Tuesday, December 09, 2014

Expanding The Employment Protection For Us

The Department of Labor just announced their final revision of the President’s Executive Order for employment protection for gender identity and sexual orientation to go into effect in 120 days.
Labor Department announces final rule for LGBT workplace executive order
Staff Reports
Wednesday, December 3, 2014

WASHINGTON — The U.S. Department of Labor on Wednesday announced the final rule for prohibiting discrimination against transgender federal employees and LGBT employees of federal contractors.

The rule implements an Executive Order signed by President Barack Obama on July 21.

The order bans workplace discrimination against transgender federal employees by amending a previous order issued by President Bill Clinton banning sexual orientation discrimination within the federal workforce.

In the same order, Obama established new standards for federal contractors prohibiting discrimination on the basis of sexual orientation and gender identity, which employ 20 percent of the American workforce. In so doing, the order protects 14 million more American workers from discrimination on the basis of sexual orientation and gender identity.
This is in addition to the EEOC ruling from two years ago, the EO also includes sexual orientation, but it is just for government contractors.

Of course the Republicans are in a tizzy, they want to expand the religious exemption to include companies like Hobby Lobby.

There is an interesting blog on the EEOC efforts to expand to protect lesbians, trans-people, and gays in the workplace. The blog Lexicon explains how the EEOC has sued a number of companies for discriminating against trans-people and is working to include sexual orientation to that protection,
Led by the Equal Employment Opportunity Commission (EEOC), federal agencies are beginning to focus on sexual orientation, gender identity and transgender discrimination.  While the proposed federal Employment Non-Discrimination Act, which has been introduced in every Congress since 1994, is unlikely to gain traction in the new Republican-controlled Congress, the EEOC and Department of Labor (DOL) have made lesbian, gay, bisexual and transgender (LGBT) issues an enforcement priority.

On September 25, 2014, the EEOC filed a pair of lawsuits against companies alleging discrimination against transgender employees.  Both lawsuits cite violations of Title VII of the Civil Rights Act of 1964, which provides protection against sex discrimination.  This signifies the first time that the federal government has used Title VII to target private companies for LGBT discrimination.  Additionally, in October, the EEOC filed an amicus brief urging the U.S. Court of Appeals for the Seventh Circuit to reconsider its decision in Muhammad v. Caterpillar, Inc., 767 F.3d 694 (7th Cir. 2014), that Title VII does not bar sexual-orientation discrimination.
The EEOC has advanced a gender-stereotyping theory of sex discrimination first articulated by the U.S. Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).  Rather than focus on sexual orientation discrimination per se, the EEOC has focused on gender-stereotyping arguments where, for example, an employee is penalized for behavior or mannerisms not conforming to traditional gender norms.
This is an interesting strategy, by claiming that gays and lesbians are being discriminated against because they do not fit the gender-stereotype, not because of their sexual orientation. This was the strategy that trans-people used to get the courts to extend Title VII protection to gender identity.

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