee agreement. The agreement provided that he “shall not directly or indirectly as an owner, stockholder, director, employee, partner, agent, broker, consultant or other participant, engage in any manner in any business competing directly or indirectly” with his employer. This language is similar to the agreements many companies have their employees sign.
Same-Sex Sexual Harassment Held Illegal
As gays, lesbians and bisexuals obtain equal rights, they also are getting in positions where they have the opportunity to abuse those rights. A recent case held that it was illegal for a woman to sexually harass another woman.
The case was brought by Mrs. Williams against her supervisor, Ms. Anderson. Williams claimed that Anderson made comments about Williams’ breasts and touched her breasts.
At some point, Anderson asked Williams to go away with her. Williams rejected Anderson’s overtures so Anderson retaliated against her, by changing her assignments, threatening to fire her and physically assaulting her.
Finally Williams complained to management, but was told “you just have to put up with it.” She then sought relief from the Acting Superintendent, but he canceled each appointment once he learned that the matter involved these allegations against Anderson. Williams then filed suit and won.
This case reminds us that most victims of harassment do seek help from management. It is when management fails to take appropriate action that people file suit. It also is a good reminder to be aware of the people we entrust with the lives of employees. No one should use a management position to abuse another. Managers of managers must seek to create a respectful workplace, not one based on fear and intimidation.
Big Verdicts
$7.6 million for race discrimination. Waste Management Company in Alameda County lost this for firing an African-American employee. The branch manager said the employee was “the wrong color for the industrial market” and used racial slurs about other blacks. (Hudson v. Waste Management, Inc., Alameda County No. 726837-7, April 17, 1996)
$2 million for race discrimination. A jury in Maine ruled in favor of a Japanese-american who was fired by a new manager after 23 years of employment. The supervisor used racial slurs, the employee complained, and he was fired shortly thereafter. (Hideaki Nakai v. Wickes Lumber Co., Maine trial court, March, 1996)
$1.8 million for sex discrimination. A woman supervisor in a car sales company was demoted because young male “superstars” didn’t want to work for a woman. (Sullivan v. South Seas, Honolulu trial court, January, 1996)
Calif. Supreme Court allows Boy Scouts to discriminate
The recent California Supreme Court decision allowing the Boy Scouts to discriminate against gays and atheists has caused concern among managers and HR professionals who wonder if this case could have implications for business. The short answer is no, with one caveat.
The case was decided under California’s general civil rights bill, which prohibits discrimination by “all business establishments of every kind whatsoever.” The court held simply that the Boy Scouts were not a business establishment. This makes sense. Unlike other “clubs” which have been held to be businesses, the boy scouts do not have facilities that they make open to the public, they do not recruit members from the business community, and they have a code to which all members must pledge to abide.
Indeed, if the court had ruled that the Boy Scouts must accept people who don’t agree with their principles, the Scouts could have appealed to the U. S. Supreme Court on the grounds that their right of association under the First and Fourteenth Amendments of the federal Constitution was violated. People have the right to join together with like-minded people into clubs. Clubs can be formed with the express intent to discriminate, such as the Ku Klux Klan. Businesses on the other hand, are open to the public and therefore cannot discriminate. Nor can a business decide to, for example, be a “Christian establishment” and discriminate against customers or employees on that basis.
The one caveat of this case is for companies that conduct charity drives that may benefit the Boy Scouts. Just as a business probably would avoid supporting the Ku Klux Klan, so too you may want to avoid giving support to the Boy Scouts or any other organization that discriminates.
98 C.D.O.S. 2034CURRAN v. MOUNT DIABLO COUNCIL OF THE BOY SCOUTS OF AMERICA,
___Cal.4th___, 98 CDOS 2034 (March 23, 1998)
An analysis of the supreme court’s gay rights decision
On May 20, 1996, the U. S. Supreme Court overturned Amendment 2, passed by Colorado voters in 1992 to prohibit gay rights laws. The Court held that the law, “in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. … A law must bear a rational relationship to a legitimate governmental purpose, and Amendment 2 does not.”
Thus, when the proponents of Amendment 2 argued that it only prevents homosexuals from receiving “special rights,” the Court disagreed. “To the contrary, the amendment imposes a special disability upon those persons alone. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.”
