Articles Posted in Sexual Orientation Discrimination

March 23, 2018

Second Circuit Rules that Discrimination Based on Sexual Orientation is Prohibited Under Title VII

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on race or color, sex, national origin and religion. It does not specifically prohibit discrimination based on sexual orientation, however. In fact, in Zarda v. Altitude Express, Inc., the Second Circuit dismissed the plaintiff’s claims of sexual orientation-based discrimination since this type of discrimination is not covered by Title VII. On Monday, however, the Second Circuit reversed that decision, finding that discrimination based on sexual orientation is included under Title VII.

Due to the wording of Title VII, which did not explicitly list sexual orientation as a protected category with regard to workplace discrimination, employees have long been vulnerable to sexuality-based discrimination. To be clear, no federal law actually prohibited discriminatory employment practices against LGBT people. State laws were, and are, a different story. Even though the Equal Employment Opportunity Commission (EEOC) announced that it viewed sexual orientation-based discrimination as a Title VII violation, its interpretations have no authority with regard to federal law.

For years, sexuality or sexual orientation-based discrimination cases have been regularly dismissed. But as times change, workers have increasingly begun filing lawsuits for this type of discrimination. Last year, the Seventh Circuit Court of Appeals made a landmark decision in Hively v. Ivy Tech Community College, finding that sexual orientation discrimination is covered by the sex discrimination provision in Title VII. In the Hively case, the plaintiff “described a situation in which, holding all other things constant and changing only her sex,” the discrimination would not have occurred.

Trump Weighs In

A 2010 discrimination case involving Donald Zarda, a sky-diving instructor from Long Island, was found in favor of Altitude Express, his employer. According to the lawsuit, Mr. Zarda told his female sky-dive partner that he was “100 percent gay.” Her boyfriend complained to Altitude Express, and Zarda was terminated as a result. Zarda then filed his own lawsuit, but the Second Circuit affirmed the original decision. After Zarda’s death in a 2014 sky-diving accident, his appeal was continued by his estate. The Trump Administration even got involved, arguing that the protections of Title VII do not apply to sexual orientation. A MA employment law attorney can help you protect your rights if you’ve been discriminated against at work.

But the Second Circuit overturned its previous ruling in February, finding that sexual orientation discrimination is encompassed by the sex discrimination provision. Although the court admitted that this was likely not the provision’s original intent, deciding to include sexual orientation discrimination follows in line with the decision to expand other aspects of Title VII, such as including sexual harassment.

The Second Circuit’s decision holds that: “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor.” As such, employment discrimination based on sexual orientation qualifies as sex discrimination “because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”

This decision is welcome news for millions of LGBT workers, but also for anyone who wishes to see an increase in workplace justice and equality. If you are being discriminated against because of your sexual orientation, you don’t need to suffer in silence anymore. A Boston employment law attorney can help you determine how to proceed if you’ve been the victim of workplace discrimination. Continue reading

September 22, 2017

What Exactly is a Hostile Work Environment in Massachusetts?

by Altman & Altman

When your boss is a jerk, your job might be extremely unpleasant. But if your boss is a jerk to everyone, her behavior isn’t likely to create a hostile work environment, at least not in legal terms. A hostile work environment involves harassment, and harassment is defined by the EEOC as:

Unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

When harassment becomes a condition of employment, and it’s severe enough that a reasonable person would find the environment abusive, intimidating, or hostile, you may be working in a hostile work environment. A Boston employment law attorney can help you determine if the bad behavior of a supervisor or co-worker constitutes unlawful harassment.

For workplace harassment to be unlawful, the following elements must be present:

The victim belongs to a protected class.
The victim was subjected to unwanted verbal or physical conduct.
The harassment was based on the victim’s protected class.
The harassment was a condition of continued employment, or the harassment created an offensive, intimidating, or hostile work environment.

If all of the above elements are present, you probably have a harassment case on your hands. If your employer knew about the harassment, but did nothing to stop it, the employer may also be liable.

Consider the following two scenarios:

Scenario A: Tyler just moved to Boston from Alabama. His new co-workers find his southern accent amusing. They give Tyler the nickname Billy Bob and constantly mock his accent. Tyler complains to his supervisor. She laughs and says that everyone loves his accent…that’s why they imitate him. After a few more weeks of the unwelcome jokes and name calling, Tyler gets really angry. He storms into his supervisor’s office and demands that everyone stop calling him Billy Bob and mocking his accent. Tyler’s supervisor asks Tyler to calm down and says that his “aggressive tone” may be cause for termination.

