United States Supreme Court to Decide Whether Title VII Prohibits Discrimination on Basis of Sexual Orientation or Gender Identity

The United States Supreme Court has granted certiori of a series of cases raising the question of whether discrimination against an employee because of sexual orientation or gender identity constitutes discrimination “based on sex” under Title VII of the Civil Rights Act of 1964.

In two consolidated cases, the court will consider whether discrimination based on sexual orientation constitutes discrimination based on sex. In Altitude Express v. Zarda, a New York skydiving company fired Donald Zarda, who worked as an instructor for the company. Zarda contends that he was terminated because he is gay. In Bostock v. Clayton County, Georgia , the petitioner, Gerald Bostock, worked as a child-welfare-services coordinator in Clayton County, Georgia.  Bostock contends that after the county learned that he was gay, it falsely accused him of mismanaging public money so that it could fire him – when it was in fact firing him because he was gay.

RG and GR Harris Funeral Homes v. EEOC will be argued on the same day. That case presents the question of whether discrimination based on gender identity constitutes discrimination “based on sex” under Title VII.  There, a funeral home company hired Aimee Stephens, whose employment records identified Stephens as male.  Six years later, Stephens informed the company’s owner that Stephens identified as a woman and wanted to wear women’s clothing to work.  Stephens was fired because the owner believed that allowing Stephens to wear women’s clothes would both violate the funeral home’s dress code and would be “violating God’s commands.”

Currently, there is a split in the circuit courts as to whether discrimination based on sexual orientation or gender identity constitutes discrimination “based on sex” under Title VII. Courts that have extended Title VII protections to the LGBTQ community have generally done so under the Supreme Court’s decision in Price Waterhouse v. Hopkins, which held that discrimination based on the failure to conform to gender stereotypes constitutes discrimination “based on sex.”

The outcome of these decisions will have an important impact on the LGBTQ community. Not only has the current administration rolled back protections for the transgender community, but, it currently is legal in approximately fifty percent of states to discriminate against individuals based on their sexual orientation or gender identity. Thus, uniform employment protections for LGBTQ individuals are critically important.

UPDATE: On June 15, 2020, the United States Supreme Court decided the above trio of cases and held that an employer who fires an individual merely for being gay or transgender violates Title VII. See the opinion here.

Oregon Equal Pay Act Adds Needed Protections for Disabled Workers and Other Protected Classes

The 2017 Oregon Legislature amended the Oregon Equal Pay Act (HB 2005),  which prohibits employers from inquiring about the salary history of job applicants.  The law also makes it an unlawful employment practice to discriminate in compensation on the basis of an employee's protected class, which the Act defines as race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age.  Instead, compensation must be based on a bona fide factor, such as an employee's training, experience, seniority, education, or merit.  Compensation under the law includes all forms of compensation, not just wages.  The law previously only prohibited gender pay disparities, but was amended to apply to the range of protected classes above and added additional protections, such as the prohibition on salary history inquiries.

This law is expansive in that the statute of limitations begins to run each time compensation is paid under a discriminatory compensation system.  Furthermore, unlike other claims, if the discrimination is committed by a public body, the individual has 300 days (instead of 180 days) to give notice to the public body of the alleged loss or injury.

The new law provides necessary protections for disabled workers and other protected classes, because it prevents potential employers from perpetuating discrimination in compensation by former employers.  It also prevents employers from taking into consideration an employee's protected class in determining compensation, whether directly or indirectly.  Thus, disability-related conduct also should not be taken into consideration when determining compensation.

The Oregon Equal Pay Act takes effect on October 6, 2017.  Private rights of action and the non-discrimination provisions of the law take effect on January 1, 2019.  The ability to seek punitive damages under the act takes effect January 1, 2024.

Oregon Supreme Court Rules that Intellectual Disability of Offender must be Considered in Sentencing

On June 22, 2017, in State v. Ryan, the Oregon Supreme Court reversed a trial court's application of the mandatory minimum sentence to an offender with an intellectual disability, holding that the trial court erred in failing to consider the relevance of the offender's intellectual disability in determining both the gravity of the offense and the severity of its penalty. 

The Court explained that, among other factual considerations, a sentencing court should consider an offender’s level of understanding of the nature and consequences of his or her conduct and ability to conform his or her behavior to the law.  The Court therefore held that a sentencing court is required to consider an offender's intellectual disability in comparing the gravity of the offense and the severity of a mandatory prison sentence on such an offender.

In Oregon, the minimum age for establishing criminal responsibility of a child is 12 years old.  The offender in this case had an IQ of 50 and a mental capacity of a child who is 10 years old.  Despite those facts, the sentencing court had failed to consider the offender's intellectual disability in applying the minimum mandatory sentence under Measure 11.  The Oregon Supreme Court therefore remanded to the sentencing court for resentencing and proper consideration of the offender's intellectual disability in the first instance.

See the full opinion here:  http://www.publications.ojd.state.or.us/docs/S063857.pdf

Justice Department Issues Guidance to Support Criminal Justice Entities' Compliance with the ADA

On January 11, 2017, the United States Justice Department issued guidance to facilitate criminal justice entities' compliance with the Americans with Disabilities Act (ADA) during interactions with individuals with mental health disabilities or intellectual or developmental disabilities. 

Title II of the ADA applies to public entities, such as the criminal just system and provides that no qualified individual with a disability shall, because of that disability, be excluded from participation in, denied the benefits of, or subjected to discrimination in the services, programs and activities of the public entity. 

The guidance explains that, in addition to ensuring that people with mental health disabilities, intellectual disabilities, or developmental disabilities have equal opportunities to participate in services and programs, the criminal justice system should consider systemic issues and employ training programs to prepare personnel to execute their ADA responsibilities.  The guidance provides examples of how leaders have facilitated compliance with the ADA and provides best practices.

Read the full guidance here.

Supreme Court adds transgender bathroom issue to docket

Yesterday, on October 28, 2016, the United States Supreme Court granted cert in Glacouster County School Board v. G.C., the case of a transgender student who identifies as a boy and wants to be allowed to use the boys' bathroom at his high school in the state of Virginia.

Unfortunately, it appears the court may be considering more technical issues in the case, rather than the substantive issue of whether a school must treat transgender students consistent with their gender identity.  

Visit Scotusblog to learn more about the Court's grant of cert in this case.