This law “is born of animosity toward the class of persons affected. If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
The dissenting opinion, written by Justice Scalia, argues that Amendment 2 has a rational basis. But while he makes his argument, he also goes in for a some bashing — of lawyers. Here are excerpts from his opinion: “Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.”
“The Court’s stern disapproval of ‘animosity’ towards homosexuality might be compared with what an earlier Court said:
” ‘[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.’
Scalia continued, “I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war.
“But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes.”
Rita’s Opinion
Scalia is right that the decision of the Court will have far-reaching consequences. It could very well affect the upcoming court decisions in the Hawaii’s same-sex marriage case, and the proposed legislation elsewhere to deny equal protection to those marriages.
Scalia also is right that the majority opinion is political, but then so is his. It’s unfortunate, because what the debate on gay rights and religious rights needs is a well-reasoned analysis based on sound constitutional principles. Instead, we have echoes of slavery in the majority opinion and motherhood in the dissent.
We all know people who are Christian. We all know people who are gay. We may know them but not know they are Christian or gay, because many people feel they have to be in the closet about their religion or sexual orientation. Think about the people you know. I encourage you to look deeply into the question of how we all can live together.
For excerpts of this case:
An analysis of the supreme court’s gay rights decision – case excerpts.
On May 20, 1996, the U. S. Supreme Court overturned Amendment 2, passed by Colorado voters in 1992 to prohibit gay, lesbian and bisexual people from seeking “entitlement, minority status, quota preferences, protected status or claim of discrimination.” The decision was 6-3, with Justices Scalia, Rehnquist and Thomas dissenting.
The majority opinion, written by Justice Kennedy, starts off with a bang: “One century ago, the first Justice Harlan admonished this Court that the Constitution ‘neither knows nor tolerates classes among citizens.’ ” He was quoting Harlan’s dissenting opinion in Plessy v. Ferguson, an 1896 case which upheld “separate but equal” treatment of blacks as Constitutional. In this one sentence, the Court indicated that gays, lesbians and bisexuals are entitled to much of the same protections afforded blacks, who were the original beneficiaries of the 14th Amendment to the U. S. Constitution, which abolished slavery. And by quoting that landmark mistake, the Court neatly identified the proponents of Amendment 2 with the people, 100 years earlier, who had argued that blacks could be treated differently than everyone else.
In Romer v. Evans, the new Supreme Court case, the Court began by acknowledging the English common law tradition that prohibited inns from refusing service to anyone without good reason. However, the courts also had a tradition of upholding many “good reasons” that today are repugnant. For example, professional associations of white men argued they had legitimate reasons for discriminating against women and minorities, and under the common law, this was accepted. In response, many states and cities passed laws prohibiting restaurants, hotels, shops and professional offices from refusing to serve people who, the courts had held, they had good reason to refuse. The purpose of these laws was to give historically unprotected groups the same rights as everyone else has by common law.
Among the groups protected in Colorado under the municipal codes of Aspen, Boulder and Denver, were people discriminated against on the basis of age, military status, marital status, pregnancy, parenthood, custody of a minor child, political affiliation, physical or mental disability, and sexual orientation.
Thus, when the proponents of Amendment 2 argued that it only prevents homosexuals from receiving “special rights,” the Court disagreed. “To the contrary, the amendment imposes a special disability upon those persons alone… We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.”
“The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.”
“Laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
“Amendment 2 … in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. … A law must bear a rational relationship to a legitimate governmental purpose, and Amendment 2 does not.”
The Court concluded, “Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do.”
The scope of this decision goes beyond its rhetoric. As is often the case, the true impact of the majority opinion is explained in the dissenting opinion, here written by Justice Scalia. First, he thought that the English common law was irrelevant. He looked to direct U. S. Supreme Court precedent, and noted that this decision contradicts a 1986 opinion, Bowers v. Hardwick. In that case, a gay man was arrested for violating Georgia’s sodomy law. The Court upheld the right of the state to criminalize homosexual behavior. Scalia persuasively argues that if it is legal to criminalize homosexual conduct, surely it is legal to disadvantage homosexual conduct to a lesser degree. Thus, he argues, the majority decision effectively overrules the earlier precedent.