Scenario B: Brenda is gay. When she arrives to work each morning, an anonymous co-worker has put a magazine cutout of a scantily-clad woman on Brenda’s desk. After several days, Brenda reports the incidents to her supervisor. The supervisor laughs it off and tells Brenda that her co-workers are just having fun. After enduring another week of the unwelcome attention, Brenda is beyond angry. She storms into her supervisor’s office and demands that the supervisor do something. This time the supervisor gets angry and tells Brenda that if she can’t handle a little joke, maybe she should find another place to work.

Unlawful or Just Unkind?

In the above scenarios, both Tyler and Brenda are victims of unwelcome behavior. However, Tyler’s “harassment” is based on his southern roots. Unfortunately, being from the south is not a protected class. Therefore, Tyler’s harassment, however frustrating and cruel, is not unlawful. Brenda, on the other hand, is being targeted for her sexual orientation, which is a protected class. If Brenda files a harassment claim against her employer, she will likely win.

In addition to being based on a protected class, harassment must also be consistent and pervasive. What does that mean? Basically, in order for a work environment to be considered hostile, the alleged harassment cannot be based on a single incident. For example, if a co-worker utters a racial or ethnic epithet on one occasion, the incident is unlikely to create a hostile work environment. While one or more employees may be offended by the racial slur, if it’s an isolated remark made by one employee, it isn’t likely to seriously affect the conditions of employment. But it really all depends on the unique circumstances of the case. If, for example, an employee utters something particularly egregious, and the employer refuses to reprimand him, it may be enough to justify a claim of harassment.

Preventing a Hostile Work Environment

Employers must take necessary steps to prevent unlawful harassment in the workplace. A complaint and grievance process should be in place so that employees know how to report unwanted behaviors, and every employee should receive anti-harassment training. Employers should take immediate action when an employee complains of harassment, and should create an environment in which employees feel comfortable about addressing their concerns.

If you are being harassed at work, inform the harasser that you want the conduct to stop immediately. Also report the harassment to management as soon as possible to prevent the problem from escalating. If your efforts to stop the harassment are unsuccessful, contact a MA employment law attorney today. Continue reading

May 12, 2017

Unequal Pay in the Massachusetts Workplace

by Altman & Altman

Here’s the thing, unequal pay in the workplace isn’t just unfair, it’s illegal. It seems like simple logic that when a woman performs the same job as a man, she should receive the same pay. But that’s rarely the case. We are certainly in a better place than we were 50, 20, or even five years ago…but we have a long way to go until equal pay is a reality for every American worker.

Equal Pay Act and Title VII

The Equal Pay Act (EPA) holds that men and women should receive equal pay if they complete equal work in the same workplace. This applies to all forms of pay, including salaries, benefits, stock options, and vacation pay. If a worker believes that her EPA rights have been violated, she must file an EPA charge within two to three years of the alleged violation, depending on the underlying circumstances. A Boston employment law attorney can help you determine if your EPA rights have been violated. Title VII of the Civil Rights Act of 1964 also makes sex-based discrimination for pay and benefits illegal. Thus, someone whose rights have been violated may have an EPA claim and a Title VII claim.

Pay Inequality Statistics

It is an unfortunate fact that American women continue to earn substantially less than their male counterparts. The statistics below illustrate just how deep this problem runs.

Women who work full time earn about 84.6 percent of what full-time male workers earn.
For African American women, it’s even worse; they earn approximately 72 cents for every dollar earned by male workers.
Latina workers suffer the most, earning 60 cents for every dollar earned by men.
Unequal pay is even an issue in female-dominated industries, such as childcare and housekeeping. In these industries, women earn approximately 95 percent of what their male counterparts earn.

Further, women must often work longer to get promoted. The following statement was taken from UrbanMinistry.org, “”women may work longer to receive the promotions that provide access to higher pay. For example, among school principals, women have an average of 3 years longer as teachers than men do.”

If you feel that your EPA or Title VII rights are being violated, it’s important to create a paper trail. Document as much as you legally can; this can include copies of published job descriptions, length of employment, and pay data. A MA employment law attorney can analyze your case to help you determine if your rights have been violated, and advise you on how to collect evidence of these violations.

Pay Secrecy is Illegal

The reality is, if the stigma of discussing pay disappeared, unequal pay would probably disappear along with it. Many companies have policies about not discussing pay, but these policies are also illegal. So-called “pay secrecy policies” have been prohibited for about 80 years, but in 2014, President Obama signed an executive order to provide further protections for employees who openly discuss their salaries. “Pay secrecy fosters discrimination and we should not tolerate it,” said Obama, “not in federal contracting or anywhere else.” Continue reading