This could have far-reaching consequences. Scalia says, “The principle underlying the Court’s opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws.” If this is so, it could very well affect the upcoming court decisions in the Hawai’i same-sex marriage case, and the proposed legislation elsewhere to deny equal protection to those marriages.
Scalia also reads the Court’s opinion to say that “opposition to homosexuality is as reprehensible as racial or religious bias.” The Court did not go so far as to say that laws concerning homosexuals are subject to the “strict scrutiny” test given to race-based laws; instead, they are subject to the more lenient “rational basis” test. Thus this decision is not as far-reaching as gay rights activists had hoped.
Scalia’s main argument is that Amendment 2 has a rational basis. But while he makes his argument, he also goes in for a some bashing — of lawyers. Here are excerpts from his opinion:
“Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.”
“The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of ‘animus’ or ‘animosity’ toward homosexuality, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible-murder, for example, or polygamy, or cruelty to animals-and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers.”
Scalia discussed various precedents and then notes, “But there is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. The constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is “forever prohibited.” Polygamists, and those who have a polygamous “orientation,” have been “singled out” by these provisions for much more severe treatment than merely denial of favored status; and that treatment can only be changed by achieving amendment of the state constitutions. The Court’s disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even local-option, basis-unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals.”
“The Court’s stern disapproval of ‘animosity’ towards homosexuality might be compared with what an earlier Court (including the revered Justices Harlan and Bradley) said in … rejecting a constitutional challenge to a United States statute that denied the franchise in federal territories to those who engaged in polygamous cohabitation:
” ‘[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.’
“I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war.
“But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes.”
“When the Court takes sides in the culture wars, it tends to reflect … the views and values of the lawyer class from which the Court’s Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation’s law schools. . . . If the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant’s homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member-schools to exact from job interviewers: ‘assurance of the employer’s willingness’ to hire homosexuals. This law-school view of what ‘prejudices’ must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws.”
“Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent.”
Rita’s Opinion:
Scalia is right that the decision of the Court will have far-reaching consequences. It’s always a good idea to listen to what he says, because his opinions are usually based on sound principles and generally devoid of political considerations. For example, in the early days of the drug war, he was a vociferous opponent of drug testing as an invasion of privacy.
Thus it is no surprise to hear him lament the fact that the Court did not even discuss its earlier precedent in Bowers v. Hardwick. That decision, just 10 years ago, used rhetoric similar to Scalia’s. For example, in Bowers, Chief Justice Burger opined, “There is no such thing as a fundamental right to commit homosexual sodomy. … The proscriptions against sodomy have very ancient roots. Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judaeo-Christian moral and ethical standards. … To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”
The same language that 10 years ago was written by a member of the majority, in today’s case is contained in the dissenting opinion. What’s the difference? Bowers was a 5-4 decision. One member of that majority was replaced, and another one changed opinions in the intervening 10 years: Justice Sandra Day O’Connor. She voted to uphold the sodomy law in 1986, but voted to strike the discrimination law in 1996.
Rita’s Opinion:
Scalia is right that the majority opinion is political, but then so is his. It’s unfortunate, because what the debate on gay rights and religious rights needs is a well-reasoned analysis based on sound constitutional principles. Instead, we have echoes of slavery in the majority opinion and motherhood in the dissent.
We all know people who are Christian. We all know people who are gay. We may know them but not know they are Christian or gay, because many people feel they have to be in the closet about their religious or sexual orientation. Think about the people you know. I would like to encourage you to look deeply into the question of how we all can live together.
“Outing” gay employee held invasion of privacy
A gay man changed his employee benefit forms to list his male partner as the beneficiary of his insurance and pension benefits. Shortly thereafter, he was terminated from his employment. He alleged that personnel had revealed this information to his superiors, which was an invasion of privacy, and that he was then terminated for being gay.
The Ohio Court of Appeals held that he could not sue for wrongful termination, but he could sue for invasion of privacy.
This case reminds us that private facts are private. Revealing private information can lead to liability not only against the employer, but also the individuals who revealed the information.
Information here was correct at the time it was posted for the first time. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.